Defendant was not sanctioned for failing to preserve broken bicycle parts, but only because the plaintiff could not prove the defendant’s acts were willful and contumacious.
Posted: November 20, 2017 Filed under: Cycling, New York | Tags: asking, bicycle, Bicycle Parts, Bike, confirmed, contumacious, deposition, destroy, destroyed, discarding, Email, failed to demonstrate, front wheel, layperson, material evidence, negligently, Notice, pick, preservation of evidence, prima facie case, Quick Release, repair, repaired, replaced, riding, shop, stricken, subject accident, threw, willful, Willful and contumacious Leave a commentPreservation of evidence has become a major issue of lots of litigation. Every business not needs to create a plan for how long to retain documents, email, records, etc., and why those records are destroyed when they are.
John v. CC Cyclery, 2017 N.Y. Misc. LEXIS 3213; 2017 NY Slip Op 31810(U)
State: New York; Supreme Court of New York, Kings County
Plaintiff: Hywel John
Defendant: CC Cyclery and CO LLC and William Svenstrup
Plaintiff Claims: Motion to strike defenses of the defendant for failing to preserve evidence
Defendant Defenses: failure to preserve the evidence was not willful
Holding: for the Defendant
Year: 2017
Summary
When you are placed on notice of possible litigation, you must preserve all evidence surrounding the facts of the litigation. That includes in this case, broken bicycle parts. Failing to preserve evidence can result in sanctions, including denial of your defenses.
Facts
The plaintiff had his bicycle serviced at the defendant’s bicycle shop. While riding his bicycle one day the front wheel of the bike dislodged causing him to fall to the ground.
After the accident, he took his bicycle back to the defendant. While the plaintiff was at the shop, he requested information about the defendant’s insurance policy. The defendant did not provide that information to the plaintiff. The plaintiff later emailed the defendant an ask for the same information and again was not provided it.
The defendant repaired the damages to the bike. After replacing the broken parts, he eventually threw them away.
In his post-accident repair of plaintiff’s bicycle, Mr. Underwood stated that he replaced several of the parts, including a device called a quick release. Mr. Underwood further admitted that upon showing plaintiff which bicycle parts he fixed, he threw away the broken parts including the quick release. Additionally, Mr. Underwood testified that he held onto the defective parts “until the trash came” on the week that plaintiff picked up his bicycle….
Again, the plaintiff asked for information about the shop’s insurance policy. Again, the shop refused to provide that information. The shop also claimed that it never touched the plaintiff’s quick release, so therefore the shop could not be
at fault for the plaintiff’s accident.
The plaintiff then filed this lawsuit. Upon being placed on notice of a potential litigation, the law requires all parties to preserve evidence. Because the broken parts of the bicycle were thrown away, the plaintiff filed a motion asking for sanctions against the defendant for failing to preserve the evidence.
Analysis: making sense of the law based on these facts.
The basis of the plaintiff’s motion was:
Plaintiff contends that defendants’ Answer should be stricken pursuant to CPLR § 3126 because Mr. Underwood disposed of the bicycle
parts without first “advis[ing] plaintiff or anyone else that he intended to throw out or destroy the purportedly defective parts”. Plaintiff asserts that “Mr. Underwood threw out these parts in spite of having preserved and retained exclusive possession and control over these parts at CC Cyclery from November 28, 2014 (DOA) and continuing until sometime after the plaintiff returned to the shop to pick up his bicycle on January 23, 2015”. According to plaintiff, defendants “knew or should have known that the parts removed and replaced from
plaintiff’s bicycle were significant and material evidence in a reasonably foreseeable litigation, based upon plaintiff’s repeated requests for insurance information in order for him to effectuate a claim for the damages he sustained in this accident”
In order for the court to grant any sanctions against the defendant, the plaintiff must prove the acts of the defendant were done in a willful or contumacious manner.
The issue then resolves around the point in time that the defendant should have known that possible litigation was imminent. The plaintiff argued this occurred, and the defendant was placed on notice when he asked for the defendant’s
insurance information. The defendant argued that since the defendant was a lay person, how could he interpret this as being placed on notice.
Additionally, defendants aver that Mr. Underwood–an unrepresented layperson at the time–would not have interpreted plaintiff’s request for insurance as notice that he was required to preserve the replaced bicycle parts
The defense also argued that loss of the broken bicycle parts was more damaging to them because they could not show how the plaintiff failed to keep his bicycle in proper condition and failed to provide for proper maintenance for his bike.
The court denied the plaintiff’s motion for several reasons. First, the plaintiff could not show that the destruction of the evidence, the broken parts was not “willful, contumacious or in bad faith.” Nor at the time of the destruction of the evidence was the defendant on notice of possible litigation.
Moreover, under the common law, “when a party negligently loses or intentionally destroys key evidence, thereby depriving the non-responsible party from being able to prove its claim or defense, the responsible party may be sanctioned by the striking of its pleading”
Additionally, a pleading may be stricken where the evidence lost or destroyed is so central to the case .that it renders the party seeking the evidence “prejudicially bereft of appropriate means to confront a claim with incisive evidence”. Notably, “even if the evidence was destroyed before the spoliator became a party, [the pleading may nonetheless be stricken] provided [the party] was on notice that the evidence might be needed for future litigation
The plaintiff’s motion was denied.
So Now What?
Although not a new area of the law, destruction of evidence has taken on new meaning and value in the digital age. Communications by phone never needed to be kept because there was no way to keep them. Emails can be preserved indefinitely, and this has created tons of litigation setting out the rules for when evidence must be preserved and when it can be destroyed.
When in doubt, unless told to destroy it by your attorney or your insurance company, keep it. Better, give the broken parts back to your customer. 99% of the time the parts will be thrown away by the time the customer gets back home.
However, this is an area you need to check with your attorney about. Create a plan for how long you are going to hold on to documents, preserve emails and other digital information and what to with broken parts.
Sanctions for failing to preserve evidence in many other states do not have such a high bar to protect the defendant. Willful
and contumacious in most other states is far beyond what is required. So, in many other locals, sanctions are easily levied.
By the way Contumacious means stubbornly or willfully disobedient to authority or is a stubborn refusal to obey authority or, particularly in law, the willful contempt of the order or summons of a court. The term is derived from the Latin word contumacia, meaning firmness or stubbornness.[i]
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Copyright 2017 Recreation Law (720) 334 8529
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John v. CC Cyclery, 2017 N.Y. Misc. LEXIS 3213; 2017 NY Slip Op 31810(U)
Posted: November 19, 2017 Filed under: Cycling, Legal Case, New York | Tags: asking, bicycle, Bicycle Parts, Bike, confirmed, contumacious, deposition, destroy, destroyed, discarding, Email, failed to demonstrate, front wheel, layperson, material evidence, negligently, Notice, pick, preservation of evidence, prima facie case, Quick Release, repair, repaired, replaced, riding, shop, stricken, subject accident, threw, willful, Willful and contumacious Leave a commentJohn v. CC Cyclery, 2017 N.Y. Misc. LEXIS 3213; 2017 NY Slip Op 31810(U)
Hywel John, Plaintiff, -VS- CC Cyclery and CO LLC and William Svenstrup, Defendants. Index No. 501255/15
501255/15
SUPREME COURT OF NEW YORK, KINGS COUNTY
2017 N.Y. Misc. LEXIS 3213; 2017 NY Slip Op 31810(U)
August 22, 2017, Decided
NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
CORE TERMS: bicycle, subject accident, notice, deposition, replaced, shop, repair, contumacious, stricken, willful, pick, material evidence, prima facie case, failed to demonstrate, negligently, discarding, layperson, destroyed, destroy, threw, front wheel, confirmed, repaired, riding, asking, email, bike
JUDGES: [*1] PRESENT: HON. LARRY D. MARTIN, J.S.C.
OPINION BY: LARRY D. MARTIN
OPINION
Upon the foregoing papers, plaintiff Hywel John (“plaintiff”) moves for an order: (1) pursuant to CPLR § 3126, striking the Answer of defendants CC Cyclery and Co LLC and William Svenstrup (collectively, “defendants”) on the grounds of negligent and/or intentional spoliation of material evidence; and (2) extending the time to file a Note of Issue (NOI).
Brief Facts & Procedural History
Plaintiff commenced the instant action to recover compensatory damages for personal injuries he allegedly sustained on. November 28, 2014, when the front wheel of a bicycle (the “subject bicycle”) he was riding dislodged, causing him to be flung from the bicycle onto the ground (the “subject accident”). In the verified bill of particulars, plaintiff alleges, among other things, that defendants “negligently repaired and maintained” (Bill of Particulars, ¶ 13) the subject bicycle.
At his January 11, 2016 deposition, plaintiff testified that he initially went to defendants’ repair shop, CC Cyclery and Co. LLC (“Cyclery”), to have guards placed on the subject bicycle’s wheels and a rack fitted onto the back (Plaintiff’s Affirmation, exhibit E, Hywel Deposition, 26: 24-25; [*2] 27: 13-14; 22-23). Plaintiff returned to Cyclery on the date of the subject accident to pick up his bicycle, and was riding along Avenue A, in Brooklyn, New York, when the subject accident occurred [**2] (id. at 31: 22-25; 32:2-11). Plaintiff testified that immediately after his accident, he returned to Cyclery, informed an individual named Mr. Jeff Underwood (“Mr. Underwood”) of what transpired and left the bicycle in the shop’s possession for further repairs to be performed (id. at 64: 7-12).
Thereafter, plaintiff emailed Mr. Underwood on December 3, 2014 asking for the company’s insurance information, claiming that he was “pretty concerned about [his] healthcare contribution going forward” as well as his “lack of ability to work properly over the next couple of months” due to his injuries (id. at exhibit M). Mr. Underwood responded to plaintiff in an email dated December 9, 2014 stating, among other things, “your front wheel had to be straightened and the tire had to be replaced . . .” and “I also switched out the quick release on the front to a Allen bolt . . .” (id. at exhibit L). Mr. Underwood did not address plaintiff’s request for insurance information in his email. According to plaintiff, he returned [*3] to Cyclery on January 23, 2015 to pick up his bike and, once again, asked Mr. Underwood for the company’s insurance information (id. at 68: 15-17). However, plaintiff claims that Mr. Underwood refused to comply with plaintiff’s request for insurance information (id. at 68: 18-20).
At Mr. Underwood’s deposition on July 26, 2016, he stated that he is the former owner of Cyclery and, among other things, was working as a mechanic for the company at the time of the subject accident (id. at exhibit H, Underwood Deposition, 17: 5-9; 18: 12-14). Mr. Underwood confirmed that he made repairs to plaintiff’s bicycle both before and after the subject accident. Moreover, during his deposition, Mr. Underwood identified a photo of the subject bicycle (previously marked as Defendants’ exhibit A) and confirmed that it accurately depicted the condition of the bike on the date of the accident (id. at 53: 23-25; 54: 2-3; see exhibit K).
In his post-accident repair of plaintiff’s bicycle, Mr. Underwood stated that he replaced several of the parts, including a device called a quick release (id. at 60: 5-22). Mr. Underwood further admitted that upon showing plaintiff which bicycle parts he fixed, he threw away the broken parts including the quick [*4] release (id. at 61: 15-23). Additionally, Mr. Underwood testified that he held onto the defective parts “until the trash came” on the week that plaintiff picked up his bicycle [**3] (id. at 64: 5-9).
According to Mr. Underwood, plaintiff asked him to talk to the shop owner about submitting an insurance claim on plaintiff’s behalf, and Mr. Underwood replied that the company could not do so (id. at 63: 16-19). Mr. Underwood asserted that he never touched the quick release device prior to the subject accident, and, therefore, defendants could not be at fault for plaintiff’s accident (id. at exhibit H, 52: 3-5; 8; 19-21).
Plaintiff thereafter commenced the instant action on February 4, 2015. On March 1, 2016, plaintiff served defendants with a notice to “preserve and retain any and all parts and equipment f[ro]m the plaintiff’s bicycle . . .” (see id. at exhibit F). On May 5, 2016, a compliance conference was held and an order was issued directing, among other things, for plaintiff to “preserve the bicycle at issue for inspection by defendants” (id. at exhibit G).
Discussion
Plaintiff contends that defendants’ Answer should be stricken pursuant to CPLR § 3126 because Mr. Underwood disposed of the bicycle parts without first “advis[ing] plaintiff or [*5] anyone else that he intended to throw out or destroy the purportedly defective parts” (Plaintiff’s Affirmation, ¶ 45). Plaintiff asserts that “Mr. Underwood threw out these parts in spite of having preserved and retained exclusive possession and control over these parts at CC Cyclery from November 28, 2014 (DOA) and continuing until sometime after the plaintiff returned to the shop to pick up his bicycle on January 23, 2015” (id.). According to plaintiff, defendants “knew or should have known that the parts removed and replaced from plaintiff’s bicycle were significant and material evidence in a reasonably foreseeable litigation, based upon plaintiff’s repeated requests for insurance information in order for him to effectuate a claim for the damages he sustained in this accident” (id. at ¶ 54).
In response, defendants assert that they did not act in a willful or contumacious manner in discarding the bicycle parts. Rather, defendants contend that plaintiff’s act in asking Mr. Underwood about insurance was “merely a request for insurance information that [plaintiff] could use to obtain additional health care contributions” and did not constitute notice “that the accident would result [*6] in [**4] litigation with claims of negligence on the part of the defendants” (see Defendants’ Affirmation in Opp, ¶ 4). Additionally, defendants aver that Mr. Underwood–an unrepresented layperson at the time–would not have interpreted plaintiff’s request for insurance as notice that he was required to preserve the replaced bicycle parts (see Defendants’ Affirmation in Opp, ¶ 4). In any event, defendants argue that striking their Answer is not an appropriate sanction in this instance because the missing bicycle parts do not prejudice or impede plaintiff’s ability to make out his prima facie case (id. at ¶ 5). In fact, defendants assert that the loss of such evidence is more prejudicial to them, “as it will be evidence that they now lack to show that plaintiff failed to keep his bicycle in proper condition and failed to request a proper maintenance from defendants at the time that he [initially] brought the bicycle in to be repaired” (id. at ¶ 6).
Based upon a review of the record submitted by the parties and the relevant law, the Court denies plaintiff’s motion. CPLR § 3126 provides for the striking out of a party’s pleadings when that party “refuses to obey an order for disclosure or wilfully fails [*7] to disclose information which the court finds ought to have been disclosed . . .” (CPLR § 3126 [3]). However, such a drastic remedy is “unwarranted absent a ‘clear showing that the failure to comply with discovery demands was willful, contumacious or in bad faith'” (Foncette v LA Express, 295 AD2d 471, 472, 744 N.Y.S.2d 429 [2d Dept 2002]). Moreover, under the common law, “when a party negligently loses or intentionally destroys key evidence, thereby depriving the non-responsible party from being able to prove its claim or defense, the responsible party may be sanctioned by the striking of its pleading” (Baglio v St. John’s Queens Hosp., 303 AD2d 341, 342, 755 N.Y.S.2d 427 [2d Dept 2003]). Additionally, a pleading may be stricken where the evidence lost or destroyed is so central to the case .that it renders the party seeking the evidence “prejudicially bereft of appropriate means to confront a claim with incisive evidence” (Foncette, 295 AD2d at 472; see Awon v Harran Transp. Co., Inc., 69 AD3d 889, 890, 895 N.Y.S.2d 135 [2d Dept 2010]). Notably, “even if the evidence was destroyed before the spoliator became a party, [the pleading may nonetheless be stricken] provided [the party] was on notice that the evidence might be needed for future litigation” (Baglio, 303 AD2d at 342).
[**5] As an initial matter, the Court notes that a Notice to Preserve Evidence was not served on defendants until more than one year after the subject accident occurred and the instant action was commenced (see MetLife Auto & Home v Joe Basil Chevrolet, Inc., 1 NY3d 478, 484, 807 N.E.2d 865, 775 N.Y.S.2d 754 [2004]) [*8] . Absent such notice, the Court finds that plaintiff’s act in requesting insurance information was insufficient to put a layperson such as Mr. Underwood on notice that litigation was contemplated.
Moreover, the Court finds that plaintiff has failed to demonstrate that Mr. Underwood’s act in discarding the removed bicycle parts was willful and contumacious (see Di Domenico v C & S Aeromatik Supplies, 252 AD2d 41, 52, 682 N.Y.S.2d 452 [2d Dept 1998]). Plaintiff also fails to establish that Mr. Underwood’s actions have completely deprived him of the ability to prove his prima facie case (cf. Baglio, 303 AD2d at 342). As defendants note, plaintiff still has at his disposal the photograph reflecting the defective condition of the bicycle at the time of the accident, as well as Mr. Underwood’s undisputed deposition testimony detailing which portions of the bicycle he fixed and which portions he discarded. Thus, while it cannot be said that plaintiff is not adversely affected by the loss of the defective bicycle parts, the Court finds that plaintiff has failed to demonstrate that he is prejudiced by this loss (see Awon, 69 AD3d at 890; Foncette, 295 AD2d at 472).
Conclusion
Accordingly, that portion of plaintiff’s motion seeking to strike defendants’ Answer is denied. That portion of plaintiff’s motion seeking an order providing for the filing of [*9] the NOI is denied as moot. A review of the court’s record indicates that plaintiff filed the NOI herein on October 14, 2016. The parties are reminded of their September 6, 2017 appearance in JCP.
The foregoing constitutes the decision and order of the Court.
ENTER,
/s/ Larry Martin
HON. LARRY MARTIN
J.S.C.
Pacific Cycle not liable for alleged defective skewer sold to plaintiff by Wal-Mart
Posted: August 24, 2015 Filed under: Cycling, Mountain Biking, Tennessee | Tags: assembly, bicycle, burden of proof, Campground, Consumer, Cycling, Dangerous Condition, defective condition, deposition, entitled to judgment, favorable, front wheel, genuine, genuine issue, hearsay, Issue of Material Fact, Manufacture, Manufacturer, Marketing, matter of law, Mongoose, Mountain bike, moving party, non-moving, Product liability, Products Liability, Proximate Cause, Quick Release, remember, rode, seller, Skewer, Summary judgment, Tennessee, TPLA, unreasonably, unreasonably dangerous, Wheel Leave a commentTo win a lawsuit you must have evidence to support your claim.
Burnett v. Pacific Cycle, Inc. 2007 U.S. Dist. LEXIS 55719
State: Tennessee, United States District Court for the Eastern District of Tennessee
Plaintiff: A.B. By Next Friend, Rachelle Burnett,
Defendant: Pacific Cycle, Inc. and Wal-Mart Stores East, L.P.,
Plaintiff Claims: Pacific was negligent in its design and manufacture of the bicycle, rendering the bicycle defective and unreasonably dangerous. Plaintiffs further allege that defendant Wal-Mart Stores East, L.P. was negligent in the assembly, marketing, distribution, and sale of the bicycle
Defendant Defenses: Motion to Dismiss for failure to state a claim
Holding: Case was dismissed
Year: 2007
This case concerns a Mongoose DXR bicycle manufactured by Pacific Cycle and sold by Wal-Mart in Tennessee. The bike was purchased fully assembled. The bike was ridden regularly by the minor plaintiff for the next four years. No maintenance was performed on the bike during that time.
The bike was equipped with a quick release. No one admitted ever opening or removing the quick release. While camping, the minor plaintiff was riding the bicycle when he suffered injuries to his face and head. The plaintiff did not remember the accident.
The defendants filed a motion for summary judgment, which was granted.
Analysis: making sense of the law based upon these facts.
The case was brought under the Tennessee Product Liability Act. To prove a claim under the act the plaintiff “must prove that the product in question was “in a defective condition or unreasonably dangerous at the time, it left the control of the manufacturer or seller.” A defective condition is one that renders a product “unsafe for normal or anticipatable handling and consumption.”
An unreasonably dangerous product under the act is defined as:
…dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics, or that the product because of its dangerous condition would not be put on the market by a reasonably prudent manufacturer or seller, assuming that the manufacturer or seller knew of its dangerous condition.
Consequently, the plaintiff must show a product is defective or unreasonably dangerous. The defect or unreasonable dangerous condition was the proximate cause and the cause, in fact, for the injury to the plaintiff. A mere malfunction of the product does not create liability. Nor is an injury to the plaintiff alone sufficient to prove a case.
Because the plaintiff could not remember the accident, there was no proof that a defect caused the injury to him.
Plaintiffs have not established that the alleged defect or unreasonably dangerous condition of the Bicycle was the proximate cause or the cause, in fact, of the accident. A.B. admits that he cannot remember whether the Bicycle’s front wheel came off before the accident, which would effectively have caused the accident, or after the accident.
There was also expert testimony from the defendant’s expert who stated the accident was not caused by the quick release.
So Now What?
This is a simple case that analyzes the product liability requirements necessary to prove a case in Tennessee. The pivotal issue was no one saw the accident nor was the plaintiff able to remember the accident.
On top of that the plaintiff did not hire an expert witness to support or prove its claims. Consequently, the only evidence from an expert the court had in front of it was from the defendant’s expert.
No evidence to prove the case in front of the court, the court must rule for the defendant.
 |
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
Outdoor Recreation Insurance, Risk Management and Law
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
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Burnett v. Pacific Cycle, Inc. 2007 U.S. Dist. LEXIS 55719
Posted: July 6, 2015 Filed under: Cycling, Legal Case, Mountain Biking, Tennessee | Tags: assembly, bicycle, burden of proof, Campground, Consumer, Cycling, Dangerous Condition, defective condition, deposition, entitled to judgment, favorable, front wheel, genuine, genuine issue, hearsay, Issue of Material Fact, Manufacture, Manufacturer, Marketing, matter of law, Mongoose, Mountain bike, moving party, non-moving, Product liability, Products Liability, Proximate Cause, Quick Release, remember, rode, seller, Skewer, Summary judgment, Tennessee, TPLA, unreasonably, unreasonably dangerous, Wheel 1 CommentTo Read an Analysis of this decision see Pacific Cycle not liable for alleged defective skewer sold to the plaintiff by Wal-Mart
Burnett v. Pacific Cycle, Inc. 2007 U.S. Dist. LEXIS 55719
A.B. By Next Friend, Rachelle Burnett, Plaintiffs, v. Pacific Cycle, Inc. and Wal-Mart Stores East, L.P., Defendants.
No.: 3:06-CV-266
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE
2007 U.S. Dist. LEXIS 55719
July 31, 2007, Filed
COUNSEL: [*1] For A.B., next friend Rachelle Burnett, Plaintiff: Lori L Jessee, LEAD ATTORNEY, Bacon, Jessee & Perkins, Morristown, TN; Sidney W Gilreath, Timothy A Housholder, LEAD ATTORNEYS, Gilreath & Associates, PC, Knoxville, TN.
For Pacific Cycle, Inc., Wal-Mart Stores East, L.P., Defendants: Travis J Graham, LEAD ATTORNEY, Gentry, Locke, Rakes & Moore, LLP, Roanoke, VA.
JUDGES: Thomas A. Varlan, UNITED STATES DISTRICT JUDGE.
OPINION BY: Thomas A. Varlan
OPINION
MEMORANDUM OPINION
This civil action is before the Court on the defendants’ Motion for Summary Judgment [Doc. 12]. Plaintiffs, A.B. and next friend Rachelle Burnett (“Plaintiffs”), claim that A.B. was injured in a bicycle accident because of the negligence of the defendants. [Doc. 1] Specifically, Plaintiffs allege that defendant Pacific Cycle, Inc. (“Pacific”) was negligent in its design and manufacture of the bicycle, rendering the bicycle defective and unreasonably dangerous. [Id. at PP 9-13] Plaintiffs further allege that defendant Wal-Mart Stores East, L.P. (“Wal-Mart”) was negligent in the assembly, marketing, distribution, and sale of the bicycle in question. [Id. at PP 14-16] In their motion for summary judgment, the defendants argue that, pursuant to Fed. R. Civ. P. 56, [*2] they are entitled to judgment as a matter of law because Plaintiffs cannot prove that the bicycle was defective or unreasonably dangerous, nor can they prove that A.B.’s injury was caused by the alleged defect. Plaintiffs have not responded to the instant motion and the time for doing so has passed. See L.R. 7.1(a), 7.2.
The Court has carefully reviewed the pending motion, along with the supporting brief in light of the entire record and controlling law. For the reasons set forth herein, the defendants’ motion for summary judgment will be granted.
I. Relevant Facts
In approximately December, 2000, Plaintiffs purchased a Mongoose DXR / MGX mountain bike (the “Bicycle”) from the Jefferson City, Tennessee Wal-Mart. [Doc. 1 at P 5] The Bicycle was fully assembled when purchased. [Doc. 13, Attachment 2 at p. 3] The Bicycle’s front wheel was equipped with a quick release mechanism which allows the front wheel to be detached. [Doc. 1 at P 8] Plaintiffs never manually removed the front wheel from the Bicycle. [Doc. 13, Attachment 2 at p. 3, 5] Other than simple maintenance, including inflating the tires and oiling the chain, no work was ever performed on the Bicycle while in Plaintiffs’ possession. [*3] [Id. at p. 4]
A.B. rode the Bicycle frequently in the following years, varying from once a week to once every few days. [Doc. 13, Attachment 4 at p. 5] A.B. normally only rode the Bicycle in Plaintiffs’ driveway, yard, and at a nearby church. [Id. at p. 4] In June, 2004, Plaintiffs went on a camping trip and brought the Bicycle. [Doc. 13, Attachment 3 at p. 6] The Bicycle was transported to the campground in the back of Plaintiffs’ truck. [Id.] The wheels were not removed while the Bicycle was in transit to the campground. [Id.] Plaintiffs arrived at the campground on the afternoon of June 24, 2004. [Id.] A.B. did not ride his bicycle on June 24, 2004, but did ride it some on June 25, 2004 with no difficulty. [Id.] On June 26, 2004, A.B. again rode his bicycle around the campground, but this time had an accident and sustained a severe injuries to his face and head. [Id.] A.B. remembers “riding [the Bicycle] back to the campsite, and then . . . looking over and seeing this big family, and then everything went black.” [Doc. 13, Attachment 4 at p. 7] A.B. does not remember how the accident happened. [Id.] The accident was witnessed by an unknown camper [Id. at p. 8], but there is no evidence [*4] of record that the unknown camper has ever been identified. At the time of the accident, A.B. was just riding along on a smooth, gravel road, and was not trying to perform any tricks. [Id. at p. 10] A.B. does not remember whether the front wheel of the Bicycle came off before or after the accident. [Id.]
II. Standard of Review
Under Fed. R. Civ. P. 56(c), summary judgment is proper if “the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” The burden of establishing there is no genuine issue of material fact lies upon the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 330 n.2, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The court must view the facts and all inferences to be drawn therefrom in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Burchett v. Kiefer, 310 F.3d 937, 942 (6th Cir. 2002). To establish a genuine issue as to the existence of a particular element, the non-moving party must point to evidence in the record upon which a reasonable jury could [*5] find in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The genuine issue must also be material; that is, it must involve facts that might affect the outcome of the suit under the governing law. Id.
The judge’s function at the point of summary judgment is limited to determining whether sufficient evidence has been presented to make the issue of fact a proper jury question, and not to weigh the evidence, judge the credibility of witnesses, and determine the truth of the matter. Id. at 249. Thus, “[t]he inquiry performed is the threshold inquiry of determining whether there is the need for trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Id. at 250.
III. Tennessee Product Liability Act
Plaintiffs claim that Pacific was negligent in the design, manufacture, and sale of the Bicycle and caused the Bicycle to be in a defective or unreasonably dangerous condition at the time of the sale in violation of the Tennessee Product Liability Act (“TPLA”). Plaintiffs further allege that Wal-Mart was negligent in the assembly, marketing, [*6] distribution, and sale of the Bicycle and caused the Bicycle to be in a defective or unreasonably dangerous condition at the time of the sale in violation of the TPLA.
In order to recover against a manufacturer or seller under the TPLA, a plaintiff must prove that the product in question was “in a defective condition or unreasonably dangerous at the time it left the control of the manufacturer or seller.” Tenn. Code Ann. § 29-28-105(a). The TPLA defines a “defective” condition as “a condition of a product that renders it unsafe for normal or anticipatable handling and consumption.” Tenn. Code Ann. § 29-28-102(2). The TPLA defines “unreasonably dangerous” as a product
dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics, or that the product because of its dangerous condition would not be put on the market by a reasonably prudent manufacturer or seller, assuming that the manufacturer or seller knew of its dangerous condition.
Tenn. Code Ann. § 29-28-102(8). “These statutory definitions essentially codify the ‘consumer expectation test’ as the basis in Tennessee [*7] for assessing products liability.” Tatum v. Cordis Corp., 758 F. Supp. 457, 461 (M.D. Tenn. 1991).
“Thus, regardless of the theory, the plaintiff must show that something is wrong with a product that makes it defective or unreasonably dangerous.” Bradley v. Danek Medical, Inc., No. 96-3121, 1999 U.S. Dist. LEXIS 6449, at *25 (W.D. Tenn. Mar. 29, 1999) (citations omitted). Additionally, the plaintiff must show that the alleged defect or unreasonably dangerous condition of the product was both the proximate cause and the cause in fact of the plaintiff’s injury. Pride v. BIC Corp., 218 F.3d 566, 580 (6th Cir. 2000). “[A] device failure or malfunction will not, without more, render a manufacturer liable.” Bradley, 1999 U.S. Dist. LEXIS 6449, at *25 (citing Harwell v. American Medical Sys., Inc., 803 F. Supp. 1287, 1298 (M.D. Tenn. 1992)). “Moreover, the fact that plaintiff was injured is not proof of defect.” Id. (citing Fulton v. Pfizer Hosp. Products Group, Inc., 872 S.W.2d 908, 911 (Tenn. Ct. App. 1993).
In the instant case, Plaintiffs have presented no proof in support of their claims, instead relying solely on their complaint. The plaintiffs’ complaint, even if accepted as true for [*8] purposes of summary judgment, consists of allegations which are not acceptable proof under Rule 56. Mere notice pleading is not sufficient to defeat a well-pled summary judgment motion. See Garth v. University of Kentucky Medical Center, No. 92-5177, 1992 U.S. App. LEXIS 14677, at *3-4 (6th Cir. June 16, 1992) (“To survive a motion for summary judgment, [the plaintiff] was required to do more than rest on her pleadings; she was required to demonstrate that a genuine issue for trial existed.”); Teamsters Local Union No. 486 v. Andersen Sand and Gravel Co., No. 82-1124, 711 F.2d 1059, 1983 U.S. App. LEXIS 13044, at *6 (6th Cir. May 11, 1983) (“Where the district court has afforded a party opposing summary judgment under Rule 56 an opportunity to set forth specific facts showing there is a genuinely disputed factual issue for trial and that opportunity has been ignored, summary judgment is appropriate if the movant has carried his burden of proof.”). After reviewing the record in the light most favorable to Plaintiffs, the Court finds that Plaintiffs have failed to carry their burden and that the defendants’ motion for summary judgment should be granted.
Plaintiffs have not established that the alleged [*9] defect or unreasonably dangerous condition of the Bicycle was the proximate cause or the cause in fact of the accident. A.B. admits that he can not remember whether the Bicycle’s front wheel came off before the accident, which would effectively have caused the accident, or after the accident. [Doc. 13, Attachment 4 at p. 10] Nor is there any other evidence of record as to the cause of the accident. The Court notes that Ms. Burnett did indicate during her deposition that A.B. “told me before that he remembered the wheel coming off and it going forward,” but that testimony is inadmissible hearsay and not based upon Ms. Burnett’s own personal knowledge. Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 927 (6th Cir. 1999) (“hearsay evidence may not be considered on summary judgment”).
In contrast, the defendants have presented expert testimony proving that the accident was not caused by quick release mechanism on the Bicycle’s front tire and that the Bicycle was not defective nor unreasonably dangerous. [Doc. 13, Attachment 3] Accordingly, the Court finds that Plaintiffs have not carried their burden of proof with respect to identifying a defect or dangerous condition [*10] of the Bicycle and showing that the defect or dangerous condition was the proximate cause and the cause in fact of the plaintiff’s injury, and thus defendants’ motion for summary judgment will be granted.
IV. Conclusion
For the reasons set forth herein, the defendants’ motion for summary judgment [Doc. 12] will be GRANTED and Plaintiffs’ claims will be DISMISSED with prejudice.
ORDER ACCORDINGLY.
s/ Thomas A. Varlan
UNITED STATES DISTRICT JUDGE
Recreation Law 