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November 20, 1991


The opinion of the court was delivered by: Lechner, District Judge.


This is a personal injury action brought by plaintiffs Larry P. McWilliams, Jr. ("McWilliams") and his father Larry P. McWilliams, Sr. ("McWilliams Sr.") (collectively, the "Plaintiffs") against defendants Yamaha Motor Corporation, U.S.A. ("Yamaha") and D.T. Van Sice, Inc. ("Van Sice") (collectively, the "Defendants"). Yamaha has filed a third party complaint against Albert Feise ("Feise"). Jurisdiction is alleged pursuant to 28 U.S.C. § 1332.

Currently before the court is the motion of Yamaha for summary judgment pursuant to Fed.R.Civ.P. 56 on the ground that no basis for strict liability exists under New Jersey law against Yamaha.*fn1 For the reasons set forth below, the motion for summary judgment is granted and the complaint is dismissed in its entirety.


On 31 May 1987 McWilliams was operating his 1982 Yamaha Virago motorcycle (the "Virago") eastbound on County Road 625 ("Route 625"), near the Garden State Parkway, Exit Ramp 17. Amended Joint Final Pre-Trial Order, Part II, ¶ 5 ("Am. Jt. FPT Order"). McWilliams resides in Carney's Point, New Jersey. Id., ¶ 1. Feise parked his car on the right side of eastbound Route 625. Am. Jt. FPT Order, ¶ 6. As McWilliams was approaching Feise's car, Feise attempted to make a U-turn and struck McWilliams. Id., ¶ 7. The front bumper of Feise's car hit the lower right leg of McWilliams. Complaint, filed 26 May 1989, ¶ 10 (the "Complaint"). The lower right leg of McWilliams was pinned between the projection of the bumper and the Virago and was almost completely severed.*fn2 Id. Subsequently, McWilliams' right leg was amputated. Id.

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., ¶ 6.

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., 43, 48).

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 Complaint, 3-4.


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 material fact,

  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 footnotes omitted). In other words, the inquiry involves determining "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Brown v. Grabowski, 922 F.2d 1097, 1111 (3d Cir. 1990) (quoting Anderson v. Liberty Lobby, 477 U.S. at 251-52, 106 S.Ct. at 2512), cert. denied, ___ U.S. ___, 111 S.Ct. 2827, 115 L.Ed.2d 997 (1991).

The Supreme Court elaborated on the summary judgment standard in Anderson v. Liberty Lobby: "If the evidence [submitted by a party opposing summary judgment] is merely colorable . . . or is not significantly probative . . . summary judgment may be granted." 477 U.S. at 249-50, 106 S.Ct. at 2511 (citations omitted). The Supreme Court went on to note in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986): "One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, ...

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