United States District Court, E.D. Kentucky, Northern Division, Covington
MEMORANDUM OPINION AND ORDER
L. BUNNING, UNITED STATES DISTRICT JUDGE
FACTUAL AND PROCEDURAL BACKGROUND
October 21, 2016, Diane Warndorf, an employee of the United
States Postal Service, was delivering packages in the John
Weld Peck Federal Building in Cincinnati, Ohio. (Doc. # 25 at
3). Warndorf alleges that an elevator in the
building-Elevator No. 12-failed while she was riding it.
Id. Specifically, she claims that the elevator
“malfunctioned and suddenly dropped two floors.”
Id. Warndorf alleges that the sudden movement of the
elevator caused her to be “thrown to the floor of the
elevator.” Id. She suffered ongoing injuries
as a result of the incident including neck and back injuries
as well as spinal concussion and headaches. Id.
September 13, 2017, Warndorf brought suit against Otis
Elevator Company (“Otis”) and unknown defendants
who performed work at the John Weld Peck Federal Building
claiming that the “elevator had malfunctioned just a
week [before the injury occurred] and Defendant knew or
should have known of the hazardous/dangerous
condition.” (Doc. # 1 at 1-3). With permission of the
Court, Warndorf amended her Complaint on January 23, 2018.
(Docs. # 24 and 25). The Amended Complaint named KONE, Inc.
(“KONE”), another elevator company, as an
additional defendant. (Doc. # 25). Warndorf alleges seven
claims-(1) a negligence claim under the theory of res
ipsa loquitur against all defendants, (2) a breach of
express and implied warranties claim, (3) a negligence claim
against Otis, (4) a negligence claim against KONE, (5) a
claim against Otis and KONE under a theory of respondeat
superior, (6) a gross-negligence claim for punitive
damages against Otis, and (7) a gross-negligence claim for
punitive damages against KONE. (Doc # 25 at 4-8). Otis
answered on February 6, 2018 (Doc. # 28), and KONE answered
on April 20, 2018. (Doc. # 36). On July 30, 2018, KONE filed
a Motion for Judgment on the Pleadings asking the Court to
dismiss the counts against it (counts one, two, four, five,
and seven). (Doc. # 41). Plaintiff Warndorf and Defendant
Otis both filed responses in opposition-Warndorf on August
16, 2018 and Otis on August 17, 2018. (Docs. # 42 and 43).
KONE filed its reply on August 30, 2018. (Doc. # 44). The
Motion is now ripe for the Court's review.
Standard of Review
standard of review for a 12(c) motion for judgment on the
pleadings is the same as a 12(b)(6) motion to dismiss for
failure to state a claim upon which relief can be granted.
Fed.R.Civ.P. 12; Roth v. Guzman, 650 F.3d 603, 605
(6th Cir. 2011). To survive a motion for judgment on the
pleadings, the complaint must “contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “For purposes of a motion for judgment on the
pleadings, all well-pleaded material allegations of the
pleadings of the opposing party must be taken as true, and
the motion may be granted only if the moving party is
nevertheless clearly entitled to judgment.” Tucker
v. Middleburg-Legacy Place, 539 F.3d 545, 549 (6th Cir.
2008) (quoting JPMorgan Chase Bank, N.A. v. Winget,
510 F.3d 577, 581 (6th Cir. 2007)).
Choice of Law
federal court sitting in diversity must apply the substantive
law of the state in which it is sitting. See Hanna v.
Plumer, 380 U.S. 460, 465-66 (1965) (explaining Erie
R.R. Co. v. Tompkins, 304 U.S. 64 (1938)). This includes
applying the choice-of-law rules of the state in which the
court sits. Phelps v. McClellan, 30 F.3d 658, 661
(6th Cir. 1994). Thus, in this case, the Court must apply
Kentucky's choice-of-law rules.
Kentucky choice-of-law rules “there is a strong
preference . . . for applying Kentucky law.” Wells
Fargo Fin. Leasing, Inc. v. Griffin, 970 F.Supp.2d 700,
707 (W.D. Ky. Sept. 6, 2013) (collecting cases). “[T]he
law of the forum . . . should not be displaced without valid
reasons.” Foster v. Leggett, 484 S.W.2d 827,
829 (Ky. 1972). In other words, Kentucky is “very
egocentric or protective concerning choice of law
questions.” Paine v. La Quinta Motor Inns,
Inc., 736 S.W.2d 355, 357 (Ky. Ct. App. 1987),
overruled on other grounds by Oliver v. Schultz, 885
S.W.2d 699 (Ky. 1994). In general, “a court must apply
Kentucky's law when there are not overwhelming interests
to the contrary.” Asher v. Unarco Material
Handling, Inc., 737 F.Supp.2d 662, 666 (E.D. Ky. 2010).
In Kentucky, separate choice-of-law analyses exist for claims
arising under tort and contract. Wells Fargo Fin.
Leasing, Inc., 970 F.Supp.2d at 707 (citing Saleba
v. Schrand, 300 S.W.3d 177, 181 (Ky. 2009)).
cases brought in Kentucky, Kentucky law is applied if a court
finds there are any significant contacts with
Kentucky. Brewster v. Colgate-Palmolive Co., 279
S.W.3d 142, 145 n.8 (Ky. 2009); Saleba, 300 S.W.3d
at 181; Foster, 484 S.W.2d at 829 (finding that
“if there are significant contacts-not necessarily the
most significant contacts-with Kentucky, the Kentucky law
should be applied”). A court should not determine applicable
law “on the basis of weighing of interests, but simply
on the basis of whether Kentucky has enough contacts to
justify applying Kentucky law.” Arnett v.
Thompson, 433 S.W.2d 109, 113 (Ky. Ct. App. 1968).
Underlying this choice-of-law approach for torts is the fact
“that ‘Kentucky's tort and products liability
laws are intended to protect Kentucky residents and provide
compensation when they are the injured
party.”' Hoagland v. Ford Motor Co.,
No. Civ.A. 06-615-C, 2007 WL 2789768, at *4 (W.D. Ky. Sept.
21, 2007) (quoting Custom Prods., Inc. v. Fluor Daniel
Can., Inc., 262 F.Supp.2d 767, 773. (W.D. Ky. 2003)).
tort claims alleged here were committed against [a] Kentucky
resident, which gives the claims ‘significant
contacts' with Kentucky.” Aces High Coal Sales,
Inc. v. Cmty. Tr. & Bank of W. Ga., No.
15-161-DLB-HAI, 2017 WL 3122661, at *12 (E.D. Ky. July 21,
2017). This rule is supported by the principle that tort law
was developed to protect Kentucky residents like Warndorf.
Hoagland, 2007 WL 2789768, at *4. Thus, as Warndorf
is a resident of Kentucky, Kentucky law governs the case
before the Court.
Breach of Warranty
successful breach-of-warranty claim in Kentucky requires
privity of contract between the parties to the litigation.
Compex Int'l Co., Ltd. v. Taylor, 209 S.W.3d
462, 464 (Ky. 2006); see also Tate v. Linvatec
Corp., 2:06-cv-69-DLB, 2009 WL 10676045, at *1-2 (E.D.
Ky. Nov. 5, 2009) (collecting cases). “Privity of
contract . . . is the relationship which subsists between two
contracting parties.” Barry v. Am. Cyanamid
Co., 314 F.2d 14, 17 (6th Cir. 1965). In other words,
generally there must be a contractual relationship ...