DAMIAN BUTLER, individually, as administrator of the Estate of Teresa Butler and on behalf of the heirs-at-law of Teresa Butler, deceased; ALEXANDER P. COHEN, individually and on behalf of the heirs-at-law of Sheldon H. Cohen, deceased, and Virginia Cohen, deceased; GERALD Y. COHEN, individually and on behalf of the heirs-at-law of Sheldon H. Cohen, deceased, and Virginia Cohen, deceased; WILLIAM E. COHEN, individually and on behalf of the heirs-at law of Sheldon H. Cohen, deceased, and Virginia Cohen, deceased; NICOLE GATES, as next friend of M.G., minor, and heir-at-law of Ricardo Mireles, deceased; ALISHA MIRELES, individually and as next friend of T.M., minor, as heirs-at-law of Ricardo Mireles, deceased; TERRIE MYERS, as next friend of L.M., minor, and heir-at-law of Ricardo Mireles, deceased; DIANE M. SANFORD, individually, as the administrator of the Estate of Karen Kennedy and on behalf of the heirs-at-law of Karen L. Kennedy, deceased, Plaintiffs - Appellants, v. DAIMLER TRUCKS NORTH AMERICA, LLC, Defendant - Appellee. CENTER FOR AUTO SAFETY; ATTORNEYS INFORMATION EXCHANGE GROUP, Amici Curiae.
No. 22-3134
United States Court of Appeals for the Tenth Circuit
July 21, 2023
Before HOLMES, Chief Judge, HARTZ, and CARSON, Circuit Judges.
PUBLISH. Appeal from the United States District Court for the District of Kansas (D.C. No. 2:19-CV-02377-JAR-ADM).
Michael J. Kleffner (Robert T. Adams, Sarah Lynn Baltzell, and Taylor B. Markway with him on the brief), Shook, Hardy & Bacon L.L.P., Kansas City, Missouri, for Defendant - Appellee.
Larry E. Coben, Anapol Weiss, Scottsdale, Arizona, and Michael Brooks, Center for Auto Safety, Washington, D.C., for amici curiae Center for Auto Safety and Attorneys Information Exchange Group in support of Plaintiffs - Appellants.
Five people were killed when a commercial truck rear-ended a line of traffic on an interstate highway. The truck driver was prosecuted and sentenced to prison for his misconduct. The issue on this appeal is the liability, if any, of the manufacturer of the truck. Plaintiffs, suing on behalf of the heirs and estates of the decedents, contend that the manufacturer, Daimler Trucks North America, should be held liable in tort under design-defect and warning-defect theories of products liability because it failed to
I. BACKGROUND
In the afternoon of July 11, 2017, Kenny Ford was driving a Daimler-made Freightliner truck (the Freightliner) westbound on Interstate Highway 70. Mr. Ford, who had a commercial driver‘s license (CDL), was driving the Freightliner as an employee of Indian Creek Express, LLC, a Colorado-based company specializing in long-haul shipping of refrigerated foods. Indian Creek, which had been owned by Donne Jefferson and his wife since 1998, purchased the truck in 2014. Mr. Jefferson had been a CDL-licensed truck driver since 1993. He was in charge of buying trucks for Indian Creek, including the Freightliner involved here.
Mr. Ford encountered slowing and stopped traffic in a highway-construction zone in Leavenworth County, Kansas. He knew from prior trips along the same route that he was approaching a construction zone, and he saw signs that day alerting him to the zone. Nevertheless, he failed to brake in time, and the Freightliner crashed into several vehicles. As a result of the collision, five people died at the scene. Mr. Ford
Plaintiffs sued Daimler on July 10, 2019.1 “Kansas law recognizes three ways in which a product may be defective: (1) a manufacturing defect; (2) a warning defect; and (3) a design defect.” Delaney v. Deere & Co., 999 P.2d 930, 936 (Kan. 2000). Plaintiffs initially claimed that the Freightliner involved in the accident was defective in all three ways, but they later withdrew their manufacturing-defect claim. Both their design-defect and warning-defect claims are predicated on the failure to include either of two possible add-on systems as standard equipment at the time of the Freightliner‘s purchase: the Meritor WABCO OnGuard Collision Mitigation System (OnGuard) and the Bendix VORAD VS-400 Collision Warning System (VORAD). OnGuard included two collision-mitigation technologies: forward-collision warning (FCW) and automatic emergency braking (AEB). VORAD had FCW but not AEB. As OnGuard‘s maintenance manual explained, FCW would “generate an audible and visible alert when the vehicle‘s following distance [might] result in a collision.” Aplts. App., Vol. VI at 1242. (Following distance is the distance between a vehicle and a vehicle ahead of it on the road.) FCW “also generate[d] an audible and visible alert when a
As previously noted, Mr. Jefferson bought the Freightliner driven by Mr. Ford. In making this purchase he relied on information about Freightliner-brand trucks that he had gleaned not only from his experiences as a truck driver and business owner, but also from attending Daimler-run training, tours of Daimler plants, and meetings with Daimler representatives, and from reading industry publications. Mr. Jefferson ultimately made hundreds of choices about possible specifications for the Freightliner; his selections included Michelin tires, a 65-miles-per-hour maximum road speed, and a standard front-air-brake system.
When he ordered the Freightliner, Mr. Jefferson knew what OnGuard and VORAD were and that he could purchase them for his trucks. He testified, however, that there were three reasons why he chose not to purchase either system. First, both OnGuard and VORAD were made by “third part[ies],” and Mr. Jefferson “like[d] to
The district court granted Daimler‘s motion for summary judgment. See Butler, 2022 WL 2191755, at *1. After rejecting Daimler‘s preemption argument, see id. at *7–9, the court turned to Plaintiffs’ warning-defect theory, which was “based on [Daimler‘s] failure to adequately warn of the risks associated with failing to equip the Freightliner with FCW and AEB systems,” id. at *11 (internal quotation marks
Like the plaintiff in Hiner [who purchased and operated a tractor and a front-end loader], it is uncontroverted that Jefferson (the purchaser of the Freightliner) was familiar with [both the] collision mitigation systems and their purpose, but decided not to purchase those systems, despite knowing they both were available options for the Freightliner.
Further, it is uncontroverted that both Jefferson and Ford (the operator of the Freightliner) knew the risks associated with inattentive driving and/or failing to brake or stop a heavy commercial truck for slowed or stopped traffic in a construction zone. . . . Given that there is no duty to warn of dangers actually known to the user of a product, the Court concludes that [Daimler] had no duty to warn Jefferson of the risks associated with failing to equip the Freightliner with FCW or AEB technology. [Daimler] is entitled to summary judgment with respect to [Plaintiffs‘] warning-defect claim.
Id. (original brackets, footnote, and internal quotation marks omitted).
The court next addressed Plaintiffs’ design-defect claim, which was based on the theory that the “Freightliner was defective because its design did not include FCW and AEB technology as standard equipment.” Id. at *12. It noted that in Lester v. Magic Chef, Inc., 641 P.2d 353 (Kan. 1982), the Kansas Supreme Court “ruled that design-defect claims should be assessed using the so-called consumer expectations test described in Comment i to the Restatement (Second) of Torts § 402A,” that this test remains the law in Kansas, and that “[t]he relevant time for assessing a product‘s
[H]eavy trucks like the Freightliner utilize air brake systems to slow and stop the truck. Plaintiffs have not shown that the ordinary consumer of a heavy truck—a CDL-licensed driver—would have contemplated that a vehicle that was not equipped with nascent FCW or AE[B] systems was unreasonably dangerous. On the contrary, as acknowledged by Jefferson and Ford—both CDL-licensed drivers—to avoid hitting forward traffic, the driver must remain attentive, maintain a proper speed and following distance, and depress the brake pedal sufficiently in advance of forward traffic. Both the OnGuard System and VORAD System available in 2014 were merely aids to a driver accomplishing a timely stop, not the means upon which a driver could rely to do so. It is undisputed that the Freightliner‘s air brakes were fully operational at the time of the accident. Thus, under the consumer expectation test, a heavy truck with an air brake system is no more dangerous than an ordinary consumer in 2014 would consider it to be and the absence of a collision mitigation system did not render the Freightliner unreasonably dangerous or defective.
Id. (emphasis added). Thus, the district court granted summary judgment to Daimler on Plaintiffs’ design-defect claims. See id.2
Plaintiffs timely appealed.
II. DISCUSSION
“In a diversity case like this, the Erie doctrine requires federal courts to apply federal procedural law and state substantive law.” Banner Bank v. Smith, 30 F.4th 1232, 1238 (10th Cir. 2022); see Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). We review de novo the district court‘s grant of summary judgment, applying the same
We note at the outset that Plaintiffs’ briefs wholly failed to comply with this circuit‘s requirement that “[f]or each issue raised on appeal, all briefs must cite the precise references in the record where the issue was raised and ruled on.” 10th Cir. R. 28.1(A). This failure, standing alone, would justify our declining to consider Plaintiffs’ arguments. “[W]hen [an] appellant fails to provide record cites showing where [an] argument was raised below, we may assume [that] the appellant did not preserve the issue for appeal and refuse to review the alleged error.” BonBeck Parker, LLC v. Travelers Indem. Co. of Am., 14 F.4th 1169, 1177 n.4 (10th Cir. 2021) (internal quotation marks omitted). We need not rest our decision here on such grounds, although if our independent review of the district-court pleadings shows that an argument was not raised, we will consider it forfeited.
Plaintiffs first argue that the district court erred in granting summary judgment to Daimler on Plaintiffs’ design-defect claims. As the parties recognize, Kansas uses the consumer-expectations test to determine whether a design defect exists. See Delaney, 999 P.2d at 946. Under this test, a “plaintiff must show that the product is both in a defective condition and dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchased it, with the ordinary knowledge common to the community as to its characteristics.” Id. The parties also agree that in light of its focus on the ordinary consumer (as opposed to the actual consumer in a particular case), Kansas‘s consumer-expectations test is an objective test.
Plaintiffs contend that the district court committed several errors in its design–defect analysis. We address them in turn.
1. Application of the Consumer-Expectations Test
Plaintiffs begin by claiming that “[t]he district court erroneously applied a subjective standard” to their design-defect claims. Aplts. Br. at 21. We disagree with this characterization. The district court held that “Plaintiffs have not shown that the ordinary consumer of a heavy truck—a CDL-licensed driver—would have contemplated that a vehicle that was not equipped with nascent FCW or AE[B] systems was unreasonably dangerous.” Butler, 2022 WL 2191755, at *12 (emphasis added). Granted, the district court cited the testimony of Mr. Jefferson and Mr. Ford, “both CDL-licensed drivers,” in support of the proposition that “to avoid hitting forward traffic, the driver must remain attentive, maintain a proper speed and following
Three other arguments by Plaintiffs about the proper application of the ordinary–consumer standard have not been preserved for review. First, Plaintiffs contend that the ordinary consumer in this case may include people other than commercial-truck drivers (such as purchasing agents or company executives who lack experience driving heavy trucks). But Plaintiffs utterly failed to raise this argument in district court, thus forfeiting it. See Anderson v. Sprint Aerosystems Holdings, Inc., 827 F.3d 1229, 1238 (10th Cir. 2016) (a litigant forfeits an argument by not raising it in district court).
Second, Plaintiffs argue that under Kinser v. Gehl Co., 184 F.3d 1259 (10th Cir. 1999), abrogated on other grounds by Weisgram v. Marley Co., 528 U.S. 440, 453 (2000), “testimony that a product is not more dangerous than expected when used safely” is “insufficient to determine, as a matter of law, that [a product such as] the Freightliner [i]s not defective,” Aplts. Br. at 22 (internal quotation marks omitted); see
Third, Plaintiffs tell us that the ordinary consumer‘s expectations include not only the safety of the product‘s direct user but also the safety of bystanders. This argument, too, was unpreserved. To be sure, in the counterstatement of facts included in their response to Daimler‘s summary-judgment motion, Plaintiffs asserted that “Mr. Jefferson did not consider the benefit to both his truck drivers and public safety associated with equipping the Freightliner with FCW and AEB systems,” and that “Mr. Jefferson did not consider the risk of harm to his truck drivers and the public by not installing FCW and AEB systems on the Freightliner.” Aplts. App., Vol. VII at 1534. But these alleged facts were never invoked as part of an argument concerning the appropriate scope of consumer expectations. They were cited only in response to Daimler‘s contention that it could not be held liable because of the optional-equipment doctrine applied in some jurisdictions, which frees manufacturers from liability when
True, even when an issue was not preserved in district court, we can review for plain error. See Somerlott v. Cherokee Nation Distribs., Inc., 686 F.3d 1144, 1151 (10th Cir. 2012). But we undertake such review only if the appellant argues for plain error and explains why the elements of plain error have been satisfied. See id. (“Plain error is (1) error, (2) which is plain, (3) which affects substantial rights, (4) and which seriously affects the fairness, integrity, or public reputation of judicial proceedings. The burden of establishing plain error lies with the appellant.” (citation omitted)). Plaintiffs failed to do so. After Daimler raised lack of preservation in its appellate brief, Plaintiffs responded with the following footnote in their reply brief:
To be certain, to any extent [Plaintiffs] need to invoke plain-error review, the standard is clearly established here as failing to reverse the district court will entrench a plainly erroneous result. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir. 2011). (1) The district court erred in granting summary judgment based on incorrectly interpreting and applying Kansas law, (2) these errors are plain, which (3) substantially impair [Plaintiffs‘] rights to a jury trial, redress, and due process, and which (4) seriously affects the fairness, integrity, and public reputation of the judicial proceedings by depriving [Plaintiffs] of their day in court without being fully heard on issues with significant jurisprudential implications. See id.
Aplts. Reply Br. at 16 n.9. Such a belated and perfunctory effort is insufficient. See Platt v. Winnebago Indus., Inc., 960 F.3d 1264, 1273 (10th Cir. 2020) (“a conclusory assertion in [a party‘s] reply brief that the [plain-error] standard should apply,” with
2. Delaney
Plaintiffs also insist that the Kansas Supreme Court‘s decision in Delaney “show[s]” that their design-defect claims “are cognizable.” Aplts. Br. at 33. The plaintiff in Delaney sought “recovery of damages for personal injuries he sustained when a large hay bale fell on him while he was operating a tractor with a front-end loader designed and manufactured by [the defendant].” Delaney v. Deere & Co., No. 97-3321, 1999 WL 458626, at *1 (10th Cir. Jan. 19, 1999) (unpublished). The plaintiff asserted design-defect and warning-defect theories of liability. See id. The district court granted summary judgment to the defendant on both theories. See Delaney v. Deere & Co., 985 F. Supp. 1009, 1017 (D. Kan. 1997). Notably, the district court held
Plaintiffs never explain how Delaney supports their design-defect claim or how the district court erred in applying it. Their Delaney argument is:
In short, . . . [Delaney and its progeny] recognized the validity of [Plaintiffs‘] claims under Kansas law by preserving for the jury to decide: (1) whether a product‘s design is defective because equipment that would have prevented or mitigated a plaintiff‘s harm was offered as optional rather than standard equipment; and (2) whether it was a warning defect to fail to warn of the dangers of not equipping the product with the safety features offered as optional equipment. Therefore, the district court erred in its interpretation of Delaney holding that [Plaintiffs‘] defect claims were not cognizable under Kansas law. This Court and the Kansas Supreme Court recognized [Plaintiffs‘] claims as cognizable defect claims in Delaney.
Aplts. Br. at 38–39.
Delaney did not, however, purport to state that every Kansas-law design-defect claim (no matter the amount of evidence in support) must proceed to a jury trial. As far as we can tell, its only holding relevant to this appeal is that the failure of a defective-warning claim does not foreclose a defective-design claim. And Plaintiffs concede, as they must, that an issue will not go to trial if no reasonable juror could find that the evidence supports the nonmovant on that issue. See Brown Mackie Coll. v. Graham, 981 F.2d 1149, 1151 (10th Cir. 1992). Further, other than bald assertions of “validity” and “cognizab[ility],” Plaintiffs say nothing about how the district court might have incorrectly applied Delaney. Indeed, the district court expressly declined to consider the optional-equipment doctrine, see Butler, 2022 WL 2191755, at *13, which is the apparent focus of Plaintiffs’ Delaney-related arguments. This general
3. Risk-Utility Analysis
Plaintiffs further argue in their reply brief that “the district court should have considered the risk/utility of collision mitigation systems because this is a complex case involving a complex product. The district court made no mention of the risk/utility test.” Aplts. Reply Br. at 8 (citations omitted); see Delaney, 999 P.2d at 944 (“The consumer expectations test is th[e] standard in Kansas for determining whether a design defect exists. However, we also recognize the validity of risk/utility analysis as a guide in determining the expectations of consumers in complex cases.“). But this issue was not adequately raised in their opening brief on appeal. See Reedy v. Werholtz, 660 F.3d 1270, 1274 (10th Cir. 2011) (“The general rule in this circuit is that a party waives issues and arguments raised for the first time in a reply brief.” (brackets and internal quotation marks omitted)). Although Plaintiffs mentioned risk-utility analysis several times in that brief, only once did Plaintiffs suggest that the district court should have conducted that analysis—and they did so in a single sentence not directly alleging error: “The court did not consider the availability and feasibility of FCW or AEB as standard safety equipment or a risk-utility analysis based on the complexity of the Freightliner.” Aplts. Br. at 22. Moreover, even assuming that a court applying Kansas
4. Expert Testimony
Plaintiffs’ last design-defect-related claim is that the district court improperly deprived them “of the right to present expert testimony to satisfy the objective consumer expectations test,” Aplts. Br. at 52, and that “it was premature to pass judgment on [their] ability to prove the defective design of the Freightliner while expert discovery was stayed,” id. at 49. They correctly state that expert testimony may be used to support a products-liability claim under Kansas law. See, e.g., Wheeler v. John Deere Co., 935 F.2d 1090, 1100–01 (10th Cir. 1991) (design defect), questioned on other grounds by Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 970 (10th Cir. 2001); Long v. Deere & Co., 715 P.2d 1023, 1031 (Kan. 1986) (warning defect). The question is why they did not present such evidence. They explain that they did not offer any expert testimony in response to the motion for summary judgment because “[t]he parties agreed and understood [that Daimler] would raise narrowly tailored
We see no error by the district court. Recall that in the joint motion to stay discovery, the parties jointly stipulated that none of the issues raised in Daimler‘s summary-judgment brief would “require expert testimony.” Aplts. App., Vol. I at 197. An issue thus identified was the “lack of a defect as a matter of law.” Id. Appropriately, the first heading in the argument section of Daimler‘s summary-judgment brief (after the introduction to the section) was titled “Plaintiffs Cannot Prove a Defect.” Id., Vol. II at 223. One of the arguments in that section was that the Freightliner was not defectively designed under the ordinary-consumer standard because “a heavy truck with an air brake system is safe and no more dangerous than an ordinary consumer would consider it to be . . . even in the absence of a collision mitigation system.” Id. at 228 (emphasis and internal quotation marks omitted). As previously noted, Plaintiffs do not argue that this contention fell outside the scope of the joint motion. See Aplts. Br. at 50; Oral Arg. at 1:34–1:37 (Plaintiffs’ counsel says that “the parties scrupulously adhered” to the joint motion‘s limits).7
Given this context, we cannot see how “it was premature and unfair [for the district court] to grant summary judgment while expert discovery was stayed.” Aplts. Br. at 50. If Daimler “limit[ed] [its] briefing to the narrow boundaries of the issues” identified in the joint motion, and if the district court‘s design-defect analysis merely accepted an argument made by Daimler, then it necessarily follows that the district court also limited itself “to the narrow boundaries of the issues” listed in the joint motion. Id. And given the stipulation that these issues did not require expert testimony, Plaintiffs can hardly now complain that “the district court improperly deprived [them] of the right to present expert testimony.” Id. at 52; see Los Alamos Study Grp. v. U.S. Dep‘t of Energy, 692 F.3d 1057, 1064 (10th Cir. 2012) (“A party cannot ask the district
In addition, Plaintiffs have never explained what expert testimony they would have provided. In district court they simply stated a handful of times that particular issues “would be ripe for expert consideration,” Aplts. App., Vol. VII at 1519, or that certain facts would be “addressed by expert testimony,” id. at 1532 n.1. And they are no more specific on appeal. Thus, even if the district court somehow improperly prevented them from presenting expert evidence in response to the summary-judgment motion, they have not shown any prejudice from such error. We therefore reject Plaintiffs’ argument that they were improperly denied the right to present expert testimony.
B. Warning-Defect Claims
Plaintiffs also advance a warning-defect theory: Daimler “failed to warn [Mr. Jefferson and Mr. Ford] of the specific latent risks associated with failing to equip the Freightliner with FCW and AEB systems.” Aplts. Br. at 42 (emphasis omitted). Addressing this claim requires us to review some aspects of Kansas law on the duty to warn.
“Under Kansas law, the standard for determining whether a warning is adequate is whether it is reasonable under the circumstances.” Ralston, 275 F.3d at 975 (internal quotation marks omitted). The Kansas Products Liability Act also specifies three “categories which exclude a duty to warn“: (1) “warnings related to precautionary conduct that a reasonable user or consumer would take for protection“; (2) “precautions
Plaintiffs give two reasons for us to reverse the summary judgment against them on their failure-to-warn claim. We reject them both.
1. Procedural Unfairness
Plaintiffs contend that neither they nor Daimler raised or addressed whether Daimler had a duty to warn, yet “the [district] court‘s ultimate decision was [that] there was no duty to warn.” Aplts. Br. at 50. They point out that the word duty does not appear in Daimler‘s motion for summary judgment; that it “only appears twice in the memorandum in support [of the motion], both in reference to a manufacturer‘s design
We agree that a district court should not grant a motion for summary judgment on a ground not raised by the movant without at least providing notice and an opportunity to respond. See Oldham v. O.K. Farms, Inc., 871 F.3d 1147, 1150–52 (10th Cir. 2017) (reversing where “the district court gave no notice that it intended to grant [the defendant‘s] summary judgment motion on a basis that was not raised by [the defendant],” the plaintiff had no “time to respond to this decision,” and the record showed that the plaintiff “was prejudiced by this lack of notice and opportunity to respond“). But that is not what happened in this case.
Despite the failure to use the word duty, we think that Daimler‘s brief in support of its motion for summary judgment sufficiently raised the duty-to-warn issue. Daimler argued that “[u]nder Kansas law, a manufacturer need not warn about known risks, nor must it ‘advise of the availability of a new safety feature when the danger alleviated by the feature is apparent.’ Hiner v. Deere & Co., Inc., 340 F.3d 1190, 1197 (10th Cir. 2003).” Aplts. App., Vol. II at 226. Daimler said that Mr. Jefferson was familiar with the FCW and AEB upgrade options for the Freightliner but decided not to purchase them, and that “Mr. Jefferson and Mr. Ford . . . knew the risks associated with not braking or stopping a heavy truck for slowed or stopped traffic in a construction zone.”
2. Failure to Warn
Plaintiffs argue that Daimler is liable for failure to give Mr. Jefferson and Mr. Ford adequate warnings about the danger of not equipping the Freightliner with FCW and AEB. We disagree. Because the subjective test for defeating the duty to warn is satisfied here, we need not address whether the objective test would also be met.
At the time of the accident, [the plaintiff] was using the loader to carry a large round hay bale. Intending to transport the bale across his pasture to a cattle feeder, he began driving with the bale about one-and-a-half feet off the ground. As he drove, he looked off to the side at some cattle walking toward him. While his attention was diverted, the front-end loader began rising upward. The hay bale, which had been resting unrestrained on the front-end loader, rolled backward onto [the plaintiff].
Id. at 1192. We added:
Although [the plaintiff] knew about the hazards of roll-down accidents and was familiar with the available safety devices, he believed that he could avoid the falling-object danger by carrying his load at a low level. At the time of his accident, however, the front-end loader elevated on its own—it rose without conscious operator input. . . . [The plaintiff] did not know that such self-raising was possible.
Id. (internal quotation marks omitted).
The plaintiff argued that the defendant should have warned him about the self-raising risk. See id. at 1194. We agreed, emphasizing the plaintiff‘s unchallenged contention that “he thought he was avoiding the roll-down hazard by keeping the bale low, because he did not know that the front-end loader might elevate on its own.” Id. at 1195. Although the plaintiff was aware of “the general danger of unrestrained objects falling from the front-end loader,” he was unaware of “the self-raising danger,” and knowledge of the former did not preclude a warning-defect claim involving the latter. Id.
Here, the danger alleviated by FCW and AEB—namely, a serious accident resulting from negligent truck driving in a highway-construction zone—was apparent to both Mr. Jefferson and Mr. Ford. As previously mentioned, both men were CDL-licensed drivers. Plaintiffs have not challenged the district court‘s finding that both
Seeking to avoid this conclusion, Plaintiffs argue that Mr. Jefferson‘s and Mr. Ford‘s “knowledge of the risks associated with not braking or stopping the Freightliner . . . is irrelevant to [Plaintiffs‘] warnings claims.” Aplts. Br. at 42. They list “specific latent risks” about which Daimler supposedly failed to warn. Id. (emphasis omitted). In particular:
(1) there was no warning given that opting out of FCW and AEB left drivers and the public with no safety net in the event of negligent driving; (2) no warning that the Freightliner was pre-wired for FCW and AEB, so incorporating them was simply a matter of plugging in the components; (3) no warning that the federal government had been urging heavy truck manufacturers to make FCW and AEB standard equipment for several years; (4) no warning that FCW and AEB available for the Freightliner were effective and would help eliminate and reduce the severity of wrecks involving crashing into traffic ahead; and (5) no warning that [Daimler‘s then parent company] had been equipping similar trucks sold in Europe with similar technology as standard equipment since 2012.
Id. at 42–43 (footnote omitted).
Hiner answers the first item: Because “the danger alleviated by [FCW and AEB was] apparent” to Mr. Jefferson and Mr. Ford, Daimler was under no duty to “advise
Plaintiffs also assert on appeal that Mr. Jefferson lacks credibility (or at least that his credibility is a disputed question of fact requiring jury determination), and therefore the district court should not have relied on his testimony about his prior knowledge to grant summary judgment. See Roberts v. Winder, 16 F.4th 1367, 1382 (10th Cir. 2021) (“[W]eighing the witnesses’ credibility . . . is impermissible on summary judgment.“). Plaintiffs give three reasons for doubting Mr. Jefferson‘s credibility: (1) “his clear bias for the Freightliner brand,” Aplts. Br. at 47; (2) “his conflicting testimony that he would follow any recommendation made by [Daimler], and that he would accept any safety equipment [that Daimler] forced him to accept,” id. (internal quotation marks omitted); and (3) the fact that he “now elects to equip trucks he buys with collision mitigation systems to avoid this” kind of accident, id. at 48 (internal quotation marks omitted).
Not once, however, did Plaintiffs in district court challenge an asserted undisputed fact on the ground that Mr. Jefferson lacked credibility. “If a party . . . fails to properly address another party‘s assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion [for summary judgment].”
III. CONCLUSION
We AFFIRM the district court‘s judgment. We DENY Plaintiffs’ request to certify questions to the Kansas Supreme Court because the relevant state law is sufficiently clear that certification would be unwarranted. See BonBeck, 14 F.4th at 1176 n.3 (declining to certify issue “because we see a reasonably clear and principled course for resolving the issue on our own” (internal quotation marks omitted)). We