Harris v. City Cycle Sales, Inc.
| Decision Date | 18 October 2022 |
| Docket Number | 21-cv-02264-EFM |
| Parties | JEREMY LEON HARRIS, Plaintiff, v. CITY CYCLE SALES, INC., Defendant. |
| Court | U.S. District Court — District of Kansas |
Before the Court is Defendant City Cycle Sales, Inc.'s Motion for Summary Judgment. Plaintiff Jeremy Harris sued Defendant in connection with scheduled maintenance Defendant performed (or did not perform) on his motorcycle. Plaintiff alleges Defendant's negligence during this maintenance caused him to sustain injuries during a subsequent single-vehicle motorcycle collision, and that Defendant's conduct and statements during the maintenance violated the Kansas Consumer Protection Act (“KCPA”). Defendant moves for summary judgment as to all of Plaintiff's claims. The vast majority of Plaintiff's claims present a genuine issue for trial, but his claim that Defendant breached a duty to follow-up with him after the service appointment is without merit. The Court therefore grants in part and denies in part Defendant's Motion (Doc. 29).
In February 2014, Plaintiff purchased a new, 2014 Harley-Davison VRSCDX “V-Rod” motorcycle from a Harley-Davidson dealership in Olathe, Kansas. It came equipped with an antilock brake system (“ABS”), as is standard for this motorcycle. The V-Rod was delivered to Plaintiff at his residence in Junction City, Kansas.
After receiving the V-Rod, Plaintiff rode it to a nearby parking lot to practice maneuvers he had learned in a motorcycle safety class in January 2014. Plaintiff noticed that, as he drove the V-Rod, the ABS light flashed continuously. According to the V-Rod owner's manual, the ABS lamp should not remain on or flash at speeds above 3 mph. The lamp's flashing or remaining on above speeds of 3 mph means the ABS is not functioning properly. Plaintiff, having read the manual, was concerned the ABS was not working properly. But when he applied the brakes while practicing, he felt a the “slight pulsation” described in the owner's manual as indicative of the ABS's functioning and the wheels did not lock up. Plaintiff believed this meant the ABS was functioning properly.
Plaintiff drove the V-Rod for several months without incident. But through it all the ABS lamp continued its erratic behavior. It would flash continuously at times, and others it would remain illuminated or go off completely for short periods. Plaintiff noted that the ABS lamp exhibited all of these behaviors as he drove the V-Rod to Texas and back in late March or early April 2014.
On April 14, 2014, Plaintiff took the V-Rod to Defendant for scheduled maintenance. The V-Rod owner's manual recommends maintenance after the first 1,000 miles driven, a milestone Plaintiff had exceeded.
Defendant is an authorized Harley-Davidson dealer in Junction City Kansas. At the time, Defendant had an authorized Harley-Davidson service department. When he took the V-Rod in, Plaintiff spoke directly with Defendant's service manager, Dean Mizes, and informed him that the ABS lamp had been behaving erratically at operating speeds since he purchased the V-Rod. Defendant agreed to perform the requested maintenance and took possession of the V-Rod.
Defendant's employees, when attempting to perform maintenance on a customer's motorcycle, follow the Service Operations Manual (“SOM”). For Plaintiff's V-Rod, the 2014 V-Rod Models Electrical Diagnostics Manual (“EDM”) was also relevant to Mizes' attempted maintenance. Section 5.2.2 of the SOM states “please do not attempt a repair until the customer's concern has been verified.” That section further states “[i]f you are unable to duplicate a customer's concern, road test the motorcycle while the customer rides on another motorcycle next to you, if this can be done safely, so they may demonstrate their concern to you.” Inability to duplicate the customer's concern should be documented on the repair order, including what steps were taken to diagnose the concern.
Because of Plaintiff's concern for the ABS, Mizes first checked the V-Rod's Diagnostic Trouble Codes (“DTCs”). The parties dispute whether Mizes did this in Plaintiff's presence. Mizes testified that he found no current or historic DTCs on the V-Rod's onboard computer.[2] There is some dispute as to whether the EDM suggests Mizes should have used a tool called Digital Technician II (“DT II”) to diagnose the ABS issues. Plaintiff's expert, Laurence McCracken, testified that had Mizes used the DT II, it would have led him to perform the “wiggle test” which likely would have laid bare the ABS issue.
According to the SOM, if a customer complains of an intermittent problem, and onboard diagnostics are not helpful, the technician should attempt to reproduce the problem. A test ride is also prescribed for the 1,000-mile routine maintenance on the V-Rod. The EDM further provides that if a customer complains the “ABS indicator is always on or inoperative . . . the malfunction must be present during diagnosis in order to prevent unnecessary parts replacement.”
The parties dispute whether Mizes conducted a road test of the V-Rod. Mizes testified that he did complete a road test, during which he deliberately braked at high enough speeds to activate the ABS. He states that he the ABS performed properly with each braking test and that he was unable to observe intermittent illumination of the ABS light, as reported by Plaintiff. But Plaintiff points to Mizes own testimony that he did not independently document such road test.[3] In any event, the parties agree that Mizes did not conduct a side-by-side road test with Plaintiff.
The parties also dispute whether Mizes should have contacted the Harley Davidson technical support line. Mizes did not contact technical support because he could not duplicate the ABS light problem and there were not DTCs. He went on to say that, in his experience, technical support would not have been able to help. But Plaintiff cites the SOM manual, which states that if “the technician is unable to diagnose an alleged customer concern, or if the motorcycle is in for a second attempt to repair the same alleged concern, the Service Manager or Technician should contact the Technical Support Line.” Plaintiff asserts that is exactly what happened here; Mizes was unable to diagnose the problem, so the SOM manual indicates that he should have contacted the technical support line.
On April 15, 2014, a representative of Defendant called Plaintiff and told him the requested service was done and his V-Rod was ready for pick-up. Plaintiff testified that he asked about the ABS and Mizes responded Mizes has a different recollection of this exchange. He testified that he told Plaintiff that he could not reproduce his ABS complaints at all, and that the ABS and light functioned normally on a test ride. He gave Plaintiff the choice of leaving the V-Rod for further testing, which Plaintiff chose not to do. Mizes further testified that he told Plaintiff to inform Defendant if the ABS light came on intermittently again, which Plaintiff denies. Mizes, at this time, knew it was dangerous for Plaintiff to operate his motorcycle with the ABS light on continuously.
As Plaintiff was leaving Defendant's parking lot, the ABS light purportedly behaved erratically once more. Plaintiff did not return to Mizes to inform him of this.
Plaintiff rode the V-Rod almost every day from when he picked up the bike from Defendant until his accident. The ABS light continued to exhibit the same intermittent flashing every time he rode it. Plaintiff did not seek additional service as to the ABS.
McCracken testified that Defendant's “procedures manual” provides that a follow-up call is supposed to be made after a service appointment. Mizes agreed that “making sure someone in the service department follows up with the customer after a service appointment is important.” Plaintiff did not receive a follow-up call from Mizes or anyone else associated with Defendant.
On May 20, 2014, while Plaintiff was approaching an intersection in Fort Riley, he attempted to brake. As he applied the brakes, Plaintiff saw the ABS warning light illuminate and heard a “loud screech.” Plaintiff lost control and fell over. The V-Rod fell onto his left leg. Plaintiff contends the result of the crash was one or both wheels locking up, caused by the failure of the ABS.
Plaintiff originally filed this case in Kansas state court in Geary County. He asserted both negligence and KCPA claims, as he does here. But sometime prior to trial, Plaintiff decided to only present his negligence claims to the jury. He did not propose an instruction on the KCPA theories of liability, and at trial, the court did not instruct the jury as to those claims. The jury returned a verdict in favor of the Defendant, finding Plaintiff 100% at fault for his injuries. Plaintiff appealed, and the judgment was reversed by the Kansas Court of Appeals on the ground that the district court's comparative fault instruction was in error. The case was remanded for a new trial in the district court. Instead, the parties stipulated to the dismissal of the state court case without prejudice.
Plaintiff thereafter filed the instant action, asserting both negligence and KCPA claims. Defendant moved to dismiss the KCPA claims on the grounds of abandonment, waiver, res judicata, and expiration of the statute of limitations. The Court denied Defendant's motion. Defendant now moves for summary judgment as to both Plaintiff's negligence claim and his KCPA claims.
Summary judgment...
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