How to fight a Bicycle Product Liability case in New York. One step at a time.

Derienzo v. Trek Bicycle Corporation, 376 F. Supp. 2d 537; 2005 U.S. Dist. LEXIS 14402; 57 U.C.C. Rep. Serv. 2d (Callaghan) 863

Small step by small step. Good job Trek

In this case Trek was sued for a frame failure when the plaintiff jumped a used (and to some extent abused) bicycle for a jump. This specific decision is a Motion for Summary Judgment and a Daubert decision. A Daubert decision is one where the judge looks at the experts proposed to testify by one side or the other and says that an expert’s testimony is a little too far outside “conventional wisdom” to testify. The purpose is to keep flakes out of the courtroom.
The plaintiff filed suit against Trek claiming negligence, breach of warranty, and strict products liability (including claims of manufacturing defect and failure to warn). The accident occurred when the “Plaintiff was landing after jumping or dropping the Bike five to eight feet off a ledge created by a rock sticking out of the side of a hill.” “Plaintiff was not the original purchaser of the Bike, and, at the time of the accident, the Bike had been modified and did not consist of all original Trek components.”

Plaintiff has an extensive background in mountain biking, and has ridden mountain bikes since age 12. He has mountain biked over various terrain, including the Catskill Mountains and the Swiss Alps. Plaintiff claims to have gone over hundreds of jumps and drop-offs (sometimes referred to as “drops”), and has been taken to the hospital on at least two occasions for treatment after mountain biking incidents.

This decision is based on the arguments that the plaintiff could not prove those claims and that one of the plaintiff’s experts was not qualified to testify about the case. One of the major issues made by Trek was that the bike in question was not designed to be jumped as the plaintiff was using it.

The first set of disputes was whether the warnings in the owner’s manual were adequate. What is irritating about this is the plaintiff admitted he did not remember if he got an owner’s manual with the bike and did not read the owner’s manual if he did. However under New York law, this does not matter if the court and the jury can find that the warnings in the owner’s manual were not adequate anyway. So under NY law, if you don’t read the owner’s manual the warnings in it must still meet the latest legal test in NY.

Argument over the Expert witnesses

The majority of the case is the discussion about which of the plaintiff’s expert witnesses could testify at trial and what they could testify about. In short, an expert witness can be kept from testifying for any of the following reasons

where expert relied on studies that were only tangentially relevant and ignored relevant, contradictory studies
expert report that was inconsistent with facts of case
excluding illogical expert report that failed to address facts that would, by common sense, dictate different conclusions from those reached by the expert
excluding expert testimony where expert did not examine actual item in question and his analysis was based on incorrect factual assumptions that rendered all of his subsequent conclusions “purely speculative

excluding expert report where it was based on speculation and not evidence that product in question malfunctioned

An expert witness can only testify about those things that are based on sound scientific principles not far out hocus pocus and can only do so when their background is sufficient to show they know what they are talking about.

Manufacturing Defect Claims in New York

Under NY law a “manufacturer who places a defective product on the market that causes injury may be liable for the ensuing injuries. A product may be defective when it contains a manufacturing flaw.”
A manufacturing defect is a flaw that results from the manufacturer’s plans not being carried out correctly, usually caused by an error during the product’s manufacture or assembly.

The crux of a strict liability manufacturing defect claim is the product’s failure to perform as expected due to an error in the manufacturing process that resulted in a defect.

To win a manufacturing defect claim under NY law the plaintiff must prove to a jury that:

A plaintiff asserting a strict liability claim must also show that
(i) the product is not reasonably safe as marketed;
(ii) the product was used for a normal purpose;
(iii) that the plaintiff, by the exercise of reasonable care would not have both discovered the defect and apprehended its danger; and
(iv) that the plaintiff would not have otherwise avoided the injury by the exercise of ordinary care.

Always tell your customers to inspect their product before every use, Even if you sell toasters. Tell the customer what to look for, what to do if they find what you point out and if they can’t or don’t want to inspect the product to take it to one of your retailers so they can inspect the product.

Be specific when you sell a product and when your product is being sold about what the product will do and if necessary what the product won’t do. The marketing department panics when you say on the box product not intended to be used for……. However all remember Marketing makes promises that Risk Management must Pay for.

Failure to Warn Claims

Failure to warn claims arise when a manufacturer knew or should have known that a product was going to be used in a certain way. The issue rises if it was foreseeable that the product could be used in a certain way.
If an aftermarket manufacture is make a product that changes the way your product can be used, then the issue is no longer foreseeable and you will be liable for the aftermarket manufactures problems as well as use in some cases.

Under New York law, a manufacturer who places a defective product on the market that causes injury may be held strictly liable for the ensuing injuries if the product is not accompanied by adequate warnings for the use of the product.

The elements of a failure to warn claim are:
(i) a danger existed to a significant portion of defendant’s consumers requiring additional warning;
(ii) the alleged danger was known or reasonably foreseeable; and
(iii) a proposed alternative warning would have prevented

“The adequacy of a warning is only a question for the judge when the warning is accurate, clear and unambiguous.”
“A warning that is inconspicuously located and written in small print may be deficient.”
One issue that typically precludes summary judgment on a failure to warn claim is whether the information contained in any issued warning was “commensurate with the manufacturer’s knowledge of the nature and extent of the dangers from foreseeable use of its product.

Owner’s Manual

This just plain ticks you off. However, if there is a used market (eBay) for your products then this is going to occur. Owner’s manuals are going to be lost. Put yours online. Put a warning on the product that says, refer to the owner’s manual you got or online.

Finally, failure to read a warning is not dispositive. While it is true that, in many cases, a plaintiff who admits that he failed to read a warning that was issued with the product will have failed to show that any deficiency in that warning was the proximate cause of his injuries, plaintiff’s failure to read an insufficiently conspicuous or prominent warning will not necessarily defeat the causation element of a failure to warn claim.
If a Manufacturer buries the information in the…

Owner’s Manual to check the frame for damage were inadequate because they were inconspicuous and also because a visual inspection of the frame would not lead to the discovery of the type of damage that caused the frame to fail — namely, fatigue cracks in the head tube/down tube weld. 

Foreseeability is a very big issue in any a case. Here the court makes an important statement especially in light of the fact that there are aftermarket components available for about any bike.

Further, Allen [plaintiff’s expert] opines that it was foreseeable that a user would modify a bike the way Plaintiff modified this Bike, i.e., by replacing (among other components), the standard fork with a Rock Shox fork, which the parties agree is designed for jumping. This could lead to an inference that Trek knew users would modify Y5 bikes to make them more suitable for jumping.

The major issue in an owner’s manual is “whether those warnings were conspicuous and/or adequate.”
You need to have warning stickers on the frame. They don’t have to point out every issue; the paint job does not have to be a warning label. However point out the major ones and point out to go online and check for any others and any new ones.

Breach of Warranty Claim

You must properly disclaim the warranties for a particular purpose and warranties of fitness. See The legal relationship created between manufactures and US consumers. Then you must make sure that your product does what you say it will do and make sure nothing, absolutely nothing implies it will do more if it is a product like a bike.

A product must be “fit for the ordinary purposes for which such goods are used” to be considered merchantable under New York’s version of the Uniform Commercial Code.

Thus, liability for breach of warranty depends on “the expectations for the performance of the product when used in the customary, usual and reasonably foreseeable manners.

“Accordingly, a plaintiff must show that the product “was being used for the purpose and in the manner intended.”

Thus, Plaintiff’s breach of warranty claim requires proof that the Bike did not meet expectations for performance because it failed during his jump or landing, which was a reasonably foreseeable use of the Bike.

So Now What?

1) Stay on top of the law in every state you sell bikes or products. Unlike a claim against an outfitter or guide, a products claim takes place where the accident happened or where the plaintiff lives and purchased the product
2) Put a sticker on the bike that says read the owner’s manual and if you don’t have the owner’s manual get one at your website.
3) List the warnings in your manual in such a way that they are easily identified and understood. You should probably list them all in the beginning of the manual and then refer back to them when necessary or adequate through the rest of the manual.
4) If a product is not intended to be sued in a specific way make sure you state that.
a) Don’t show the product online or in your catalog being used in a way you don’t want it used.
b) Be specific in the warning. This product was not designed to be _________.
5) Have your owner’s manuals read by consumers to make sure they understand it
a) Point out what the product will not do!
b) Point out what the product is intended to be used for
c) Point out what you cannot do with the product
d) Point out that using aftermarket products changes the product and therefore you are not liable for those issues
e) Point out the user/owner/consumer needs to go online to check for updates and changes to the owner’s manual
i) Put updates and changes online and make them easy to find and understandable
f) Make the owner’s manual easy to read and understand
g) Make the warnings conspicuous and obvious.
i) Use a different font
ii) Use a different type size
iii) Use a different color
iv) Make the warnings stand out
6) Never ever ever hide any warnings!

What do you think? Leave a comment.

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24 Comments on “How to fight a Bicycle Product Liability case in New York. One step at a time.”

  1. Daily Young says:

    I like the extra scenarios Mr. Moss has provided us with for this case. It helps put things into perspective. My opinion, like many others, is that the plaintiff doesn’t have much of a case because he knowingly bought a used bike and used it for purposes that didn’t suite this exact bike very well. I believe this gentleman took this claim too far.


  2. Jim Moss says:

    A. Inspected a used purchase. Great point Suzanne. One of the issues I write about is can a normal consumer do an inspection? When transportation was horses everyone knew what to look for to see if the horse was “good.” Looking under the hood of a car, it’s difficult to figure out what you are looking at. What about on a bike? Are you able to spot welding issues. Do you go check the amount of force the handlebars can take or do you just hope the manufacture is correct? Do you know the amount of force you apply on handlebars riding down a street versus go over a jump?
    B. “Life Time Warrant” Every warranty out there has a definition except lifetime warranty. In fact a “life time warranty” is just a marketing tool. Whose lifetime? 1 owner, all owners or the life of the salesman 95 year old grandmother?
    C. Many times modification does get the original manufacturer off the hook. However it brings onto the hook the person or shop that did the modification.
    D. Look at how many different issues you all looked at in deciding how you would rule in this case. Think about how one of the attorneys is trying to determine how to present the case to the jury. Which points is the jury going to understand and hold on too?

    I won’t be around for the next couple days to moderate comments. I’m going to Southern Utah to go mountain biking and do jumps! Seriously!! 


  3. Jason k says:

    I do not know about mountain bikes, but with most offroad vehicles, if a person does modify the vehicle in any way, it voids the warranty. Even if the parts are considered an improvement to performance or some kind of aesthetic value, it can still void the warranty. I believe the manufacturer does this because the vehicle is going to be used by the owner in a way not originally intended by the manufacturer. I feel this gentleman, given the experience he may claim, should have given the bike a thorough inspection with the aftermarket parts, even if they are considered better. I guessing he did not and is looking for some quick cash, so he “dropped” as far as he did, intentionally.


  4. Jim Moss says:

    So you sell me a shirt. I go out and play football in the shirt and it is destroyed. I come back to you and say I want a new shirt because this one is not good looking enough to work in. Do you owe me a shirt? Isn’t the issue how the bike was treated before the accident? If the bike accident occurred within a few days of the purchase then that is different. In this case the bike was old and beat up.

    What about this scenario. You buy a car from the local ford dealer. It is a little compact and gets 30+ miles per gallon. You take it off road, get it airborne and it breaks. You take the car back and say I want a new one, this car did not survive what I did to it. Does the dealer owe you a new car? The car was made to go on streets and get good gas mileage not to get air borne.


  5. Karly B says:

    The plantif has no case in my opinion because he was not using the bike in the manor in which it was intended to be used. His bike was not built for the major drops he was performing so I believe the bike company is not held responsible for the frame damage that occurred as a result of said drops. Also the fact that it was a pre owned and modified bike with different parts makes the plantifs case even that much more mute.


  6. Rodney kellyb says:

    I think the plaintiff is wrong in this situation. Often times people don’t use product how they are supposed to be used. In many cases people try to create their own entertainment. A bike is to be rode to exercise, get someone from point A to point B and different things like that. A bike can be dangerous that’s why they say you should where all of the required gear. The plaintiff did not have that on an I feel like he is totally in the wrong.

    Rodney Kelly


  7. Scottie M says:

    In this case, I don’t think trek should be held accountable in anyway. The bike was designed to be used in a certain way, and if a person uses the bike for things other than what it’s intended purposes were, then the user holds all responsibility for any injury. Also, almost all warranties are void after any modifications. Trek should not be required to warn about aftermarket products that could be used on their products if they have nothing to do with the manufacturing. People in today’s society are lazy and will find any way to gain money in lawsuits, it’s rather pathetic people can’t be held accountable for their own actions.


  8. Williams says:

    Yes I totally agree with the customer on this case. Even though the bike wasn’t built for jumps like in this case, it should have been clearly noted somewhere or the customer should have been told about the bike more than he was. The manufacture should have done better on stating more about the bike the instructions or something, but this can be a learning experience for them all.


  9. Angel says:

    Obert 415

    I think that the plaintiff is in the wrong and Trek whould not be sued because the plaintiff bought the bike used without an owners manual. To me, if he was riding the bike it was at his own risk, especially buying it second-handed, you don’t know for sure if the bike had all original parts. I feel that it is the plaintiffs own fault and risk when riding the bike that the defendant is not at fault.


  10. Liz REC 415 says:

    In my opinion I feel as though the plantiff is taking this claim too far. It’s his own stupidity to jump a used bike off of rocks regardless of how much of an expert biker he is. He doesn’t remember reading the manual which is kind of a big deal. Being a used bike, he should have read the manual to get the knowledge of the bike. He also should have asked the previous owner about any damages the bike has had.


  11. Dillon says:

    Despite not knowing the verdict of the case in which a person tried to sue Trek bicycles, an individual taking a 5-8 ft jump must suspect injury as a possible consequence. Also, a used bike should have been ridden and ensured of safety prior to taking a large jump (the bike also needs to be designed for such jumps) without consumer modifications. The plaintiff should not win this case because, I feel there is a lack of evidence that it was the manufacturers fault.


  12. Jerry M says:

    I feel like this case was a waste of time the plaintiff knew he was in the wrong with not paying attention and this cause should have made it to court.complete was of people time and money.


  13. Brittany rec 415 says:

    I agree with the defendent, trek. I don’t they should be sued. The plaintiff should not have made a 5 to 8 feet jump on an used bike with limited original parts. The owner got the bike elsewhere; not the product store. He also admitted to not reading the manual. I believe the plaintiff is at fault and not the bike company.


  14. Brian Rec415 says:

    In my opinion I don’t think the guy has a good claim 1) because he bought it used and 2) doesn’t remember reading the manual. If your not buying a bike from the manufacture and you plan on using it for rock jumping the first thing he should have done was get the bike checked by a professional. It’s just like buying a used car. You’re going to do some research on it before you actually buy and use it.


  15. Shelby Strang says:

    I am going to have to agree with the plaintiff. I agree, because there were many red flags in the manufacturer. It should have been assumed that people could use the bike for big jumps, and they should have more clearly identified that and gave better warning. Even though the plaintiff did not say he read the manual, when you are dealing with saftey it could be prevented in more than one way. I don’t think that the manual should have been the only way to say that the bikes can not do big jumps. It is not always guaranteed that people will read it and remain safe.


  16. Andrea r says:

    I feel that this case if fairly cut and dry. The bike owner is an avid mountain biker, and has gone to the hospital at least twice for biking related injuries. If he has such experiences with bikes then he would have known that the bike was not designed to do what he was using it for. He didn’t even read the manual. Plus the fact that the bike had not all original parts included. Sounds like a foolish consumer trying to get some money from his hobby.


  17. Howard Scarborough says:

    I am going to have to agree with trek. Because whether you have warranty or not they mentioned that the bike had been modified therefore that could possible change a lot of the things on the bike. The plaintiff Should have known from his experience that certain bikes aren’t made for the type of things that he wanted to do. When you buy the bike from eBay or another site you should look up all warranty and review on the bike before u purchase or use it.


  18. Kara says:

    I agree with the judge. However, I would have to question that this particular individual (plaintiff) obviously knew what the risks he was taking by using a bicycle for this purpose. Regardless, the bicycle was not up-to-date. However, if the plaintiff would have read the owner’s manual, then maybe he would have been well aware that using this bike to jump was not a safe idea or in his best interest.


  19. Joshua w says:

    The fact that the bike was modified gives the impression that trek is no longer responsible. With modifications to the original product the fault is no longer in their hands. Also the fact that the bike was being used in a manner that it was not intended to be used for.


  20. Bry Snow says:

    I would have to say that I do not agree with the plaintiff’s case against Trek. The plaintiff was using a bicycle that was not created for the “jumping” that the plaintiff was doing, and in addition to that, the bicycle had been manufactured differently to where it did not contain all Trek components. It seems to me that Trek is not responsible for the bicycle malfunctioning, especially with the plaintiff not even being the original purchaser of the bike.


  21. Brett B. says:

    First off, was the bike designed to jump off ledges 5 to 8 feet. I am going to assume that jumping off ledges at that height is not in the warranty. Also, when you buy a bike, if there is a lifetime warranty it is usually for the original owner and there is usually a clause that states that if the bike is altered at any point that the warranty is null and void. I am glad that Trek won this case because even though the rider was very experienced, the bike was not designed to do the extreme maneuvers and when you make alterations to anything you affect the design and usually weaken the structural integrity.


  22. Brandon Stringer says:

    In this case I agree with the defendant. The company should not be found at fault because of the users inability to read the safety manuel. Even with an online post of the required materials, people will still claim that they were not properly informed of necessary information. Also, since the bike had been modified after the original purpose, this legally nullifies the warranty.


  23. Suzanne Koehler says:

    After reading the case I would say that the buyer of the bike should have inspected his bike better before purchasing it as well as using it because he didn’t even read the owners manual. In fact, he couldn’t even remember if he had the owners manual at all. To me this sounds like he made a careless decision in buying a used bike that was obviously not in the best condition. If you are going to be jumping off 6 foot drops make sure that your bike’s frame is going to withhold the impact of the landing. In my mind he is just dumb, and he should know better especially being an experienced rider since he was 12 years old.


  24. Keith Pickens says:

    I am agreeing with the plantiff side because in my opinion I think the customer is always right and the defendant should understand that and make sure the product should be stable for any occasion or should be clearly said or understood. Although the plantiff should know better with his biking history.


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