Allie Strong v. Wynne Outdoor Motorsports, Inc. and American Suzuki Motor Corporation

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

ALLIE STRONG

APPELLANT

V.

WYNNE OUTDOOR MOTORSPORTS, INC. and AMERICAN SUZUKI MOTOR CORPORATION

APPELLEES

CA05-574

December 14, 2005

APPEAL FROM THE CROSS COUNTY CIRCUIT COURT

[CV 2003-56]

HON. HARVEY L. YATES,

JUDGE

AFFIRMED

Robert J. Gladwin, Judge

This is an appeal from an order granting appellees Wynne Outdoor Motorsports, Inc., and American Suzuki Motor Corporation summary judgment against appellant Allie Strong in connection to an alleged defect in a motorcycle purchased by appellant. We affirm.

On June 18, 2001, appellant bought a Suzuki motorcycle from appellee Wynne Outdoor Motorsports. He started the motorcycle, rode it from the front of the dealership across the parking lot, and then paused to wait for the chance to pull into traffic. It is undisputed that the motorcycle appeared to be running normally at that time. When the traffic cleared, appellant put the motorcycle in gear, pulled onto the highway at full throttle, lost control of the motorcycle, and crashed onto the ground. Appellant suffered burns, scarring, and other injuries to his right arm, left elbow, right knee and leg, and back.

Appellant's insurance carrier declared the motorcycle a total loss and moved it to a salvage yard in Conway, Arkansas. Subsequently, in December 2001, appellant's attorney requested that Mr. Robert Handford, the owner of a local motorcycle shop, inspect the

motorcycle. It was transported to his shop, where Mr. Handford discovered that one of the throttle cables had been pulled out of a recessed hole at the throttle cable junction, which would cause the motorcycle to constantly run at half throttle. He explained that it did not appear that the throttle cables had been tampered with, but he could not determine how or when the condition occurred. He found nothing wrong with the operation of the clutch on the motorcycle. He replaced the throttle cable and discarded the old one. The motorcycle was subsequently sold as salvage, and the appellees claim that they never had an opportunity to reexamine it.

On or about April 1, 2003, appellant filed suit against appellee Wynne Outdoor Motorsports to recover damages sustained as a result of the defective motorcycle supplied by it and later amended his complaint to add appellee American Suzuki, the manufacturer, as a defendant in the lawsuit. Prior to trial, appellees moved for summary judgment, claiming that they were entitled to judgment as a matter of law because: (1) appellant could not prove the existence of a defect in the motorcycle that caused his damages, and (2) the motorcycle was unavailable for them to inspect. The trial court reviewed the pleadings and heard arguments from counsel. A letter opinion was issued on December 13, 2004, in which the trial court found that appellant had failed to produce any evidence of a defect in the motorcycle while in the control of either of the appellees as required by Ark. Code Ann. § 4-86-102. The trial court found that direct proof as to the defect did not exist and also that appellant failed to negate other possible causes of the accident by a preponderance of the evidence.1 On or about December 14, 2004, the trial court entered orders granting summary judgment in favor of both appellees.

On appeal, the standard of review from a grant of summary judgment is well established. Summary judgment is to be granted by a circuit court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. See Ark. R. Civ. Pro. 56; see also Giles v. Harrington, Miller, Neihouse & Krug, __ Ark. __, __ S.W.3d __ (May 12, 2005). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Giles, supra. On appellate review, this court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material question of fact unanswered. Id. This court views the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Id.

In order to establish product liability under Ark. Code Ann. § 4-86-102, a plaintiff must prove that the product, as supplied, was defective so as to render it unreasonably dangerous and that such defect was the proximate cause of the accident. See Higgins v. General Motors Corp., 287 Ark. 390, 699 S.W.2d 741 (1985). Arkansas has adopted a strict products liability theory. Southern Co. v. Graham Drive-In, 271 Ark. 223, 607 S.W.2d 677 (1980). Under a strict liability theory, a plaintiff is not required to prove negligence. Id. Evidence that the motorcycle was in a defective condition when it left the control of the appellees is an essential constituent of proof required under Ark. Code Ann. § 4-86-102. See Yielding v. Chrysler Motor Co., 301 Ark. 271, 783 S.W.2d 353 (1990); Nationwide Rentals Co. v. Carter, 298 Ark. 97, 765 S.W.2d 931 (1989).

In the absence of direct proof that the product is defective because of a manufacturing flaw, the plaintiff must negate the other possible causes of failure of the product for which the defendant would not be responsible in order to raise an inference that the dangerous condition existed while the product was still in the control of the defendant. Crawford v. Sears Roebuck & Co., 295 F.3d 884 (8th Cir. 2002); Campbell Soup Co. v. Gates, 319 Ark. 54, 889 S.W.2d 750 (1994); Yielding, supra. Circumstantial evidence can be sufficient to establish these elements. Yielding, supra. In cases similar to this one, where a vehicle suddenly goes out of control while being operated, our supreme court has stated that driver error is a likely cause, absent a reliable explanation in the alternative. Id; see also Gates, supra (reversing and dismissing a plaintiff's verdict for failure to negate other possible causes of failure in the absence of direct proof that the product was defective because of a manufacturing flaw); Williams v. Smart Chevrolet Co., 292 Ark. 376, 730 S.W.2d 479 (1987) (affirming the grant of a directed verdict where plaintiff failed to negate all possibilities so as to remove the question of negligence from the realm of speculation and conjecture); Higgins, supra (affirming the grant of a verdict where plaintiff could not negate any cause of the accident due to driver error or control); Mixon v. Chrysler Corp., 281 Ark. 202, 663 S.W.2d 713 (1984) (affirming the grant of summary judgment where plaintiff crashed his car and claimed he suddenly became unable to control it because of a defective steering mechanism).

Appellant argues that the trial court erred in granting summary judgment because sufficient evidence existed to support his claim that the motorcycle was defective and that genuine issues of fact existed. He asserts that whether the motorcycle he purchased, as manufactured and supplied by the appellees, was in a defective condition at the time it left the hands of each appellee is a question of fact. He testified that he attributed the accidentto a sudden burst of throttle, which caused the motorcycle to run out of control, and maintains that his testimony alone is sufficient evidence of a defect. See Higgins, supra. He also asserts that Mr. Handford's assessment of the improperly connected throttle cable constitutes direct proof of the defect, and that those two explanations create a genuine issue of fact as to the existence of a defect.

As to whether a defect existed at the time the motorcycle left each of the appellee's hands, appellant claims that the circumstantial evidence, when thoroughly examined, creates an issue of fact related to this issue as well. He admits that the motorcycle was not examined by his expert until approximately six months after the accident, and that it was never examined by the appellees. He also recognizes that the mere fact that an accident occurs does not constitute proof that a product was defective when it left the hands of the supplier. See Harrell Motors, Inc. v. Flanery, 272 Ark. 105, 612 S.W.2d 727 (1981). However, he points out that the Arkansas Supreme Court, in Flanery, said that "the addition of other facts tending to show that the defect existed before the accident, such as its occurrence within a short period of time after sale, or proof of the malfunction of a part for which the manufacturer alone could be responsible, may make out a sufficient case, and so may expert testimony." Id. at 108, 612 S.W.2d at 729. In this case, he purchased a brand new motorcycle. The wreck occurred immediately after the sale, as he was driving it onto the highway from appellee's parking lot. He asserts that the timing of the accident, in and of itself, can be a fact tending to show that the defect existed before the accident.

Appellant also contends that his account of the accident negates any other explanation and supports the existence of a defect at the time of delivery of the motorcycle. He contends that he is an experienced motorcyclist and that a wreck caused by "an unexplained burst of throttle" does not normally occur in the absence of a defect. He also claims that theappellees' request to disregard his expert's evaluation because it occurred some six months after the accident goes to the weight that should be afforded at trial to the credibility of the expert's findings rather than to the admissibility.

It is undisputed that the motorcycle remained at the salvage yard for six months following the accident, accessible to an unknown number of people. There is no evidence that the motorcycle was in the same condition at the time of the evaluation that it was in when the accident occurred. Mr. Handford could not say whether the throttle cable came out of the recessed hole at the salvage yard, at the retail showroom, or when it was manufactured. The appellees claim that these circumstances deprived them of their statutory defense, pursuant to Ark. Code Ann. § 16-116-106, specifically, that the motorcycle was not unreasonably dangerous at the time it left the control of the appellees, "but was made unreasonably dangerous by subsequent unforeseeable alteration, change, improper maintenance, or abnormal use." The motorcycle's throttle cable could have been dislodged during the accident itself or anytime thereafter.

Appellant was in his late forties at the time he purchased the motorcycle. He asserts that he is an experienced rider, but the reality is that he had never owned a motorcycle prior to this purchase. He testified that he had ridden friends' motorcycles in his earlier years, but admitted that he had not ridden one in more than fifteen years prior to the time the accident occurred. There is no indication that there was any problem with the motorcycle as appellant rode it across the parking lot. It started, idled, and responded to the throttle as it should. Appellant testified, however, that the vehicle went to full throttle without any control input from him as he pulled onto the highway. He testified that the position of the grip throttle in his hand did not change, i.e., it did not roll to the open position, and that he pulled the clutch lever in reaction; however, it did not disengage.

There is no evidence before us that the throttle cable was defective at the time it left the control of the manufacturer or at the time appellant purchased it from the retailer. The motorcycle remained in a salvage yard for six months, and there is no evidence as to who had access to it or how the condition of the motorcycle changed over the course of that time. Appellant's own expert, Mr. Handford, testified that appellant's version of the accident did not "make sense" and that it would be hard for him to understand how the motorcycle could suddenly go to full throttle without warning, stating, "[a]s far as the engine suddenly revving up without the rider doing anything at all, that doesn't make sense." He testified that some pulling force on the cable near the handlebar was the most likely cause of the throttle cable being out of its recess, but he admitted that he did not know exactly what caused it or when it occurred. Further, he stated unequivocally that the problem would have been immediately apparent because the engine would run very fast and refuse to idle. He also explained that it would not have been an intermittent problem, specifically, that if the motorcycle was idling properly when appellant first got on it, then the sheath was not out of the connector.

Contrary to appellant's theory, it is not enough for there to be an accident caused by a mysterious malfunction that he cannot explain. Although appellant claims he can create a genuine issue of material fact from circumstantial evidence, all the circumstantial evidence in this case indicates that the accident was caused by driver error rather than a defect in the motorcycle. Because there was no genuine issue of material fact remaining, we affirm.

Affirmed.

Pittman, C.J., and Hart, J., agree.

1 The trial court's order did not address the issues raised in the appellees' motions regarding the alleged unavailability of the motorcycle for inspection; accordingly, we will not address it here.