| Estate of Smalley v Harley-Davidson Motor Co. Group LLC |
| 2019 NY Slip Op 01963 [170 AD3d 1549] |
| March 15, 2019 |
| Appellate Division, Fourth Department |
[*1]
| Estate of David Smalley et al.,Respondents, v Harley-Davidson Motor Company Group LLC,Appellant. |
Harter Secrest & Emery LLP, Rochester (Paul Britton of counsel) and Quarles &Brady LLP, Milwaukee, Wisconsin, for defendant-appellant.
Laduca Law Firm, Rochester (Michael Steinberg of counsel), for plaintiffs-respondents.
Appeal from a judgment of the Supreme Court, Monroe County (William K. Taylor, J.),entered June 9, 2017. The judgment, among other things, awarded plaintiffs money damages asagainst defendant.
It is hereby ordered that the judgment so appealed from is unanimously affirmed withoutcosts.
Memorandum: Plaintiff Judith Smalley and her husband, David Smalley (collectively,plaintiffs), commenced this strict products liability action seeking damages for injuries theysustained while they were riding a motorcycle manufactured by defendant Harley-DavidsonMotor Company Group LLC (Harley-Davidson). Harley-Davidson appeals from a judgmententered following a jury trial that awarded plaintiffs damages, and we affirm.
At the time of the accident, David was operating the motorcycle, a Harley-Davidson UltraClassic Electra Glide purchased new by plaintiffs in 1999, with Judith seated behind him. Davidhad been riding motorcycles for approximately 40 years and had never before been involved inan accident. According to David, the motorcycle unexpectedly lost power while he wasnavigating a curve in the road at approximately 45 miles per hour. Fearing that he and his wifemight get struck from behind by vehicles traveling in the same lane of traffic, David steered themotorcycle off the road and planned to come to a gradual stop. While traveling on a grassy areaadjacent to the road, the motorcycle hit a rut in the ground and flipped several times, throwingplaintiffs to the ground. Both plaintiffs sustained serious injuries.
Harley-Davidson contends that Supreme Court abused its discretion in refusing to give aspoliation charge at trial with respect to the allegedly defective motorcycle, which was salvagedby plaintiffs' insurance company approximately two months after the accident. We disagree. "Ona motion for spoliation sanctions, the moving party must establish that (1) the party with controlover the evidence had an obligation to preserve it at the time it was destroyed; (2) the [evidencewas] destroyed with a 'culpable state of mind,' which may include ordinary negligence; and (3)the destroyed evidence was relevant to the moving party's claim or defense" (Duluc v AC & L Food Corp., 119AD3d 450, 451 [1st Dept 2014], lv denied 24 NY3d 908 [2014]; see Burke v Queen of Heaven R.C.Elementary Sch., 151 AD3d 1608, 1608-1609 [4th Dept 2017]).
Here, there is no evidence that plaintiffs sought the destruction of the motorcycle with theintention of frustrating discovery (see O'Reilly v Yavorskiy, 300 AD2d 456, 457 [2d Dept2002]). Judith gave permission to the insurance carrier to salvage the motorcycle almost threeyears before plaintiffs commenced this action, while she was still in the hospital. This was alsowhile David was in a coma, and well before plaintiffs received the recall notice fromHarley-Davidson that prompted them to file suit. Moreover, as the court noted, to the extent thatHarley-Davidson was prejudiced as a result of being unable to inspect the motorcycle followingthe accident, plaintiffs were equally prejudiced (see McLaughlin v Brouillet, 289 AD2d461, 461 [2d Dept 2001]). Under the circumstances, we cannot conclude that the court abused itsdiscretion in refusing to give a spoliation charge.
We reject Harley-Davidson's further contention that the court should have granted its motionfor a directed verdict at the close of plaintiffs' proof. " 'A directed verdict pursuant toCPLR 4401 is appropriate when, viewing the evidence in [the] light most favorable to thenonmoving party and affording such party the benefit of every inference, there is no rationalprocess by which a jury could find in favor of the nonmovant' " (Clune v Moore, 142 AD3d 1330,1331 [4th Dept 2016]; see Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]). Statedotherwise, a directed verdict should be granted only if it would be "utterly irrational" for the juryto render a verdict in favor of the plaintiff (Cohen v Hallmark Cards, 45 NY2d 493, 499[1978]; see generally Mazella vBeals, 27 NY3d 694, 705 [2016]).
"In order to establish a prima facie case in strict products liability for design defects, theplaintiff must show that the manufacturer [or seller] breached its duty to market safe productswhen it marketed a product designed so that it was not reasonably safe and that the defectivedesign was a substantial factor in causing plaintiff's injury" (Voss v Black & DeckerMfg. Co., 59 NY2d 102, 107 [1983]). Here, plaintiffs alleged that their motorcycle wasdefectively designed because it had a 40-amp circuit breaker in its electrical system, rather than a50-amp circuit breaker. Plaintiffs asserted that, although the circuit breaker itself was notdefective, the electrical system allegedly produced excessive amperages that caused the circuitbreaker to trip and shut off the engine and that the problem was more likely to happen with a40-amp circuit breaker.
Plaintiffs' evidence at trial established that the 2001, 2002 and 2003 models of plaintiffs'motorcycle were recalled by Harley-Davidson because, according to the recall notice, they had a"condition whereby the 40 Amp. main circuit breaker could open due to reasons other than thatfor which it was designed, causing an unexpected interruption of all electrical power to themotorcycle." Harley-Davidson later recalled the 1999 models that had an upgraded stator, butplaintiffs' motorcycle had the original stator and was thus not subject to the recall.
Plaintiffs called an expert at trial who testified that, although their 1999 model (without theupgraded stator) was not subject to the recall, it should have been because it was in all respectsidentical to the recalled 2001, 2002 and 2003 models that undisputedly had a design defect.According to the expert, plaintiffs' motorcycle had the same defect as those recalled modelsbecause they all had the same engine specifications and identical circuit breakers, batteries,regulators and alternators. The expert also opined that plaintiffs' 1999 model was identical in allrelevant respects to the 1999 models with upgraded stators that were recalled. The onlydifference was the stators and, according to the expert, the lack of an upgraded stator did notmake the 1999 model less prone to losing power. It is undisputed that the expert was qualified togive an opinion on those matters and, although defense counsel vigorously challenged theexpert's opinions, there is nothing in the record that renders the expert's testimony incredible as amatter of law.
We note that, because plaintiffs offered evidence of a specific design defect through thetestimony of their expert, it was not necessary for plaintiffs to exclude all other possible causes ofthe accident (see Speller v Sears, Roebuck & Co., 100 NY2d 38, 41 [2003]). In anyevent, plaintiffs did exclude the other possible causes by establishing that the motorcycleunexpectedly lost power while David was operating it.
Contrary to the contention of Harley-Davidson, the evidence presented by plaintiffs did notestablish that the accident was caused by driver error. At trial, Harley-Davidson presented thetheory that the accident was caused by rider error and that the engine did not shut off, as plaintiffsalleged. More specifically, Harley-Davidson asserted that David negligently or intentionallydrove the motorcycle off the roadway because he failed to negotiate a curve in the road orbecause he wanted to pass vehicles that had slowed ahead of him. Harley-Davidson also suggeststhat the accident may have resulted from Judith leaning the wrong way while the motorcycle wasnegotiating the curve. Thus, according to Harley-Davidson, plaintiffs' expert, in rendering hisopinion that a design defect existed, improperly relied on the "inaccurate" or "mistakenassumption" that the motorcycle lost power.
In support of its contention that plaintiffs' evidence established driver error, Harley-Davidsonrelies in part on statements David made to a deputy sheriff who responded to the scene of theaccident. While laying on the ground injured, David told the deputy that, as he was entering thecurved portion of the road, he "felt the weight of his passenger shift in the opposite direction."David did not tell the deputy that the motorcycle lost power. Harley-Davidson asserts that, if themotorcycle had lost power, David would surely have mentioned it to the deputy. However,plaintiffs' evidence also demonstrated that the deputy spoke to David for only 15 to 30 secondswhile he and his wife were suffering from grievous injuries. Under the circumstances, the jurymight well have concluded that David's primary concern at the time was not to give a full andcomplete accounting of the accident to the deputy.
Additionally, although plaintiffs introduced David's full deposition testimony,Harley-Davidson relies only on those portions of David's deposition in which he testified that hedid not know whether the power shut off on the motorcycle. A review of the entire depositiontestimony establishes that, immediately after answering "I don't know" to the question whetherthe engine shut off, David stated: "That's—I couldn't get it to do anything with the throttleand the gears were engaged . . . I didn't hear any clunks or anything, like I blew arod or anything." David went on to state, "[t]here had to be a power failure or it wouldn't haveshutdown like that. I don't know where it occurred." When counsel for Harley-Davidsonreminded David that he had just said that he did not know whether the power shut off, Davidresponded: "Really? How could I know? I'm not an engineer. I'm a rider and the bike was in direstraits. I had no control over it with the engine. We were on grass. My mind was not reading thebike, it was reading safety." David also stated that the motorcycle was not responding to"anything normal," and that he tried to restart it after it stalled, to no avail. He explained that themotorcycle could not have been running at the time of the accident because he had hit the restartbutton and did not hear the screeching noise that is heard when one turns on the ignition to avehicle that is already running.
Further, plaintiffs presented the testimony of an eyewitness to the accident, who testified thathe did not hear the motorcycle, which seemed odd to him because Harley-Davidson motorcyclesmake a lot of noise. The witness further testified that he did not see the headlight on plaintiffs'motorcycle, indicating that the engine had shut down. The witness had no interest in the outcomeof the case and his testimony, although not dispositive, supports plaintiffs' claim that the engineshut down.
In sum, based on the evidence offered by plaintiffs, it cannot be said that it was irrational forthe jury to conclude that plaintiffs experienced a "quit-while-riding" incident and that the stallingof the engine was a substantial factor in causing the accident and plaintiffs' resulting injuries. Norwas it irrational for the jury to accept the opinion of plaintiffs' expert that the motorcycle had adesign defect due to its use of a 40-amp circuit breaker. We therefore conclude that the courtproperly denied Harley-Davidson's motion for a directed verdict and allowed the case to bedecided by the jury.
We have reviewed Harley-Davidson's remaining contention and conclude that it lacks merit.Present—Whalen, P.J., Centra, Lindley, NeMoyer and Troutman, JJ.