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Melissa Jenks, Individually and As G/N/F of Roderick Jenks v. New Hampshire Motor Speedway

February 13, 2012

MELISSA JENKS, INDIVIDUALLY AND AS G/N/F OF RODERICK JENKS
v.
NEW HAMPSHIRE MOTOR SPEEDWAY, BREANN THOMPSON, AND TEXTRON, INC.
v.
A.B.L, INC.



The opinion of the court was delivered by: Joseph A. DiClerico, Jr. United States District Judge

Opinion No. 2012 DNH 044

ORDER

Melissa Jenks, as the guardian and next friend of her husband, Roderick Jenks, and on her own behalf, sued New Hampshire Motor Speedway, Breann Thompson, and Textron, Inc., alleging negligence claims against Thompson and the Speedway and product liability claims against Textron. Textron brought cross claims against the Speedway and Thompson for contribution and indemnification. The Speedway and Thompson brought cross claims against Textron for contribution and indemnification and third-party claims against Textron Financial Corporation and A.B.L., Inc. ("ABL")*fn1 Textron moves for summary judgment, and ABL moves to join the motion.

I. Motion to Join Motion for Summary Judgment In its motion for summary judgment, ABL stated that it was incorporating and adopting by reference Textron's motion for summary judgment on the defense of an open and obvious danger. The court did not consider the defense in that context and instead required ABL to file an appropriate motion if it intended to join in Textron's motion. ABL has filed a motion to join in Textron's motion, which is addressed as follows.

As a preliminary matter, the court points out that memoranda in support of summary judgment are limited to twenty-five pages, and memoranda in support of reply are limited to ten pages. LR 7.1(a)(3) & 7.1(e)(1). ABL filed a twelve-page memorandum in support of its own motion for summary judgment. Textron filed a twenty-nine page memorandum in support of its motion for summary judgment, without seeking leave to exceed the limit, and then filed an eleven-page reply memorandum, also without seeking leave.*fn2

If ABL were permitted to incorporate Textron's filings into its own filings, ABL would have filed a twenty-nine page memorandum in support of summary judgment, followed by an eleven- page reply, all without leave of the court.*fn3 As is demonstrated here, the device of incorporating other filings by reference would obviate the rules limiting the length of memoranda. In the future, counsel shall not seek to incorporate other filings by reference and shall carefully follow the local rules that govern filings in this court.

In addition, the First Circuit has cautioned practitioners "that adoption of arguments by reference is a tricky business." United State v. Torres-Rosa, 209 F.3d 4, 7 (1st Cir. 2000). "The party seeking to adopt an argument has a burden, at the very least, to ensure that it is squarely before the court and to explain how and why it applies in his case." Id. ABL did not present the defense of an open and obvious danger in light of its status in the case for purposes of its own motion for summary judgment or in its motion to join Textron's motion.

As presented, ABL seeks to join in Textron's motion for purposes of the open and obvious danger defense, without further elaboration. The other parties do not object. Despite ABL's barebones approach, its motion to join Textron's motion for summary judgment is granted, and ABL will be bound by the result.

II. Textron's Motion for Summary Judgment Textron moves for summary judgment on the product liability claims against it, arguing that the danger of riding on the back of the E-Z-GO golf car was open and obvious and that Jenks lacks an expert witness to prove a defective design claim other than for an inadequate warning. Textron also contends that it is entitled to summary judgment on the contribution and indemnification claims brought by the Speedway and Thompson. Jenks, the Speedway, and Thompson object to parts of the motion.

A. Standard of Review

Summary judgment is appropriate if the moving party "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A party opposing summary judgment "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Material facts are "facts that might affect the outcome of the suit under the governing law." Id. at 248. The court considers the undisputed material facts and all reasonable inferences from those facts in the light most favorable to the nonmoving party. Avery v. Hughes, 661 F.3d 690, 693 (1st Cir. 2011).

B. Background

Rod Jenks worked at the New Hampshire Motor Speedway on July 16, 2006, with others who volunteered to participate in a charity program at the Speedway. Jenks, along with several others, was assigned to provide security in the track infield. After receiving their assignments, Jenks walked with a fellow worker, Marc MacAlpine, toward their assigned area.

Breann Thompson, a Speedway employee, drove by Jenks and MacAlpine in a golf car. MacAlpine asked Thompson to give them a ride, and she agreed. MacAlpine got into the passenger seat next to Thompson, and Jenks rode on the back of the car in an area for carrying golf bags. When Thompson swerved, Jenks fell off the back of the car, hit his head, and was seriously injured.

The golf car driven by Thompson was a two-seat, 1997 model, E-Z-GO car that was manufactured by Textron, Inc. ABL leased the golf car, along with many others, to the Speedway for the racing event. The golf car had a maximum speed between twelve and fifteen miles per hour. The car did not have a top and had an open space in the back ...


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