I was reading DealerNews last week when I stumbled across a brief story about how Harley-Davidson was being sued by a couple, because the Bar & Shield brand did not offer the 2012 Electra Glide Classic with an anti-locking brake option.
The lawsuit comes about as a couple was riding two-up on their motorcycle in Texas, when a car suddenly cut in front of them. Locking up the wheels of the Harley-Davidson, the motorcycle fishtailed out of control, and flung the couple quite some distance. They are subsequently suing Harley-Davidson for $75,000 in damages.
I can already foresee the pro-business comments below this article, deriding these motorcyclists for a series events that amount to “their fault” for their medical and financial woes — after all, it was they who chose to buy a motorcycle without ABS, right?
Legal scholars, and those familiar with tort law and product liability in the United States though, will see the case quite differently. And barring specific details and circumstances, the conclusion to this lawsuit will almost certainly side with the complainants, not Harley-Davidson.
Why? The simple reason is the principal of strict liability, as it applies to product liability. A well establish legal doctrine, strict liability creates a cause of action for when manufacturers produce dangerous or hazardous products, regardless of what the standard of care is within the industry as whole, and without any specific negligent act (installing the ABS incorrectly on the motorcycle, for example).
Working further against Harley-Davidson is the fact that modern ABS brakes have been on the market for roughly the past 40 years, the technology is a mandatory feature for automobiles available for purchase in the United States, and now it is a mandatory feature for new motorcycles in the European market as well. With an ample amount of research, testing, and regulation surrounding ABS, there is no doubt regarding the efficacy of anti-locking brakes in reducing on-road accidents, as a safety feature.
Lawyers for the complainant will argue that by failing to offer an ABS option on the 2012 Harley-Davidson Electra Glide Classic, the Bar & Shield brand put into the public marketplace a product that was foreseeably unsafe during its normal and intended use. They are arguing that Harley-Davidson did not mitigate the dangers of riding an Electra Glide Classic to the best of company’s ability, and they are right.
With ABS technology available on other Harley-Davidson models at the time, and ABS being a relatively cheap component to add (in terms that manufacturers can charge extra for the feature, thus no material economic loss to the company) Harley-Davidson will have a difficult time hiding behind bottom line excuses for this omission; and under strict liability.
Furthermore, Harley-Davidson will find no absolution by pointing to other makes and models without an ABS option during the 2012 model year. To make matters even worse, by this point in time, BMW Motorrad had already made ABS standard on all motorcycles available from the German brand, thus further creating an enhance duty of care in the marketplace — let the debate begin as to whether this was an intended consequence or not.
With so much stacked against Harley-Davidson’s lawyers, it should be worrying to those in the industry that it is hard to see a scenario where a pro-complaintant verdict in this case would not create a de facto obligation for motorcycle manufacturers to offer an ABS option on every model in the United States, regardless of a regulation by the USDOT or law by Congress.
Make no mistake, there is a very important legal precedent at stake here, should this case actually see the inside of a courtroom, which seems unlikely.
For the same reason that Harley-Davidson would likely be found accountable for the injured motorcyclists, companies like Alpinestars and Dainese could find themselves liable for failing to offer a lifesaving technology of their own, which is available with their products in other markets.
The issue for these apparel manufacturers is the airbag systems that are available in their leather racing suits. Available to racers around the world, and for sale in the European markets, these airbag equipped suits provide superior shoulder, torso, and neck protection than the traditional leather-only suits.
The increased safety has been so great, that the technology has surely had an effect on the racing landscape, and I would argue it to be a serious contributing factor as to why Dani Pedrosa is without a MotoGP World Championship to his name.
The suits have been so effective that Dorna once considered making them mandatory in GP racing, only to realize that the other apparel manufacturers were not willing or able to develop competing systems with Alpinestars and Dainese.
Unfortunately for American buyers, Italian companies are extremely careful when it comes to legal matters, which has caused Alpinestars and Dainese to refrain from adding airbag technology to their suits for the US market at this point in time — primarily because of the fear that lawsuits would result from their use.
America has comprehensive protections for consumers in its tort law system, and there are of course the stereotypes regarding sue-happy consumers coupled to ambulance-chasing lawyers. One cannot fault Alpinestars or Dainese for their reluctance to enter the realm of American product liability — it is a minefield of litigation.
But drawing similarities to what I discussed above with the Harley-Davidson case, it is just as easy to run afoul of the American legal system by doing something, as it is by not doing something. Call it liability by omission, if you will.
While these apparel manufacturers continuously pushback the rollout of airbag suits in the American market because of their legal concerns, they are also invariably creating an ironic situation by which their failure to introduce the technology is creating a legal liability of its own.
Are airbag suits as pervasive in the marketplace as ABS brakes? Certainly not, but a strong argument can be made regarding their efficacy, availability, and lack of burden to the manufacturer. When it comes to the strict liability of products, those are the major relevant factors.