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ARTICLE ID 169215

$________ PRODUCT LIABILITY - INADEQUATE WARNING - FAILURE TO WARN ABOUT LIFTING REAR END OF VEHICLE TO ALLOW TRACK SPIN WHILE REVVING ENGINE TO CLEAR OUT FOULED SPARK PLUGS. TEN-YEAR-OLD METAL STUDDED TRACK BREAKS AND STRIKES PLAINTIFF IN LEG - ABOVE-THE-KNEE AMPUTATION - COURT SUBSEQUENTLY ORDERS $________ ADDITUR, INCREASING AWARD.

Morris County, NJ

The 61-year-old plaintiff, who was at a friend’s home with other friends from New Jersey in upstate New York, about to enjoy a weekend of snowmobiling, contended that the snowmobile that was designed and manufactured by the defendant was defective because of the absence of warnings on the rear of the snowmobile advising against the allegedly common practice of lifting the rear of the snowmobile while revving the engine at high speeds with the throttle, since snowmobiles do not contain a neutral gear. The plaintiff maintained that revving the engine was done commonly because the vehicle was a two cycle engine in which both gasoline and oil were mixed in the same tank causing the spark plugs to commonly build up with carbon that interfered with the smooth operation of the engine.

The plaintiff maintained that as he and a friend were lifting the rear end of the vehicle with the rear handle intended to lift and move the snowmobile side to side, and while the owner of the snowmobile revved the engine with the throttle, the ten-year-old worn track, embedded with metal studs for better traction, broke and was propelled at a very high speed out of the rear and severed the plaintiff’s right leg. The plaintiff contended that surgical attempts to save the leg were unsuccessful and that he required an above-the-knee amputation a week later.

The plaintiff further contended that the defendant should have incorporated an interlock device that would shut down the engine if the rear end was lifted. The defendant, who vigorously denied that the snowmobile was defective, named the owner of the vehicle as a third party defendant, He contended that failure to replace a badly worn track and directing the plaintiff and a another to lift the rear of the snowmobile while the defendant revved the engine at a high speed, constituted an unforeseen superseding, intervening cause of the incident, which relieved them from liability.

The plaintiff related that at approximately 9:00 a.m. on Saturday, he went to start his snowmobile and he discovered that a shock absorber was broken. He told his friend, the host and third party defendant who lent him his "spare" to ride for the weekend. The plaintiff related that while taking a short test drive to check out the snowmobile, he discovered the engine was not running smoothly and hesitating. He brought it back to where his friends were gathered by the house and the owner determined the spark plugs were "fouled" because of a build-up of carbon. The plaintiff contended that a common way for snowmobiler’s to clear out the plugs is to lift the rear of the snowmobile and rev the engine at high speed. The vehicle must be raised since it does not have a "neutral gear" and when lifted, the engine can then rev, without the track of the snowmobile moving the vehicle forward, and thereby clearing out the fouled plugs.

The plaintiff contended that the defendant should have placed a large pictorial warning on the back of the vehicle that cautioned against this practice. The plaintiff exhibited an exemplar of such a warning which was digitally placed on a life sized photo of the snowmobile which decal displayed a drawing of a snowmobile being lifted from the rear, the track breaking and a leg being severed, with large warning language of the severe consequences of lifting the rear with the engine running. The plaintiff showed the jury the same large photo of the snowmobile with and without the warning.

The defendant denied that the practice was foreseeable or that such a warning was required. The plaintiff presented a snowmobile dealer who is the owner of the largest collection of modern and antique snowmobiles in the United States, who testified that the practice was very common, especially when a "two cycle" engine was involved. The plaintiff also pointed out that in the approximate ________ page manual, the defendant advised against this practice in only a few sentences. The plaintiff contended that this evidence underscored both the fact that the defendant was aware of the common nature of the practice and the small likelihood that such advisements would be seen by foreseeable users. The plaintiff contended that a simple warning decal on the back, as his warnings expert designed, should have been provided. The Court instructed the jury regarding the so called "heeding presumption." in the Products Liability statute.

The defendant further denied that the interlock advanced by the plaintiff was practical. The defendant maintained that many factors, including freezing temperatures and trail debris such as rocks or sticks bouncing up could defeat such an interlock system and it was impractical, had never been tested and was nothing more than a farfetched concept.

The plaintiff suffered a severe wound below the knee. He was brought to a local hospital that was approximately a-half hour away by car. This hospital was not equipped to attempt to save the leg and the plaintiff was transferred to the second hospital by car rather than helicopter due to adverse weather conditions in Syracuse, three hours away, where several surgeries were unsuccessful, necessitating the above-the-knee amputation.

The plaintiff was a heavy equipment operator who owned his own one man company and had just built a home for himself in Sparta. He stayed with a friend for three months, the owner of the snowmobile, while he recuperated. The plaintiff walks with a prosthetic leg and can no longer drive the heavy equipment at his job. The plaintiff contended that the prosthesis must be replaced every five to seven years at a current cost of approximately $________. The plaintiff maintained that he has an approximate 20- year actuarial life expectancy, and will require several replacements.

The plaintiff also contended that he must take pain medication every day for "phantom pain", a condition that some amputees experience in which they feel terrible pain in that part of their leg that is no longer there. The evidence also disclosed that the plaintiff was granted social security disability for approximately one-quarter of what he earned.

The parties stipulated $________ in past and future medical bills, which were subject to a "Medicare Set Aside Fund" as well as liens for past medical bills. The plaintiff introduced evidence of $________ in past and future income losses.

The jury unanimously found that the snowmobile was defective because of the absence of warnings. They further found for the defendant on the claim that it should have provided an interlock to prevent activation of the engine if the back end was lifted by the handle. The jury also found for the third party defendant. The jury further determined that the plaintiff was not comparatively negligent for "voluntarily exposing himself to a known danger". They then awarded $________, including $________ for lost income, $________ for past and future medical bills and $________ for pain and suffering, disability and impairment. The court subsequently granted an additur, increasing the pain and suffering award by $________.

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