Kutzler v. AMF Harley-Davidson

• Decision Date: 05 February 1990
• Docket Number: No. 1-88-0489,HARLEY-DAVIDSO,D,1-88-0489
• Citation: 194 Ill.App.3d 273,550 N.E.2d 1236,141 Ill.Dec. 190
• Parties: , 141 Ill.Dec. 190, Prod.Liab.Rep. (CCH) P 12,419 James KUTZLER, Plaintiff-Appellant, v. AMFefendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1236

550 N.E.2d 1236

194 Ill.App.3d 273, 141 Ill.Dec. 190,

Prod.Liab.Rep. (CCH) P 12,419

James KUTZLER, Plaintiff-Appellant, v. AMF HARLEY-DAVIDSON, Defendant-Appellee.

No. 1-88-0489.

Appellate Court of Illinois First District, First Division.

Feb. 5, 1990.

Philip F. Maher & Associates, Chicago (Philip F. Maher, Stephen E. McLean, Michael

W. Rathsack, of counsel), for plaintiff-appellant.

Phelan, Pope & John, Ltd., Chicago (Roseann Oliver, Jeffrey M. Rubin, Edward D. Rickert, of counsel), for defendant-appellee.

Justice CAMPBELL delivered the opinion of the court:

Plaintiff, James Kutzler, appeals from the dismissal of his first amended complaint pursuant to the section 2-615 motion filed by defendant, AMF Harley-Davidson, a motorcycle manufacturer. Plaintiff sought damages for injuries sustained when an automobile sideswiped him while he was riding his motorcycle. Count I of plaintiff's complaint alleged that the motorcycle was unreasonably dangerous because: (1) it had not been designed, manufactured, assembled, sold or distributed with "crash bars, leg protection structures or other devices which would afford protection to the legs of the operator of said motorcycle"; and (2) it was designed, manufactured, assembled, sold and distributed "with 'Fat Bob' gas tanks which forced the legs of the operator into a position of exposure" to accidents. Count II alleged defendant's negligence predicated on the same acts set forth in count I. In reliance on Miller v. Dvornik (1986), 149 Ill.App.3d 883, 103 Ill.Dec. 139, 501 N.E.2d 160, the trial court held that motorcycles designed with extra-wide gas tanks and not equipped with crash bars were not unreasonably dangerous as a matter of law and dismissed the cause of action. On appeal, plaintiff contends that: (1) the trial court erred in dismissing his complaint because the absence of crash bars created an unreasonably defective and dangerous condition for which the defendant might be found liable by a jury; and (2) the extra-wide design of the gas tank caused plaintiff's legs to protrude out from the motorcycle to an unusual extent and, thus, substantially increased the risk of injury and constituted an unreasonably dangerous and defective condition. For the following reasons, we affirm the judgment of the trial court.

The record indicates that prior to July 23, 1981, plaintiff purchased a second-hand 1979 Harley Davidson Sportster Fat Bob motorcycle from a private individual in "as is" condition. On July 23, 1981, while plaintiff was traveling in a northerly direction on Route 131 in Lake County, Illinois, an unidentified automobile, traveling in a southerly direction, crossed the center line of Route 131 and sideswiped plaintiff's left leg. Immediately following the incident, plaintiff maintained his motorcycle in an upright position and steered it off the roadway and onto the right-hand shoulder. As a result of the incident, plaintiff suffered multiple fractures and severe injuries to his left leg.

On May 13, 1983, plaintiff filed a two-count complaint against defendant, alleging that the motorcycle was unreasonably dangerous because it lacked crash bars and that defendant had been negligent in designing, manufacturing, assembling and selling the motorcycle without crash bars. In reliance on Miller v. Dvornik (1986), 149 Ill.App.3d 883, 103 Ill.Dec. 139, 501 N.E.2d 160, defendant moved for judgment on the pleadings. Miller held that motorcycles without crash bars were not unreasonably dangerous as a matter of law. The trial court granted plaintiff leave to file a first amended complaint and, on May 13, 1987, plaintiff filed his first amended complaint, adding allegations that the "Fat Bob" gas tank rendered the motorcycle unreasonably dangerous and that defendant was negligent in manufacturing, assembling, selling and distributing the motorcycle with a "Fat Bob" gas tank.

In response, pursuant to section 2-615, defendant moved to dismiss and, in the alternative, for judgment on the pleadings. The trial court granted defendant's motion, but allowed plaintiff 30 days to file a motion to reconsider. ¹ Plaintiff's motion to reconsider was denied and this timely appeal followed.

Preliminarily, this court is cognizant of the legal principles that because plaintiff's appeal is from an order dismissing his complaint, all well-pleaded facts are taken as true, and must be interpreted in the light most favorable to plaintiff to determine if they are sufficient to set forth a cause of action upon which relief may be granted. J.J. Harrington & Co. v. Timmerman (1977), 50 Ill.App.3d 404, 8 Ill.Dec. 483, 365 N.E.2d 721.

As previously stated, the trial court in the present case relied solely on Miller v. Dvornik (1986), 149 Ill.App.3d 883, 103 Ill.Dec. 139, 501 N.E.2d 160 in reaching its decision and held that a motorcycle designed with an extra-wide gas tank and not equipped with crash bars was not unreasonably dangerous as a matter of law. In doing so, the trial court extended the Miller court's holding to include the extra-wide gas tank design by analogy. In Miller, plaintiff, age 19, sued a motorcycle dealer, manufacturer and driver of an automobile for damages for injuries sustained when an automobile struck his motorcycle, which was not equipped with crash bars, causing him to be thrown from the cycle. The counts against the dealer, alleging strict liability in tort and negligence, were dismissed and plaintiff appealed. The counts against the manufacturer and driver remained pending below.

In affirming the trial court's determination that motorcycles without crash bars were not unreasonably dangerous as a matter of law, the Miller court relied on the well-established common law definition that an unreasonably dangerous product was one which was "dangerous to an extent beyond that which would be contemplated by the ordinary person with ordinary knowledge common to the community." (149 Ill.App.3d 883, 888, 103 Ill.Dec. 139, 501 N.E.2d 160.) The court further noted that there was "nothing circumspect about a motorcycle rider's vulnerability to injury in the event of a collision" (149 Ill.App.3d 883, 888, 103 Ill.Dec. 139, 501 N.E.2d 160), and that injuries which are caused by obvious propensities in a product are not compensable. In reaching its decision, the Miller court focused on the product itself, not available safety devices and stated that the pivotal question is whether the product itself fails to perform as reasonably expected in light of its nature and intended function. 149 Ill.App.3d 883, 888, 103 Ill.Dec. 139, 501 N.E.2d 160.

In attempting to distinguish Miller from the case at bar, plaintiff argues that: (1) Miller dealt only with a dealer's duty, not a manufacturer's duty; (2) Miller is narrowly confined to its facts where plaintiff had been thrown from the cycle and crash bars would not have made any difference with respect to his injuries; (3) unlike in the present case, Miller had failed to allege that the crash bars would have prevented his injury, rendering the complaint substantially insufficient as a matter of law; and (4) unlike the absence of crash bars, the extra-wide gas tank was a latent defect. In our view, none of these distinctions renders Miller non-controlling of the issues at bar.

First, the fact that Miller addressed a complaint against a dealer and the present case is directed toward a manufacturer does not alter the applicable principles of law as to what renders a product unreasonably dangerous. Second, the Miller court did not confine its holding to its fact situation. The recent case, Bossert v. Tate (1989), 183 Ill.App.3d 868, 132 Ill.Dec. 166, 539 N.E.2d 729, exemplifies the scope of the Miller holding. In Bossert, plaintiff was struck in the left side by an automobile and incurred injuries to his lower left leg. There was no indication in Bossert that plaintiff had been thrown off his bike as the plaintiff in Miller had been. The Bossert court found Miller dispositive of the identical crash bar issue against a manufacturer, predicated on a fact situation very similar to the one at bar. Third, regarding allegations in the complaint, although the Miller court noted that plaintiff's failure to allege that crash bars would have prevented his injury rendered the complaint insufficient, that fact was not dispositive of the issue. Therefore, it does not constitute a legally significant fact for purposes of analogy to the present case. We further note that, in his reply brief, plaintiff extolls the safety functions of crash guards. While this discussion is informative, it is not legally persuasive because it incorrectly places the emphasis on safety devices rather than on the product itself. Fuller v. Fend-All Co. (1979), 70 Ill.App.3d 634, 27 Ill.Dec. 1, 388 N.E.2d 964.

With respect to the extra-wide gas tank, plaintiff contends that Miller is inapplicable because the gas tank design defect is latent rather than open and obvious. This argument has no basis in fact. A defect is latent when it constitutes a hidden danger such as the misplacement of a vehicle's fuel containment system (Ryan v. Blakey (1979), 71 Ill.App.3d 339, 27 Ill.Dec. 540, 389 N.E.2d 604) or an improperly mounted gasoline tank in an automobile (Buehler v. Whalen (1977), 70 Ill.2d 51, 15 Ill.Dec. 852, 374 N.E.2d 460), both of which cause an automobile to burst into flame upon impact with another vehicle. In both Ryan and Buehler, the danger from the design defect was clearly beyond that which would be contemplated by the ordinary person with ordinary knowledge common to the community. See Miller v. Dvornik (1986), 149 Ill.App.3d 883, 103 Ill.Dec. 139, 501 N.E.2d 160.

By contrast, the width of the gas tank in the present case was readily apparent and the fact that a motorcycle rider's legs, when positioned over the tank, would protrude outward would be equally apparent as soon as the rider sat down on the cycle. Plaintiff apparently wants ...