Posted: November 20, 2017 | Author: Recreation Law | 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 |
Preservation 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]
What do you think? Leave a comment.
Copyright 2017 Recreation Law (720) 334 8529
If you like this let your friends know or post it on FB, Twitter or LinkedIn
If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.
Author: Outdoor Recreation Insurance, Risk Management and Law
To Purchase Go Here:
Facebook Page: Outdoor Recreation & Adventure Travel Law
Email: Rec-law@recreation-law.com
By Recreation Law Rec-law@recreation-law.com James H. Moss
#AdventureTourism, #AdventureTravelLaw,
#AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps,
#ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw,
#FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation,
#IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence,
#OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw,
#Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer,
#RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom,
#Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer,
#RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding,
#SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw,
#OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,
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, preservation of evidence, Willful and contumacious, Willful,
contumacious, quick release, bicycle parts,
Posted: November 19, 2017 | Author: Recreation Law | 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 |
John 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.
Posted: September 24, 2012 | Author: Recreation Law | Filed under: Cycling, Legal Case, Maryland | Tags: assemble, bargaining, bicycle, Brake, braking, Consumer, container, design defect, Dorel Industries, entitled to judgment, exculpatory clauses, front, general contractor, grossly, high-performance, linear-pull, Manufacturers, MARYLAND, Pacific Cycle, Public Interest, release agreement, Retail, Retailer, sealed, seller, shop, Sport, Sports Authority, Summary judgment, training, unaltered, unreasonably, Warning, written warnings |
Alexander v. The Sports Authority, Inc., et al., 2007 U.S. Dist. LEXIS 43317
HERBERT ALEXANDER v. THE SPORTS AUTHORITY, INC., et al.
Civil Action No. DKC 2007-0479
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
2007 U.S. Dist. LEXIS 43317
June 14, 2007, Decided
COUNSEL: [*1] For Mr. Herbert Alexander, Plaintiff: Cassandra P Hicks, LEAD ATTORNEY, Hicks and Weintraub PC, Rockville, MD.
For The Sports Authority, Inc., Defendant: John S Vander Woude, LEAD ATTORNEY, Eccleston and Wolf PC, Baltimore, MD.
For Pacific Cycle, Inc., also known as Pacific Cycle LLC, Defendant: Daniel Scott Blynn, LEAD ATTORNEY, Kelley Drye and Warren LLP, Washington, DC.; Kenn Brotman, Kelley Drye and Warren LLP, Chicago, IL.
JUDGES: DEBORAH K. CHASANOW, United States District Judge.
OPINION BY: DEBORAH K. CHASANOW
OPINION
MEMORANDUM OPINION
Presently pending and ready for resolution in this product liability case is the motion of Defendant TSA Stores, Inc. to dismiss, or in the alternative, for summary judgment. 1 (Paper 7). Because the court will rely on materials outside the pleadings, the motion will be treated as one for summary judgment. The issues are fully briefed and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that follow, the motion will be granted in part and decision deferred in part. Plaintiff will be permitted to file a surreply on one issue.
1 Defendant TSA Stores, Inc., was incorrectly named The Sports Authority, Inc., in the complaint.
[*2] I. Background
The facts in this case are largely undisputed. On November 28, 2004, Plaintiff Herbert Alexander purchased a Schwinn Tornado M26 bicycle from the Sports Authority store located on Rockville Pike in. Rockville, Maryland.
From November 28 until January 1, Plaintiff rode the bicycle approximately six times, apparently without incident. (Paper 15, Ex. B, Alexander Aff. P 6). On January 1, 2005, when Plaintiff applied the brakes to avoid a car, he was thrown over the handlebars of his bicycle. (Paper 2 P 5). Plaintiff, 77 years old at the time, sustained multiple injuries from the fall.
Plaintiff alleges that his fall and the resulting injuries occurred because his bicycle was outfitted with high-performance, linear-pull brakes. Plaintiff alleges that these brakes were designed for experienced riders, were not meant for use by the general public, and required special training for their use. Plaintiff sued Defendants TSA Stores, Inc. (“TSA”), Pacific Cycle, Inc., and Dorel Industries, Inc., for negligence and product liability. 2 Plaintiff alleges that the bicycle’s design was defective because it included high-performance brakes on a bicycle intended [*3] for general use. Specifically, Plaintiff alleges in Count I that Defendants were negligent, careless, and reckless because TSA failed to provide proper training in the use of high performance brakes at the point of sale and Pacific Cycle installed brakes designed for experienced riders on a bicycle meant for the general public’s use. In Count II, Plaintiff alleges that Defendants are strictly liable for his injuries because the bicycle was placed in the stream of commerce and sold in a defective and unreasonably dangerous condition.
2 Dorel Industries, Inc., has been dismissed from the suit (paper 21) and Pacific Cycle has not moved for summary judgement at time.
At the time of purchase from TSA, Plaintiff executed a bicycle sales/repair ticket that included a release agreement (“release agreement”). As part of the release agreement, Plaintiff signed and dated the following statement: “I have been shown the proper way to operate the shifting, braking and release mechanisms of this bicycle. . ” (Paper 7, Ex. [*4] Al). Plaintiff also signed his initials next to each of the following paragraphs:
I understand and am aware that bicycling is a HAZARDOUS activity. I understand that the sport of bicycling and the use of this bicycle equipment involves a risk of personal injury to any and all parts of my body and that physical injury is a common occurrence of this sport. I freely and expressly assume and accept any and all risks of injury or death resulting from the use of this equipment.
I agree that I hereby release this bicycle shop, equipment manufacturer, and distributor, from any and all responsibility or liability for physical injuries to myself or others or property damage resulting from the use of this equipment. Except to the extent that such claim might be based on the sole and exclusive negligence of this bicycle shop, I agree NOT to make a claim against or sue this bicycle shop for injuries or damages relating to bicycling and/or the use of this equipment.
(Paper 7, Ex. Al) (emphasis in original). Finally, Plaintiff initialed and signed the following:
THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY, [*5] WHICH EXTEND BEYOND THE DESCRIPTION OF THE BICYCLE EQUIPMENT LISTED ON THIS FORM.
I have carefully read this agreement and release and fully understand its contents. I am aware that this is a release of liability and a contract between myself and this shop and I sign it of my own free will. This agreement shall be effective and binding upon the parties hereto.
(Paper 7, Ex. Al) (emphasis in original).
TSA moves to dismiss, or in the alternative, for summary judgment. (Paper 7). TSA argues that it is entitled to judgment on all claims because (1) the release agreement Plaintiff signed expressly releases TSA from liability, (2) TSA had no duty to train Plaintiff, (3) Maryland law provides a statutory defense to sellers in defective design cases such as this, and (4) Plaintiff’s disregard for the written warnings is an intervening cause of his injury and provides a defense to strict liability. Plaintiff opposes the motion.
II. Standard of Review
The purpose of a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) is to test the sufficiency of the plaintiff’s complaint. See Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). [*6] Accordingly, a 12(b)(6) motion ought not be granted unless “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). Except in certain specified cases, a plaintiff’s complaint need only satisfy the “simplified pleading standard” of Rule 8(a), Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002), which requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).
In its determination, the court must consider all well-pled allegations in a complaint as true, see Albright v. Oliver, 510 U.S. 266, 268, 114 S. Ct. 807, 127 L. Ed. 2d 114 (1994), and must construe all factual allegations in the light most favorable to the plaintiff. See Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir. 1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)). The court must disregard the contrary allegations of the opposing party. See A.S. Abell Co. v. Chell, 412 F.2d 712, 715 (4th Cir. 1969). [*7] The court need not, however, accept unsupported legal allegations, Revene v. Charles County Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989), legal conclusions couched as factual allegations, Papasan v. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 92 L. Ed. 2d 209 (1986), or conclusory factual allegations devoid of any reference to actual events, United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979).
“In deciding a Rule 12(b)(6) motion, the court will consider the facts stated in the complaint and the documents attached to the complaint. The court may also consider documents referred to in the complaint and relied upon by plaintiff in bringing the action.” Abadian v. Lee, 117 F.Supp.2d 481, 485 (D.Md. 2000) (citing Biospherics, Inc., v. Forbes, Inc., 989 F.Supp. 748, 749 (D.Md. 1997), aff’d, 151 F.3d 180 (4th Cir. 1998)). When doing so, the court need not convert a Rule 12(b)(6) motion to dismiss to one for summary judgment so long as it does not consider matters “outside the pleading.” See Fed.R.Civ.P. 12(b) (“If [on a 12(b)(6) motion to dismiss,] matters outside [*8] the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56 . . . .”); Laughlin v. Metro. Washington Airports Auth., 149 F.3d 253, 260-61 (4th Cir. 1998).
It is well established that a motion for summary judgment will be granted only if there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). In other words, if there clearly exist factual issues “that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party,” then summary judgment is inappropriate. Anderson, 477 U.S. at 250; see also Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir. 1987); Morrison v. Nissan Motor Co., 601 F.2d 139, 141 (4th Cir. 1979). The moving party bears the burden of showing that there is no genuine issue as to [*9] any material fact and that he is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Catawba Indian Tribe of S.C. v. South Carolina, 978 F.2d 1334, 1339 (4th Cir. 1992), cert. denied, 507 U.S. 972, 113 S. Ct. 1415, 122 L. Ed. 2d 785 (1993).
When ruling on a motion for summary judgment, the court must construe the facts alleged in the light most favorable to the party opposing the motion. See United States v. Diebold, 369 U.S. 654, 655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962); Gill v. Rollins Protective Servs. Co., 773 F.2d 592, 595 (4th Cir. 1985). A party who bears the burden of proof on a particular claim must factually support each element of his or her claim. “[A] complete failure of proof concerning an essential element . . necessarily renders all other facts immaterial.” Celotex Corp., 477 U.S. at 323. Thus, on those issues on which the nonmoving party will have the burden of proof, it is his or her responsibility to confront the motion for summary judgment with an affidavit or other similar evidence in order to show the existence of a genuine issue for trial. See Anderson, 477 U.S. at 256; [*10] Celotex Corp., 477 U.S. at 324. However, “[a] mere scintilla of evidence in support of the nonmovant’s position will not defeat a motion for summary judgment.” Detrick v. Panalpina, Inc., 108 F.3d 529, 536 (4th Cir.), cert. denied, 522 U.S. 810, 118 S. Ct. 52, 139 L. Ed. 2d 17 (1997). There must be “sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50 (citations omitted).
III. Release Agreement
TSA argues that the release agreement signed by Plaintiff at the point of sale was clear, and unambiguously releases it from liability. In particular, TSA cites the following paragraph, initialed by Plaintiff: “Except to the extent that such claim might be based on the sole and exclusive negligence of this bicycle shop, I agree NOT to make a claim against or sue this bicycle shop for injuries or damages relating to bicycling and/or the use of this equipment. . . .” (Paper 7, Ex. A1) (emphasis in original). TSA states that a plain reading of Plaintiff’s complaint illustrates [*11] that he has not made a claim based on the sole and exclusive negligence of TSA because he named two other Defendants in the suit and asserted that the manufacturer created the alleged defect in the bicycle. (Paper 7, at 6-7). Plaintiff counters that the release agreement is ambiguous because a reasonable person would not interpret the cited provision “to allow a lawsuit against the store if the store was negligent, but to exempt suits against the store if the store along with another entity were negligent.” (Paper 15, at 5).
“Maryland courts apply an objective standard when interpreting and construing contracts.” Coll. of Notre Dame of Md., Inc. v. Morabito Consultants, Inc., 132 Md.App. 158, 167, 752 A.2d 265 (2000) (citing Gen. Motors Acceptance Corp. v. Daniels, 303 Md. 254, 261, 492 A.2d 1306 (1985)). 3 The principal goal in the interpretation of contracts is to effect the intention of the parties. Kasten Constr. Co., Inc. v. Rod Enters., Inc., 268 Md. 318, 328, 301 A.2d 12 (1973). When a contract’s language contains clear and unambiguous terms, the court will not engage in construction, but will look solely to what was written as conclusive of the parties’ intent. [*12] Gen. Motors, 303 Md. at 261.
A court construing an agreement under this test must first determine from the language of the agreement itself what a reasonable person in the position of the parties would have meant at the time it was effectuated. In addition, when the language of the contract is plain and unambiguous there is no room for construction, and a court must presume that the parties meant what they expressed.
Id.
3 The sale occurred in Maryland and the law of Maryland governs the substantive legal issues in this diversity action. Ramos v. S. Md. Elec. Co-op., 996 F.2d 52, 54 (4th Cir. 1993).
The release agreement is not ambiguous, but it does not have the meaning suggested by TSA. The release agreement does not categorically bar the entire lawsuit because Plaintiff has named other defendants. A plaintiff is always entitled to argue alternative theories of liability, something that would be ‘foreclosed by TSA’s suggested interpretation. No other court [*13] has interpreted “except to the extent that such claim might be based on the sole and exclusive negligence of . . .” to mean what TSA suggests, that a plaintiff may not sue one entity if another entity may also be at fault. Other courts have interpreted this, or similar provisions, to mean that a defendant’s liability is limited only to its own negligence. For example, a New York state court allowed injured construction workers to recover against both the general contractor and the subcontractor, even though a contract required the subcontractor to “indemnify the general contractor for all liabilities . . excluding only liability created by the [general contractors’s] sole and exclusive negligence“. Dutton v. Charles. Pankow Builders, Ltd., et al., 296 A.D.2d 321, 745 N.Y.S.2d 520 (N.Y. App. Div. 2002), app. denied, 99 N.Y.2d 511, 790 N.E.2d 276, 760 N.Y.S.2d 102 (2003). The court required the subcontractor to indemnify the general contractor, but excluded the portion of the joint liability attributable to the general contractor’s negligence. Id. Similarly, the release agreement in this case plainly allows claims that are based on TSA’s own negligence, such as Count I. The release agreement does [*14] bar claims that are based on anything other than TSA’s own negligence, such as Count II which alleges strict liability.
The next question is whether the release agreement is enforceable as to Count II. “In Maryland, unambiguous exculpatory clauses are generally held to be valid in the absence of legislation to the contrary.” Seigneur v. Nat’l Fitness Inst., Inc., 132 Md.App. 271, 281, 752 A.2d 631 (2000). The Court of Appeals of Maryland stated:
It is quite possible for the parties expressly to agree in advance that the defendant is under no obligation of care for the benefit of the plaintiff, and shall not be liable for the consequences of conduct which would otherwise be negligent. There is in the ordinary case no public policy which prevents the parties from contracting as they see fit.
Wolf v. Ford, 335 Md. 525, 531, 644 A.2d 522 (1994) (quoting W. Page Keeton, et al., Prosser and Keeton on the Law of Torts, § 68 (5th ed. 1984)). Three exceptions have been identified where the public interest will render an exculpatory clause unenforceable. They are: (1) when the party protected by the clause intentionally causes harm or engages in acts of reckless, [*15] wanton, or gross negligence; (2) when the bargaining power of one party to the contract is so grossly unequal so as to put that party at the mercy of the other’s negligence; and (3) when the transaction involves the public interest. Wolf, 335 Md. at 531-32.
First, there is no evidence that TSA intentionally caused harm to Plaintiff or engaged in reckless, wanton, or grossly negligent conduct. Second, it is true that the release agreement is a contract of adhesion, but that fact alone does not demonstrate that TSA had grossly disparate bargaining power. 4 “To possess a decisive bargaining advantage over a customer, the service offered must usually be deemed essential in nature.” Seigneur, 132 Md.App. at 283. In Seigneur, the. Court of Special Appeals of Maryland held that gym club membership is “a good idea and no doubt contribute[s] to the health of the individual participants and the community at large. But ultimately, [it is] not essential to the state or its citizens.” Id. at 284. By the same token, purchasing a bicycle is not essential. Thus, the bargaining power of the parties was not “so grossly unequal” as to put Plaintiff [*16] at the mercy of TSA’s negligence. Third, and finally, the transaction did not involve the public interest. The Wolf court identified transactions that affect the public interest as those involving:
the performance of a public service obligation, e.g., public utilities, common carriers, innkeepers, and public warehousemen. It also includes those transactions, not readily susceptible to definition or broad categorization, that-are so important to the public good that an exculpatory clause would be “patently offensive,” such that “the common sense of the entire community would . . . pronounce it” invalid.
Wolf, 335 Md. at 532 (internal quotation omitted). The sale of a bicycle plainly does not fall into one of these categories of transactions. Thus, none of the public interest exceptions render this exculpatory clause unenforceable as to Count II.
4 “A contract of adhesion, it is well settled, is one, usually prepared in printed form, ‘drafted unilaterally by the dominant party and then presented on a ‘take-it-or-leave-it’ basis to the weaker party who has no real opportunity to bargain about its terms.'” Holloman, 391 Md. at 602, 894 A.2d 547 (quoting Restatement (Second) of Conflict of Laws §§ 187, cmt. b).
[*17] Plaintiff argues that even if the release agreement would be enforceable otherwise, it is void in this case because it does not identify TSA or The Sports Authority by name, but rather refers to “the bicycle shop.” As support, Plaintiff cites to Signeur, 132 Md.App. 271, 752 A.2d 631, which cited with approval the determination of the Court of Appeals of Indiana in Powell v. American Health Fitness Center of Ft. Wayne, Inc., 694 N.E.2d 757 (Ind.Ct.App. 1998). In Powell, the court held that the exculpatory clause, signed by the plaintiff when he joined the gym, did not indemnify or release American Health Fitness Center of Fort Wayne (“American Health”) from claims, damages, or causes of action, where the injuries were caused by the negligence of American Health. 5 Plaintiff, however, misinterprets the holding in Powell. Plaintiff suggests that the holding in Powell requires that the party seeking release from liability be named formally in the contract. (Paper 15, at 6). This is incorrect. In Powell, the exculpatory clause was not void because it used the generic “Club” rather than the specific “American Health.” The exculpatory clause was void because it [*18] failed to “specifically and explicitly refer to the negligence of the party seeking release from liability.” Id. at 761 (emphasis added). Likewise, the exculpatory clause in this case is not void merely because it refers to the “bicycle shop” rather than “The Sports Authority” or “TSA.” Plaintiff cannot credibly claim that the identity of the other party to the contract was unclear at the time he signed the release agreement.
5 The exculpatory clause at issue in Powell is as follows:
17. DAMAGES: By signing this agreement and using the Club’s premises, facilities and equipment, Member expressly agrees that the Club will not be liable for any damages arising from personal injuries sustained by Member or his guest(s) in, on, or about the Club, or as a result of using the Club’s facilities and equipment. Member assumes full responsibility for any injuries, damages or losses which may occur to Member or their guest(s) in, on, or about the Club premises or as a result of using the Club’s facilities and equipment. Member agrees that the Club shall not ‘be liable for any loss or theft of personal property in or about the Club premises and does hereby fully and forever release and discharge the Club and all associated clubs, their owners, employees and agents from any and all claims, demands, damages, rights of action, or causes of action present or future, whether the same be known or unknown, anticipated or unanticipated, resulting from or arising out of Member’s or Member’s guest(s) use or intended use of said Club premises, facilities or equipment.
[*19] Finally, Plaintiff argues that his signature attesting to the fact that he was shown “the proper way to operate the shifting, braking and release mechanisms of this bicycle” should not be considered because there is no evidence that he, a non-expert bicyclist, knew the proper way to operate the brakes in question. (Paper 15, at 6). This argument fails because, as stated previously, “a party who signs a contract is presumed to have read and understood its terms and as such will be bound by its execution.” Holloman, 391 Md. at 595. The release agreement signed by Plaintiff at the point of sale is valid and releases TSA from liability for Count II.
IV. Count I – Negligence
Plaintiff alleges in Count I that TSA was negligent because it failed to provide proper training in the use of high-performance brakes at the point of sale. (Paper 2 P 6). To be liable for negligence, TSA must have breached a specific duty it owed to Plaintiff. “[T]here can be no negligence where there is no duty that is due; for negligence is the breach of some duty that one person owes to another.” Pendleton v. State,921 A.2d 196, 2007 WL 1097955, at *5 (Md. April 13, 2007) [*20] (quoting West Virginia C. & P. R. Co. v. State, 96 Md. 652, 666, 54 A. 669 (1903)).
Plaintiff has not identified any Maryland law that imposes a duty on bicycle retailers to train their customers in the use of high-performance brakes, or any other type of brakes. The authority to which Plaintiff cites, 16 C.F.R. § 1512.1 et seq. and 15 U.S.C. § 1261(s), respectively set forth bicycle manufacturing regulations and the definition of a “mechanical hazard,” as used in the commerce and trade title. Neither statute imposes a duty to train on bicycle retailers.
Plaintiff asserts that TSA’s duty to train arises from retail industry standards. Plaintiff has offered the expert opinion of James M. Green, an engineer retained by Plaintiff to investigate his accident, to establish that fact. (Paper 15, Ex. A). Mr. Green evaluated the bicycle involved in the accident and prepared a report of his findings, engineering conclusions and opinions with regard to the causal factor of the accident. (Paper 15, Ex. A P 4). As part of his findings, Mr. Green opined that TSA had a duty to instruct Plaintiff on the proper use of the [*21] brakes at the point of sale and that it is the generally accepted standard in the retail industry to provide instruction at the point of sale. (Paper 15, Ex. A PP 5-6). In its reply brief, TSA disputed Mr. Green’s qualifications to offer an expert opinion on the accepted industry standards of retailers. Plaintiff has not had an opportunity to respond to TSA’s challenge.
Federal Rule of Evidence 702 governs the admissibility of expert testimony:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Mr. Green’s forensic engineering vitae indicates substantial educational and professional experience in the field of engineering, particularly with regard to bicycle safety. (Paper [*22] 15, Ex. A, Green Aff., Attachments). Therefore, Mr. Green may be qualified to offer an expert opinion on the technical and/or mechanical causes of the accident. From the evidence on the record, however, it does not appear that Mr. Green is qualified to offer an expert opinion on the standards or customs of the retail industry because he has not indicated any background in that area. Mr. Green’s vitae does not indicate that he has any particular knowledge, skill, experience, training, or education with regard to the retail industry, generally, or the bicycle retail industry, in particular. (Id.).
The court will defer ruling on Count I and Plaintiff will be invited to file a surreply, within fourteen days of the date of this Order, to establish Mr. Green’s qualifications as an expert in the retail industry. Defendants will have an opportunity to respond to any supplemental filing by Plaintiff.
V. Count II – Product Liability
Plaintiff alleges a design defect in the inclusion of high- performance, linear-pull brakes on a bicycle that was meant for use by the general public. TSA argues that, even in the absence of the release agreement, it would be entitled to judgment [*23] on Count II, the product liability claim, because (a) Maryland’s sealed container defense shields it from liability and (b) the numerous written warnings cure any design defect.
A. Statutory Defense
TSA argues that, as a retailer, it is shielded from the product liability claim by the sealed container defense found in the Maryland Code Ann., Cts & Jud. Proc. § 5-405. This statute provides:
(b) It shall be a defense to an action against a seller of a product for property damage or personal injury allegedly caused by the defective design or manufacture of a product if the seller establishes that:
(1) The product was acquired and then sold or leased by the seller in a sealed container or in an unaltered form;
(2) The seller had no knowledge of the defect;
(3) The seller in the performance of the duties he performed or while the product was in his possession could not have discovered the defect while exercising reasonable care;
(4) The seller did not manufacture, produce, design, or designate the specifications for the product which conduct was the proximate and substantial cause of the claimant’s injury; and
(5) The seller did not [*24] alter, modify, assemble, or mishandle the product while in the seller’s possession in a manner which was the proximate and substantial cause of the claimant’s injury.
The sealed container defense “is not limited to products enclosed entirely in a box at the time of sale.” Quirk v. Home Depot U.S.A., 2005 U.S. Dist. LEXIS 33148, 2005 WL 3448039, at *1 (D.Md. Dec. 15, 2005). The sealed container defense covers any product that comes in a “box, container, package, wrapping, encasement, or housing of any nature that covers it . . . [and] unpackaged products that the retailer sold ‘in an unaltered form.'” Id. (citing Md. Code Ann., Cts & Jud. Proc. § 5-405).
The “fundamental purpose of the defense . . . is to limit the liability of retailers and distributors who could not have reasonably discovered defects that originated with manufacturers.” Reed v. Sears, Roebuck & Co., 934 F.Supp. 713, 718 n.4 (D.Md. 1996). Plaintiff contends, that the bicycle had a design defect because it was outfitted with high-performance, linear-pull brakes, which were not meant for use by the general public. Plaintiff further contends that TSA had knowledge of this [*25] defect, violating the second requirement of the sealed container defense. The intent of the Maryland legislature in enacting the sealed container defense was “to make the chickens of a poor design come home to roost with the manufacturer, not the retailer.” Reed, 934 F.Supp. at 718 n.4 (quoting Liesener v. Weslo, Inc., 775 F.Supp. 857 (D.Md. 1991)). Plaintiff’s claim is precisely the sort from which the Maryland legislature sought to insulate retailers when it enacted the sealed container defense.
Plaintiff further argues that the ‘sealed container defense does not apply because TSA did not sell the bicycle in unaltered form, rather it contracted with a company called Top Dog to assemble the bicycle in question. (Paper 15, at 7). Plaintiff goes on to argue that he needs time to conduct discovery to determine the details of the relationship between TSA and Top Dog and to determine whether Top Dog assembled the bicycle properly. TSA argues that Plaintiff’s admission that Top Dog assembled the bicycle supports its own argument that it sold the bicycle in unaltered form. If it is true that TSA hired Top Dog to assemble the bicycle, then Top Dog was TSA’s [*26] agent and TSA would be responsible for Top Dog’s actions under general principles of agency law. No case that has dealt with Maryland’s sealed container defense has addressed the issue of whether a retailer who hires a contractor to assemble the allegedly defective product, but sells it in unaltered form once it is received from the contractor, is entitled to the protection of the sealed container defense. Plaintiff’s plea for additional discovery on this point, however, will be denied. Plaintiff has not alleged that the bicycle was assembled improperly or that the brakes did not function as intended. In fact, by all accounts, the brakes functioned exactly as they were supposed to function. Accordingly, factual questions about the bicycle’s assembly are immaterial and discovery regarding those questions is unnecessary.
Because this is an open question of law and the court can grant judgment to TSA on Count II without deciding this question, the court will not decide whether TSA is entitled to the sealed container defense under these particular circumstances.
B. Strict Liability
In Count II, Plaintiff claims that TSA is strictly liable for placing the bicycle in the stream [*27] of commerce in a defective and unreasonably dangerous condition. TSA argues that, assuming arguendo that the inclusion of high-performance brakes made the bicycle defective, any such defect was cured by the numerous, explicit warnings contained in the owner’s manual for the bicycle.
Maryland applies the consumer expectation test in strict liability design defect cases. Simpson v. Standard Container Co., 72 Md.App. 199, 203, 527 A.2d 1337 (1987). “The consumer expectation test emanates from § 402A of the Restatement (Second) of Torts which, under certain circumstances, makes the seller of a product that is in a ‘defective condition unreasonably dangerous’ to the consumer liable for the physical harm caused to the consumer by that product.” Halliday v. Sturm, Ruger & Co., Inc., 368 Md. 186, 193, 792 A.2d 1145 (2002). A product is defectively dangerous “if it is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchased it with the ordinary knowledge common to the community as to the product’s characteristics.” Id. at 194 (quoting W. Page Keeton et al., Prosser and Keeton on the [*28] Law of Torts, § 99, at 698 (5th ed. 1984)). “[P]roof of misuse by a Plaintiff would negate an essential element of Plaintiff’s proof that a product was ‘unreasonably dangerous.'” Barnes v. Komori Am. Corp., 2005 U.S. Dist. LEXIS 41940, 2005 WL 5368331, at *2 (D.Md. Aug. 16, 2005), aff’d, 173 Fed. Appx. 302 (4th Cir. 2006). “If the Court can say as a matter of law that the plaintiff[‘s] manner of use of the product cut off the chain of proximate causation, the defendant is entitled to summary judgment. Misuse, which includes failure to follow a manufacturer’s warnings, bars recovery for a products liability claim.” Kline v. ABCO Eng’g Corp., 991 F.Supp. 747, 750 (D.Md. 1997) (quoting Higgins v. E.I. Dupont de Nemours & Co., Inc., 671 F.Supp. 1063, 1066 (D.Md. 1987)) (internal quotation marks and alterations omitted).
The owner’s manual that accompanied Plaintiff’s bicycle contained numerous warnings regarding the use of the brakes:
Do not lock up the brakes. When braking, always apply the rear brake first, then the front. The front brake is more powerful and if it is not correctly applied, you may lose control and fall. [p. 14].
[*29] Do not lock up brakes. Sudden or excessive application of the front brakes may pitch the rider over the handlebars, causing serious injury or death. When braking, always apply the rear brake first, then the front. [p. 35].
WARNING: Sudden or excessive application of the front brake may pitch the rider over the handlebars, causing serious injury or death. [p. 103].
WARNING: Some bicycle brakes, such as linear-pull and disc brakes, are extremely powerful. You should take extra care in becoming familiar with these brakes and exercise particular care when using them. Applying these brakes too hard or too suddenly can lock up a wheel, which could cause you to lose control and fall. [p. 104].
(Paper 15, Ex. B, Alexander Aff., Attachment) (emphasis in original). Plaintiff’s own expert determined that the “the causal factor of this accident appears to be the Cyclist applying the front brakes in an emergency situation.” (Paper 15, Ex. A, Green Aff., Attachment).
Plaintiff’s actions constituted misuse because he failed to adhere to the written warnings contained in the owner’s manual. A misuse is a use that is not reasonably foreseeable. See [*30] Ellsworth v. Sherne Lingerie, Inc., 303 Md. 581, 595, 495 A.2d 348 (1985). It was not reasonably foreseeable to TSA that a bicyclist would apply the front brakes first, violating numerous, explicit, written warnings in the owner’s manual. See Kline, 991 F.Supp. at 750 (holding that it was not reasonably foreseeable that user would violate written warnings). “Where warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous.” Simpson, 72 Md.App. at 206-07 (quoting Restatement (Second) of Torts 402A cmt. j). Plaintiff’s failure to obey the manufacturer’s cautions by applying the front brake first is an intervening cause of injury and relieves TSA of liability from any design defect that may have existed.
IV. Conclusion
For the foregoing reasons, the motion of TSA for summary judgment will be deferred as to Count I and granted as to Count II. Plaintiff will be invited to file a surreply on the question of Mr. Green’s qualifications as an expert [*31] witness. A separate Order will follow.
DEBORAH K. CHASANOW
United States District Judge
Recreation Law 