Toney v. Kawasaki Heavy Industries, Ltd.

• Decision Date: 15 May 1991
• Docket Number: Civ. A. No. J89-0257 (B).
• Citation: 763 F. Supp. 1356
• Parties: Billy H. TONEY, Plaintiff, v. KAWASAKI HEAVY INDUSTRIES, LTD., and Kawasaki Motors Corp., U.S.A., Defendants.
• Court: U.S. District Court — Southern District of Mississippi

763 F. Supp. 1356

Billy H. TONEY, Plaintiff, v. KAWASAKI HEAVY INDUSTRIES, LTD., and Kawasaki Motors Corp., U.S.A., Defendants.

Civ. A. No. J89-0257 (B).

United States District Court, S.D. Mississippi, Jackson Division.

May 15, 1991.

COPYRIGHT MATERIAL OMITTED

Carey Varnado, Easterling & Varnado, Hattiesburg, Miss., Eugene Tullos, Tullos & Tullos, Raleigh, Miss., for plaintiff.

Ray McNamara and Jennifer L. Walsh, Dove Chill & McNamara, Jackson, Miss., for defendants.

MEMORANDUM OPINION AND ORDER

BARBOUR, Chief Judge.

This cause is before the Court, pursuant to Rule 56 of the Federal Rules of Civil Procedure, on Defendants' Motion for Summary Judgment. Plaintiff has responded to the Motion. The Court, having considered the Motion and Response, together with memoranda of authorities and attachments thereto, now renders the following findings of fact and conclusions of law.

I. FACTS AND PROCEDURAL HISTORY

On August 16, 1985, Plaintiff purchased a used Kawasaki KZ 750 motorcycle from Henry Banks, an individual who lived in Mendenhall, Mississippi. That motorcycle was designed and manufactured by Defendant Kawasaki Heavy Industries, Ltd. ("KHI"), a Japanese corporation. Defendant Kawasaki Motors Corp. is a Delaware corporation which distributed KHI products in the United States.

On August 17, 1985, one day after purchasing the motorcycle, Plaintiff was operating the motorcycle on an open highway in Smith County, Mississippi, when he was struck from the side by a truck driven by Walter Lee Hollingsworth. Plaintiff suffered severe injuries in the collision which later necessitated the amputation of his left leg.

On April 11, 1989, Plaintiff filed the instant action in the Circuit Court of Smith County, Mississippi. In his Complaint, Plaintiff asserts negligence, strict liability, and breach of warranty claims against Defendants.¹ Specifically, Plaintiff alleges that the Kawasaki motorcycle on which he was injured was not equipped with leg guards or any other protection for Plaintiff's legs as reasonable diligence and due care would require. Plaintiff also alleges that the failure to provide leg protection on the motorcycle rendered the product unreasonably dangerous. Further, Plaintiff alleges that the Defendants failed to adequately warn users of the motorcycle as to proper procedures for use of the product and as to the potential danger of operating the motorcycle without adequate leg protection. Plaintiff sought three million dollars ($3,000,000.00) in compensatory damages and two million dollars ($2,000,000.00) in punitive damages from Defendants.

On May 5, 1989, Plaintiff's suit was removed to this Court. Following extensive discovery in this matter, Defendants filed a Motion for Summary Judgment on January 1, 1991. In their Motion, Defendants assert that, because the risks associated with the use of a motorcycle unequipped with leg guards or other leg protection features are open and obvious to the ordinary consumer, judgment must be granted in favor of Defendants as a matter of law on all counts of the Complaint.

II. CONCLUSIONS OF LAW

Rule 56 of the Federal Rules of Civil Procedure states in relevant part that summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56(c). The United States Supreme Court has held that this language "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a sufficient showing to establish the existence of an essential element to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

Summary judgment can be granted only if everything in the record demonstrates that no genuine issue of material fact exists. The district court, therefore, must not "resolve factual disputes by weighing conflicting evidence, ... since it is the province of the jury to assess the probative value of the evidence." Kennett-Murray Corp. v. Bone, 622 F.2d 887, 892 (5th Cir.1980). Summary judgment is improper merely where the court believes it unlikely that the opposing party will prevail at trial. National Screen Service Corp. v. Poster Exchange, Inc., 305 F.2d 647, 651 (5th Cir.1962).

The party moving for summary judgment bears the responsibility of informing the district court of the basis for its motion and identifying those portions of the record in the case which it believes demonstrates the absence of a genuine issue of fact. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552-53. However, the movant need not support the motion with materials that negate the opponent's claim. As to issues on which the non-moving party has the burden of proof at trial, the moving party need only point to an absence of evidence to support the non-moving party's claim; the non-moving party must then designate "specific facts showing that there is a genuine issue for trial." Id. at 324, 106 S.Ct. at 2553.

Three primary issues of law are presented to the Court on Defendants' Motion for Summary Judgment: (1) whether Defendants are strictly liable for a design defect in the motorcycle or for the failure to warn users of the motorcycle as to potential dangers associated with use of the product; (2) whether Defendants breached express or implied warranties with regard to the condition of the motorcycle; and (3) whether Defendants were negligent in designing or testing the motorcycle or were negligent in failing to issue adequate warnings concerning use of the motorcycle. Because jurisdiction in this action is based upon diversity of citizenship, the Court is Erie bound to apply the substantive laws of the State of Mississippi to this case.

"It is rare to find an appropriate case for summary judgment involving negligence or products liability." Powe v. Wagner Electric Sales Corp., 589 F.Supp. 657, 660 (S.D. Miss.1984). Upon examination of the record presented in this case, however, the Court concludes that Defendants' Motion for Summary Judgment should be granted.

A. Strict Liability

In order to recover on a theory of strict liability under Mississippi law, it must be established that: (1) the defendant placed a product on the market that was in a defective condition and unreasonably dangerous for its intended use; (2) the plaintiff was using the product in a manner that was reasonably foreseeable; and (3) the defective condition was the proximate cause of the injury to plaintiff. Mozingo v. Correct Manufacturing Corp., 752 F.2d 168, 176 (5th Cir.1985).

In the instant case, Plaintiff has alleged two defects which he asserts rendered the motorcycle in question both defective and unreasonably dangerous: (1) a failure to provide leg guards or other leg protection features in the design of the motorcycle; and (2) a failure to warn users of the proper procedures for use of the product or of the potential hazards associated with use of the motorcycle. In response, Defendants contend that, under Mississippi law, the open and obvious nature of the danger associated with motorcycles unequipped with leg guards or other leg protection features establishes that, as a matter of law, the motorcycle was not defectively designed. In addition, Defendants assert that, as a matter of law, the open and obvious nature of the danger relieved them of the duty to warn against the hazards associated with riding a motorcycle without leg protection features.

The existence of a product defect must be established before recovery may be had in strict liability. Gray v. Manitowoc Co., 771 F.2d 866, 868-69 (5th Cir. 1985); William Cooper & Nephews, Inc. v. Pevey, 317 So.2d 406, 408 (Miss.1975). In determining whether a product is defective so as to be considered unreasonably dangerous, Mississippi applies the consumer expectation test. See Toliver v. General Motors Corp., 482 So.2d 213, 218 (Miss. 1985); Ford Motor Co. v. Matthews, 291 So.2d 169, 172 (Miss.1974); State Stove Manufacturing Co. v. Hodges, 189 So.2d 113, 121 (Miss.1966), cert. denied 386 U.S. 912, 87 S.Ct. 860, 17 L.Ed.2d 784 (1967). In order to recover in strict liability where the consumer expectation test is applied, plaintiff must establish that the product at issue was "dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." Restatement (Second) of Torts § 402A, comment i (1965).

Numerous cases construing Mississippi law and its adoption of the consumer expectation test have concluded that, where the danger associated with an alleged defect in the design of a product was open and obvious, a claim in strict liability cannot be maintained. See Melton v. Deere & Co., 887 F.2d 1241, 1943 (5th Cir. 1989); Gray v. Manitowoc Co., 771 F.2d at 868-69. Thus, "a manufacturer is under no duty to warn or adopt alternate designs when the danger associated with the use of the product is open and obvious to the user." Hedgepeth v. Fruehauf Corp., 634 F.Supp. 93, 98 (S.D.Miss.1986), aff'd, 813 F.2d 405 (5th Cir.1987).

Applying the consumer expectation test to the facts of the instant case, the Court concludes that the dangers associated with motorcycles which are not equipped with leg guards or other leg protection features are so open and obvious that, as a matter of law, Plaintiff's strict liability claim is precluded. The Court finds that, under the objective standard of the consumer expectation test, the risks associated with the operation of the motorcycle at issue here would be patently obvious to any ordinary consumer. The ordinary consumer knows that a motorcycle without leg guards or other protective features...