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Koruba v. American Honda Motor Co.

November 19, 2007

MICHAEL KORUBA, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
AMERICAN HONDA MOTOR CO., INC., DEFENDANT-RESPONDENT/ CROSS-APPELLANT, AND
CYCLE WORLD OF CHERRY HILL, L.L.C., DEFENDANT-RESPONDENT,
v.
MARK J. HORN AND MARK HORN MASONRY, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Burlington County, Docket No. L-1196-03.

The opinion of the court was delivered by: Parrillo, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued Telephonically October 25, 2007 --Decided

Before Judges Parrillo, Graves and Alvarez.

This case arises out of an accident that occurred when plaintiff Michael Koruba attempted an extreme jump on his sports all-terrain vehicle (ATV), resulting in his sustaining serious neurological and orthopedic injuries. Plaintiff sued both the manufacturer of the ATV, defendant American Honda Motor Co., Inc. (Honda), asserting a product liability claim for failure to adequately warn, and the dealership where he purchased it, defendant Cycle World of Cherry Hill, L.L.C. (Cycle World), asserting a negligence claim.*fn1 His claims against both defendants were dismissed on summary judgment motions and plaintiff appeals. Defendant Honda cross appeals from that portion of the summary judgment finding plaintiff's expert qualified to render an opinion on the warning issue. We affirm for the following reasons.

The material facts are not in dispute. On January 15, 2001, plaintiff purchased a four-wheel 2001 TRX 400 EX Honda ATV from Cycle World, a retail dealer of Honda products with premises in Cherry Hill. An experienced ATV user, aiming to be a "professional rider," plaintiff personally selected this particular ATV model, designed and manufactured by Honda. The salesman with whom he dealt, Timothy Yowe, knew plaintiff and was aware that he had ridden ATVs since he was young. Prior to purchase, plaintiff was introduced to Anthony DeMarco, Cycle World's finance and insurance manager, who personally reviewed with plaintiff each item on the "Salesperson Delivery Checklist-TRX" (checklist), including the following:

* ALWAYS read the owner's manual carefully and follow the operating procedures described. Pay special attention to the warnings contained in the manual and on all labels.

* NEVER operate an ATV without proper instruction. Take a training course.

* NEVER operate an ATV at excessive speeds. Go at a speed which is proper for the terrain, visibility conditions, and your experience.

* NEVER attempt to do wheelies, jumps or other stunts.

* DeMarco read these warnings aloud to plaintiff, including the admonitions never operate the ATV at excessive speeds, and never "attempt to do wheelies, jumps or other stunts." (emphasis added). Plaintiff then had the opportunity to read the warnings himself before initialing and signing the document. By doing so, plaintiff acknowledged that he had received these warnings in writing and that they "have been reviewed with me and explained to my satisfaction." Plaintiff was also provided information at the dealership about the ATV Safety Institute, including a toll-free number to find the nearest training location.

In addition to the checklist, DeMarco also provided plaintiff with the owner's manual and a "Tips and Practice Guide for the ATV Rider," which he was instructed to read. The owner's manual included various warnings concerning the ATV's operation and use. Specifically, the owner's manual warned:

Never attempt wheelies, jumps, or other stunts.

When riding, you should keep all four wheels of your [ATV] on the ground. Avoid "wheelies," jumps and other stunts, as they could cause loss of control.

POTENTIAL HAZARD[:] Attempting wheelies, jumps, and other stunts . . . . Never attempt stunts, such as wheelies or jumps. Don't ...


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