Business 8th Edition by Marianne Jennings

Exercise 30

Jumping on a Trek: Framing Assumption of Risk
FACTS
David DeRienzo (plaintiff) was part of a group of four men who regularly participated in "extreme" sports. The Group would videotape themselves riding mountain bikes and watch each other "hit jumps." Mr. DeRienzo maintained a Web site, www.roadgap.com, which, at one time, described and showed the Group's sports adventures. Mr. DeRienzo was the first of the Group to do "lake jumping," in which the goal is to ride one's bike off a jump into a lake. Mr. DeRienzo had done lake jumping 25-30 times.
Mr. DeRienzo bought a used 1998 Trek (defendant) Y5 model (the Bike), which is a "full-suspension" mountain bike. The Y5 is also called a "cross-country" mountain bike. Jeremy Ball of Spokane, Washington, was the original purchaser of the bike and the person who sold the bike to Mr. DeRienzo over the Internet sometime in the fall of 1999. Mr. Ball told Mr. DeRienzo that the bike was "a great bike," but he said that there were "cosmetic blemishes" on the frame. Ball had modified the bike, replacing the original front fork with a used "Rock Shox Triple Clamp" fork. The Rock Shox fork is designed to handle a heavier load from the rider, including loads created by jumps and drop-offs. A Trek catalog includes a section entitled "Off Road," listing the different Y model bikes (the Y5 among them) and their features, showing that the Rock Shox fork is available on certain models. Mr. DeRienzo had worked on the frame when, after purchasing it, it arrived unassembled and wrapped in towels. The 1999 Trek manual for the Y5 contained the following language:
Jumping your bicycle, performing bicycle stunts, severe off road riding, downhill riding, or any abnormal bike riding can be very dangerous. These activities increase the stress on your frame and components and can lead to premature or sudden failure of your bicycle frame or components. Such failure could cause a loss of control resulting in serious injury or death. Industry pictures and videos of these kinds of activities depict very experienced or professional riders. If you choose to jump your bicycle, use it for stunts, or use it in a severe offroad [sic] or downhill environment, carefully inspect your frame and components for signs of fatigue before and after each ride.
Remember; it is much easier to have an accident resulting in serious personal injury in these situations even if your bicycle performs as intended. Use suitable protective gear, including a certified bicycle helmet.
The following was in the 1997 Manual at the very bottom of page 10, in regular text (with no text box, Warning Sign or other graphic) and takes up approximately 1\10 of the page:
"Avoid jumping. Bicycles are not made for jumping. Doing so may cause your frame to fail. Never ride your bicycle in such a manner as to propel your bicycle airborn [sic] , including riding over steps and curbs."
This "Avoid jumping" text is the last of five text segments on page 10, the other four being (in order, from top to bottom): "Wear a helmet," "Know and observe your local bicycle riding laws," "Use special care when off-road riding," and "Use good shifting techniques." On the opposite (facing) page, there is a text box with the word "CAUTION" and two segments (including bold text) about the dangers of riding at night and in wet conditions. Mr.
DeRienzo did not read the warnings. Mr. DeRienzo used the bike for mountain biking or "off-road" riding, estimating that he took the bike over approximately 200 jumps and drop-offs before the accident, with the highest being 10 feet off the ground. The day before the crash at issue here, Mr. DeRienzo was involved in an incident in which the front wheel of the bike hit the ground at an angle of between 50 and 70 degrees, causing Plaintiff to go flying over the handlebars. He says he was not injured until the next day when the bike frame fell apart after he jumped five to eight feet off a ledge created by a rock sticking out of the side of a hill. Mr. DeRienzo filed suit against Trek for its defective bike frame as well as its failure to warn him about the dangers of a mountain bike and mountain biking. Trek moved for summary judgment.
JUDICIAL OPINION
MCMAHON, District Judge
Under New York law, a manufacturer who places a defective product on the market that causes injury may be held strictly liable for the ensuing injuries if the product is not accompanied by adequate warnings for the use of the product. The failure to warn must be a proximate cause of plaintiff's injuries. The elements of a failure to warn claim are: (i) a danger existed to a significant portion of defendant's consumers requiring additional warning; (ii) the alleged danger was known or reasonably foreseeable; and (iii) a proposed alternative warning would have prevented Plaintiff's accident.
Some courts in this Circuit have held that a manufacturer may be held liable for injuries caused by its failure to warn of the dangers arising from the foreseeable misuse or modification of the product as well. Under this line of cases, evidence that a manufacturer might reasonably have foreseen a particular type of misuse raises an issue of fact that precludes the granting of summary judgment.… [T]here is "no material distinction between foreseeable misuse and foreseeable alteration of a product," and that, "in certain circumstances, a manufacturer may have a duty to warn of dangers associated with the use of its product even after it has been sold." This is a fact-specific inquiry. In addition, "A manufacturer's superior position to garner information and its corresponding duty to warn is no less with its ability to learn of modifications made to or misuse of a product."
Other courts have held that strict liability cannot attach unless a product is being used in a "normal" manner.
An expert opinion accompanied by submissions showing industry-wide advertisements encouraging a particular use of a product is probative on the issue of whether defendant knew its product was being used in a certain manner. This duty is not open-ended, however, and a manufacturer is not required to insure that subsequent owners and users will not adapt the product to their unique uses.
The adequacy of a warning is generally a question of fact for the jury. A warning that is inconspicuously located and written in small print may be deficient.
One issue that typically precludes summary judgment on a failure to warn claim is whether the information contained in any issued warning was "commensurate with the manufacturer's knowledge of the nature and extent of the dangers from foreseeable use of its product."
Finally, failure to read a warning is not dispositive. While it is true that, in many cases, a plaintiff who admits that he failed to read a warning that was issued with the product will have failed to show that any deficiency in that warning was the proximate cause of his injuries, plaintiff's failure to read an insufficiently conspicuous or prominent warning will not necessarily defeat the causation element of a failure to warn claim.
Plaintiff asserts that his use of the Bike for jumping was typical of aggressive mountain bikers-so, normal and not a misuse-and that Trek was aware that riders such as he would purchase a Trek Y5 bike for jumping. Plaintiff asserts that Trek did not warn of the dangers of jumping at all, and that its buried admonitions in an Owner's Manual to check the frame for damage were inadequate because they were inconspicuous and also because a visual inspection of the frame would not lead to the discovery of the type of damage that caused the frame to fail-namely, fatigue cracks in the head tube\ down tube weld.
Defendant counters that jumping was not a normal use of a Y5 bike, that Plaintiff misused the Bike causing damage to the frame, that Trek did adequately warn of the dangers of jumping a Y5 Bike, and, as above, that any possible failure to warn was not the proximate cause of the accident in any case. Specifically, Defendant claims Plaintiff cannot recover for failure to warn because (i) Plaintiff admits he never saw an Owner's Manual; and (ii) the accident was caused by his misuse of the Bike and his poor jumping technique.
[The expert witness's] testimony that jumping is an "entirely foreseeable" and "expected" use of a mountain bike is admissible, I find that Plaintiff withstands summary judgment on that issue. Further, [the expert witness] opines that it was foreseeable that a user would modify a bike the way Plaintiff modified this Bike, i.e., by replacing (among other components), the standard fork with a Rock Shox fork, which the parties agree is designed for jumping. This could lead to an inference that Trek knew users would modify Y5 bikes to make them more suitable for jumping.
Further, Exhibits B, C, and D are copies of pages from mountain biking books, all of which include references to jumping and some of which show pictures of mountain bikers airborne on their bikes. In addition, Plaintiff's Exh. 18 shows pages of a 1998 Trek Catalog that includes at least one picture of an airborne mountain biker (the page shows Y model bikes, but not the Y5 model, which appears on the next page, where there is no picture of a rider). Based on this evidence, a jury would be entitled to find that it is both common for mountain bikers to jump their bikes and common for Trek consumers to modify Y5 model bikes to make them more suitable for jumping. If a jury so concluded, it could also conclude that Trek knew or should have known it had a duty to warn explicitly of the dangers of using a Y5 model for jumping.
As for the Owner's Manual, the fact that the parties submitted two different versions with substantially different warnings and graphics is enough to raise triable issues of fact on the failure to warn claim. Moreover, both Manuals contain warnings on almost half of their pages, which could lead a jury to conclude that any warning against jumping was inconspicuous-in either Manual. Thus, it is far from clear whether Trek warned Y5 users not to jump or of the dangers of jumping, and if it did, whether those warnings were conspicuous and\or adequate. Plaintiff's claims withstand summary judgment. There is also a dispute about whether Trek pasted a warning on the Bike itself-and, if so, to which version of the Owner's Manual it referred-which precludes summary judgment.
A plaintiff injured by a defective product may recover for breach of warranty under New York law. This remedy, grounded in various provisions of the New York Uniform Commercial Code, has not been subsumed by the tort cause of action for strict products liability. Castro v QVC Network, Inc., 139 F.3d 114, 117-18 (2nd Cir. 1998).
A product must be "fit for the ordinary purposes for which such goods are used" to be considered merchantable under New York's version of the Uniform Commercial Code. Thus, liability for breach of warranty depends on "the expectations for the performance of the product when used in the customary, usual and reasonably foreseeable manners." Accordingly, a plaintiff must show that the product "was being used for the purpose and in the manner intended." Privity of contract is not required in a personal injury action for breach of warranty.
Where there are questions about whether a product was being used in a reasonably foreseeable manner, summary judgment is not appropriate. Thus, Plaintiff's breach of warranty claim requires proof that the Bike did not meet expectations for performance because it failed during his jump or landing, which was a reasonably foreseeable use of the Bike. As noted above, Plaintiff has supplied admissible evidence sufficient to raise a genuine issue of fact on the question of whether the Y5 was marketed for use in jumping. Accordingly, Defendant's motion for summary judgment on breach of warranty also must be denied.
What does the court say about not reading the warnings?