Case Notes

Manufacturer's Product Demonstration Negates Warnings in Manual

A product demonstration by the manufacturer that is contrary to the adequate warnings provided in the product manual can expose the manufacturer to liability. Levey v. Yamaha Motor Corp. and Stumpys Sales, Inc., N.J. Super. Ct., App. Div., June 24, 2003.

Yamaha distributed a jet boat called the “Exciter 270″ and Stumpys was a retail distributor of the Exciter. Yamaha sold demonstration (“demos”) Exciters to its distributors, including Stumpys, to promote sales of the product. The Exciter came with written warnings, including warning against operating the boat in rough water or attempting jumping maneuvers. The Yamaha district sales representative showed the Stumpys sales representatives how to operate the Exciter by taking them for a ride in the boat. The demonstration commenced in a calm river next to Stumpys and continued to rough ocean water with three-foot high waves. The Yamaha representative encouraged the Stumpys sales representatives to go into the ocean to try to jump and tip the boat. Thereafter, Kelley Levey and her companion were taken on the same route by a Stumpys sales representative. Levey claimed that the sales representative tried to get the boat to become airborne, she was thrown out of her seat and suffered personal injuries as a result. Levey commenced an action against Yamaha, Stumpys, the sales representative and the individual owner of Stumpys. Levey settled her claims with Stumpys and its employees. After discovery, Yamaha moved for summary judgment because the written warnings that accompanied the boat were sufficient regarding the dangers that could result from attempting to cause the boat to become airborne. One of the warnings stated: “Do not go over a water-ski jump, or attempt any other kind of jumping maneuver with the boat, since you risk injuring yourself or damaging your Jet Boat.” The court granted summary judgment and the plaintiff appealed. The appellate court reversed summary judgment, holding that a reasonable trier of fact could conclude that the Yamaha district sales representative's actions with the Stumpys sales representatives in the demonstration resulted in negating the written warnings provided in the manual. It found that in deciding whether a warning is adequate, a trier of fact must consider all communications from a seller to anticipated users. The distributors' employees were intended users of the boats, and Yamaha owed a duty to them to provide adequate warnings about the safe use of the boats. The sales representative's demonstration contradicted any printed warnings and constituted a “counteracting representation” that undermined the effectiveness of the printed warnings accompanying the product. The appellate court concluded that it was possible to find that the Yamaha representative's demonstration was the proximate cause of the plaintiff's injuries.

Motion to Dismiss Cannot Be Based Upon Res Judicata

The defendant cannot make a motion to dismiss based on res judicata because res judicata is an affirmative defense that can only be asserted in a pleading. Hamrick et al., v. Daimler-Chrysler Motors et al., Ohio Ct. App., 9th App. Dist, Lorain County, June 18, 2003.

In 1999, Hamrick purchased a Dodge Ram, manufactured by Daimler-Chrysler, from Sliman's Sales. In 2000, the plaintiff was operating the truck while towing a homemade trailer transporting a 1960 Corvair owned by Hamrick's mother, Mary Lu. The trailer broke loose, and the Corvair came off the trailer. Mary Lu obtained a money judgment against Daimler-Chrysler in municipal court for the value of the Corvair. Thereafter, plaintiffs filed a complaint against Daimler-Chrysler and Sliman's for product liability, breach of express and implied warranties, and violations of the consumer sales practices act and Ohio's lemon law. Daimler-Chrysler moved to dismiss, arguing that the municipal court's decision barred the action based on the doctrine of res judicata; the trial court granted the motion. The appellate court reversed and remanded because under Ohio's procedural law, res judicata is a procedural defense that can only be asserted in a pleading and not a motion. However, the appellate court affirmed the trial court's decision to strike from the record evidence regarding other incidents involving similar hitch brackets or possible defects in those brackets similar to those on the plaintiff's Dodge Ram.

Inconsistent Verdict Necessitates New Trial

The defendant is entitled to a new trial where the jury verdict is inconsistent. Fritz v. White Consolidated Industries, N.Y. Sup. Ct. App. Div., 4th Dept., June 14, 2003.

The plaintiff suffered property damage to her retail business after a fire that allegedly started in a dehumidifier manufactured by the defendant. After trial, the only issues that went to the jury were those of strict product liability and breach of implied warranty. With regard to the issue of strict product liability, the jury rendered a verdict that the dehumidifier was defective when it left the control of the defendant. With regard to the breach of implied warranty claim, the jury found in favor of the defendant in that the dehumidifier was fit to be used for its ordinary purposes. The defendant objected to the verdict because it was inconsistent. The trial court attempted to correct the inconsistency by asking the jury if the dehumidifier was fit to be used for ordinary purposes on the date of the fire. The defendant objected to the alternate question and moved for a judgment notwithstanding the verdict, or in the alternative, a new trial. The defendant's motion was denied and the defendant appealed. The appellate court held that a new trial was necessary because of the inconsistency in the jury verdict. It further noted that it was improper of the trial court to cure the inconsistency by altering the question posed to the jury because the alternate question was not the standard under which a breach of implied warranty claim was to be considered.

Manufacturer's Product Demonstration Negates Warnings in Manual

A product demonstration by the manufacturer that is contrary to the adequate warnings provided in the product manual can expose the manufacturer to liability. Levey v. Yamaha Motor Corp. and Stumpys Sales, Inc., N.J. Super. Ct., App. Div., June 24, 2003.

Yamaha distributed a jet boat called the “Exciter 270″ and Stumpys was a retail distributor of the Exciter. Yamaha sold demonstration (“demos”) Exciters to its distributors, including Stumpys, to promote sales of the product. The Exciter came with written warnings, including warning against operating the boat in rough water or attempting jumping maneuvers. The Yamaha district sales representative showed the Stumpys sales representatives how to operate the Exciter by taking them for a ride in the boat. The demonstration commenced in a calm river next to Stumpys and continued to rough ocean water with three-foot high waves. The Yamaha representative encouraged the Stumpys sales representatives to go into the ocean to try to jump and tip the boat. Thereafter, Kelley Levey and her companion were taken on the same route by a Stumpys sales representative. Levey claimed that the sales representative tried to get the boat to become airborne, she was thrown out of her seat and suffered personal injuries as a result. Levey commenced an action against Yamaha, Stumpys, the sales representative and the individual owner of Stumpys. Levey settled her claims with Stumpys and its employees. After discovery, Yamaha moved for summary judgment because the written warnings that accompanied the boat were sufficient regarding the dangers that could result from attempting to cause the boat to become airborne. One of the warnings stated: “Do not go over a water-ski jump, or attempt any other kind of jumping maneuver with the boat, since you risk injuring yourself or damaging your Jet Boat.” The court granted summary judgment and the plaintiff appealed. The appellate court reversed summary judgment, holding that a reasonable trier of fact could conclude that the Yamaha district sales representative's actions with the Stumpys sales representatives in the demonstration resulted in negating the written warnings provided in the manual. It found that in deciding whether a warning is adequate, a trier of fact must consider all communications from a seller to anticipated users. The distributors' employees were intended users of the boats, and Yamaha owed a duty to them to provide adequate warnings about the safe use of the boats. The sales representative's demonstration contradicted any printed warnings and constituted a “counteracting representation” that undermined the effectiveness of the printed warnings accompanying the product. The appellate court concluded that it was possible to find that the Yamaha representative's demonstration was the proximate cause of the plaintiff's injuries.

Motion to Dismiss Cannot Be Based Upon Res Judicata

The defendant cannot make a motion to dismiss based on res judicata because res judicata is an affirmative defense that can only be asserted in a pleading. Hamrick et al., v. Daimler-Chrysler Motors et al., Ohio Ct. App., 9th App. Dist, Lorain County, June 18, 2003.

In 1999, Hamrick purchased a Dodge Ram, manufactured by Daimler-Chrysler, from Sliman's Sales. In 2000, the plaintiff was operating the truck while towing a homemade trailer transporting a 1960 Corvair owned by Hamrick's mother, Mary Lu. The trailer broke loose, and the Corvair came off the trailer. Mary Lu obtained a money judgment against Daimler-Chrysler in municipal court for the value of the Corvair. Thereafter, plaintiffs filed a complaint against Daimler-Chrysler and Sliman's for product liability, breach of express and implied warranties, and violations of the consumer sales practices act and Ohio's lemon law. Daimler-Chrysler moved to dismiss, arguing that the municipal court's decision barred the action based on the doctrine of res judicata; the trial court granted the motion. The appellate court reversed and remanded because under Ohio's procedural law, res judicata is a procedural defense that can only be asserted in a pleading and not a motion. However, the appellate court affirmed the trial court's decision to strike from the record evidence regarding other incidents involving similar hitch brackets or possible defects in those brackets similar to those on the plaintiff's Dodge Ram.