Morales v. American Honda Motor Co., Inc., 94-5885

• Citation: 71 F.3d 531
• Decision Date: 13 September 1995
• Docket Number: No. 94-5885,94-5885
• Parties: Prod.Liab.Rep. (CCH) P 14,437 Pamela MORALES, Guardian of Gary Thompson, Plaintiff-Appellant, v. AMERICAN HONDA MOTOR COMPANY, INC., Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 531

71 F.3d 531

Prod.Liab.Rep. (CCH) P 14,437

Pamela MORALES, Guardian of Gary Thompson, Plaintiff-Appellant, v. AMERICAN HONDA MOTOR COMPANY, INC., Defendant-Appellee.

No. 94-5885.

United States Court of Appeals,

Sixth Circuit.

Argued May 22, 1995.

Decided Sept. 13, 1995. ^*

Charles C. Adams, Jr. (argued and briefed), Herren & Adams, Lexington, KY, for plaintiff-appellant.

Richard H. C. Clay (argued and briefed), Woodward, Hobson & Fulton, Louisville, KY, for defendant-appellee.

Before: KENNEDY and JONES, Circuit Judges; HOLSCHUH, District Judge. ^**

HOLSCHUH, District Judge, delivered the opinion of the court, in which JONES, J., joined. KENNEDY, J. (p. 539), delivered a separate opinion concurring in part and dissenting in part.

HOLSCHUH, District Judge.

This is a products liability action filed by Gary Thompson, by and through his guardian and mother, Pamela Morales, against American Honda Motor Co., Inc., for damages as a result of serious injuries that Gary sustained at age nine and one-half when the Honda motorcycle he was driving collided with a pickup truck. The United States District Court for the Eastern District of Kentucky granted defendant's motion for summary judgment, finding that plaintiff did not establish a reasonable inference that the alleged defects of the motorcycle were a probable cause of the accident. Plaintiff appeals the district court's grant of summary judgment and its denial of plaintiff's post-judgment motions. For the following reasons, we VACATE the district court's grant of summary judgment and REMAND.

I.

On November 9, 1991, Gary Thompson, then age nine and one-half, was seriously injured when he drove a 1988 Honda Z50R motorcycle manufactured by American Honda Motor Co., Inc., ("Honda") into the path of an oncoming pickup truck driven by Helen Graham. The accident occurred when Gary drove the motorcycle onto Mt. Hebron Road, a public road, from an unpaved farm road in Garrard County, Kentucky. There were bales of hay 5-1/2 to 6-1/2 feet high lining the farm road, and Graham did not see Gary or the motorcycle until just before the impact. Kentucky State Trooper Ronald G. Wardrip investigated the accident. He was of the opinion that Graham could not have prevented the accident and that the obstructed view contributed to the accident.

As a result of the accident, Gary sustained catastrophic injuries, including a closed head injury which caused Gary to be comatose for three weeks, permanent brain damage, severe cognitive defects, neurobehavioral problems and personality changes. Gary also suffered left hemiplegia, fractures of the left femur, left clavicle and right foot, an open compound fracture of the right tibia and a significant pelvic fracture. Gary has undergone multiple surgeries and extensive attempts at rehabilitation; nonetheless, Gary remains partially paralyzed on his left side and continues to exhibit cognitive defects and neurobehavioral problems. As of May, 1994, Gary had incurred medical expenses in excess of $320,000.00.

Gary's mother, Pamela Morales, purchased the motorcycle for Gary in December, 1988, when Gary was six years old. The owner's manual provided that this motorcycle was "designed for junior riders" and was "not recommended for children under 7 years old." The motorcycle's height from ground to seat was only 22.6 inches; it was operational It is illegal to ride this motorcycle on public streets, roads or highways. It must be ridden only in off-road areas where such activities are permitted. If it becomes necessary to cross a public roadway, remember to get off the motorcycle and push it across.

without an ignition key; and it was capable of traveling at speeds of 35-40 miles per hour. The owner's manual also contained a "message to parents" which warned against riding the motorcycle on public roads:

In addition, on the motorcycle itself was the following warning:

IMPORTANT NOTICE

THIS VEHICLE IS DESIGNED AND MANUFACTURED FOR OFF-THE-ROAD USE ONLY. IT DOES NOT CONFORM TO FEDERAL MOTOR VEHICLE SAFETY STANDARDS AND OPERATION IN PUBLIC STREETS, ROADS, OR HIGHWAYS IS ILLEGAL.

REMEMBER

--PRESERVE NATURE--RIDE SAFELY--ALWAYS WEAR A HELMET--READ OWNER'S MANUAL CAREFULLY BEFORE RIDING

Honda chief engineer Kazuo Watanabe ¹ had overall responsibility for the development of the 1988 Z50R motorcycle and personally authored the owner's manual. Watanabe stated that it was his decision that the recommended age for the motorcycle should be seven and above. Watanabe also stated that he was not aware of any testing or research done to determine if that was an appropriate age recommendation for the motorcycle. Further, Watanabe stated that he considered incorporating a safety flag into the design of the motorcycle, but decided against it. Watanabe also stated that he was not aware of the total available accident statistics involving the motorcycle, because it was not necessary for him to consider accidents caused by operator error.

In addition to Honda's warnings, Pamela Morales had established her own rules concerning the motorcycle. She stated:

The Number One rule was that he was to never, ever get on the bike to ride without adult supervision.... He was to never get on the bike without a helmet. And he was to never, ever get near a road.

Morales stated that she told Gary these rules when she bought the motorcycle in 1988, that she regularly communicated these rules to Gary, and that she even reminded Gary of the rules on the morning of the accident.

On March 24, 1993, Pamela Morales commenced this action in the Garrard County Circuit Court, Garrard County, Kentucky, asserting claims of strict liability, breach of warranty and negligence against Honda in connection with Gary's accident. Morales claimed that Honda defectively designed the motorcycle, because its small size combined with the lack of a safety flag gave the motorcycle extremely low visibility. Morales further argued that Honda negligently marketed the motorcycle and negligently failed to warn of its dangerous condition. Morales claimed that Honda's warnings were inadequate, because Honda did not explain the potential consequences of a child riding this motorcycle on the road in terms a child could understand.

Honda subsequently removed the action to the United States District Court for the Eastern District of Kentucky. Honda then moved for summary judgment, alleging, among other things, that Morales could not establish the necessary element of causation for her claims.

The district court granted summary judgment in favor of Honda, finding that Morales had the burden to establish legal causation and had failed to do so. With respect to defective design, the district court stated that Morales presented no evidence that a different design would have prevented the accident. In so finding, the district court did not consider the report of plaintiff's conspicuity witness, Michael S. Janoff, in which Janoff stated that the driver that hit Gary would have seen Gary's motorcycle for approximately four to nine additional seconds if it had been equipped with a seven-foot bicycle flag. The district court did not consider the Janoff report, because the report was not presented in the form of an affidavit as required by Fed.R.Civ.P. 56(e). The district court went on to note that even if the Court could consider the report, there was no indication that Janoff was qualified to give an expert opinion.

With respect to Morales' claims of inadequate warnings, the district court stated that "even if the owner's manual contained a stronger and more explicit statement warning the rider that a car could hit him if he rode on the road, no reasonable jury could find that Gary would have followed that warning." The district court noted that the owner's manual and the motorcycle itself warned the rider not to venture onto public roads and Morales warned Gary not to ride on the road, yet Gary disobeyed his mother and rode the motorcycle onto Mt. Hebron Road on the day of the accident.

On April 21, 1994, Morales filed motions to alter, amend or reconsider summary judgment; for oral argument on the motion to alter, amend or reconsider summary judgment; and to consider the depositions of Honda's corporate representatives and the affidavit of Pamela Morales, in which Morales states that "[h]ad I known of these dangers I would not have purchased the motorcycle for Gary." The district court denied all of Morales' postjudgment motions. Morales timely filed a notice of appeal with respect to the district court's grant of summary judgment in favor of Honda and the district court's denial of Morales' post-judgment motions.

II.

A.

We review a grant of summary judgment de novo, applying the same test as used by the district court. Brooks v. American Broadcasting Cos., Inc., 932 F.2d 495, 500 (6th Cir.1991). Under Federal Rule of Civil Procedure 56(c), summary judgment is proper if "the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Canderm Pharmacal, Ltd. v. Elder Pharmaceuticals, Inc., 862 F.2d 597, 601 (6th Cir.1988) (quoting Fed.R.Civ.P. 56(c)). The party moving for summary judgment bears the "burden of showing the absence of a genuine issue as to any material fact, and for these purposes, the [evidence submitted] must be viewed in the light most favorable to the opposing party." Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970) (footnote omitted); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party). In a motion for summary judgment, "[c]redibility determinations, the weighing of the...