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Harley-Davidson faces suit in Marshall court

By Robin Y. Richardson
Jan. 10, 2017 at 4 a.m.

The personal injury trial of an East Texas couple against America's top motorcycle maker, Harley-Davidson, began here, in Marshall's federal court, on Monday, with visiting Judge Robert Schroeder III, of Texarkana, presiding.

"What brings us to the Marshall (court) today are the safety standards that protect all of us," Nelson Roach, of Nix Patterson & Roach LLP in Daingerfield and lead attorney for the plaintiffs, Mark and Pamela Jones, stated in opening arguments. He said these are the safety standards that protect people whether driving on the road or handling toys at home.

"Harley-Davidson violated this standard," Roach said.

According to the lawsuit, the plaintiffs, who reside in Pittsburg, sued the company in June 2014, claiming that the company's lack of an antilock brake system on the Harley motorcycle the couple purchased cost them serious injuries, following a near fatal collision in 2013.

The couple is seeking $75,000 in the case, excluding interest and costs. Giving jury instructions, Judge Schroeder informed that the couple contends that the rear wheel would not have locked and the motorcycle would not have capsized if it was ABS equipped. The plaintiffs also contend that it was unreasonably dangerous because it was not equipped with ABS.

He said the defendants contend that the motorcycle was not defective and that the company isn't negligent. Harley also contends that the injuries were a result of the plaintiff's fault and could've been avoided with a mild application of the foundation brakes. The defendants contend that the plaintiffs were negligent and that the negligence contributed or caused their injuries.

Roach argued in opening statements that his clients are not at fault, as the defendant alleges.

"Harley would say Mark braked too hard. It was a reflex under the extreme emergency he faced," Roach contended.

He argued that ABS eliminates wheel lock and capsize or fall over.

"It only cost Harley less than 2 percent of the purchase price (to install ABS)," Roach argued. "They did not put this device on my client's vehicle. ABS should've been on my clients' motorcycle."

Roach said Harley knew that ABS does not hurt the usefulness of a motorcycle or the rider's experience. ABS only kicks in when the wheels lock or when the rider needs it, he explained.

"It would've only cost them (a little more than $300) to put it on my client's motorcycle," he said.

The small investment would've made a great impact for his clients the day they encountered their near fatal collision while riding their Harley-Davidson Electra Glide Classic motorcycle, which was purchased from the Harley-Davidson dealership in Paris, Texas around June 15, 2012, he said. According to the lawsuit the motorcycle came equipped with unlinked 32-millimeter, four-piston fixed front and rear brakes, which the manufacturer billed as "state of the art and top of the line."

The accident

Thirteen months later, on July 6, 2103, the couple was in an accident while en route to Oklahoma for a weekend trip.

"They were not in a hurry," Roach said, describing the forecast as a clear and sunny day.

He said they were riding in the northbound lane of Texas Highway 271 in Mount Pleasant, approaching Wal-Mart, when a southbound Chevrolet Avalanche driven by Robert Viviano cut in front of them, turning left, in the exact same way as explained in a crash study 34 years before.

The incident forced Mark, who was driving, to attempt an emergency stop to avoid crashing into the vehicle.

"No time to think, Mark slammed on his brakes," Roach said, explaining he engaged both the front and back brakes of the motorcycle.

The motorcycle's front and back wheels locked up, causing the motorcycle to skid, fishtail and become unbalanced.

"Pam was thrown off the motorcycle; Mark slid off," Roach said, noting the police report indicated Mark was not speeding.

Pamela, a former bank teller, suffered a skull fracture, traumatic brain injury, a pulmonary contusion, a spleen injury and shattered left elbow. Mark, who worked more than 15 years at Texas Eastman, sustained three skull fractures, several broken bones and a severe brain injury that placed him in a medically-induced coma for several weeks.

"Mark's medical bills are over half a million dollars; Pam's is a quarter of a million dollars," Roach said.

"Had the motorcycle been equipped with an anti-lock braking system the likelihood of these serious injuries occurring would have been eliminated or substantially reduced," the lawsuit states.

Roach said the accident is not the fault of the driver of the Avalanche, as Harley contends.

"He made a split second decision to run in to Wal-Mart too early," Roach said of the driver, Viviano. "Harley had 10 years (to install ABS)."

Kircher argued that Jones was not confronted with an actual emergency.

"When Mr. Jones, according to the expert, saw the vehicle turning into his lane, he was 75 miles away from his vehicle. He could've come to a complete stop in the roadway. If he had just slowed down by a mile or two or three an hour with a minimum application, (the incident could've been avoided," Kircher said, contending that the motorcycle and vehicle never touched each other.

Roach said, by 2012, Harley should've equipped all of its motorcycles with ABS just like BMW did.

And when BMW moved forward with equipping their motorcycles with ABS, Roach said "Harley-Davidson hit the brakes" on their progress.

"In 2011, BMW announced it will make ABS standards in 2012. Harley said they needed to take a page out of BMW's handbook." Roach said. "Harley could've added ABS.

"Instead, they decided to treat ABS like a luxury item instead of a key (item)," he said, explaining they wouldn't allow customers to buy ABS equipped motorcycles unless they also purchased an alarm system or one with more luxury items.

"They only made motorcycles equipped for police cycles and more expensive cycles," Roach said. "Harley did not have ABS available on several of its models."

Thus, many people who could barely afford a motorcycle had to sacrifice when it came to their safety, Roach argued.

He contended that the motorcycle company was not fully informing its customers of the safety benefits of ABS even though they knew them.

"Many customers remained unaware of the benefits of ABS. Harley chose to keep ABS optional on some of the motorcycles and completely unavailable on some," he said.

Roach said his client, Mark, was not aware ABS was available on the bike he purchased.

He argued that the company didn't tell Jones about the statistical studies conducted on ABS and that ABS was undoubtedly safer.

He said Harley may blame the plaintiffs' injuries on the couple's failure to wear helmets, but they were in full compliance with the law.

"In Texas it is legal to ride a motorcycle without helmets," Roach argued, noting his clients do wear them, however, in states that require them.

He said jurors will hear from a doctor who will testify that while helmets would've helped with some injuries, both Mark and Pam would still have some injuries - even with a helmet.

Opening statements

In his opening statements, Harley-Davidson's counsel, Mark A Kircher, of Quarles & Brady LLP in Milwaukee, placed blame on the plaintiff, Mark Jones, for the way he responded during the crash.

"We are here because an untrained, unpracticed motorcycle rider's mistakes," Kircher said, arguing that the plaintiff failed to take a motorcycle safety education course as encouraged by Harley Owner's Group. He contended that the way Jones "over-braked" made him skid, causing the incident.

Kircher said, in the case, the question is not whether ABS should be standard or if it can be safer because under certain circumstances it can.

"The question is whether it was unreasonably dangerous without it when it was purchased," he said.

He said Harley has been refining ABS systems on more of its models in the past 13 years.

Kircher argued that prior to 2012, the plaintiff, Jones, an avid rider, had never applied the brakes hard enough to skid.

"Don't be misled to think this is something that happens every day, all day to anybody," Kircher told jurors.

He noted that in 2010, the National Highway Traffic Safety Administration examined data, determining that there's no evidence that ABS evidence on motorcycles made a difference.

He said evidence will show that ABS cannot prevent lockup of a rear wheel due to engine braking.

Kircher argued that the plaintiff knew of the benefits of ABS because they were listed in the owner's manual. He noted that the potential for accidents and skidding when over applying a brake was also noted in manuals.

He further argued that it is undisputed that, as of 2012, Harley offered more models of motorcycles with ABS available than any other manufacturers in the world.

He said it's clear that ABS was an available option on the motorcycle Jones purchased, and that it came in a bundled package with the factory security deal for $1,195.

"Those were bundled together. Mr. Jones declined the security option," he said, noting he therefore declined the ABS option.

"They'd say he chose to buy a motorcycle without ABS," Roach said. "More importantly, even if it had been reasonable to make it optional, Harley didn't tell customers what they needed to know to make an informative decision."

The case continues today.



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