Moore v. Kawasaki Motors Corp., U.S.A.

703 So. 2d 990, 1997 Ala. Civ. App. LEXIS 361, 1997 WL 218688
CourtCourt of Civil Appeals of Alabama
DecidedMay 2, 1997
Docket2960040
StatusPublished
Cited by1 cases

This text of 703 So. 2d 990 (Moore v. Kawasaki Motors Corp., U.S.A.) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Moore v. Kawasaki Motors Corp., U.S.A., 703 So. 2d 990, 1997 Ala. Civ. App. LEXIS 361, 1997 WL 218688 (Ala. Ct. App. 1997).

Opinion

RICHARD L. HOLMES, Retired Appellate Judge.

Gary H. Moore, individually, and as next friend and father of Daniel Moore, a minor, appeals from a summary judgment in favor of Kawasaki Motors Corporation, U.S.A.; Kawasaki Motors Manufacturing Corporation; Kawasaki Heavy Industries, Ltd. (hereinafter collectively referred to as Kawasaki); and D & H Cycle, Inc.

Our review of the record reveals the following pertinent facts: On June 5, 1989, Daniel Moore, who was 9 years old, received serious head, hand, and leg injuries when the 1985 Kawasaki three-wheeled all-terrain vehicle (ATV) that he was operating hit a telephone pole.

The only witness to the accident was Daniel’s friend, Jeremy, who was riding behind Daniel on the day of the accident. Jeremy testified that he was behind Daniel on the left side of the road and that it appeared as though Daniel was going to drive his ATV off the left edge of the road, go around the telephone pole, ride through a small pasture, and reenter the road somewhere ahead. It is undisputed that the telephone pole was approximately 30 feet from the edge of the road and was completely visible. Jeremy stated that he passed Daniel as Daniel went off the edge of the road and, thus, did not actually see him hit the telephone pole.

Daniel testified that he had no recollection of the accident. However, he testified that he was operating the ATV in a normal manner before the accident occurred and that he was not having any problems with the ATV’s operation. Jeremy also testified that Daniel was operating his ATV in a normal manner, indicating that the ATV was not malfunctioning.

On June 5, 1991, Daniel and his father sued Kawasaki and D & H to recover damages under the Alabama Extended Manufacturer’s Liability Doctrine (AEMLD), based on allegations of negligent and wanton design of the ATV, negligent failure to adequately warn of the dangers associated with the ATV, and breach of implied and express warranties.

Specifically, Daniel and his father sought to prove, through the expert testimony of an accident reeonstractionist, that the ATV began “plowing” as Daniel drove it off the left edge of the road and that Daniel, because of his age and small stature, was unable to turn the ATV to avoid hitting the pole. Daniel and his father also introduced the testimony of a product safety manager to show that the ATV was defective and unreasonably dangerous for children.

Thereafter, Kawasaki and D & H filed separate summary judgment motions, requesting that the trial court enter a summary judgment in their favor because, they said, the affidavit and deposition testimony of Daniel and his father was based on unverifiable speculation and conjecture. Daniel and his father responded with a brief in opposition.

On October 10, 1995, the trial court granted Kawasaki’s and D & H’s summary judgment motions on all counts. Daniel and his father filed a motion for reconsideration. The trial court, following a hearing, denied their motion, based on its finding that “the expert testimony is ‘unverifiable speculation’ that is not of assistance to the trier of fact and thus inadmissible as a matter of law.” Stated differently, the trial court determined [992]*992that Daniel and his father failed to produce substantial evidence on the element of proximate causation.

Daniel and his father appeal. This case is before this court pursuant to Ala.Code 1975, § 12-2-7(6).

On appeal an appellate court must decide whether a genuine issue of a material fact exists. If it is determined that no genuine issue of a material fact exists, then the appellate court must determine whether the moving party was entitled to a judgment as a matter of law. The appellate court must view the record in a light most favorable to the nonmoving party, and it must resolve all reasonable doubts against the moving party. McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957 (Ala.1992).

For purposes of reconstructing the accident, Joe Rogers Johnson, the accident re-constructionist, studied Jeremy’s and Daniel’s testimony regarding the events leading up to the accident, made measurements of the scars on the telephone pole, physically observed the dents on Daniel’s ATV, physically observed the extent of Daniel’s injuries, and studied Kawasaki’s owner’s manual regarding the ATVs “plowing” propensity. Johnson stated the following in his affidavit, in pertinent part:

“I conclude that Daniel turned left off of the roadway at a 20 degree angle to pass behind the telephone pole and reenter the roadway by a driveway located 60 feet east of the pole. With Daniel traveling at 5 to 10 miles per hour as he leaves the roadway, it only takes 2 to 4 seconds to travel the 30 feet to the pole. As he leaves the roadway Daniel continues to try and turn left, but his small 9-year-old stature and his height and weight make him unable to overcome the ‘plowing’ characteristic or tendency to continue straight ahead while trying to turn in off road conditions. The ATV strikes the [pole] first at the right side front wheel axle nut then at the right front fork tube clamp bolts. This impact snaps the handle bars hard right causing the vertical dent in the front of the fuel tank. The right handle bar also pins Daniel’s right leg to the fuel tank. The front impact to the ATV and hard right turn causes the rear of the ATV to start to rise as it goes forward. Daniel’s leg is caught between the ATV and the pole. This is followed by the right side fiberglass fender impact with the pole. Impact between the pole and the right rear fender stopped the ATV.”

Kawasaki and D & H argued that there could have been other explanations for the accident, such as Daniel’s inattentiveness, his self destructiveness, or the malfunctioning of a component part. However, Kawasaki and D & H offered no evidence to substantiate these theories or to dispute Johnson’s theory. Apparently, neither Kawasaki nor Johnson inspected the internal component parts of the ATV for malfunctions.

Albeit Johnson admitted that there were other possible theories for how the accident occurred, he, nevertheless, opined that “plowing” was the most probable theory. Johnson stated the following in his deposition testimony, in pertinent part:

“A My reconstruction of this accident is based on the propensity of these vehicles to plow and they must plow with very little provocation or steering input for you to consider such a problem or Kawasaki to consider it such a problem. They print instructions on how to get around it. Now, I have no evidence that says that [Daniel] was not paying attention, [that Daniel] was looking somewhere else. ... These are all possibilities for which we have nothing. The damage to the vehicle and the lack of fatal injuries to [Daniel] cause me to believe that the speeds involved were between 5 and 10 miles per hour.
“At those speeds [Daniel] has an opportunity to react as he leaves the roadway and the vehicle sets up a plow condition and drives straight into the telephone pole. Now, that is also based on the straight line that this vehicle makes going through the edge of the telephone pole and the final position [of the ATV].”

Johnson’s findings and opinion, viewed as a whole and in a light most favorable to Daniel and his father, suggest that “plowing” may have been the most likely cause of Daniel’s accident.

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703 So. 2d 990, 1997 Ala. Civ. App. LEXIS 361, 1997 WL 218688, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moore-v-kawasaki-motors-corp-usa-alacivapp-1997.