*3 accident, Gary sustained As a result JONES, Circuit and KENNEDY Before: including a head closed injuries, catastrophic Judge.** HOLSCHUH, District Judges; for Gary to be comatose injury caused which damage, se- weeks, brain permanent three HOLSCHUH, Judge, delivered District prob- defects, neurobehavioral cognitive vere J., JONES, court, in which opinion Gary changes. also personality and lems 539), KENNEDY, (p. delivered J. joined. the left hemiplegia, fractures left suffered concurring in and part separate foot, open right and femur, clavicle left dissenting part. right tibia fracture of compound under- Gary has fracture. Judge. pelvic HOLSCHUH, significant District at- extensive surgeries and multiple gone by liability action products ais This nonetheless, Gary rehabilitation; tempts at guard- through his Thompson, Gary left side on his paralyzed partially remains Morales, against mother, Pamela ian and cognitive defects to exhibit continues for dam- Motor Honda American May, ofAs problems. neurobehavioral Gary injuries that of serious a result ages as in ex- expenses medical Gary incurred had when nine one-half age at sustained $320,000.00. cess driving collided he was motorcycle Morales, purchased mother, Pamela Dis- States The United truck. pickup awith December, Gary in motorcycle for Ken- District the Eastern Court trict owner’s old. The years Gary was six for sum- when motion tucky granted defendant’s motorcycle was provided manual did finding plaintiff judgment, mary “not and was junior riders” “designed al- that the inference a reasonable establish years under for children recommended proba- motorcycle were leged defects ground height from motorcycle’s old.” The appeals Plaintiff accident. cause of the ble opera- inches; it was only 22.6 to seat was summary judg- grant of ** designation. sitting by Holschuh, States United D. John Honorable Ohio, Judge District for the Southern District ignition key;
tional without and it was In addition to Honda’s warnings, Pamela capable traveling speeds at of 35-40 miles Morales had established her own rules con- per hour. The owner’s manual also con- cerning motorcycle. She stated: a “message parents” tained which warned The Number One rule was that he was to against riding public never, get ever on the bike to ride without roads: supervision.... adult He was to never illegal It ride this get on the bike without a helmet. And he public streets, roads highways. It must never, was to get ever near a road. only be ridden in off-road areas where n Morales stated that she told these rules permitted. such activities are If it be- bought when she necessary comes cross roadway, *4 regularly she communicated these rules to get remember to off Gary, and that she even reminded Gary of push it across. the rules on the morning the accident. addition, on itself was the 24, 1993, On March Pamela Morales com- following warning: menced this action County the Garrard
IMPORTANT
Court,
NOTICE
Circuit
County,
Garrard
Kentucky,
asserting claims of strict liability, breach of
THIS VEHICLE IS DESIGNED AND
warranty
against Honda in
MANUFACTURED FOR OFF-THE-
connection
Gary’s
accident. Morales
ROAD USE ONLY. IT DOES NOT CON-
claimed
Honda defectively designed the
FORM TO FEDERAL MOTOR VEHI-
motorcycle, because its small size combined
CLE SAFETY STANDARDS AND OP-
with the lack of
safety flag gave
the motor-
ERATION IN PUBLIC STREETS,
cycle extremely
visibility.
low
Morales fur-
ROADS, OR HIGHWAYS IS ILLEGAL.
argued
ther
that Honda negligently market-
ed
and negligently failed to
REMEMBER
warn of its dangerous condition. Morales
—PRESERVE NATURE —RIDE SAFE-
claimed that Honda’s warnings were inade-
LY—ALWAYS
A
WEAR
HELMET-
quate, because Honda
explain
did not
READ OWNER’S MANUAL CAREFUL-
potential consequences of a
riding
child
LY BEFORE RIDING
motorcycle on the road in terms a child could
engineer
Honda chief
Kazuo Watanabe1
understand.
had overall responsibility for
develop-
Honda subsequently removed the action to
ment of the 1988 Z50R motorcycle
per-
the United States District Court for the
sonally authored the owner’s manual. Wa-
Eastern District of Kentucky. Honda then
tanabe stated that it was his decision that the
moved for summary judgment,
alleging,
age
recommended
for the motorcycle should
among other things, that Morales could not
be seven and above. Watanabe also stated
establish the necessary element of causation
that he was not.
any
aware of
testing or
for her claims.
research done to determine if that was an
appropriate age recommendation for the mo-
The district
granted
summary judg-
torcycle. Further, Watanabe stated that he ment
Honda,
in favor of
finding that Morales
considered
incorporating
safety flag into
had the burden to
legal
establish
causation
the design
motorcycle,
but decided
and had failed to do so.
With
to
against it. Watanabe also stated that he was
design,
defective
the district court stated that
not aware of the total available accident sta-
presented
Morales
no evidence that a differ-
tistics involving the motorcycle, because it
ent
prevented
would have
the acci-
was not necessary for him to consider acci- dent.
finding,
In so
the district court did not
dents caused
operator error.
report
consider the
plaintiff’s
conspicuity
1. We consider the
deposition,
Watanabe
because
7, 1994,
tends that we should
deposition
consider the
it was
filed in
April
the district court on
Clever; however,
Robert
deposition
was not
prior to the district
entry
court's
summary
21, 1994,
April
filed until
after the district court's
April
1994. Plaintiff also
entry
con-
judgment.
of summary
judgment is
56(c), summary
Procedure
Janoff,
Civil
which Janoff
witness,
S.
Michael
depositions, answers
pleadings,
if “the
proper
hit
the driver
stated
file, togeth
admissions
interrogatories,
approxi-
to
motorcycle for
have seen
affidavits,
any,
that there
if
show
if it
with the
er
seconds
nine additional
mately
four
fact
material
any
as to
issue
genuine
bicycle
awith
seven-foot
equipped
had been
moving party is entitled
consider
did not
district court
flag. The
Canderm
law.”
judgment as matter
report was
report, because
Janoff
Pharmaceuticals,
Pharmacal,
v. Elder
Ltd.
as re-
affidavit
of an
in the form
presented
(quot
56(e).
862 F.2d
The district
by Fed.R.Civ.P.
quired
56(c)).
moving
party
ing Fed.R.Civ.P.
if the Court
that even
on to note
went
“burden
summary judgment bears
indi-
was no
report, there
consider
issue as
genuine
aof
showing
absence
give
qualified
Janoff
cation that
fact,
purposes, the
these
any material
expert opinion.
must be viewed
submitted]
[evidence
inade-
claims
Morales’
respect With
party.”
opposing
favorable
light most
stated
district court
warnings, the
quate
Co., 398 U.S.
v. S.H. Kress
Adickes
contained
manual
if the owner’s
“even
L.Ed.2d
90 S.Ct.
warn-
explicit statement
stronger and more
(footnote omitted);
Matsushi
see also
(1970)
*5
hit him if
a car could
rider
ing the
Zenith Radio
Ltd. v.
Indus.
Elec.
ta
jury
road,
no reasonable
on
rode
the
1348, 1356,
587, 106
574,
S.Ct.
Corp., 475 U.S.
followed
have
find that
(inferences
(1986)
to be
538
L.Ed.2d
89
the
noted that
court
warning.” The district
be
underlying facts must
the
drawn
itself
the
manual and
owner’s
the
light most favorable
in the
viewed
onto
to venture
rider not
the
warned
summary
for
In a motion
party).
nonmoving
ride
Gary not to
Morales warned
roads and
determinations,
the
“[credibility
judgment,
disobeyed his mother
road,
Gaiy
yet
drawing of
evidence,
the
and
the
weighing of
Mt. Hebron
motorcycle onto
the
and rode
jury
facts are
from the
legitimate inferences
day
the accident.
the
of
on
Road
The
judge....
functions,
not those
1994,
motions
21,
filed
Morales
April
On
believed,
to be
non-movant
of the
evidence
summary judg-
reconsider
alter,
or
amend
to be drawn
inferences are
justifiable
all
and
the motion
ment;
argument
for oral
Lobby,
Liberty
Anderson
his favor.”
judg-
summary
alter,
or reconsider
amend
2513,
2505,
477 U.S.
255,
242,
Inc.,
106 S.Ct.
of
depositions
ment;
the
to consider
and
omitted);
(citation
(1986)
see
202
L.Ed.2d
91
the
representatives
corporate
Honda’s
Cincinnati, 953 F.2d
City
Russo v.
also
of
Morales,
Mor-
in which
of Pamela
affidavit
Cir.1992)
Liberty
(citing
(6th
1036, 1041 — 42
of these
I known
“[h]ad
ales states
Lobby).
mo-
the
purchased
dangers I would
moving party
the
denied
burden
district
Gary.” The
torcycle for
moving party dem
Mor-
if the
discharged
motions.
may
postjudgment
of Morales’
all
has
nonmoving party
re-
appeal with
the
timely
a notice
onstrates
ales
of his
summary
element
essential
grant of
to establish
failed
district
spect to the
the
she bears
he or
the
which
district
case for
of Honda
or her
in favor
judgment
Celotex
at trial.
proof
mo-
post-judgment
burden
of Morales’
ultimate
court’s denial
322,
477
317,
Catrett,
106 S.Ct.
U.S.
Corp. v.
tions.
(1986);
Moore
2552,
265
2548,
L.Ed.2d
91
(6th
Cos., Inc.,
339
8 F.3d
Philip Morris
II.
meets
Cir.1993).
moving party
If the
A.
non-
the
only then —must
burden —then
pleadings
beyond the
go
moving party
summary
grant
We review
showing
facts
specific
forth
to set
order
novo,
same test
applying
de
judgment
Fed.
trial.
issue
genuine
there
v. Ameri
Brooks
court.
by
used
Matsushita,
at
U.S.
56(e);
R.Civ.P.
Cos.,
Broadcasting
can
Turnpike
1356;
v. Ohio
Martin
at
106 S.Ct.
Cir.1991).
Rule
(6th
Federal
Under
Comm’n,
968 F.2d
608-09
bility making
product safer,
paten-
Matsushita,
denied,
(citing
cert.
cy
506 U.S.
danger
product,
(1993)).
113 S.Ct.
B.
between the so-called strict liability princi-
diversity
This
governed by
case is
ple
is of
practical
signifi-
the substantive law of Kentucky. Kentucky
cance so far as the standard of conduct
adopted
(Second)
the Restatement
required
of the defendant is concerned.
(1965)
§
Torts
402A
test
imposing
liabili
either event the
required
standard
is rea-
ty upon manufacturers of unreasonably dan
Thus,
sonable care.”
the fact
*6
finder
a
gerous products.2
Transport
Dealers
design
Co. v.
defect ease must decide whether
Battery
Co.,
Distributing
the actual of product condition the at the Id. (quoting Jones v. Inc., Hutchinson Mfg., sale, time of and the inquiry relevant is 66, 502 S.W.2d 69-70 (Ky.1973)). product “whether the ‘such creates a risk’ of general accident of the nature of the one With warn, to failure to in question an ordinarily prudent ‘that com the character of warnings that accompany pany engaged in the manufacture’ of such a product the is generally evidentiary con product ‘would not put have it on mar sideration in deciding whether product a is ” ket.’ Montgomery Elevator Co. v. McCul unreasonably unsafe. Elevator, Montgomery lough, 776, 676 (Ky.1984) S.W.2d 780 (quot 676 S.W.2d at (citing 781 Post v. American ing Nichols v. Union Co., Inc., Underwear Cleaning Equip. Corp., 437 S.W.2d (Ky. 516 602 (Ky.1980)). S.W.2d 433 Bearing 1968)); Fuel, C & S Inc. Co., Equip. v. Clark question product a whether was manu F.Supp. 340, 552 (“[a] 347 (E.D.Ky.1982) factured in a “defective condition product unreason may unreasonably dangerous in ably dangerous” are factors such as the feasi- design, unless accompanied by a warning provides: Section 402A (b) expected it is to and does reach the user or consumer change without substantial in the con- (1) any product One who sells in a defective dition in which it is sold. unreasonably dangerous condition to the user (2) The rule (1) stated in Subsection applies al- or consumer property or to his subject though liability physical thereby harm caused to (a) the possible seller has exercised all care in consumer, the ultimate user or prop- or to his preparation product, sale of his erty, if (b) the user or bought has not consumer (a) engaged the seller is in the product business of from any or entered into contractual selling product, such a relation with the seller.
537 Chandler, 1143 F.2d at use”). 623 jury. for a fact to a certain put not be should it that Howard, 493 S.W.2d (citing Claycomb that held highest court Post, Kentucky’s Casualty Ins. Co. (Ky.1973)); if there Ohio unreasonably unsafe 718 was product warnings to 479 S.W.2d Highways, adequate Department provide a failure was Post, Speno, at 520. S.W.2d 437 S.W.2d 418 (Ky.1972); Carruba v. user. 605 ultímate law, ex- duty to Kentucky warn (Ky.1967). 401 Under likely to result dangers to the tends 521; Id. at product. of a misuse foreseeable C. Mfg. & Gamble Byrd v. Proctor stated, that claims plaintiff previously As Further, (E.D.Ky.1986). 602, 605 F.Supp. defectively de- motorcycle was Honda anof the absence that in court held Post extremely profile low of its signed because cannot shift warning, the defendant adequate would safety flag that the absence proving that the burden plaintiff also visibility. Plaintiff its increased regard- product misused not have warnings regarding that Honda’s claims say (“[i]t that no answer Id. less. inadequate view were condition hazardous the machine have attached appellant would young children misuse” the “foreseeable inso anyway, since he did outlet 220 DC motorcycle near or on riding this fur- were that of the directions the face for sum- of its motion purposes For Uniroyal, roads. nished”); Leonard v. also see its Cir.1985). conceded Honda mary judgment, Post that its defectively designed and that reasonable was product fact noted nonetheless, adequacy warnings inadequate; as to the differ were minds assuming negligence argued issue of that even warnings made the Post, designed at 521. defectively 437 S.W.2d question. product show plaintiff could not inadequate, warnings plaintiff Under inadequate design and the defective establishing causation the burden acci- cause probable awere claims liability, well as in of strict claims finding that agreed, The district dent. implied warran and breach sup- “no evidence record contained Hos Mary Elizabeth v. SS. ty. Huffman infer- a reasonable finding or raised ported (Ky.1972); Hol pital, 475 S.W.2d ‘proba- were a alleged defects ence *7 (Ky.1970). Rose, 157 458 S.W.2d brook v. following For the of the accident.” cause ble’ law, or Kentucky Further, causation under reasons, disagree. we by the substantial is defined proximate cause a conduct the defendant’s test: was factor demon Honda is to burden on bringing plaintiff’s about in factor substantial of issue genuine aof the absence strate Shein, 597 S.W.2d v. Deutsch harm? put Or causation. regarding fact material Edgar v. also Chandler (Ky.1980); see 144 that, as demonstrate differently, must Honda (6th 1143 Cir. F.2d 623 Long, W. find jury law, could of reasonable matter a law, fac 1980) (under Kentucky “substantial nor design defective Honda’s neither that determining de proper term is the tor” factor a substantial was inadequate element is an proof). Causation gree Honda to the accident. contributing evi by circumstantial may proved which this burden. to meet failed “the evidence dence, situation that in Trooper Ronald G. War- deposition, In his to tilt the balance be sufficient that, Police stated Kentucky State drip of the v. Hon Calhoun probability.” to possibility of both view opinion, the obstructed his in Ltd., Co., 130 738 Motor da factor hay a was the bales due to drivers Mfg. Trailco (citing Perkins Certainly, accident. to the contributed Mid Co., (Ky.1981); S.W.2d 855 613 Sales the ex- find that jury could reasonable a Ringley, S.W.2d Corp. v. 503 V.W. western cou- motorcycle, of the tremely profile low (Ky.1973); Fields Western pled safety flag-a Holbrook, with its lack of a defective (Ky.1972); 478 S.W.2d Gas purposes has conceded design that Honda Generally, Ken under at S.W.2d question a proximate cause tucky summary judgment-was a substantial bringing Gary’s motion, A purpose summary judgment factor in about harm. question is raised to whether the causing factual a factor in was substantial the acci- unreasonably alleged “defective condition question properly dent. This is a dangerous” was a substantial factor contrib- entry precludes of summary by uting this to cause of accident. trial court. addition, engineer chief In Honda Kazuo summary, In Honda has to failed show the testified that considered incor- Watanabe genuine absence of a issue of material fact porating safety flag a but respect design with to whether Honda’s de- it, against testing that no or research decided give or adequate warnings fect its failure to appropriate age was done determine in contributing was substantial factor motorcycle, for the recommendation and that cause the accident. The standard set out total acci- he was not aware of the available 56(c) met; in Fed.R.Civ.P. has not been involving motorcycle. dent statistics pleadings, depositions, to interroga- answers jury—and ease in not This is a which tories and admissions file do show the determination, judge—should trial make the genuine absence issue of material fact evidence, hearing all after as to wheth- Thus, with to causation. the burden incorporate safety flag er the failure met, on Honda was not and was it error on motorcycle, of this childrens part of the district court to render sum- flag, which this case have been seen mary judgment in favor of Honda.3 this hay by oncoming above the bales of mo- case, which, there is sufficient evidence when torist, a substantial factor in was contribut- light viewed in plaintiff, most favorable
ing to the cause of the accident. permit the reasonable inference that Further, question pre a factual alleged design Honda’s defect failure and/or warnings given to whether the sented as to warn was a substantial in bringing factor constituted a fac substantial about Accordingly, harm. we vacate contributing tor in to the cause of the acci grant summary the district judg- court’s only warning gave dent. The ment and proceedings remand for further illegal was it was to ride consistent with this decision.4 warning roads. given No specifically pointed dangers poten out the or III. consequences riding tial of children a low visibility motorcycle flag a safety without Plaintiff also contends against the use of denying caution this vehicle erred her motion for recon- small children without attachment In light sideration. of our decision vacate safety flag. Indeed, Honda has conceded entry summary judg- purposes summary judgment that for ment, of its we need not address this issue. *8 motion, inadequate. given the were Post, Under plaintiff Honda cannot shift to IV. proving product
the burden that the would product reasons, not been misused had the For foregoing have con the stronger warnings. ques entry tained A summary judgment factual in favor VACATED, tion as to is raised whether Honda’s failure of defendant is this case is give adequate warnings, to admitted for the REMANDED the to district court for fur- light finding, obviously In of this we need not consider question raise a factual as to the issue report Janoff and make determination of causation. admissibility report of the Janoff with respect the fact that it was to not submitted in findings 4. The district court made no with re- note, however, of an We do form affidavit. spect to intervening defendant's claim that the report part that the Janoff was a record Gary's acts of Morales and brothers were a su- case, filed in the on March perseding cause of the with accident or plaintiff's response as an exhibit to to de- to contributory defendant’s claim that compel compliance fendant's motion to with recovery. bars We remand these Further, Fed.R.Civ.P. 26. we are of the claims to the district court for consideration. considered, report that if the Janoff it would Father, highways. we cars on roads this deci- are with proceedings consistent ther in warnings and instructions look at the sion. In the case at light of the facts of this ease. KENNEDY, concurring in Judge, bar, injured tragically when Thompson Circuit part. dissenting motorcycle a main street his onto part he rode by a truck. The looking and was hit without if the failure majority that agree I with being on a danger with associated obvious motorcycle was flag bicycle have a to car, any it a a manner —be public street of fact is an issue design then there defective you bicycle, motorcycle, or on foot —is that acci- a cause of the failure was whether Morales testified might be hit a vehicle. suggested Although defendant dent. she told her son not to deposition her flag to motorcycle on the street. This evi- ride be entan- it would unsafe addition since burden, and the fulfills Honda’s initial dence in trees or bushes when gled thus to Morales production shifted burden paths where it is trails or on forest is ridden dispute exists as to show that a factual used, only causation issue designed to be by a might be hit her son knew whether us. is before She has not if he rode street. car however, majority’s dissent, I cor- The District Court this burden. carried warning could inadequate holding summary judgment on the rectly granted of this accident. probable cause been a have warnings issue. not by his mother boy had been warned The out, pointed Finally, as the District Court motorcycle without a helmet. ride the found that no reasonable manufacturer has Under any stronger Thompson would have followed adequate and warning give a duty to warning. danger consumers to to alert sufficient v. American consequences. Post 516, 520 Equip. Corp., 437 S.W.2d Cleaning however, exists, if duty
(Ky.1968). No such danger. product’s is aware user Products, 914 Fiber v. Gibson Glass
Hutt Cir.1990). (6th manufac- The F.2d showing “that the bears burden of
turer obvious.” been danger was or should have America, Plaintiff- STATES UNITED Uniroyal, Leonard Cross-Appellant, Appellee, Cir.1985). motion for sum- response to Honda’s argued that mary judgment, Morales JOHNSON, M.D., Keithley Defendant- of the conse- adequately warn failed Cross-Appellee. Appellant, pub- motorcycle on the riding the quences of 94-1743, 94-1843. Nos. and the manual Both the owner’s lic streets. consumers the bike sticker on instructed Appeals, States Court United the streets. ride the Circuit. Sixth minimotor- instructed walk rider was *9 10, 1995. Argued Oct. Admittedly, neither cycle across the street. conse- potential warned these 20, 1995.* Nov. Decided crossing I a street. associated quences majority suggest not understand do boy they had to be warned a car from out in not ride front
should obstruction, there warned that
behind * publi- fall-text "unpub- as one recommended originally issued as decision was This 20, 1995. November lished decision" On December cation. designated the