Gurley By and Through Gurley v. American Honda Motor Co., Inc.

• Decision Date: 27 March 1987
• Parties: Prod.Liab.Rep. (CCH) P 11,385 John B. GURLEY, a Minor Suing By and Through His Mother and Next Friend, Janet GURLEY; and Janet Gurley, Individually v. AMERICAN HONDA MOTOR COMPANY, INC., and Longshore Cycle Center, Inc. 85-1071.
• Court: Alabama Supreme Court

Page 358

505 So.2d 358

Prod.Liab.Rep. (CCH) P 11,385

John B. GURLEY, a Minor Suing By and Through His Mother and Next Friend, Janet GURLEY; and Janet Gurley, Individually v. AMERICAN HONDA MOTOR COMPANY, INC., and Longshore Cycle Center, Inc.

85-1071.

Supreme Court of Alabama.

March 27, 1987.

Charles D. Rosser, Tuscumbia, for appellants.

De Martenson and D. Alan Thomas of Huie, Fernambucq & Stewart, Birmingham, for appellees.

MADDOX, Justice.

Plaintiff, a minor, was injured while riding as a passenger on a Honda motorcycle. He, by and through his mother as best friend, and his mother, individually, sued American Honda Motor Company, the manufacturer, and Longshore Cycle Center, the dealer, claiming that the motorcycle was defectively manufactured and that American Honda and Longshore failed to adequately warn him of the dangers of riding the motorcycle as a passenger. The trial court granted the defendants' motion for summary judgment. We affirm.

On June 3, 1984, John Gurley was riding as a passenger on a Honda XL100S motorcycle, which was owned and operated by Dan Bevis, Jr. As Bevis and Gurley went over a set of railroad tracks on a city street in Sheffield, they hit a bump which caused Gurley's right leg to bounce backward; the leg became caught between the motorcycle's rear tire and the fender/muffler assembly, causing him to suffer burns and abrasions to his foot. At the time of the accident, both Gurley and Bevis were 14 years of age.

The motorcycle involved in this accident was a 1983 model Honda XL100S. This vehicle was designed for "dual purpose" on-road/off-road use. It was purchased from Longshore Cycle Center by Dan Bevis, Jr., approximately two weeks prior to the accident in question and was sold by Longshore exactly as it had come to it from American Honda. The gas tank had a decal affixed to it which read: "WARNING--OPERATOR ONLY--NO PASSENGERS." Another decal affixed to the gas tank read: "Remember: Preserve Nature/Always Wear Helmet/Ride Safely/Read Owner's Manual Carefully Before Riding." The inside front cover of the owner's manual read as follows:

"IMPORTANT NOTICE. OPERATOR ONLY. NO PASSENGERS.

"This motorcycle is designed and constructed as an operator-only model. The seating configuration does not safely permit the carrying of a passenger."

Bevis received the owner's manual, but did not read it or the warning on the inside front cover.

Bevis testified, in deposition, that he had read and understood the warnings on the gas tank. He had even informed Gurley that the motorcycle was built for only one rider. Gurley had operated this particular motorcycle by himself at least one week prior to the accident. Despite these warnings, Gurley and Bevis rode double on the motorcycle.

Summary judgment is proper when the pleadings and affidavits submitted by the movant show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Rule 56(c), Ala.R.Civ.P.; Bon Secour Fisheries, Inc. v. Barrentine, 408 So.2d 490 (Ala.1981). If a scintilla of evidence exists which supports the position of the party against whom the motion for summary judgment is made, summary judgment may not be granted. Harold Brown Builders, Inc. v. Jordan Co., 401 So.2d 36 (Ala.1981).

Plaintiffs contend that the Tennessee case of Evridge v. American Honda Motor Co., 685 S.W.2d 632 (Tenn.1985), controls this case. In Evridge, the Tennessee Supreme Court construed a similar "Operator Only/No Passenger" warning, and reversed the trial court's grant of summary judgment. Even assuming we should otherwise follow the reasoning of the Tennessee court, the facts in Evridge can be distinguished from the facts in this case. In Evridge, the motorcycle was a Honda Express, not a Honda XL100S. The motorcycles are not similar in design or appearance. The Honda Express is what is commonly called a "moped." The Honda XL100S is a street and trail bike. The only things the two have in common are that they are both designed for one rider and each has a warning sticker to that effect on the gas tank. In addition, the Honda Express has a chain guard and a muffler guard "which [are] flat enough to be used as foot rests for a passenger seated on the luggage rack." Evridge v. American Honda Motor Co., at 634. The Honda XL100S has no place for a passenger to put his feet. The Honda Express in Evridge was bought used, and the purchasers were given no owner's manual. Because of these differences, we are of the opinion that the Evridge case, even if it correctly states the law, does not control this case.

Plaintiffs contend that American Honda and Longshore failed to warn, or to adequately warn, John Gurley of dangers associated with riding passengers on the Honda XL100S motorcycle.

It is well settled law that in order to make out a prima facie case of negligent failure to give adequate warning, the plaintiff must provide at least a scintilla of evidence that defendant breached a duty, and that the breach proximately caused plaintiff's injury. E.R. Squibb & Sons, Inc. v. Cox, 477 So.2d 963 (Ala.1985). A manufacturer is under a duty to warn users of the dangerous propensities of a product only when such products are dangerous when put to their intended use. McCaleb v. Mackey Paint Mfg. Co., 343 So.2d 511 (Ala.1977). It is also well settled that a manufacturer is under no duty to warn a user of every danger which may exist during the use of the product, especially when such danger is open and obvious. General Electric Co. v. Mack, 375 So.2d 452 (Ala.1979). The objective of placing a duty to warn on the manufacturer of a product is to acquaint the user with a danger of which he is not...