Archives for posts with tag: kawasaki

In previous NinjaLaw post, the summary judgment motion on Estate of Scott W. Thompson, regarding death on a 2006 Kawasaki Ninja Motorcycle, was denied in part and granted in part, February 11, 2013: “action proceed to trial only on the “design defect” claim against KHI and KMC in Count I and the prayer for “punitive damages” on that underlying cause of action in Count VIII.”

Since then, there have been three subsequent motions decided by District Judge Mark W. Bennett, in this case No. C 11-4026-MWB

by the Personal Representatives,
Individually, Plaintiffs,

February 25, 2013 – Pretrial Motions
– includes arguments about Hearsay exceptions and whether after 45 minutes the statements of a lay witness to the accident could still be considered “excited utterances” and also regarding “recollections of statements on internet fora or in any other ‘enthusiast publications’ related to motorcycles.” With a footnote7 suggesting this may be “double hearsay” but that was not argued.

March 11, 2013 – Kawasaki’s Motion to reconsider

The Motion To Clarify concerns the scope of evidence and argument that Kawasaki may offer to show that an alleged “design defect” in the 2007 Ninja ZX-10R motorcycle that Scott Thompson was riding at the time of his accident was not a cause of his death almost three years after the accident.

March 14, 2013 – Post-deadline pretrial motions about more hearsay objections regarding use of expert depositions from Kawasaki’s previous expert:

In its Motion In Limine, Kawasaki did not identify a single statement in Mr. Okabe’s deposition that was ostensibly an “admission,” but was not “to the facts in the case” or not connected to the case by more than conjecture. On the other hand, in their Resistance and in the highlighted portions of Mr. Okabe’s deposition, the Thompsons have shown that Mr. Okabe’s Rule 30(b)(6) statements are “admissions to the facts in the case,” concerning the development and performance of the 2007 Ninja ZX-10R motorcycle and the steering damper in it, and those matters are plainly at issue in the case, so that they are connected to it by more than conjecture. Id. This objection to the use of Mr. Okabe’s Rule 30(b)(6) deposition in the Thompsons’ case-in-chief on the ground that the deposition is hearsay not within a Rule 801(d)(2) exception is, consequently, overruled.

So all this is months ago, does anyone know if this case is still on Judge Bennett’s docket? Is there a trial coming or have the parties already settled? maybe more motions?

by the Personal Representatives, RANDY W. THOMPSON and VICKY J. THOMPSON,
and RANDY W. THOMPSON and VICKY J. THOMPSON, Individually, Plaintiffs,

No. C 11-4026-MWB


Decided February 11, 2013, opinion by District Judge Mark W. Bennett:

At about sunset on March 21, 2009, Scott Thompson was riding his 2007 Kawasaki Ninja ZX-10R motorcycle in a convoy with two friends on county road K-22 in Plymouth County, Iowa. One of Thompson’s friends, Dave Lachioma, who was also riding a motorcycle, led the convoy, the other friend, Michael Welter, followed in his car, and Thompson brought up the rear on his motorcycle. While driving northbound on K-22, Thompson passed Welter, who was driving at 60 to 65 mph. A few seconds after Thompson passed him, Welter observed the taillight of Thompson’s motorcycle wobble from side to side. Although Welter observed that it looked like Thompson was regaining control of his motorcycle, Thompson was tossed from the motorcycle, slid on his back, feet first, across the highway, and landed in a ditch on the west side of the highway. The motorcycle continued upright in the northbound lane for another several hundred feet, before exiting the highway on the east side. As a result of the accident, Thompson suffered a burst fracture at the T3-T4 vertebrae, causing paralysis below that level. Thompson died on December 25, 2011.

In complaint,

plaintiffs allege that Thompson’s motorcycle accident was the result of the defective design and/or manufacture of his 2007 Ninja ZX-10R motorcycle, because the steering damper on the motorcycle was insufficient and the motorcycle was not reasonably stable.


The parties requested oral arguments on the summary judgment motions. My crowded schedule has not permitted the timely scheduling of such oral arguments, and I find that the parties’ written submissions on the issues presented are sufficient to resolve the pending motions without oral arguments. Therefore, I will resolve the motions based on the parties’ written submissions.


Upon the foregoing,

1. KHI’s and KMC’s November 5, 2012, joint Motion For Partial Summary Judgment (docket no. 64) is granted in part and denied in part, as follows:

a. The Motion is granted as to the “manufacturing defect” claim in Count I, the “breach of implied warranty of fitness for a particular purpose” claim in Count II, and the “negligence” claim in Count III, but

b. The motion is denied as to the “design defect” claim in Count I, and the prayer of “punitive damages” on that underlying cause of action in Count VIII.

2. Ohlins’s November 27, 2011, Supplemental (Amended And Substituted) Motion For Summary Judgment (docket no. 71) is granted in its entirety, and Ohlins is dismissed from this action.

3. This action will proceed to trial only on the “design defect” claim against KHI and KMC in Count I and the prayer for “punitive damages” on that underlying cause of action in Count VIII.

The bank repossessed collateral including a Kawasaki Ninja motorcycle but under Wisconsin law the debtor retained some property rights prior to sale, so now in Bankruptcy proceedings the debtor’s estate has rights to that property. The banks failure to return the property was a willful violation and the bank was held in contempt.

In re: Jason R. Herbst, Debtor.

(Chapter 13) Case No. 12-11044


469 B.R. 299

April 11, 2012, Decided

Opinion by US Bankruptcy Judge Robert D. Martin:

Jason Herbst (the debtor) filed a Chapter 13 petition on February 29, 2012, and a Motion for Contempt and for Return of Property on March 6, 2012. He alleges that Talmer Bank & Trust (the bank) violated the automatic stay by refusing to return equipment that the bank repossessed prepetition.

The repossessed equipment was the subject to security agreements that provided as a remedy for default, the bank “may repossess the Property so long as the repossession does not involve a breach of the peace. [The bank] may sell, lease, or otherwise dispose of the Property as provided by law.” The debtor defaulted, and in March 2011, the bank filed a complaint for replevin in Lafayette County. A default judgment was entered against the debtor on May 16, 2011, which states:

“…Plaintiff is entitled to possess and sell the following collateral:

Machinery, vehicles, fixtures, farm machinery and equipment, shop equipment, office and record keeping equipment, parts and tools

Farm products, crops, feed, seed, fertilizer, medicines and supplies.

All government program payments.

2004 Kawasaki Ninja 250R VIN: JKADXMF164DA06034

2005 Chevrolet truck VIN: 1GCJK33215F920432

Plaintiff may sell said collateral as provided in the Security Agreements subject to this action and apply the net sale proceeds to the above stated sum adjudged due and owing from Defendant to Plaintiff…

Plaintiff shall be entitled to issuance of a Writ of Replevin upon request of plaintiff.”

Under a Writ of Replevin, the bank repossessed five items of equipment on December 8, 2011, and placed them at an auction house. There is no evidence that a sale or other disposition has yet occurred. Nor is there evidence that a contract for disposition was formed. The bank has refused to release the replevied equipment. The debtor seeks to have the bank adjudged to be in contempt for violation of the § 362(a) stay. He also seeks actual and punitive damages (including costs and attorney fees), and the return of the collateral to the debtor.


Wisconsin law indicates that the debtor retains a right of redemption as long as a sale or contract for sale has not occurred


The bank may have believed that it was legally entitled to retain possession of the collateral in light of the judgment, but a violation of the stay is “willful” even if the actor believes himself justified. Since the bank knew of the bankruptcy filing and still retained possession of the collateral, it willfully violated the stay. Therefore, the bank is in contempt until it returns the collateral.

This is the sad story of Brian Rice who died at 20 years old on a Kawasaki Ninja motorcycle he bought at Crazy Freddy’s. The Court uses the word “Ninja” 23 times in the opinion as the primary description of the motorcycle. The bike in question was a “2006 Kawasaki ZX-6R Ninja 636 C6 motorcycle” that after first mention the court refers to as the “Ninja motorcycle”. There is no apparent reason to keep to repeating “Ninja motorcycle” rather than just calling it the motorcycle, except that it highlights the ninja word.

zx-6r kawasaki ninja motorcyle

JAMES RICE, Administrator Ad Prosequendum of the Estate of BRIAN RICE, deceased, Plaintiff,

CV-07-4031 (SJF)(ARL)
2008 U.S. Dist. LEXIS 83659

Opinion by Judge Sandra J. Feurstein decided and filed October 17, 2008.

On or about April 24, 2006, Rice, who was then twenty (20) years old, purchased the subject Ninja motorcycle from Crazy Freddy’s. Rice did not have a valid license to operate motorcycles at the time of purchase. Crazy Freddy’s sold the motorcycle to Rice with “no money down” and Rice was permitted to drive the vehicle from the lot “without any appreciable instruction as to the motorcycle.”

On April 27, 2006, Rice was operating the subject motorcycle southbound on the Palisades Interstate Parkway (the “Palisades”) in the Town of Closter, State of New Jersey. When Rice was approximately seven-tenths (0.7) of a mile south of Exit 2 of the Palisades, his motorcycle left the roadway and overturned, causing Rice to be thrown from the motorcycle. Rice ultimately died from the injuries he sustained as a result of the accident.

On September 26, 2007, plaintiff commenced this action against the Kawasaki defendants and Crazy Freddy’s asserting causes of actions for negligence

plaintiff alleges, inter alia, that the Kawasaki defendants “negligently and carelessly designed and manufactured the subject motorcycle around two main goals-speed and a lightweight design-at the expense of safety considerations.” In addition, plaintiff alleges that the Kawasaki defendants “negligently and carelessly marketed and sold the subject motorcycle to the average rider or even the inexperienced rider for the purpose of enhancing profits, despite knowledge that said motorcycle was unreasonably dangerous for such riders.”

With respect to his tenth cause of action, plaintiff alleges, inter alia: “That prior to and including April 27, 2006, the defendant engaged in a misleading and deceptive practice which was directed towards consumers, including the plaintiff’s decedent, that sought to conceal the dangers inhering in the purchase of motor cycles such as the [subject Ninja motorcycle], the requisite degree of experience necessary for a purchaser to safely operate the said motorcycle and even the financing required to purchase the said motorcycle in order to make the ‘quick sale’ and enhance profits.”

The only design defect alleged by the plaintiff in his complaint is the speed and lightweight nature of the Ninja motorcycle. “A motorcycle is intended to be a light, open, maneuverable, relatively unencumbered motor vehicle; the risks of driving such a vehicle are well known to those persons who choose to operate one.” McWilliams v. Yamaha Motor Corp., U.S.A., 987 F.2d 200, 204 (3d Cir. 1993). Significantly, plaintiff does not allege that the subject Ninja motorcycle was defective because it did not have certain safety features, compare, McWilliams, 987 F.2d 200 (plaintiff alleged that the subject motorcycle was defectively designed because it did not have a heavy duty crash bar), nor does he allege that the Ninja motorcycle failed to perform the function for which it was intended. The speed and lightweight nature of the Ninja motorcycle are performance features of the motorcycle which can be controlled by the user, rather than a defect. Thus, the Ninja motorcycle’s speed and lightweight design are not, as a matter of law, design defects. See, e.g. Leslie v. United States, 986 F.Supp. 900, 909-910 (D.N.J. 1997), aff’d, 178 F.3d 1279 (3d Cir. 1999) (granting the defendant-manufacturer’s motion to dismiss plaintiffs’ design defect claim alleging that defendant’s Winchester Black Talon hollow point bullets were “defectively designed in such a manner as to open into razor sharp edges and to severely rip through and mutilate body parts of the individual shot by such bullets,” on the basis, inter alia, that plaintiffs failed to establish that the bullets were unsafe, unfit or unsuitable for their intended use within the meaning of the NJPLA since the bullets functioned precisely as intended); Marzullo v. Crosman Corp., 289 F.Supp.2d 1337, 1342 (M.D. Fla. 2003) (granting summary judgment dismissing the plaintiff’s design defect claim alleging that the muzzle velocity of the defendant’s gun enabled the BBS or pellets shot from the gun to reach speeds at which they can easily penetrate bones and vital organs on the basis that the muzzle velocity of the airgun was a function of the gun and, as a matter of law, did not constitute a design defect). Like the plaintiffs’ argument in Marzullo, plaintiff’s argument here “is analogous to arguing that a Boy Scout pocket knife is too sharp for its intended use or sharper than a reasonable scout would expect, or that a sports car is faster and more dangerous than a reasonable person would expect. These contentions would defy logic, given the inherent nature of these products. Performance features which can be controlled by the user are not necessarily design defects or unreasonably dangerous conditions. Knives can be sharpened and sports cars can be driven as fast as the driver desires. * * * [T]he user controls the performance of these products. However, the risk that careless use of these products can cause injury, * * *, remains a risk inherent in the use of the product.” Marzullo, 289 F.Supp.2d at 1342-1343, n. 6.

The obviousness of the dangers of the speed and lightweight performance features inherent in the subject Ninja motorcycle to an inexperienced rider such as Rice cannot be ascertained at the pleadings stage. Nor can the adequacy of the Kawasaki defendants’ warnings regarding those performance features of the Ninja motorcycle be ascertained at the pleadings stage. Accordingly, plaintiff is granted leave to amend his complaint to assert a failure to warn claim under the NJPLA. Plaintiff must file any amended complaint within thirty (30) days from the date of this Order or his complaint will be deemed dismissed with prejudice.

Plaintiff alleges that “in using the [subject Ninja] motorcycle, [Rice] relied upon certain statements made by the defendants herein * * * that the motorcycle he purchased was safe and fit for the use as intended;” that “the defendants * * * knew or should have known that the motorcycle * * * was not safe and not fit for the use intended;” and that in reliance on defendants’ statements Rice “purchased and operated the subject motorcycle, resulting directly in * * * fatal injuries * * *.” (Compl., PP 62-64). Although, for the reasons set forth in denying plaintiff leave to amend his complaint to allege a design defect, plaintiff, as a matter of law, cannot show that the Ninja motorcycle was not “fit for the use as intended,” plaintiff may be able to show that the Kawasaki defendants made various “affirmations of fact” regarding the safety of the motorcycle which created an express warranty. Although the Kawasaki defendants contend that plaintiff cannot allege that the Ninja motorcycle “would be safe under all circumstances, even for Rice’s misuse,” there is no allegation in the complaint that Rice misused the subject motorcycle and, thus, the express warranty claim cannot be dismissed at the pleadings stage. Accordingly, the branch of the Kawasaki defendants’ motion seeking dismissal of plaintiff’s express warranty claim is denied.

III. Conclusion

For the reasons stated herein, the branches of the Kawasaki defendants’ motion to dismiss plaintiff’s negligence, failure to warn, strict product liability, breach of implied warranty, gross negligence and violation of N.Y. Gen. Bus. Law § 349 claims is granted and those claims are dismissed; and the motion is otherwise denied. Plaintiff’s application for leave to amend the complaint is granted to the extent that plaintiff may file an amended complaint asserting a failure to warn claim under the NJPLA within thirty (30) days from the date of this Order, and the application is otherwise denied. The parties are directed to appear in my courtroom at 1010 Federal Plaza, Central Islip, New York on December 4, 2008, at 11:00 a.m. for a settlement and/or scheduling conference with authority or persons with authority to resolve this action. Further, the parties are directed to engage in good faith settlement negotiations prior to the conference.



United States District Judge

Dated: October 17, 2008

Central Islip, N.Y.

This 2004 case is about copyright of the design elements of miniature motorcycles.

KIKKER 5150 and KELLY KIKKERT, Plaintiffs, v. KIKKER 5150 USA, LLC, et al., Defendants.
No. C 03-05515 SI

2004 U.S. Dist. LEXIS 16859; Copy. L. Rep. (CCH) P28,895

Decided – August 13, 2004
Opinion by district Judge Susan Illston:

This case concerns copyrights in miniature working motorcycles. Plaintiffs Kikker 5150 and Kelly Kikkert filed their complaint on December 8, 2003 against Kikker 5150 USA, Mark Gholson, and others (defendants or counterclaimants).

At issue is the design element of miniature motorcycles. Not toys, miniature-sized, functional motor vehicles.

defendants argue that “a Formula One race car is no more copyrightable than a Ford Escort and plaintiffs’ miniature motorcycles are no more copyrightable than a Harley-Davidson Heritage Softail or a Kawasaki Ninja.” As useful articles, defendants argue, plaintiffs’ miniature motorcycles are precluded from copyright protection.

The Court mostly agrees:

The Court finds that the miniature motorcycles are useful articles and therefore not eligible for copyright protection as such.


The Court also finds, however, for the reasons discussed below, that there are genuine issues of fact concerning whether various “design elements” of the motorcycles “can be identified separately and are capable of existing independently as a work of art.”

The Court cites Fabrica Inc. v. El Dorado Corp., 697 F2d 890, 893 (9th Cir. 1983) which is a case about competing carpet companies and the potentially unfair use of a similar sales system, though the functional elements of are not copyrightable some aesthetic aspects may still be protected.


For this reason, defendant’s motion for summary judgment must be denied.


Defendants argue that the motorcycles at issue are not copyrightable and ask the Court to issue a preliminary injunction or an order to show cause why a preliminary injunction should not issue. The Court finds that the motorcycles themselves are not copyrightable, since the motorcycles are useful articles and are not subject to copyright protection. However, since the Certificates of Copyright described the nature of the works as “three-dimensional, sculptural features and design elements of miniature motorcycles,” and since the Court cannot say as a matter of law that the design elements of the motorcycles are not severable and original, the Court declines to grant the motion to summarily adjudicate the copyrights’ invalidity.

No restraining orders where issued and so the case continued, presumably to be settled because I see no subsequent published case history.

Here the Court is quoting the defendant’s reply brief to mention the Ford Escort, the Harley-Davidson Heritage Softail and the Kawasaki Ninja. And we’ve seen mentions of the Kawasaki Ninja already in the NinjaLaw Court record . The Heritage Softail appears is four Federal Opinions and the Kikker 5150 case is its second appearance, the prior also being an intellectual property case. In contrast this is the first use of the Kawasaki Ninja in an IP case and the prior cases were all mentions of the actual bike. And the Ford Escort appears in over 300 cases beginning in the early 80s.

Note: here’s a warning about the dangers of Kikker bikes

Ultimately, this Kikker 5150 case stands for principles of copyright in toys – that is, that toys are copyrightable as to the aspects that are not part of the usable functions specifically. So it is fitting that “ninja” is mentioned here, because as we know from ninja law, “ninja” is strongly related to toys.

This bankruptcy case with fraudulent credit filings, involves a Kawasaki Ninja 900 motorcyle. The question is about whether debts will be discharged in bankruptcy. The Court decides that some of the debt is and because of fraud, some of it isn’t.

CASE NO.: 02-1465-3F7, ADV. NO.: 02-131
297 B.R. 893;
2003 Bankr. LEXIS 1025; 16 Fla. L. Weekly Fed. B 253
August 12, 2003, Decided

On December 11, 2000 Carl Vasile presented Plaintiff with a bill of sale evidencing the purchase by Union Credit from Auto Temps of ten motorcycles and two cars. Included in the bill of sale were the following motorcycles for which Plaintiff has not been repaid:


5.) a 2000 Kawasaki Ninja 900 motorcycle with a $ 9,000.00 purchase price. (Pl.’s Ex. 37 at 405.) (AFC Stock No. 503.) Union Credit purchased the motorcycle for $ 4,320.00 on September 7, 2000. (Pl.’s Ex. 41 at 4140.)

2000 kawasaki ninja 900

In this year 2000 federal court opinion there are claims that an off-duty police officer was drunk when he wrecked his Ninja motorcycle (leaving a bar at four in the morning) and that the officer on the accident scene was either negligent or gave preferential treatment by not testing the driver’s blood alcohol. The law suit was brought by a female passenger, who left the bar on the back of the motorcycle and was severely injured in the accident.

MELODI M. LAMP, Plaintiff, v. CITY OF BETTENDORF, A Municipal Corporation, and WARREN J.BEINE, Defendants.
Civil No. 3-99-cv-30121
2000 U.S. Dist. LEXIS 21638
Decided – December 21, 2000

Judge Walter wrote the opinion of the district court:

On July 9, 1997 at about 4:18 a.m. Kenneth S. Koehler, an off-duty police officer for the City of Davenport, was driving his motorcycle, a 1995 Kawasaki Ninja, with Melodi Lamp as his passenger. Koehler had a learner’s permit for motorcycle operation which required he stay in sight of a licensed driver. Koehler and Lamp were involved in an single-vehicle accident after Koehler lost control of the motorcycle as he rounded a bend on a dead-end street. Lamp was thrown from the motorcycle and suffered serious injuries, including a skull fracture, closed head injury and facial scarring.

The court granted the defendants motion for summary judgment noting:

There is no evidence in the summary judgment record which would reasonably support a finding that Officer Beine acted with any intent or purpose to prevent or hinder Lamp from recovering restitution, or a civil judgment for damages against Koehler or the dram shops. The undisputed facts remain that neither Beine nor hospital personnel smelled alcohol on Koehler’s breath, a significant amount of time had elapsed, and Koehler passed the only field sobriety test Beine was able to administer. Beine’s findings in his accident report (Ex. D), that Koehler lost control of the motorcycle due to his inexperience and excessive speed are against any inference that Beine sought to protect Koehler from the civil consequences of his conduct. Even if Beine’s investigation could be viewed as slipshod to the point of recklessness, in the absence of duty neither he nor the City has any liability to Lamp.

Recall other NinjaLaw cases about Ninja Motorcycles:

Previously, we’ve seen it as seized property and vehicle for crime, this is the first Federal Court opinion referring to ninja motorcycles involved in A tragic accident and personal injury.

On March 9, 1992, a District Court in Texas decided the case of US v. One 1984 Kawasaki Ninja Motorcycle. The case is about assets seized by the government as part of a drug related offense.

1984 kawasaki ninja

Before the Court is Petitioner United States of America’s motion, filed on November 4, 1991, entitled Motion for an Order of Interlocutory Sale And For Substitution of the Res. This motion concerns specifically the Respondent 1984 Kawasaki Ninja Motorcycle, [among other property]

The issue:

various motions and pleadings present two main issues for determination:

(1) whether the United States may summarily sell the seized items; and,

(2) the proper procedure to be applied in seeking and performing such a summary sale.

The Court concludes:

In summation, the United States may proceed under the Supplemental Rules and 28 U.S.C. sections 2001-2004 in judicial forfeiture proceedings to the extent that such rules and laws are not inconsistent with the relevant portions of the Drug Control Act.

After reviewing all of the pleadings in the file, the Court is of the opinion that the Respondent Vehicles should be sold by the United States Marshal or any other person authorized to do so pursuant to Rule E(9)(c) of the Supplemental Rules and 28 U.S.C. section 2004.

This case also involved US Customs rules and Supplemental Rules for Certain Admiralty and Maritime Claims creating confusion over what could be sold but the Court ultimately ordered that the vehicles could be sold at auction for a price no less than 2/3rd of appraised value.