Mohr v Yamaha Motor Co. Ltd (2013) H&FLR 2015-13

Dennis Mohr v Yamaha Motor Co. Ltd (2013) H&FLR 2015-13

Superior Court of New Jersey (Appellate Division)

19 July 2013

Coram: Reisner, Yannotti and Harris JJ.

Appearing for the Plaintiff: Herbert Korn, Robert Westreich and William Reutelhuber (of Herbert M Korn PC)
Appearing for the Defendant: Robert Kelly, Christen Moffa, Jason Schmitz and Christine Delany (of Littleton Joyce Ughetta Park & Kelly)

Catchwords: New Jersey – personal injury – product liability – failure to warn – defective product – misuse

Facts: The plaintiff was a recreational rider of snowmobiles.  On 5 February 2005 he was at he home of a friend in upstate New York and borrowed a snowmobile (manufactured by the defendant) belonging to that friend.  He noticed that it was running erratically and concluded that it had a fouled sparkplug.  In an attempt to clear the sparkplug the plaintiff and another man lifted the rear of the snowmobile by a handle attached to the back of the machine while a third man revved the engine (“the process”).  During this process the snowmobile’s track broke and flew backwards, severely injuring the plaintiff’s leg.  The leg was ultimately amputated.

At trial there was considerable lay evidence that the process was commonly used among snowmobilers in order to clear sparkplugs.  However, the machine’s owner’s manual contained warnings against standing behind the snowmobile or lifting its rear while the engine was running. It was not known whether the manual had been available to the plaintiff (let alone read by him) on the day of the accident.  New Jersey’s Product Liability Act provides that a manufacturer –

… shall be liable in a product liability action only if the claimant proves by a preponderance of the evidence that the product causing the harm was not reasonably … safe for its intended purpose because it … failed to contain adequate warnings or instructions (1)

The plaintiff brought proceedings against the defendant in the Superior Court of New Jersey on the basis that the snowmobile had a design defect and that the defendant had provided an inadequate warning against lifting the machine while it was running.  A jury upheld the claim based on failure to warn and damages of approximately $2,500,000.00 were awarded: Mohr v Yamaha Motor Co Ltd (2011), Daily Record, 14 April 2011.  The defendant appealed.

Held: Dismissing the appeal, that –

1. In proving that a product was dangerous and required a warning, a plaintiff is required to address the issue of product misuse, either by showing that there was no misuse or that the misuse that occurred would have been foreseeable to a reasonably prudent manufacturer.

Johansen v Makita USA Inc, 128 NJ 86, 607 A.2d 637 (1992); Cepeda v Cumberland Engineering Co, 76 NJ 152, 386 A.2d 816 (1978); Jurado v Western Gear Works, 131 NJ 375, 619 A.2d 1312 (1993); and Ridenour v Bat Em Out, 309 NJ Super 634 (App. Div. 1998), followed.

2. It was effectively conceded that the plaintiff had misused the snowmobile but that the misuse was foreseeable.  Accordingly the real issue for the jury was whether it was sufficient for the manufacturer to place a warning about the relevant risk of injury only in the owner’s manual, or whether a waning should have been affixed to the snowmobile itself.  On the evidence it was amply open to the jury to find that the defendant had provided an inadequate warning.

3. Obiter, A user’s modification of a product will not relieve a manufacturer of liability for a defective product if the defect remains a contributing proximate cause of the accident or the modification was foreseeable.

Soler v Castmaster, 98 NJ 137, 484 A.2d 1225 (1984) and Butler v PPG Industries Inc, 201 NJ Super 558, 493 A.2d 619 (App. Div. 1985), approved.


The Court’s judgment is available here.


(1) N.J.S.A., 2A:58C-2(b).



Avery v Cobra Enterprises of Utah Inc (2013) H&FLR 2015-12

James Avery v Cobra Enterprises of Utah Inc (2013) H&FLR 2015-12

United States District Court (Northern Dist. of Alabama)

23 May 2013

Coram: Acker J.

Appearing for the Plaintiffs: Steven Nichols and Shay Samples (both of Hare Wynn, Newell & Newton)
Appearing for the Defendant: Hobart Arnold and James Porter (both of Porter, Porter and Hassinger), Jeffrey Malsch and Anthony Pisciotti (both of Pisciotti, Malsch & Buckley) and David Welborn.

Catchwords: Alabama – tort – firearms – personal injury – product liability – merchantability

Facts: The plaintiff (James Avery) was the owner of a Cobra Model C32 derringer handgun (made by the defendant), which he had been given in around 2004.  He was experienced in using and handling firearms and routinely carried the gun in anticipation of using it for self defence.  In order to be able to use it for this purpose without delay, he customarily carried it without engaging the safety catches.

On 10 February 2010 the plaintiff was carrying the gun in his hands along with a number of other items including soft drink bottles.  As he attempted to throw the empty bottles in a rubbish bin, he dropped the gun, which discharged and shot him in the abdomen.

The plaintiff brought proceedings against the defendant, seeking damages for (as relevant here) breach of an implied warranty of merchantability.  The defendant sought summary dismissal of the claim.

Held: Denying the defendant’s application, that –

1. A claim based on breach of an implied warranty of merchantability can be brought to seek compensation for injury caused by an unreasonable dangerous product.  It is not dependent on (in particular) also having a connected claim under the Alabama Extended Manufacturer’s Liability Doctrine.

Spain v Brown & Williamson Tobacco Corp., 872 So.2d 101 (Ala. 2003), followed.

2. In order to claim for breach of an implied warranty a plaintiff must show that there was such a warranty, that it was breached, and that the breach proximately caused harm.

Storey v Day Heating and Air Conditioning Co., 319 So.2d 279 (Ala. Civ. App. 1975) and Barrington Corp. v Patrick Lumbar Co. Inc., 447 So.2d 785 (Ala. Civ. App. 1984), followed.

2(a). Alabama Code §7-2-314(1) implies a warranty of merchantability of goods into a contract for their sale if the vendor is a merchant with respect to goods of that sort.  A manufacturer can be considered to be such a merchant, despite not having a direct contractual relationship with an injured person, if that person was injured and it was reasonable to expect that they would use the goods in question (1).

Bishop v Sales, 336 So.2d 1340 (Ala. 1976), followed
Ex Parte General Motors Corp., 769 So.2d 903 (Ala. 1999), distinguished.

2(b). Alabama Code §7-2-314 lists a number of conditions for goods to be considered merchantable, including that the goods are fit for the ordinary purposes for which goods of that type are used.  It is a jury question whether (a) self-defence is an ordinary use of a derringer-type handgun, and (b) whether it would therefore be normal to carry it with the safety features unused, such that (c) for the gun to be merchantable it should not fire when dropped with the safety off.

2(c). It is a question for a jury whether any particular event is a proximate cause of a plaintiff’s injury.


The Court’s judgment is available here.


(1) This type of relationship seems indistinguishable from the test for manufacturer’s liability established in the classic case of Donoghue v Stevenson [1932] A.C. 562 (U.K. 1932)



French Republic v A Firefighter (2014) H&FLR 2015-11

French Republic v A Firefighter (2014) H&FLR 2015-11

Amiens Criminal Court

11 December 2014

Coram: Not identified.

Appearing for the Prosecution: Not identified.
Appearing for the Defendant: Not identified.

Catchwords: France – criminal law – emergency services – road accident – manslaughter – emergency

Facts: The accused was a firefighter with 33 years experience and, in particular, 10 years experience driving under emergency conditions.  On 6 October 2011 at around 10:00pm he was driving a tanker in a built-up area to the scene of a gas leak.  It was agreed that the driver had been complying with all applicable safety regulations when he passed through a red light with flashing lights and sirens activated.  Despite this, the truck collided with a scooter which entered the intersection pursuant to a green light.  The scooter driver was killed in the collision.  The driver was charged with “homicide involontaire” (≈ manslaughter).

The accused’s evidence was that he had slowed the truck, that he had not needed to speed as he had not yet been given the precise address of the gas leak, and that the scooter had entered the intersection at high speed.

Held: Convicting the driver, that the Court was not convinced that the gas leak was so urgent as to require driving under emergency conditions and disregarding the red light.


No written judgment is available.  This report has been prepared based on accounts in the newspapers Le Figaro of 22 December 2014, Courrier Picard of 6 November 2014 and 21 December 2014, Libération of 22 December 2014, an undated report in Pompier Magazine, and the account of television channel France3 of 22 December 2014.

Note: the accused has announced his intention to appeal.

Comment: This case has obvious relevance from a fitness perspective, noting that the scooter driver could equally have been a runner, cyclist or equestrian.  It should be noted that the court’s rationale – that it was able to second-guess the driver’s assessment of the situation, that it had done so and found it wanting – has been deduced second-hand from a comment made on the case by the union representing firefighters.  That said, it is the only variable which would explain the driver’s conviction in light of the other evidence.

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Eriksson v Nunnink (2015) H&FLR 2015-10

Karan Eriksson and Stan Eriksson v Kristi Nunnink (2015) H&FLR 2015-10

California Court of Appeal (Fourth Appellate District)

27 January 2015

Coram: Richli AP; King and Miller JJ

Appearing for the Plaintiffs: Terrence L Butler (of Butler & Dodge)
Appearing for the Defendant: Garth M Drozin (of Soltman, Levitt, Flaherty & Wattles)

Catchwords: California – horse – release – waiver – wrongful death – parental consent – coach.

Facts: The plaintiffs were the parents of Mia Eriksson, a 17-year-old equestrienne who aspired to compete in eventing at an Olympic level.  In 2001 the plaintiffs retained the defendant as Mia’s coach.  In May 2006 Mia signed (and Karan Eriksson countersigned as her parent) an agreement releasing Nunnink from liability for damages aside from those caused by her “direct, willful and wanton negligence”.

On 20-22 October 2006 Mia competed in an eventing competition at Ram Tap. During the event her horse fell, suffering swelling on his chest and a concussion.  It was subsequently agreed that Mia and the same horse would compete in a competition at Galway Downs on 3-5 November 2006 (there was dispute as to precisely what events it was agreed she would compete in). Prior to competing at Galway Downs the horse was inspected by two event judges and a veterinarian and considered fit to compete.  On the second day of the competition (a cross country event) Mia’s horse refused to jump fences four times and she was disqualified.  However, she continued with the event and attempted to jump a further fence.  The horse struck the fence, causing a rotational fall in which the horse landed on its back (and on top of its rider). Mia suffered fatal injuries in the accident.

The plaintiffs sued the defendant in Riverside County Superior Court for wrongful death and negligent infliction of emotional distress.  The defendant sought and was granted summary dismissal of the plaintiffs’ claim (1).  This dismissal was reversed on appeal and the matter remitted for trial (2). At trial, the proceeding was dismissed after presentation of the plaintiff’s case and without hearing from the defendant (3).  The plaintiffs appealed.

Held: Dismissing the appeal, that –

1. Because Karan had signed the release as Mia’s parent, it became final and binding and could not be disaffirmed.  Karan did not, however, thereby become a party to the release or bound by the promises made by Mia in it.

Hohe v San Diego Unified School District (1990) 224 Cal.App.3d 1559; Aaris v Las Virgenes Unified School District (1998) 64 Cal.App.4th 1112, followed.
Daniels v Sunrise Senior Living Inc (2013) 212 Cal.App.4th 674, considered.

2. The release did, however, curtail the plaintiffs’ rights.  Although wrongful death claims do not derive from the deceased’s putatively-infringed rights and are an independent cause of action, the plaintiff in such a case is bound by the deceased’s agreement to waive the defendant’s negligence and assume the risk.  The relevant duty of care in such a case is that owed by the defendant to the deceased; this duty can be limited or eliminated by the deceased’s signing a release.  A defendant cannot owe a greater duty to a person bringing a wrongful death claim than was owed to the deceased.

Ruiz v Podolsky (2010) 50 Cal.4th 838; Horwich v Superior Court (1999) 21 Cal.4th 272, followed.
Coates v Newhall Land & Farming Inc (1987) 191 Cal.App.3d 1, considered

3. The claim for negligent infliction of emotional distress failed on a similar basis to the claim for wrongful death: the release removed the defendant’s duty of ordinary care toward the deceased and as a corollary also removed the defendant’s duty to protect her parents from the risk of the emotional distress.  A defendant is able to assert the same defences against claims by bystanders (the position of the plaintiffs) as the defendant could assert against the direct victim, including signing of a release.

Dillon v Legg (1968) 68 Cal.2d 728

4. Once the defendant had shown that the release was applicable, the burden was on the plaintiffs to show that the defendant had been grossly negligent.  The plaintiffs’ own evidence did not establish that the defendant had acted with either gross negligence or willful and wanton negligence.


The court’s judgment is available here.

Note: The plaintiffs’ determination to pursue this matter more understandable when one notes that they had previously sued unsuccessfully for the death of another daughter in a separate riding accident (4). It is difficult to imagine a worse set of tragedies for a parent.
(1) Eriksson v Nunnink [2011] Metropolitan News-Enterprise, 11 January 2011, at 1.
(2) Eriksson v Nunnink (2011) 191 Cal.App.4th 826
(3) Eriksson v Del Mar Eventing Inc (2012) Chronicle of the Horse, 1 February 2012.
(4) Eriksson v California State University Fresno (5th Dist. Ct App. Calif., Wiseman APJ, Levy and Gomes JJ, 25 September 2007, unreported)