|you be the jury -- bicycle product liability||DougSloan|
Dec 8, 2003 8:59 AM
|Anyone want to play jury? Here's the situation. I'd ask for these purposes that you assume all facts to be true and all law to be controlling, even if you disagree with it. Assume a competent witness would testify to each fact or opinion.
A very experienced cyclist, 38 years old, 170 pounds, one of the best double century riders in the country (best of 8.5 hours), was participating in double last spring. As he was descending a hill, his handlebars suddenly snapped off at the stem on one side, causing him to crash headfirst into an embankment. He had been going about 30 mph. He did not hit anything unusual in the road.
The bike had never been crashed or harmed in any way before. Bike shops had routinely worked on his bike, and he did almost no work on it himself. Superficial inspection revealed no crack before the crash.
He bought the bike from a local shop in 1998. It is a Klein Quantum Pro, and the shop built it with a 3T Prima 220 bar. The rider actually specified an ITM bar, but the shop substituted something it had on hand. It had the Klein proprietary stem with the wide climp, hinged on top with 2 bolts securing it.
The shop provided no literature or warnings of any kind. The rider had never seen or been told any warnings of any kind about the handlebar or stem. Some riders had heard warnings to replace bars every so often, but he had never heard that. He had no reason to believe the bars were defective or needed replacement.
The bike had been ridden regularly for about 5 years, mixed in with 2 other bikes. He estimates he rode it about 30,000 miles total.
As a result of the crash, he was knocked unconscious and was air lifted to a nearby hospital. He was found to have a broken spinous process, cracked vetebral body, and disc buldging. As a result, physicians performed a diskectomy and cervical (neck) fusion of C6-C7, with titanium plates and screws. There were multiple injuries all over his body, but the neck injury was the worst. He also had a lot of lower back pain.
He was placed in a rigid neck brace for over 3 months. The neck injury healed such that the brace could be removed. During the 3 months, he suffered from a great deal of pain and discomfort, with some extremity numbness, headaches, back aches, and was unable to drive or ride a bike.
Long term he will have lost a great deal of range of motion in his neck. Holding his head up while riding long distances will be much more difficult, and the ability to turn his head to look for cars or other cyclists is more limited. He may well not be able to ride another double century, much less the 500 mile events he was planning or potentially even team RAAM.
Also, having two vertebra fused places additional stress on adjacent discs and vertebra. The fusing increases the likelihood of needing additional surgeries in the future, with additional pain before and after them. Being only age 38 now, it is expected that he will have to live with the results of this injury for about 40 more years.
He lost several weeks of work because of the injury, and likely will lose more in the future. The direct economic impact is not that significant, though.
The costs of future treatment could well exceed $100,000 or more. It is irrelevant whether or not it will be paid for by insurance, though.
The handlebar was made by 3T, distributed by Velimpex, and sold though a local LBS. The law makes each seller in the chain of commerce potentially liable. The law states the doctrine of strict products liability as follows: "A manufacturer, distributor, or retailer is liable in
tort if a defect in the manufacture or design of its product causes injury while the product is being used in a reasonably foreseeable way." Also, a seller may be liable if it sells a product that fails, causing injury, if it failed to warn adequately about product limitations or restrictions on use.
Experts testify that the bar was defectively designed and/or manufactured, in that there was too little material in the stem clamp area, the aluminum alloy used was too brittle, and/or that the buyer should have been warned about the useful lifespan of the bar due to fatigue. The rider stated that if he had been provided such a warning, he would have avoided the product entirely.
There is no evidence that the bar had been misused or that the stem clamp bolts were torqued outside manufacturer's specifications, which were not provided the buyer in any event. The law provides that a seller is still liable even if there is misuse, if the misuse if foreseeable, in any event.
The manufacturer claims that the product was not defective, but that 5 years' use of a lightweight bar is outside it's design parameters and that it provided written warnings that should have been provided by the retailer, which required replacement after 15,000 kilometers. The retailer denies receiving any literature to that effect. The manufacturer acknowledges that no aluminum handlebars have an infinite lifespan, but asserts that most actually do hold up for at least 5 years with no breakage. The product had never been recalled.
The law allows the jury to determine liability, and whether the rider was damaged by the sellers and the amount of damage. If there is liability, the law allows damages to be awarded for all amounts that will fairly compensate the rider for past and future: pain and suffering, medical bills (disregard insurance), lost wages, and incidental damages. Medical bills to date exceed $75,000, and it is anticipated that he will require at least $100,000 for future monitoring and treatment. His attorneys suggest pain and suffering damages between $500,000 and $1,000,000, considering the extremely painful nature of the injury and prospects for future limitations and pain.
So, who wins and how much? Obviously, this is not nearly as complete as a trial would be and it's a bit of a biased presentation for the rider. Assume that no additional information can be provided. Thanks.
|The shop provided no literature or warnings of any kind||blackhat|
Dec 8, 2003 9:13 AM
|did the original LBS require him to sign a release when he bought the bike? both shops Ive worked at required waivers with all new/used bike sales.|
|Can't answer the question||pedalAZ|
Dec 8, 2003 9:16 AM
|but I feel very sorry for the victim.
Front end failures seem to generate the most hideous injuries. A friend of a friend had a front end failure of some sort that left him living at home with his mother, eating a liquid diet for a long, long time.
These cases present very difficult problems for the industry. We all want superior performance, but at what price to our safety? If riders, as a marketplace, demand ever lighter components, shouldn't we share the blame when we make purchases on the margins? Shouldn't manufacturers have labels indicating the fatigue testing results (if any) of components, with clear disclaimers if the product has not been subject to rigorous testing?
|Everybody points the finger...||zero85ZEN|
Dec 8, 2003 9:38 AM
|...at everybody else. Typical. No way of figuring this one out on a forum message board. In truth probably everyone shares some responsiblity. Every cyclist that uses lightweight high performance components should, OF THEIR OWN ACCORD, learn about the risks/benefits of the products they use. It is not unreasonable to expect a knoweldgeable consumer to know that 5 years is too long to use lightweight handlebars. Especially with the milage that the rider was riding. Also, at 170 pounds he is not a lightweight rider. That being said, I don't blame the rider entirely, but I think he shares some blame. The manufacturer is technically right about the bars not being built for 5 years worth of heavy use. But still it does sound like a possible manufacturing problem on that particular pair of bars...to fail so suddenly (if indeed there were no signs of a problem...then again that is EXACTLY WHAT THE MANUFACTURERS WARNS ABOUT. Metal fatige is invisable). The local bike shop probably should have suggested that the bars be replaced. BUT I've worked in shops and often times customers get upset at the suggestion that they replace "perfectly good" pieces of equipment. The good thing about this accident is that the injured party is alive and their IQ is in tact. Yes the injuries suck, and it should not have happened, and he probably does deserve some compensation. But it is never a simple case of black and white.
I've participated in a lot of sports that can be hazardous (alpine skiing, snowboarding, cycling, water skiing, etc.) and I always educate myself about the equipment and the risks associated with what I'm doing AND THE PROBLEMS THAT CAN OCCURE DUE TO EQUIPMENT FAILURE.
|but there's a few counterpoints to that||hokie_biker|
Dec 8, 2003 11:35 AM
|I agree that people should take responsibility for what they do. I used to work in the Auto industry and manufactors would get sued all the time because people didn't know how to drive. The guy should have known what was on his bike. but...
1) He did not know what stem he had on the bike. he assumed he had product A when B was on his bike. He could have know everything about A, and nothing about B. The shop should have let him know about the difference.
2) He took the bike to get repaired at the LBS. he took it there because of their perceived expertise in the matter of bike repair. (this is a pretty null point if his stem/bar area was never worked on) It's like changing the tire on your car versus trying to change the transmission. I can change the tire because I can, and I know I'll do it right. I could probably change the transmisson (if I had the right tools and equipment) but I wouldn't trust myself to do a good enough job.
3) If the manufactor or dealer withheld any information that would indicate that there is a problem with the piece. If a Shimano knew that their cranks failed at (some ridiculious here) 200000 miles but failed to tell anyone, hoping that no one would ride that far, they are still liable (well probably more obligated) to tell the public what can happen, or at least make it available to them if the public wants to look for it.
All in all, I think the rider should know what's on his bike, and understand the inherant risk in riding. But the manufactors and dealers should help make it as safe as possible.
|Tough one............||Len J|
Dec 8, 2003 9:21 AM
|I'd lean marginally towards no liability to the Manufacturer. If I assigned liability at all, it would be to the seller. My first reaction to this is that the primary one at fault is the rider. Anyone who rides this much should know enough to replace their bars periodically, especially lightweight ones.
Sad case, and a lesson for all of us.
The LBS had the responsibility to communicate the nature of the bars to the rider. I assume also that the LBS was the one who serviced his bike. If so, he had a responsibility to "remind" the rider" about replacing the lightweight bars. He also had the responsibility to provide literature to the buyer at the time of purchase.
I'd award $150,000 for future medical and pain & suffering, payable by the seller.
|Agree in principle, but...||Fez|
Dec 8, 2003 10:11 AM
|Lawyers want to go for the deep pockets. It the seller is Performance Bike, that's deep pockets. If its a small LBS, then they aren't. The manufacturer and/or distributor will likely have deeper pockets.
Depending on what instructions given, the jury may also more sympathetic to a small retailer and be willing to award a bigger amount against the manufacturer or some party with deeper pockets.
Dec 8, 2003 10:23 AM
|who has the deepest pockets is immaterial to ME as a juror. Doug asked how I would vote. I think liability rests at worst with the LBS. I don't think the
Mfg. has done anything wrong.
|re: you be the jury -- bicycle product liability||curtiso|
Dec 8, 2003 9:22 AM
|Well Doug, there is certainly a wide net being cast here. The grand American tradition of suing EVERYBODY (manufacturer, distributor, retailer..... hell, what about the event organizers for failing to inspect his bike for him, the EMS provider, the hospital, the doctor....doesn't matter if any are AT FAULT). Throw that net out and see what comes back. When you play the litigation lottery, you have to buy a lot of tickets.
Now then, as you mentioned no other case history regarding these obvious handlebars-of-death, may we assume that there were no legions of disabled victims and their greiving families testifying as to their experience with these 3T bars? Given the facts as you have provided them, it would seem that there is no long sordid history of failure with these bars when used within their design limitations. EVERYTHING manufactured has a finite lifespan. Certainly most of us here on this board know that handlebars cannot last forever. If I know it, isn't it reasonable to expect an elite cyclist to know it as well?
Bottom line, I see NO REASON to award such outrageous damages in a case like this. This guy bought ultra light, ultra high performance gear (we have all heard the adage: light, strong, cheap...pick 2). His injuries are indeed regrettable, but sometimes things happen and its no one's fault, or worse, it's OUR fault. No reason to RUIN anyone elses career, reputation or livlihood because of it.
|Agree but the LBS should....||the bull|
Dec 8, 2003 9:51 AM
|with out a doubt give the guy a new set ITM bars(even though his old ones are broken and 5 years old).|
|didn't you post this a year ago?||laffeaux|
Dec 8, 2003 9:28 AM
|My opinion still has not changed. Life is an inherently dangerous activity. Warnings can not be provided for every possible bad thing that can happen in life. There's responsibility for understanding the inherent dangers, use of equipment and maintenance expected while operating any vehicile (car, bike, motorcycle, etc.) on the operator. While I feel sorry for this rider, and wish him a speedy and full recovery, accidents do happen. Sometime no one is to blame.|
|When does liability end?||AaronL|
Dec 8, 2003 9:30 AM
First off, I hope your client has a full and speedy recovery. In a nutshell, that sucks.
But what gets to me (and this is with a lot of lawsuits of this ilk, I'm not an attorney basher by any means, my brother-in-law has built a great practice doing nothing but injury cases)is that when do we accept liability of our own actions? Let's say that the rider wasn't told or warned, wouldn't COMMON SENSE tell him that riding 30K miles on a bike would eventually fatigue some of the components? I'm sorry, but after that many miles, and years, it's his sole responsibilty and risk to ride that bike and bars.
I snapped off an ITM stem a few years back. It was only 2 years old, never been crashed and had about 12K miles on it. Upon inspection it was obvious the stem snapped from a stress riser created at the weld joint. I got hurt a litttle from that crash and could have easily taken the case to court( not me saying this, same bro'-in-law), but I didn't. Why didn't I? Things break, and we take risks by riding our bikes. Was it their fault? Perhaps, but also it's my responsibility to accept the risk inherent with the sport.
I'm sure I'll get flamed to death on this, but it's just my opinion.
|Agree with Aaron 100%...||philippec|
Dec 8, 2003 9:45 AM
|accidents happen -- absent any *strong* evidence of malevolence on the part of ITM, Bikeshop, etc... I would deny any reparations. Also... if the money is needed to cover medical bills -- I would wonder why the injured rider opted for a +1k $ bike instead of medical insurance.
|Totally agree!! nm||wspokes|
Dec 8, 2003 10:47 AM
Dec 8, 2003 11:49 AM
|I am glad to see somebody else voicing a reasonable position on this board! I am SO SICK AND TIRED of the "sue happy" mentality of the citizens of this country. Is there no such thing as an accident anymore?? No -- whenever anything happens somebody is "at fault". In my mind, it's utterly ridiculous.
And what REALLY PISSES ME OFF is that we ALL PAY for these lawsuits. Because of all the litigation these days, our medical insurance is OUTRAGEOUS! Our auto insurance is OUTRAGEOUS! We pay $100 for an infant car seat! We pay OUTRAGEOUS prices for prescription and OTC drugs. It's absurd and it HAS TO STOP!!
In this case, I feel sorry for the cyclist. But I also feel he is primarily at fault. Anybody who engages in a "risky" activity (cycling, skiing, boating, etc) has to assume some responsility for participating in the activity and any accident that occurs as a result of that activity. In addition, an avid cyclist should know about bikes and that parts wear out and need to be replaced over time, even if the parts look "fine".
The only situation where TTT could be held partially responsible for the accident is if it is proven that they were negligent in the testing on their product. I highly doubt this is the case since their products are fairly common and problems are minimal.
Anyway, I am glad that others on this board are as sick of the "sue happy" mentality as I am. It's time we take responsibility for our own actions and understand that accidents happen. Why does somebody always have to be "at fault"??
Dec 8, 2003 12:04 PM
|With increased liability comes safer products.
Tho' I agree in principle with your assesment of our overly litigious society.
Dec 8, 2003 2:31 PM
| ... or lack of products. I've already heard of some products (like helmets) that companies refuse to sell in the US due to liability fears. Can you blame them? Why would anyone take the risk of selling products in the US. It would take a lot of potential profit to offset the potential risk.|
|Agree with both of you...||dgangi|
Dec 8, 2003 6:48 PM
|I am not saying that litigation should be thrown out the window altogether. If a company is negligent in its manufacturing process, it should be held responsible for that negligence.
But the degree that companies are being held responsible has gotten WAY out of control. As the previous poster mentioned, there are a number of products we cannot get in this country because the manufacturer doesn't want to risk the liability of our court system. That is a detriment to all of us.
There is a fine line between the point at which litigation helps society and when it harms it. IMHO, we crossed that line a long time ago.
|Er, who knows?||djg|
Dec 8, 2003 2:07 PM
|I don't really want to play sample jurror here--frankly, I think that quite a few more facts would be available to any real jurror, not to mention rather more information on the product liability law of whatever state law were to be applied. Doubt I'd be on this jury in any case.
I'm not a PI lawyer, btw, so while my intuitions probably ought to be taken with a grain of salt, it's at least the case that I don't have any particular stake even in "lawsuits of this ilk" much less this particular (actual? potential? hypothetical?) one.
But it's not obvious to me that "common sense" (or "COMMON SENSE") says anything about the particular durability of particular bicycle components, especially as common sense relates to the fatigue properties of particular alloys employed in particular handlebars, subject to variable stresses over time (numbers of cycles?). Why 30,000 miles instead of 10,000? Or 3,000? Should there be some visible (or other easily discernable) sign of impending failure? I'm not sure how common our common sense is about such things. More than that, I'm not sure that our common beliefs about the particular properties of relatively recent generation lightweight components are necessarily well founded (or right).
Let's turn the question around: why wouldn't a component manufacturer do systematic investigation of its components--especially components like handlebars, the failure of which might typically cause injuries? How the heck should they make the things? Just shave off some more material and put the thing into the marketplace to see what happens? And if they do investigate the soundness of their products, and uncover some solid empirical indication that folks should really worry after 30,000 miles, or 3 miles, or whatever--shouldn't they just let their customers know? Shouldn't they have to? Isn't saying that all risk is assumed by the rider a way of saying that the manufacturer doesn't have to say a thing? Doesn't have to test a thing?
The story we got indicates that particular warnings considered--by the manufacturer--to be in order and had been printed, and that the manufacturer at least CLAIMS to have distributed such warnings to the LBS (beats me what the actual facts were or how they'd be supported in court).
Dec 8, 2003 2:49 PM
|Okay, I'll turn off the capslock.
You make some good points, and I agree with you that companies do need to provide more information regarding their products.
But, my point is that anyone that is partcipating in a dangerous sport such as cycling, should find out more about about what risks they may face in the sport. That would also include equipment risks. Isn't that what you do? I know I do. I've owned well over a 20 bikes in as many years of racing, and I've learned to replace parts that are prone to failure. Where did I learn these things? FROM ASKING AND LEARNING (oops, sorry about the caps). I didn't sit around and wait to be "warned" by my LBS or the maker of the part. So, yes what happened to this poor guy is terrible, I hate to hear things like this. But, he could have prevented it had he took some of his own time and learned of the risks. Sorry, it's not the fault of anyone but the owner of the bike.
Besides, it doesn't matter what the manu puts on the label as a warning, some idiot will always get hurt, and claim he/she wasn't warned and then take it to court. You may or may not know of a case here in the CA bay area of a girl who is now paralyzed because she did not know how to properly fasten the Q/R on her front wheel. It came off while she was riding, and she crashed. The problem is this happend after she had owned the bike over five years. Been ridig the thing all over god's creation, and even had it in the shop she purchased it from a few times. Well, she decided it was the fault of the shop that she didn't know this information, even though she had owned the bike and ridden it for years. She won. Makes me sick to think about it, because SHE HAD FIVE STUPID YEARS TO LEARN ABOUT THE PROPER USE OF HER BIKE.
Oh, the bike came with an instruction book on how to use the Q/R. So much for CYA on the manufacturers'/LBS' part.
|The point being made...||zero85ZEN|
Dec 8, 2003 4:15 PM
|...is that an avid cyclist should use "common sense" or "COMMON SENSE" to find out this info on their own accord as well as have it presented to them by the manufacturer/bike shop. With the Internet widely available today to most people, it is very easy to gather this kind of information. That being said I do think the shop and the manufacturer also share some liability. But the rider should have had at least an inkling. Ignorance is NOT bliss when it comes to the equipment you use while participating in a potentially hazardous sport.|
|reminds me ....||shopclass69|
Dec 8, 2003 9:44 AM
|why my old shop didnt glue tubulars.
I worked in a shop and the owner had given up on tubulars-too many flats. He gave his wheels to a friend saying he wouldnt glue them for him and handed him a copy of bicycle retailer. I told a story of a doctor who rode for 20 - 30 yrs, all on tubulars. One would think he know the risk. Well, this doctor was coming down a hill, dragging his breaks, heated the glue, took a turn, roll the tire, slammed into the wall.
Nope, he sued everyone he could.
20 to 30yrs riding a bike is long enough to know the dangers of what you are riding. A court didnt agree and awarded him a settlement. Last I heard it was on appeal.
So, buyer beware. Too many roadies forget the purplr anodized stupid light craze that mtbs brought about in the 90's.
It sucks but if it was the first ride ever thats one thing, but what did he ride over previous to the crash. It could've been a freak thing that no one could've prevented or stopped.
Except maybe his lawyers......
|You don't want me on that jury, Doug.||Leroy|
Dec 8, 2003 9:44 AM
|IMHO the experienced rider assumed the risk. As far as I'm concerned he is engaged in an inherently dangerous activity. Sorry.|
Dec 8, 2003 9:45 AM
|My decision would hinge partly on the failure to provide the written warning on product lifespan. Whoever dropped the ball on passing along the written warning holds the liability.
If 3T gave the warning to Velimpex with instructions to distribute with product, Velimpex is holding the bag. If Velimpex can show it distributes the bar to shops with the lifespan warning and instructions to pass this info along to consumer, shop is holding the bag.
Award would be limited by my belief that a rider so involved in the cycling "community" could not be ignorant of the risks of superlight equipment, particularly for use in ultra events.
|Most accurate "legal" answer so far . . .||pedalAZ|
Dec 8, 2003 10:06 AM
|a classic "failure to warn" argument. Bit it probably goes beyond that. If 3T has to tell users to throw the product away in 2 years, knowing that not everyone will follow their advice, these cases are bound to turn up and 3T is right in the sights of the plaintiff's attorney for pushing a product they know is likely to fail within the lifetime of the bike it's mounted on.|
|Agree, but some non-legal thoughts . . .||ms|
Dec 8, 2003 10:38 AM
|I think Alex is right on the legal points.
I have an additional question: Was the bike maintained by the same shop? If so, did the shop have a duty to warn the owner to replace the product after it reached a certain age or amount of use (which the shop would know because of its familiarity with the bike)?
My non-legal thoughts: How a non-lawyer will react to this case will come down to how he or she feels about cycling and cyclists (even if he or she is not one). I had a solo crash this summer. It was no one's fault other than mine (or the God who put rain on the road just before I descended on it). I was surprised by the number of non-lawyers who asked me if I was going to sue "someone" because of my crash. The people who had a positive view of cycling thought that there must be "someone" who was liable and would pay me some money. When I discussed this with people who take a dim view of cycling (like my mother, whose response four years ago when I told her that I had bought a bike was "why do you want to kill yourself"), their response was along the lines if you ride a bike and crash, you deserve what you get -- you assume the risk.
My bottom line: I think that you may have a case, but if you get a reasonable offer to settle, take the money and run. I think that a jury's award could range from a de minimis amount to a very large sum. I rarely have been involved in cases involving personal injuries. However, years ago, I was second chair in the defense of a major personal injury case (severe burns and eventual death of the plaintiff). We "tried" the case to two mock juries, using the real witnesses on our side and actors to play the witnesses who were not on our side. The two juries came to very different results. However, the exercise helped us a lot -- the reaction of the juries to certain witnesses and facts helped us to shape our case and we settled a part of the case prior to trial on good terms. A mock trial is expensive, but I think that you could learn a lot from one in a case like yours. There are consultants that will run mock trials for you for $$$. It is possible to do one in house less cheaply if you can find your own mock jurors (we used friends and neighbors of employees of the firm) and actors (we used legal assistants who were familiar with the case and employees of our client who were familiar with the mannerisms and opinions of opposing experts).
Dec 8, 2003 9:47 AM
|Well, having worked in bike shops I'd be removed from the jury immediately. But I think anyone involved in this sport, especially to the extent of the victim, should take some care and interest in the equipment he/she selects, along with the maintenance of that equipment. The name of this bar alone should be plenty of warning to anyone with even a passing knowledge of bike equipment. 3T Prima 220. That sure sounds like a one season bar to me, and one that I wouldn't mount on my bike (but then I also won't use lots of stupid light stuff, carbon forks, etc.). You really don't want to play around when it comes to forks, stems and bars, especially if you ride a lot and/or weigh over a buck twenty. I doubt that the bar was "defective," though. Is a very light weight racing tire "defective" if it wears out quickly? Also, did the victim ever mount aero bars on it? And how can he prove that "the bike had never been crashed or harmed in any way before." I think the shop is playing dumb, though. They should have discussed the bar with the customer--especially since he requested another bar to begin with (I'm assuming he asked for the ITM 260, which has a good track record--but wouldn't he know that shaving another 40grams would have some consequences?). As a shop mechanic I would have never installed such a bar unless I was directed to do so by the customer. And even then I would question the customer's judgement.|
|What's "reasonable use"?||carpe_podium|
Dec 8, 2003 9:54 AM
|I feel sorry for the dude. BUT, the guy "raced" using a lightweight bar for 5 or so years. Who knows what "stresses" were put on the part during a race. Double century rider and he doesn't do his own maintenance? Come on. Also, during those five years he never dropped, crashed, or even let his bike fall over? I personally would not give him a cent; however, if the bar had failed after six months of use give him the whole enchilada.|
Dec 8, 2003 10:20 AM
|Obviously, anyone who is a cyclist or has ever been involved in the industry would not be chosen for this jury. That having been said...
You clearly state in your post that this rider is one of the most experienced and most accomplished in the country in his field. This piece of information is obviously provided to suggest that he knows what he's doing, and it lays the groundwork for an argument centered around his not being at fault. However, by making it so very clear that he's an expert at his craft, you shift the liability to him.
That he doesn't realize the risks makes it no one's fault but his own, in my opinion. I'm sure the law won't see it exactly that way, but that's my personal opinion.
|I've used 3T Prima 220's and 199's...||zero85ZEN|
Dec 8, 2003 10:20 AM
|...still using them on my bikes now. They are great bars. I've also had a minor crash on one bike and replaced that bar immediatly. I also know that the bars have a finite lifespan. 3T recommends replacement every two years I think. I'm a lightweight rider and I have enough bikes that the milage is distributed accross my fleet. I certainly wouldn't even think of putting half the amount of milage that this guy put on his bars before I'd replace a pair. A new pair of bars is pretty cheap insurance against just such an occurance.|
|and who has the money?||cyclopathic|
Dec 8, 2003 10:22 AM
|if attorney for plaintiff has brains he won't go after LBS, it is likely to put LBS out of business w/o before they pick 20% of the tab, unless it is a big chain.
On a second thought there're should be some design and/or laws to prevent catastrophic failure of such critical piece of equipment as handlebar. Using CF/plastic insert (or wrap) in middle section or some kind of stress indicator could have prevented this and many other similar accidents.
|LBS may (should) have insurance to cover the claim -nm||ms|
Dec 8, 2003 10:40 AM
|So we all have to pay for his mistake?||LC|
Dec 8, 2003 12:55 PM
|LBS pays the insurance Co. Think about this: Who pays the LBS or 3T?|
|I was just stating a potential fact . . .||ms|
Dec 8, 2003 2:07 PM
|insofar as the wider implications of the LBS's insurance and any claim against it, I was not making any comment. Every time that a plaintiff get a settlement or award, the people who buy insurance and do not have claims against them pay for the errors of others and their customers, in turn, pay indirectly. Businesses do not have to buy insurance, but I would not recommend doing business without it.|
|2 issues||Hood Rider|
Dec 8, 2003 10:24 AM
|You have expert testimony re: design defect, so plaintiff should win except for a couple things.
1) Duty to Warn/Normal wear and tear. It looks like the manufacturer will argue that they warned shop that bar should be replaced after 15k; shop says they received no such warning. That's an issue of fact for the jury to decide, but even if they did provide warning there's still issues on adequacy of the warning and whether any warning is adequate to allow a defectively designed product into the market place.
2) Expert testimony. If all you have is an expert on design the trial could become a battle of the experts, with the manufacturer likely having more cash to hire better experts. Evidence of similar breakage would be great for the plaintiff but it doesn't look like he has any.
Anyway, hope this either settles w/o trial or he's in a plainfiff friendly jxdn.
(For what it's worth, i'm a 2nd year law student)
|How often should you replace your bike?||biketillyapuke|
Dec 8, 2003 10:26 AM
|It seems to me that if he was "one of the best double century riders in the country" then he should have replaced his bike every year. I am sure that he was training at the same intensity as a pro even if he does not have pro qualifications. Pros replace their equipment every few months. Think about the value of a 5 year old car.
I weigh 170 and I will replace my setup after three years. My current racing bike will become a trainer/beater and the new bike will be my racer/show-off . The old bike is sold. This shift happens every three years. I don't pound the mileage anywhere near what he did. The point is, after 5 years, something is going to fail.
On a side note, I hope he is getting acupuncture. That is great for restricted motion, I treat it routinely. Post a note if you want to know more. I won't put my web url page up cause this site is not about selling your own services. I am sure I don't live anywhere near where he does, but I could find someone from the network.
|on a contrary double century riders don't ride as much||cyclopathic|
Dec 8, 2003 1:16 PM
|maybe 8-15K a year or so. Keep in mind that there's much less load on equipment then in racing, RAAM racers sustain less then 200w output.
Agree on replacement policy, RAAM racer I spoke to cracked frame every 2-3years on avg, and he is in 160s.
|Liability should be shared. Rider>Shop/Manufacturer||jtlmd|
Dec 8, 2003 10:34 AM
|There may be partial responsibility on the part of the shop or manufacturer if the rider can prove that there was no warning that lightweight parts have a limited lifespan. However, I believe that a larger part of the responsibility lies with the rider. He participates in a dangerous sport. Probably the only sport in which the same lightweight, cutting edge components that racers use can be purchased at any local bike shop. It is commmon knowledge among experienced cyclists, which he certainly is, that lightweight parts need to be replaced periodically.
Nobody in my bike shop flinched last year when I walked in and said "Replace this MTB handelbar, it's time."
|Are the defendants working together?||ms|
Dec 8, 2003 10:44 AM
|I am aware that in some product liability cases, the defendants work out an apportionment of potential liability in advance of trial. That way, the defendants do not shoot each other and benefit the plaintiff. Whether the defendants are presenting a united front or not could be a big factor in your ultimate success.|
|Who is the defendant? nm||Alex-in-Evanston|
Dec 8, 2003 10:54 AM
|lack of maintenance,,,||C-40|
Dec 8, 2003 10:57 AM
|Part of normal maintenance for a bike ridden that many miles should have been PARTS REPLACEMENT.
A handlebar does not simply snap off without some warning signs. A hairline crack can be impossible to see without a microscope or a penetrant dye. It would be unusual for anyone to give a bar more than a brief visual inspection.
The lesson here should be to inspect lightweight bars anytime you're doing other maintenance like changing shift cables or bar tape. It only takes a couple of minutes to take the bar off and look it over. If the bars have a lot of miles on them, or you're one of those riders who needs a stiff bar because you jerk on them all the time, early replacement is obviously wise.
Dec 8, 2003 11:34 AM
|Its up to me to maintain my car(for instance) safely and I would think that anyone who does ride that much should be concerned about maintenance of his bike. The part that muddies it up for me is that he had the bike shop do all his work. Shouldnt he have asked or have been told about these bars, stems etc? If I work at a bike shop and see this bike regularly I know the bars(any bar, 220 gram bars especially)should have been changed before 30000 as a precaution. All those that argue their bars lasted 30000 miles are missing the point. They have been lucky, this guy was not.|
|Based on your presentation of the facts and the law...||Gregory Taylor|
Dec 8, 2003 11:03 AM
|Primary factual issues in dispute are (1) is the bar defective, and (2) did the manufacter send the appropriate written warnings to the distributor/retailer.
If the warnings weren't sent by 3T, then the issue of whether the bar is defective becomes moot because even the manufacturer recognizes that the bar should be changed out after five years as there is a chance of breakage. The negligence isn't in the design of the bar, but the failure to warn. You could even argue that, like those stupid coffee cups at McDonalds, 3T should have pasted a warning on the bar itself to change it out after 15,000 kilometers or 5 years.
If the jury finds that the distributor/shop received the written warnings, and that they weren't passed along to the consumer, then they have the liability. Whether that liability is shared with 3T depends on a finding of whether the warning that was given was adequate. Is it clear that you have to swap out the bar after 15k? Are certain uses of the bar forbidden? How about torque values, etc.?
Assuming that the appropriate warnings were given up and down the line, the next question is whether the bar defective. Your client rode the bar about double the recommended number of kilometers, so based upon 3T's design and fatigue parameters, the bar's performance actually looks pretty good. Do those paramters provide a sufficient margin of safety for reasonably forseeable use? This is a fact question for dueling expert witnesses. The fact that the bar lasted 30K -- 15K over 3T's recommended replacement mileage -- might undercut a finding that the bar didn't perform in an acceptable manner or that 3T was cutting the strength/weight ratio of the bar too close.
Damages? Actual and future medical expenses, and some allowance for pain and suffering. No $1 million, though.
Good luck. I don't think that this is necessarily a "lead pipe cinch" of a case from the plaintiff's point of view.
|3T or Performance should give him new handlebars||LC|
Dec 8, 2003 11:40 AM
|That is about most he deserves for being stupid. 30,000 miles from guy than can do a double in 8.5 hours! The bars actually lasted longer than they are designed for, in fact that is a testiment in itself to how well made they are. Also who know if he did not adjust the handlebars the week before the crash and overtighten the clamp, as guys that do not know how to work on a their own bike might do?
It is unfortunate that he got injured so bad, but I don't think anyone but himself is to blame on this one. If his tire blew out cause no one told him not to ride on warn out tires instead of the handlebar failure, would he expect someone to pay medical and pain & suffering expenses?
|re: you be the jury -- bicycle product liability||Berm|
Dec 8, 2003 11:42 AM
|You have a very strong strict liability case. Assuming treatment was appropriate, I would reimburse for all medical expenses, past and future. I would also think that a pain and suffering award of between $250,000 and $300,000 would be reasonable, providing the plaintiff makes a good impression. Lastly, in terms of percentages of responsibility for the pain and suffering, that would hinge on whether the distributor admits receiving the warnings from the manufacturer and whether he passed those on to the seller or not. If the distributor denies receiving the warnings, then the manufacturer would be 80% liable and the percents would go down from there. Good Luck.|
|re: you be the jury -- bicycle product liability||rdbike|
Dec 8, 2003 11:43 AM
|As a person who has sells Ti anterior cervical plates for a living, (both for trauma and degenerative presentations) I was wondering how the assumption was made that fusing the C6-7 motion segment would increase the chance for additional surgeries?|
Dec 8, 2003 1:55 PM
|The vetebral joints each bear some of the load when turning or bending. When one is fused, that share that joint would have born is transferred to the adjacent joints, which must bend more to acheive the pre-injury range of motion. That increases the likelihood of degenerative injury to the adjacent joints. That's the information I've been given.
Dec 8, 2003 8:35 PM
|Doug, I agree with what you have been told, particularly an issue in a young person with several decades of life left. Not so much for a person in their sixth or seventh decade.
I doubt I would ever be allowed to sit on a jury so my view is probably irrelevant. It does not, however, seem possible that a racer of this experience had never seen or heard of similar occurrences with fellow racers. Unless a series of these bars failing had been recognized but ignored by the company and no further warnings or recalls sent out then it seems unreasonable to call the design or manufacture flawed. The use to which this bar was subjected is clearly beyond what any average enthusiast or, I would imagine, typical racer would achieve. This bar was intended for competition. If everyone of these bars were to go 30K miles, then the design is flawed-it was overbuilt. I would assign no fault to the manufacturer. If the bar failed in the first or maybe the second season of use, then maybe some fault is present. I would not award anything beyond medical expenses, a person racing a bicycle has to have some responsibility for choosing to be involved in a sport in which there is obvious risk of injury.
|Depends on how well the expert testifies.||Turtleherder|
Dec 8, 2003 12:16 PM
|If your expert can forcefully testify that given the standard use of cycling bars that the design of the clamp area of this bar was so inadequate that failure,even under normal conditions, was inevitable, then you win. If the expert can get the jury on your side then hammer the issue of the warning, first as to whether is was adequate given the construction of this bar and then as to whether it was conveyed to the end consumer. It might be possible to show that this bar was so spindley that it was a time bomb waiting to go off and that no warning, no matter how worded would be adequate. Given all that the problem is still going to be that juries view cycling as a "kids" sport and the jury might not want to award the same as a defect in an automobile case. If the expert testifies well I would look for $875,000 but keep in mind a possible assessment of 10 to 20% comparative fault for the cyclist.|
|The part broke from fatigue..||Fredrico|
Dec 8, 2003 12:26 PM
|and caused the accident. If the part manufacturer designed the stem strong enough to handle the stresses it was presumably built to encounter, it would not have broken.
Everyone else down the line, importer, distributor, shop, mechanic, have to sell products with nothing to go on except anecdotal experience with, and faith that the manufacturer has designed a product that will not break under normal use. That would mean a fatigue life longer than 5 years or 30,000 miles, and should include the occassional crash, like most other high quality bike products are designed to withstand.
So the manufacturer is liable and should pay any settlement, not the sellers who passed the product along to the guy who suffered the bad consequences. The bike shop should be on their customer's side, as should the importer.
The guy should get at least 2 million in damages. It wasn't his fault.
|To answer your question - The Lawyers Win||bimini|
Dec 8, 2003 12:28 PM
|The only winners in this case will be the lawyers. The Lawyers on the injured rides side will win when when the case is settled. The lawyers on the manufacturers side wins due to the legal fees they charge that mfg. And the LBS's lawyers win due to the fees they charge the LBS.
Now, who pays these lawyers either dirrectly or indirectly. Why of course, the people who buy the cycling products. Kind of like why over half the price of a step ladder is to pay for the liability insurance. The same will be true with bicycles. The price of the high end handlebars will double to cover the cost of the lawyers and liability.
What will be the tangible result of all of this legal battle and cost. Another stupid warning sticker on a product that no one pays any attention to or worse yet another piece of safety equipment littering up the bike like those little metal clip dodads that they put on the ends of the front fork to hold the wheel on if you forget to close the quick release.
Will the big legal fees the lawyers are charging repair the guys neck? No. Will they make any of the thousands of handlebars in the field any safer? No. Will they put the LBS and possibly the manufacturer out of business? Probably, Yes. Will it make future handlebars safer? Well, maybe, but more likely there will be a disclamer printed on the box or on a label which most people will ignore.
|To answer your question - The Lawyers Win||ridewt|
Dec 8, 2003 1:11 PM
|Plaintiff wins. Putting aside the emotional issues about whether the American form of litigation is wise or fair, I doubt the defendants can win this case and should settle, especially if venue is in a plaintiff-friendly area. I don't think this is even a close call. Plaintiff should get his economic damages alleged and healthy non-economic pain and suffering as well.|
|Plaintiff's lawyers get 30%||Hood Rider|
Dec 8, 2003 5:34 PM
|That means if there is a million dollor settlement the injured plaintiff gets $700k; no amount of money will repair the guy's neck but $700k isn't bad. And if the manufacturer has to pay a million dollar settlement maybe they'll put a better warning on the bar and the next guy won't get hurt. Don't believe the hype about plaintiff's lawyers. Most of it comes from insurance companies who are looking for a scapegoat since they lost all their money in the stock market.|
|Not in these parts||mickey-mac|
Dec 8, 2003 6:00 PM
|30% is pretty much unheard of in southern California. I've seen some plaintiffs' retainer agreements recently, and they were all above 30% and all had provisions allowing for differing recoveries at various stages of the proceedings. One I saw recently allowed 33% if settled before a suit was filed, 40% after the filing of a lawsuit, and 45% if the case starts trial.
Also, plaintiffs' attorneys typically recover their fee based on the gross proceeds, before costs are deducted. If, for example, plaintiff settles for $1,000,000 before trial, plaintiff's counsel with a 35% agreement will receive $350,000. Although this would seem to leave $650,000 for plaintiff, costs are deducted from plaintiff's portion of the settlement. In a six-figure or seven-figure case, costs of $50,000 to $100,000 and more are not uncommon, when taking into account expert fees, deposition costs, travel costs, court fees, and other expenses. Assuming our $1,000,000 plaintiff incurred costs of $75,000, his recovery is now $575,000.
On top of costs, medical insurers often assert a lien to recover at least a portion of the money they spent for care of an injured person who sues. If that $1,000,000 verdict was based on $250,000 in past medical expenses, a wild guess says that the insurer will recover half its expenditure, further reducing plaintiff's net recovery to $450,000.
I can tell you from 12 years of working on the defense side in litigation, personal injury plaintiffs rarely get rich. Some plaintiffs' attorneys get rich, but many others are living month to month. I must say, however, that I'm constantly amazed at some of the hacks out there who I see leaving couthouse parking lots in brand new Jaguars, BMWs, and Porsches. Maybe it's time to switch teams? ;-)
|Not in these parts||Hood Rider|
Dec 8, 2003 8:09 PM
|in oregon 30/40/50 is the average. 30% if the case settles, 40% at trial, 50% on appeal. of course insurance companies get their piece because the plaintiff can't get a double recovery on medical costs that have already been covered. i'm not saying plaintiffs always get rich, but i think there are a lot of stereotypes out there about plaintiff's attorneys getting a big payout while their clients get nothing. people tend to forget that if the plaintiff's attorney loses he's out a lot of money.|
|Not in these parts||lyleseven|
Dec 8, 2003 10:09 PM
|Sound like a disconcerted and jealous defense lawyer!! Where do you get off stating that the costs are deducted after the fee? 90% of these agreements deduct costs first and it is very rarely that a fee goes to 45% at trial. did you bother to mention who put up the costs in the first place?? Get a life.....!|
|Neither <i>disconcerted</i>? nor jealous||mickey-mac|
Dec 8, 2003 10:40 PM
|Where are you practicing? In the LA area, virtually every retainer agreement I've seen provides that the fee is calculated based on gross settlement or verdict. It may be rare in your experience that fees go to 45% at trial, but that's the case here in my experience. I don't live with blinders on. My former boss now does at least 75% plaintiff work, and I've referred cases to him. I have a pretty good idea of fee arrangements in my area.
No, I didn't mention that plaintiffs' attorneys typically "front" fees, but I didn't consider my message to be a treatise on attorney-client relationships on the plaintiff side. Nor did I consider my post to be an attack on plaintiffs' attorneys. Some of my best friends are plaintiffs' attorneys. I enjoy my current job, primarily because it gives me a lot of time to spend with my family. However, if I do ever leave, it will probably be for plaintiffs' work. I won't even bother responding to the lame last sentence of your post.
P.S. I love the creative use of punctuation in your post!!!!
P.P.S. Did you mean to say "discontented," lyle?
|Neither <i>disconcerted</i>? nor jealous||lyleseven|
Dec 9, 2003 7:28 AM
|If they are charging 45% they are gouging! We all know that LA is a different world. Our firm never charges more than 33 1/3% even if case goes to trial! It is the "costs" they front, and that is the risk that justifies the percentage fee.|
|follow up to several replies||DougSloan|
Dec 8, 2003 1:08 PM
|Some things to consider...
1. The law intentionally shifts the burden of paying for injuries when a product is defective in design or manufacture, or failing to warn, to the sellers and away from the consumer. The jury would be instructed that that is the law, and they cannot ignore it. If, in jury selection, a person admitted they could not follow the judge's legal instructions in that regard, then they would not be on that jury. Whether you agree with the law or not, the existing law definitely makes the sellers liable for the injuries if the product is defective.
2. As between the injured rider and the sellers (manufacturer, distributor, retailer) it does not matter what or if a warning was provided. If the consumer did not get it, then all are liable, but there may be cross claims among the defendants to allocate liability among them. Does't matter to the plaintiff.
3. There was no release of any kind signed.
4. The "assumption of risk" defense in this case would not be viable. It's irrelevant. "Assumption of risk" means legally "the voluntary assumption of a known risk." Saying that the rider "should have known" to replace the bars is an assumption of risk argument. A risk cannot be assumed unless it is actually known.
5. He had not worked on the bike himself, at least with respect to the handlebar/stem. In other words, he could not have over-torqued the stem clamp bolts. Another shop worked on it, but even then the issue is among the defendants and whether they can cross claim against the other shop. Also, a seller is liable even for misuse of a product, if the misuse is foreseeable. That is the law. Also, there were no warnings about stem clamps or torque values. Either way, the law says the plaintiff wins.
6. An "inherently dangerous activity" defense would not apply.
Does this change anything? Remember, we are applying the existing law, not arguing about what the law should be. I really appreciate the feedback.
|A ballpark value||humbert|
Dec 8, 2003 1:38 PM
|As a cyclist, I agree with many that there is inherent risk in our sport. We are sick of hearing about the latest frivolous lawsuit and we want to take responsibility for our actions, even when they result in significant injury.
As a lawyer, I know that the law Doug describes is based on a resolution of competing public policy interests that favors recovery by injured persons when harmed by a product. As between the manufacturers/ sellers of the product and the person hurt by the product, the manufacturers or their insurers can better afford to pay. Forget about fault on either side - its whether the product was defective and whether that defect caused the injury.
It sounds like a good case. 65 to 75 chance of recovery. Damages full value at $750,000 to $1.25 million.
|Follow up answers.....||Len J|
Dec 8, 2003 1:42 PM
|1.) I don't think product was defective, hence, mfg is not liable. It lasted 30,000 miles.
2.) Does warning only apply if product was defective? If so, since product was not defective, no warning necessary. If warning applys to "useful life" then seller is liable.
4.) It is a known risk. Lighweight gear = known risk. You have painted him as an experienced cyclist. You can't expect compensation because the guy is an idiot.
Again, I think that (by a small margin) the seller bears a liability, unless he can prove that he warned the plantiff. Common sense says that the injured party bears a responsibility also, especially since the "defective product" argument is so weak.
I suspect that, depending on how narrow the jury instructions are, that you'll win. It's the classic, poor guy vs big co argument. While I sympathize with your client, I don't believe that he should be compensated for his own inattention to his own equipement, which if you can't prove the product was defective (and his own milage proves it isn't) is what you are really asking the jury to say. If I was on the jury, I would do everything to "interpret" the Judges instructions to a small verdict at best.
Sorry if that is not the answer you want, but the Plantiff has culpability here.
|Interesting --||Gregory Taylor|
Dec 8, 2003 1:43 PM
|Based on your statement of the law in No. 2, 3T, Velimpex, and the local shop are all jointly liable if your client was not provided with a warning that the bar might break after 15k kilometers.|
Dec 8, 2003 2:14 PM
|1. How do you prove "the bike had never been crashed or harmed in any way before"?
2. Were aero/Scott bars ever mounted?
Dec 8, 2003 2:18 PM
|How do I prove it? 1. I put the rider on the stand and testify to that. 2. The sellers inspect the bars and see if they can come up with any evidence of prior damage. Pretty straight forward, actually.
No bar extenstion of any kind ever mounted. However, even if they were, that is a foreseeable use. Unless a warning is given not to use extensions, it would not absolve the sellers.
|Ask lawyers this question if you want "good"...||zero85ZEN|
Dec 8, 2003 2:56 PM
|...legal analysis and replies. As far as the "system" goes the plaintiff probably will clean up or "should" clean up. The deck seems stacked in his favor. The question, morally and/or ethically, is if the plaintiff SHOULD "clean up"? That is much more of a gray area....
By the way, I just settled a cycling lawsuit in which I was the plaintiff in an accident that was casued by the negligence of others. I got a whole education on the legal system and how things work.
I also had a situation in which I hit the pavement when an English Mastiff ran in front of me on a decent. I let that one go...I was just scraped up with no real damage done to my equipment...however, my lawyer tried to get me to sue...said I could collect between $1 and $2000. But would it have been the moral thing to do?
|Your Number 1 is wrong, but there is a conspiracy||pedalAZ|
Dec 8, 2003 6:16 PM
|among judges to keep it that way. There is a long established principle of jury nullification dating back to English law. This principle makes juries supreme; if they disagree with the law and its application, they have the right to find for the other side. The concept developed in criminal law, but applies here, too. The problem is, arrogant judges are loath to admit any statement from the parties informing the jury of its rights. I have seen several cases (in person) come out backwards from what the jury believed, because they felt hamstrung by the judge's instructions, including one Perry Mason style deal where my attorney got a guy to break down in tears on the stand and admit fraudelent behavior, only to have the judge box the jury in and froce them into a different verdict. Afterwards, the jury all came to mee twith our side to apologize and say "there was nothing we could do, after the judges instructions." Unfortunately, there was something they could do, but they were ignorant of their rights to do it.
As you might surmise, I am somewhat embittered over some aspects of our otherwise meritorious legal system. Jury selection is another area that is ripe for reform. In a typical case today, the lawyers are able to eliminate everyone from the jury who has any common sense or education leaving the jury "of one's peers" consisting of a bunch of easily manipulated morons.
|Your Number 1 is wrong, but there is a conspiracy||lyleseven|
Dec 8, 2003 10:11 PM
|Your one bad experience is not the norm. You sound like the victim of a lawyer who couldn't handle the judge or the jury. Too bad to hear that.|
|No, it is the norm||pedalAZ|
Dec 9, 2003 11:43 AM
|I can't tell if you are a lawyer, but I'd like to see you try to get a jury nullification pitch past a judge when you are the attorney needing the break.
Several very influential friends (all of who has similar experiences) and I tried to get legislative relief on jury nullification in AZ without success.
A for the case I described, I was in the judge's chambers when our lawyers argued for a different instruction without success. They pushed pretty hard.
|I got such a disclaimer from ttt on my bars........||Tom C|
Dec 8, 2003 1:58 PM
|Strangely enough I bought a set of TTT Forma SL Ergos not the lighter Prima 220. These weigh in or are supposed to weigh in around 250-260 gms. I bought them on e-bay advertised as new in the package which indeed they were. Included in the logo imprinted clear plastic narrow bag the bars were placed in was a pair of rubber filler strips for the other set of grooves that Shimano users do not use and finally a little piece of paper the size of a label printed in blue on grey paper indicating that this was a high performance product and was not made for indefinate use. Now as I recall the paper said the bars should be replaced every 4 years of use but I'm recalling through memory. Unfortunately I did not keep the paper but it certainly struck me as a manufacturers disclaimer. I think I bought them 3 years ago.|
|Not a complicated case,,,,||lyleseven|
Dec 8, 2003 5:15 PM
|This is a straight forward products liability case. Primary liability will rest with the manufacturer, secondary liability with the distributor and LBS if no warnings were given either written (preferably) or verbal (less preferable). The manufacturer has a duty to warn of the expected life of the handlebars before unexpected failure may have a greater likelihood of occurrence. The plaintiff is not likely to be held contributorily negligent unless he received some warning. Consumer has a right to expect the product to last unless there is common knowledge of failure or visible signs of wear and tear. If this were the case of a bald tire causing the accident we would look at it differently.
As for the lawyer bashing and defense of the insurance industry, successful suits for defective products definitely improve the products and increase safety. Many studies bear this out, even some by the Consumer Product Safety Commission.
As for any release signed by a patron regarding a product, it doesn't hold up in court if there is a defect in the product or the defendant is negligent.
As for the plaintiff assuming this kind of risk, this is nonsense. He assumes risks related to other riders causing him to crash, or flat tires, etc., but for the handlebars to break apart, give me a break! This is certainly not a foreseeable risk of this type of event.
As for the cost to be borne by the public for these suits, only when the insurance companies can get away with it. If they aren't making money, why haven't they opened up their books for the lawmakers to see when they oppose propositions to roll back insurance rates? Studies have shown that the cost of paying product liability judgments is minimal in relation to other risk areas. Something like less than 1% of the overall premium chargrd ends up actually being spent on paying claims for product liability litigation. The insurance company propoganda about these large jury verdicts costing everyone is just that, propoganda. They want the jurors to believe this so they can make more net profit with smaller recoveries.
As for the lawyer bashers out there, you all will hate them until you need one.....
i say get a good settlement, as it avoids the risk of an unfriendly jury. Having broken my neck cycling, I know the residual problems can be serious and a mid-range six figure settlement would be appropriate, and if he has a decent lawyer, he should get it. Remember, the lawyer is the one that will front all of the costs to win this case, so he is entitled to a reasonable fee (1/3 or 40%) because it is his money at risk, not the clients, and this kind of case will cost many thousands to work up properly.
|When he accepted the substitute bar, he accepted the...||GeoCyclist|
Dec 8, 2003 5:21 PM
|liability. As a juror, I would have assumed he was knowledgeable about cycling equipment if he had requested a certain type of handle bar at purchase; i.e. ITM bar. When he took the bike from the LBS with the substitute bar he basically accepted the bar as a suitable replacement. Therefore, as a juror (and cyclist) I would have assumed he knew the limitations of his equipment. I don't ride half the number of miles your client rides and I sure know the usable lifespan of my cycling equipment. It is a real shame your client was hurt so bad, but as stated several times above, cycling is an inherently dangerous sport! If you are going to cycle, you had better make sure you have adequate medical insurance!|
|And Firestone tires are safe too....||lyleseven|
Dec 8, 2003 10:15 PM
|You would be the same type of guy who would exonerate Firestone for defective tires that the consumer had no knowledge of but you would put the responsibility on the purchaser to figure all of this out. When you buy a product you should be able to assume it is safe unless you are warned to the contrary. You used the word "assumed" as if it were knowledge. Who should bear the responsibility for a defective handlebar, the consumer who paid for it or the company that manufactured it? Do the math!|
|And Firestone tires are safe too....||GeoCyclist|
Dec 9, 2003 5:08 AM
|The original question did not state the handlebar was defective. It was stated that the handlebar failed from being used beyond its intended service life. If you drive your car for 500,000 miles and the engine fails, resulting in an auto accident, who is at fault? Parts wear out, if you are going to buy high performance parts, you had better plan on replacing the parts in a reasonable time frame.|
|And Firestone tires are safe too....||lyleseven|
Dec 9, 2003 7:34 AM
|It is the manufacturers duty to warn of such possibilities with extended use. A car with 500K miles is a totally different beast and not likely to fail in the sense of a handlebar used for steering, etc. I assume if a car's steering gear had such a propensity to fail at a certain number of miles that the manufacturer would warn the consumer. Yes, the consumer should have some responsibility also with that many miles.|
|re: you be the jury -- bicycle product liability||Kiwi Rider|
Dec 8, 2003 5:51 PM
|Based on the arguement provided, the bars lasted 30000 miles, the manufacturer 3T say it should last 15000km, so the manu, as long as it can be proved that the appropriate warnings were advised, then they should not be to blame (unless in fact there was a defect, but would've/should've appeared well before the 30000 miles). In the case of the manu,the product has outlasted its design. However for the LBS who have serviced the bike, they should've advised the rider that these bars should be precautionately replaced due to estimated time and useage. The rider himself should not be liable for the bars unless he has denied the LBS to replace the bars after being cautioned. The only thing in question should be the warnings given. Were they appropriate and were they heard and understood by the LBS and rider?
This is how I see it, living in NZ. Being a Kiwi I am unsure of how much I would award but certainly not US$1 million as this seams outrougously too much. Medical costs should be held liable to either the manu or LBS depending on the warning given.
Thats my view any way.
|re: you be the jury -- bicycle product liability||Overhill|
Dec 8, 2003 6:26 PM
Plaintiff loses. Great question. Short answer, no social policy. First issue-liability. Pl has burden of proof re liability, in this case proving existance of a defect. Failure of component by itself is insufficient- res ipsa loquitor[sp] not applicable. A jury question on the issue of "defect". From the limited information, I do not believe Pl sustains his burden of proving a defect. Therefore no liability. If this were a bar review question, I would then discuss all your other issues, but you know your burden and your hurdle. We also know that not all juries comply strictly with instructions, no matter what they say on voir dire, and sympathy for Pl may carry the day. Might be a good case for mediation, but I would be reluctant to take it to a jury. Good luck.
|re: you be the jury -- bicycle product liability||lyleseven|
Dec 8, 2003 10:21 PM
|Wrong about res ipsa not applying to products case. Plain and simple. Also, a defect can be proven simply by demonstrating that product was being used in normal fashion and it failed, or, that it was being used in a "foreseeably misused fashion". No need to go further to carry burden of proof. Most all states so apply the law. I agree, however, that settlement in this case is the best resolution for all involved. No doubt in most states plaintiff would preval on the law.|
|30,000K miles ??||coonass|
Dec 8, 2003 6:55 PM
|Who is to say what caused the breakage of the 220 Alum. bars after 30k miles? If he averaged 30k miles per 3 bikes in 5 years, I'd say that this guy really laid in some miles.....if he never crashed during this period, I assume that the stress may have been due to climbing, sprinting,etc.??? This situation should give all those guys with carbon steerers and carbon handle bars (what? you can't attach aero bars? You say that the fork just sheared at the frame?? There's a reason Guys & Gals!!!) something to think about besides grams...nothing is guaranteed perfect, not Alum or steel, but there are cautions to be considered while riding.... I certainly have symphathy for your friend, but as a juror, I'm afraid that I'd have to be more than convinced that it was a manufacturing error after 30k miles...300 miles, maybe.|
Dec 9, 2003 8:08 AM
|"Experts testify that the bar was defectively designed and/or manufactured, in that there was too little material in the stem clamp area, the aluminum alloy used was too brittle, and/or that the buyer should have been warned about the useful lifespan of the bar due to fatigue."
Whose experts? If this was the findings by the cyclists expert, did the defense offer expert testimony in rebuttal?
I kind of find it hard to believe that an avid cyclist of that caliber was not aware of component failures due to excessive use - especially since he cycled competitively and not just recreationally. We all here have this knowledge and many of us are just weekend warriors and recreational riders.
That being said, it does appear that all parties along the chain of possession of the suspect bars, has some culpability. The injured did request different bars, but he received and accepted the alternates and he has admittedly used them for quite a long time, so that should not be a determining factor. That was unnecessary information. His continued use of them mitigates the change in specs.
However, each party along the line of distribution had a responsibility to share information. That is they needed to convey to the end user that the bars have certain restrictions on their use in order to function in a safe manner. Just stating that they sent the appropriate literature along with the bars is not sufficient. They must demonstrate the practice they employ to the jury, each time they ship equipment. (What is their usual procedure and can they prove it?) I know that many times equipment is mass shipped to the LBS combining many orders from the distributor and packaging is removed or modified in order to save on shipping charges. This could be the source for the missing literature.
I think the LBS has some liability too. They should be more diligent in making sure each customer is aware of the limits of the equipment they are receiving.
Ruling on this as a cyclist I would have a tough time finding for the plaintiff. Following the letter of the law I would give the plaintiff the highest award possible.
|Wow! What a tough crowd...||DougSloan|
Dec 9, 2003 9:54 AM
|Well, I really appreciate all the feedback. I think I learned some helpful information, foremost of which is not to allow any cyclists to sit on this jury! You guys are hardbutts.
I sort of perceive that much of the tendency to think the rider is largely at fault for not replacing the bars earlier stems from what many of us know about bikes, particularly high performance/lightweight parts. However, the typical jury won't have a clue about this. I'd bet, quite the opposite, they'll probably assume that handlebars should last as long as a bike, and never in a million years would expect handlebars of any price to suddenly snap off. It's not like old tires that show threads with all the rubber gone. Here, there is no inspection that would have disclosed a potential problem.
It seems that many of you find the liability threshold, based upon the above, a high hurdle to clear, but once done, the damages would be significant.
Also, many have issues about allocating fault among the defendants; however, this isn't really an issue for the rider; it's pretty much the defendants pointing their fingers at each other. Fine with me.
Yes, I took real shortcuts with the evidence and expert testimony. A detail I didn't disclose is that a metalurgical engineer has examined the bar and determined, preliminarily, that it was not metal fatigue that caused the break, but "sudden overload." It has yet to be examined by an electron microscope, though, which apparently can be used to confirm the difference. If this is the case, it may reveal a defect not associated with the duration of use of the bar, but rather may have been a timebomb that could have gone at any time. More work to be done there, though.
I also suspect that an adverse reaction to the lawsuit in general may stem from not only an anti-litigation prejudice, but also a direct concern about litigation causing us, bike riders, to lose our wide selection of parts or increase the costs of them. Well, to me, if this handlebar was defective and 3T must pay for the injuries, and it caused it to pull these super lightweight bars from the market, then maybe that's not a bad thing. Would you want to be next? This rider could have easily been killed in this accident. He did not think he was assuming those risks in buying this bar, and I don't think anyone really does think they are assuming the risk of broken neck or death from buying a lightweight part.
You've been very helpful. Thanks.
Oh, and about 95% of cases do settle. Like they say, "A bad settlment is better than a good trial."
|If you win this case...||LC|
Dec 9, 2003 10:29 AM
|One of the conditions the judge should make is that both the lawyer and the defendent should be required to ride only steel handlebars, stems, forks, seatposts, and cranks so that we don't have any more of these frivilous lawsuits! Non of the thin walled stuff either, must be very thick and strong steel!|
|actually, on Kestrel EMS bars now nm||DougSloan|
Dec 9, 2003 10:44 AM