On that same day, McWilliams, Sr. was on his way to Sea Isle
City, New Jersey, via eastbound Route 625. Id., ¶ 9. About ten
minutes after the accident, he came upon the scene of the
accident on Route 625. Id., ¶¶ 9-10. McWilliams, Sr. saw his
son lying on the ground with his lower right leg almost
completely severed. Id., Count Four, ¶ 5. McWilliams, Sr. also
saw people administering aid to his son. Id., ¶ 4. The
Complaint alleges as a result of seeing his son's injuries,
McWilliams, Sr. suffered mental and emotional distress. Id., ¶
McWilliams purchased his Virago at Van Sice. Van Sice is an
authorized Yamaha dealer and is a Delaware corporation with
its principal place of business in Wilmington, Delaware.
Id., ¶¶ 3, 8. McWilliams purchased his Virago in 1986, brand
new; however, the Yamaha was a leftover 1982 model. Id., ¶ 8.
The Virago was manufactured and assembled by Yamaha. Id., ¶ 9.
The Virago did not contain any lower limb protective guards or
crash bars. Opp. Brief, Ex. A, 10. Crash bars are tubular steel
bars attached to the frame of the motorcycle to protect the
rider's legs in the event of a collision. At the time Yamaha
manufactured the Virago, crash bars were available. Opp. Brief,
Ex. B., 8.
Prior to purchasing the Virago, McWilliams had experience in
operating motorcycles and minibikes. McWilliams first began to
operate minibikes when he was thirteen or fourteen years old.
Moving Brief, Ex. A, 38 ("McWilliams Dep."). Several of
McWilliams' friends owned minibikes which McWilliams would
operate. Id. McWilliams neither took lessons to operate a
motorcycle nor did he take a motorcycle safety course prior to
buying his first motorcycle. Id., 47. He did read the owner's
manual to his first motorcycle. In 1986 McWilliams traded that
motorcycle in for the Virago. Id., 48. McWilliams was
twenty-two at the time of the accident. Opp. Brief, Ex. B., 3.
Two expert reports, both addressed to Plaintiffs, were
prepared for this litigation. The report prepared by Harry C.
Peterson, Ph.D. ("Peterson"), stated the "subject accident .
. . is a common, foreseeable motorcycle accident which is a
well-known facet of the operational environment. . . ." Opp.
Brief, Ex. A, 6 (the "Peterson Report"). Indeed, McWilliams
concedes in his brief that there is a "very high probability
of severe leg injuries in a wide variety of motorcycle
accidents." Opp. Brief, 3.
The report prepared by George P. Widas stated that various
publications and reports indicated: "Side impact with another
motor vehicle was an entirely foreseeable design condition
arising from the environment in which motorcycles operate."
Id., Ex. B, 8 (the "Widas Report"). McWilliams characterizes
motorcycles as a means to have "economical, open-air,
maneuverable form of transportation. . . ." Id., 9. In
addition, Yamaha states: "[McWilliams] had personally owned two
motorcycles and became aware of the existence and purpose of
leg protection devices or 'crash bars' at the time of his first
motorcycle purchase." Moving Brief, 4 (citing McWilliams Dep.,
Two complaints have been filed in this action. On 26 May
1989 Plaintiffs filed the Complaint in this court against the
Defendants. Complaint. On 30 May 1989 Plaintiffs filed a
complaint in the Superior Court of New Jersey (the "New Jersey
Complaint") against Yamaha. The New Jersey Complaint was
removed to this court.*fn3
Count One of the Complaint alleges that the Defendants "knew
or should have known of the likelihood of a hazard for lower
limit [sic] injury in the event of a collision with a motor
vehicle." Id., Count One, ¶ 11. The Complaint states that the
Defendants could have mitigated lower limb damages by effective
and feasible designs,
known as crash bars. Id., ¶ 12. The Complaint further alleges
because there was not a crash bar on the Virago, the Virago was
of a defective design. Id., ¶ 14. Count One alleges that the
Defendants are negligent because of their failure to give
warnings regarding the unsafe conditions arising from the lack
of a crash bar. Id., ¶ 15.
Count Two of the Complaint asserts a claim for strict
liability. Count Two states because Defendants manufactured,
assembled, distributed and sold to McWilliams the allegedly
defective and therefore unreasonably dangerous Virago, the
Defendants are strictly liable. Id., Count Two, ¶ 2. Count
Three is against the Defendants for a breach of implied
warranty of merchantability pursuant to N.J.S.A. 12A:2-314.
Id., Count Three, ¶ 2. Counts Four, Five and Six are derivative
claims brought by McWilliams, Sr. for mental and emotion
distress on the basis of negligence, strict liability and
breach of implied warranty of merchantability. Id., 6-7.
On 30 October 1989 Yamaha filed a third party complaint (the
"Third Party Complaint") against Feise. Third Party Complaint.
Yamaha asserts claims for indemnification and contribution
against Feise on the ground that Yamaha is not strictly liable
and that Feise negligently operated his car. Third Party
Yamaha moves for summary judgment on the ground that it is
not strictly liable. Yamaha contends there can be no design
defect or failure to warn claim because the risk of leg injury
while operating a motorcycle is an open and obvious risk to
the ordinary consumer or is a known danger. Moving Brief,
5-17. The Plaintiffs argue there is a genuine issue of
material fact as to whether a motorcycle not equipped with
crash bars has a design defect. Opp. Brief, 6-12.
A. Summary Judgment Standard of Review
To prevail on a motion for summary judgment, the moving
party must establish "there is no genuine issue as to any
material fact and that [it] is entitled to judgment as a
matter of law." Fed.R.Civ.P. 56(c). The present task is to
determine whether disputed issues of fact exist, but a
district court may not resolve factual disputes in a motion
for summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249-50, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986);
see Nathanson v. Medical College, 926 F.2d 1368, 1380 (3d Cir.
1991) (Summary judgment may not be granted "if there is a
disagreement over what inferences can be reasonably drawn from
the facts even if the facts are undisputed."). All evidence
submitted must be viewed in a light most favorable to the party
opposing the motion. Boyle v. Governor's Veterans Outreach &
Assistance Center, 925 F.2d 71, 75 (3d Cir. 1991); Weldon v.
Kraft, Inc., 896 F.2d 793, 797 (3d Cir. 1990); see Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106
S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Todaro v. Bowman,
872 F.2d 43, 46 (3d Cir. 1989); Joseph v. Hess Oil, 867 F.2d 179,
182 (3d Cir. 1989). "'Any "unexplained gaps" in material
submitted by the moving party, if pertinent to material issues
of fact, justify denial of a motion for summary judgment.'"
Ingersoll-Rand Fin. Corp. v. Anderson, 921 F.2d 497, 502 (3d
Cir. 1990) (quoting O'Donnell v. United States, 891 F.2d 1079,
1082 (3d Cir. 1989)).
Although the summary judgment hurdle is a difficult one to
overcome, it is by no means insurmountable. As the Supreme
Court has stated, once the party seeking summary judgment has
pointed out to the court the absence of a genuine issue of
its opponent must do more than simply show that
there is some metaphysical doubt as to the
material facts. . . . In the language of the
Rule, the non-moving party must come forward with
'specific facts showing that there is a
genuine issue for trial.' . . . Where the record
taken as a whole could not lead a rational trier of
fact to find for the non-moving party, there is no
'genuine issue for trial.'
Matsushita, 475 U.S. at 586-87, 106 S.Ct. at 1356 (emphasis in
original, citations and