Banks v. Harley-Davidson, Inc., HARLEY-DAVIDSO

• Decision Date: 15 February 1996
• Docket Number: INC,No. 95-1043,HARLEY-DAVIDSO,95-1043
• Citation: 73 F.3d 213
• Parties: Prod.Liab.Rep. (CCH) P 14,482 Jeffrey J. BANKS; Robin P. Banks, Plaintiffs-Appellants, v.; Harley-Davidson of Omaha, Inc.; Gabriel of Canada, Ltd., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 213

73 F.3d 213

Prod.Liab.Rep. (CCH) P 14,482

Jeffrey J. BANKS; Robin P. Banks, Plaintiffs-Appellants, v. HARLEY-DAVIDSON, INC.; Harley-Davidson of Omaha, Inc.;

Gabriel of Canada, Ltd., Defendants-Appellees.

No. 95-1043.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 12, 1995.

Decided Jan. 9, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied Feb. 15, 1996.

Dana Bradford, Omaha, NE, argued (James Welsh, on the brief), for appellants.

Raymond Walden, Omaha, NE, argued (Daniel Chesire, Richard Walentine, Robert Mullin, Jr., and Richard Ratz, on the brief), for appellees.

Before WOLLMAN, MAGILL, and LOKEN, Circuit Judges.

LOKEN, Circuit Judge.

In this diversity case, Jeffrey and Robin Banks appeal the district court's ¹ grant of summary judgment dismissing their damage claims for injuries suffered in a motorcycle accident. The issue is whether they presented sufficient evidence that a pre-existing defect in the motorcycle's right rear suspension unit proximately caused the accident. We affirm.

On July 7, 1991, as Jeffrey Banks drove his 1979 Harley-Davidson motorcycle into a curve on Highway N41 near Lake City, Iowa, the motorcycle suddenly fell on its right side. Banks and his passenger, Robin Banks, remained with the motorcycle as it slid across the highway and collided with a road sign. Both were seriously injured. After the accident, the driver of a trailing motorcycle, Larry Sulsberger, noticed that the right rear shock absorber and suspension unit on Banks's motorcycle had dislocated (physically separated) from the motorcycle frame.

Some months later, while repairing Banks's motorcycle, Sulsberger discovered a fracture in the weld between the right rear suspension unit and the lower eye ring which helps fasten the suspension unit to the motorcycle frame. Further investigation suggested that the weld had fractured because of a manufacturing defect--the weld could withstand only a 3,270 pound load, instead of the 5,000 pound load required by Harley-Davidson design specifications. The Banks sued the manufacturer of the motorcycle, Harley-Davidson, Inc.; the manufacturer of the shock absorber, Gabriel of Canada, Ltd.; and the firm that installed the shock absorbers in early 1987, Harley-Davidson of Omaha, Inc. The Banks alleged that this defect proximately caused their injuries.

The Banks obviously have evidence of a manufacturing defect--the substandard weld--that likely caused the weld to fracture in the suspension unit of Jeffrey Banks's motorcycle. However, because the weld site was worn smooth, a condition known as "peening," it is undisputed that the weld fracture occurred many miles before the accident, which in turn means that the motorcycle had been operated for some time with a fractured weld without apparent difficulty. The question then becomes, how could the defective weld have caused the accident? The Banks' theory is (1) the manufacturing defect caused the weld to fracture; (2) the fracture eventually caused the suspension unit to dislocate from the motorcycle; and (3) the dislocation caused the accident.

After substantial discovery, defendants moved for summary judgment. For purposes of this appeal, their relevant evidentiary submissions were an affidavit and deposition testimony by their expert, Raymond Miennert, a registered professional engineer and independent consultant with twenty-two years experience in the motorcycle manufacturing industry and forty-five years experience riding motorcycles. Miennert testified that he had reviewed the other depositions, had examined Banks's motorcycle and the scene of the accident, and had ridden a similarly equipped motorcycle having the same fractured weld through the accident site at four different speeds. Miennert then opined that (i) the weld was fractured a substantial time before the accident; (ii) a right rear suspension unit with that weld fracture would not affect the motorcycle's handling or operation; (iii) the suspension unit was designed to prevent dislocation despite a fractured weld; (iv) it would be particularly unlikely for a fractured weld to cause dislocation while two persons are riding the motorcycle because the riders' weight further compresses the spring, thereby securing the suspension unit in place; (v) Miennert's accident simulations confirmed that the force of a fall is necessary to dislocate a suspension unit having a fractured weld; and (vi) if the suspension unit had dislocated just before the accident, eyewitness Sulsberger, who was carefully watching the rear of Banks's cycle as they entered the curve, would have seen "a shower of parts" coming off the vehicle and would have seen the bike sag two or three inches, probably causing the exhaust pipe to scrape the ground. Based upon these opinions, Miennert concluded that the suspension unit became dislocated as a result of the accident, when the motorcycle struck the sign post, and that "the accident was caused by the motorcycle being ridden too fast for the conditions through that specific location which caused a loss of control."

Summary judgment is appropriate when the submissions to the court "show that there is no genuine issue as to any material fact and that the moving party is entitled to a...