PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GENE DELANEY,

Plaintiff-Appellant,

vs.

DEERE AND COMPANY and

JOHN DEERE LIMITED,

Defendants-Appellees.

_______________________________

KANSAS TRIAL LAWYERS ASSOCIATION,

Amicus Curiae.

No. 97-3321

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

(D.C. No. CV-96-1107 JTM)

985 F. Supp. 1009

John Gehlhausen, Lamar, Colorado (Kevin L. Diehl, Ralston, Diehl & Pope, Topeka, Kansas) with him on the briefs for Plaintiff-Appellant.

Larry A. Withers (Alan R. Pfaff, with him on the brief), Kahrs, Nelson, Fanning, Hite & Kellogg, L.L.P., Wichita, Kansas, for Defendants-Appellees.

William Pauzauskie, Topeka, Kansas, for Amicus Curiae Kansas Trial Lawyers Association.

Before SEYMOUR, Chief Judge, EBEL, and KELLY, Circuit Judges.

KELLY, Circuit Judge.

Plaintiff-appellant Gene Delaney appeals the district court's grant of summary judgment to defendants-appellees Deere and Company and John Deere Limited ("Deere"). The district court dismissed Mr. Delaney's product liability claims on the basis that Kan. Stat. Ann. § 60-3305(c) (1994) does not require a manufacturer to either warn or protect against hazards that are open and obvious, and that Restatement (Second) of Torts § 402A comment j establishes as a matter of law that an adequate warning precludes a finding that a product is in defective condition. See Delaney v. Deere & Co., 985 F. Supp. 1009, 1015-16 (D. Kan. 1997).

We certified the following questions to the Supreme Court of Kansas while retaining appellate jurisdiction:

"Does Kan. Stat. Ann. § 60-3305(c) apply to a manufacturer's duty to warn or protect against hazards on a multiple use product, or only to the duty to warn, as implied by Siruta?

Does Kansas follow the portion of comment j of the Restatement (Second) of Torts § 402A, which provides that a product bearing an adequate warning is not in defective condition, or instead, would Kansas now adopt comment l, which provides that an adequate warning does not foreclose a finding that a product is defectively designed?"

Delaney v. Deere & Co., No. 97-3321, 1999 WL 458626, at *1 (10th Cir. Jan. 19, 1999) (unpublished).

In response to our questions, the Kansas Supreme Court held that (1) Kan. Stat. Ann. § 60-3305(c) applies only to the duty to warn, (2) Kansas does not follow the portion of comment j of the Restatement (Second) of Torts § 402A, which provides that a product bearing an adequate warning is not in defective condition, and (3) Kansas would not adopt comment l of the Restatement (Third) of Torts § 2 which provides that an adequate warning does not foreclose a finding that a product is defectively designed. See Delaney v. Deere & Co., No. 82,630, 2000 WL 263240, at *10, 13, 18 (Kan. Mar. 10, 2000). Kansas retains the consumer expectations test in determining whether a design defect exists. See id. at *15.

In light of the foregoing, the district court's grant of summary judgment in favor of Deere must be reversed.1

REVERSED AND REMANDED for further proceedings consistent with this opinion.