Archives for posts with tag: product liability

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

THE ESTATE OF SCOTT W. THOMPSON,
by the Personal Representatives,
RANDY W. THOMPSON and VICKY J. THOMPSON,
and RANDY W. THOMPSON and VICKY J. THOMPSON,
Individually, Plaintiffs,
vs.
KAWASAKI HEAVY INDUSTRIES, LTD.,
and KAWASAKI MOTORS CORP., U.S.A.,
Defendants.


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?

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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,
-against-
KAWASAKI HEAVY INDUSTRIES, LTD., KAWASAKI MOTORS CORP., U.S.A., KAWASAKI MOTORS MANUFACTURING CORP., U.S.A., and CRAZY FREDDY’S MOTORSPORTS, INC., Defendants.

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NEW YORK
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.

SO ORDERED.

SANDRA J. FEUERSTEIN

United States District Judge

Dated: October 17, 2008

Central Islip, N.Y.