How Harley-Davidson Got Sued Over ABS Brakes & Why You Can’t Buy an Airbag Leather Suit in the USA

06/30/2014 @ 9:03 pm, by Jensen Beeler54 COMMENTS

How Harley Davidson Got Sued Over ABS Brakes & Why You Cant Buy an Airbag Leather Suit in the USA lady justice 635x425

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.

Photo: © 2013 Lonpicman / Creative Commons - Attribution-Share Alike 3.0 Unported

Comment:

  1. Andrey says:

    Another shocking testament to the stupidity of the American legal system.
    Taken further, traction control will be mandatory on mopeds, tire manufacturers will be sued for not providing a softer compound at the center of all front tires and a grab rail will be compulsory for all passengers.

    Soon sharp knives, nail scissors and other mundane day to day items will be subject to similar nonsense.

    It’s no wonder the world looks, laughs and just shakes it’s head at this place!

  2. Daniel says:

    Pretty soon, a motorcycle company will be held liable for not putting more wheels on a motorcycles, because, you know, it was foreseeable that three wheels are safer than two. It is not a justice system, it is a legal system. Millions of pages of pure bullshit.

  3. Yup, traction control could easily fall into this line of reasoning.

  4. Paul says:

    “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.”

    Care to elaborate?

  5. Pedrosa has broken his collarbone so many times, it’s a question mark every time he goes down (every time you break a collarbone, it gets easier to do again). How many races has he missed due to injury? How many races has he raced with a sub-par shoulder?

    At some point I’ll dive into the crash/injury statistics by manufacturer, there’s some interesting things to see there as well.

    In general though, gear quality is huge at this level. You’ll notice that Crutchlow is on Alpinestars this year. Makes you wonder if that has anything to do with the fact that his Spidi kit exploded a few times in the gravel last season, which definitely caused him pain for several races afterwards…

  6. Of course there’s a slight problem here. When most of HD’s products are foreseeably unsafe during their normal and intended use. I mean, they’re motorcycles, right? And motorcycles that are overweight, with poor quality tyres, brakes and suspension. Seriously though, motorcycle manufacturers have never really got round to adding passive safety features. And they’ve historically been pretty lax about primary safety.

  7. Riding a motorcycle, or any questionable action like skydiving, rock climbing, etc, falls under what’s called an assumption of risk. Harley-Davidson will of course argue that riding a motorcycle is a dangerous undertaking, and thus requires a certain amount of skill to do properly, including emergency braking. They will argue that the rider here did not poses that skill, and that was the proximate cause for the motorcycle crashing.

    Complainants will argue in turn that emergency braking is a foreseeable danger in the course of riding a motorcycle during its intended use (i.e. on the roadway), and that locking up the wheels is something easily done (sub-par components, or not).

    What gets Harley-Davidson in trouble is that they have a cheap proven solution to the foreseeable problem, and purposefully withheld it. Had it been an optional item, that the complainant opted not to have on the bike, then it’s a different case altogether.

  8. Arch says:

    The legal system that hosts the HD couple’s illogical lawsuit, is the very same legal system that keeps airbag suits out of the US.

  9. smilo998 says:

    Seen in the context, as anything in the US should be of being motivated to make money, then it makes perfect sense.

    Freedom demands personal responsibility and accountability. Many people like the first, do not accept the second two and rant and fight against the logical consequence of someone else having to maintain two and three. So the future is bright for Lawyers. No wonder the rule of law has become the rule of lawyers.

  10. An attorney posting in a discussion forum is unlikely to be able to make a wonderfully persuasive argument in a short post, but I can’t keep myself from posting and stating that I completely disagree with this article, it’s portrayal of our legal system (attorneys, judges, and juries aren’t idiots, no matter how badly the media want to convince you that they are), and the assessment of the importance of the case presented.

    First, “strict products liability” doesn’t assume that all products have to be make as safe as possible otherwise it is open season for lawsuits. That would be ridiculous. A significant increase in price is ordinarily a good enough reason to leave off a safety feature as long as the product isn’t “unreasonably dangerous” for the exclusion. A product is deemed “defective” (i.e. unreasonably dangerous) based on a consumer expectations test. A consumer can’t go out and consciously purchase a motorcycle that doesn’t include anti-lock brakes (thus saving hundreds of dollars over a similar motorcycle that has ABS) and then turn around and sue because it didn’t have that feature. That would be insane. (You folks who have been posting wondering why, based on what the media has told you about the law, motorcycles haven’t already been outlawed, why scooters aren’t required to have anti-lock brakes, etc., are on the right track. Your country’s legal system isn’t that irrational. However, the media sells newspapers and garners clicks by telling you that it is.)

    A bunch of years back in a famous case a plaintiff sued VW because they purchased a VW microbus, they got into an accident, and they were injured, they claimed, because the VW bus didn’t have an engine in front to provide a protective crumple zone. The upshot of the case was that the plaintiff testified that they knew that the VW bus was rear-engined when they purchased it, and that they paid less for the VW bus than for an American-made van primarily because of the VW bus’ design. Decision for VW.

    Second, Assumption of Risk is a complete defense to strict products liability. The assumption of risk here isn’t that riding a motorcycle is dangerous, the risk assumed by the plaintiff consumer, unless he was misled by his dealer, was that he knew that he wasn’t purchasing a motorcycle with anti-lock brakes. He was assuming the risk that not having that feature entailed. And this only makes sense. You can purchase a car these days with 4 airbags, and you can purchase one with 10. Every manufacturer isn’t required to provide 10 airbags (along with the cost of the extra airbags). And you can’t [successfully] sue if you are injured because the car that you purchased only had 4. The media would like you to believe that our legal system is that wacky, but it isn’t.

    Finally, it isn’t even clear that anti-lock brakes prevent accidents and resulting injuries. (That is, not having anti-lock brakes may not even come close to meeting the standard for determining a motorcycle to be “unreasonably dangerous”.) This study indicates that, statistically, anti-lock brakes haven’t reduced the number of vehicle accidents at all. Certainly it would be very difficult in the instant case to prove that having had anti-lock brakes would have kept the plaintiff from being injured. Even if you don’t lock up your wheels in a panic situation, that doesn’t necessarily mean that you avoid a crash.

    Study: Airbags, antilock brakes not likely to reduce accidents, injuries
    https://news.uns.purdue.edu/html4ever/2006/060927ManneringOffset.html

    I’d be surprised if this case even makes it to trial, never-mind the plaintiff winning, or setting some sort of onerous precedent. It’s a throw-away case. This case really doesn’t merit being written about on Asphalt and Rubber and getting folks all worked up over it. I’m disappointed that it was.

  11. JS says:

    “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.”

    Complete crap. Dani Pedrosa hasn’t lost championships because of broken collarbones but because he was never the best at the time and I must of dreamed the Assen weekend last year where Jorge Lorenzo broke his collarbone while wearing one of those airbag suits which puts paid to the idea that it would have saved Mr Glass himself from such like in the past.

    As for the lawsuit well it’s no surprise to read of an american consumer not wanting to take responsibility for their own actions – you mention other models had ABS at the time – well if the couple had wanted ABS on the Harley then they should have chosen one of those models instead. Now if it should emerge that the couple were forced at gunpoint to buy this particular Harley and had no choice but to ride a non ABS bike then that would change matters.

  12. JoeD says:

    I wager that the operator improperly applied the brakes. Common problem, especially with the cruiser crowd. Something enters the path of travel and stomp on that brake pedal. Lock-up, slide and bam! Exactly what happened in a case I was the expert witness in. Depending on how the case is scripted, and yes, everything is covered before the jury ever gets into the courtroom, the jurors make a decision on evidence presented. Not all of the evidence is allowed.

  13. Faust says:

    So they want a bike that performs well under hard braking and has modern technology? I am curious about why they ended up purchasing an 880lb bike that has no rider aids then. If BMW wants to make ABS standard on all their bikes, then perhaps they should have purchased a BMW. The fact is, you don’t just accidentally buy a bike that costs 23k. Brand name and looks/lifestyle must have been more important to them while bike shopping than modern technology. Also, you can still crash bikes with rider aids. It’s a bit late to cry about it. ABS doesn’t make vehicles crash proof or cars (many of them coming standard with ABS) wouldn’t crash as often as they do. Everyone is just looking for the next person they can sue and try to avoid all personal responsibility.

  14. Nick says:

    There’s a lot of conjecture in this article, and frankly, it reads like a desperate ploy to obtain views and comments. Shame.

  15. akatsuki says:

    Agree with Randy. The legal analysis is wrong, it isn’t true strict liability, and this does seem like clickbait. Hell, the reasoning doesn’t even come together – HD has to offer a safety feature otherwise they will be sued and Dainese can’t offer the feature otherwise they will be sued?

    Dainese is scared of the liability of the airbag system, that isn’t going to stop me from importing a system for my own safety anyway.

  16. Larry Kahn says:

    Seems to me there was a lawsuit against Bell helmets back in the ’60′s by a rider that was unlicensed and riding without a helmet in a state with the helmet law. The basis was that Bell did not advertise strongly enough to wear a helmet, and Bell was sued because they were the most well known at the time. I’m not sure how far the suit went.

  17. Law says:

    Frivolous lawsuits amerika’s nanny state knee jerk to everything

    This is soooooo typical

  18. Westward says:

    It’s simple, if it’s a safety feature a company offers, then offer it on all model’s. If the consumer opts out of that feature, then the company is free and clear. Anyone that has ever purchased a car from a dealer has had to sign and initial something saying they opt out of some sort of coverage.

    Harley Davidson are just lazy. Maybe BMW are just better at navigating the US legalscape.

    As for AlpineStars and Dianese, well, they are just craven. Offer the airbag tech suits and jackets, but simply offer a separate airbag vest that can be worn with any jacket or suit not equipped with said tech as an option. Problem solved.

    If its a patent issue, well, they are well beyond that, that ship has already sailed, it’s just a matter of time before that pirate flag is spotted off the starboard.

  19. Nick says:

    “It’s simple, if it’s a safety feature a company offers, then offer it on all model’s.”

    Why? By that same logic, if a model returned 100 mpg, they should offer the fuel economy on all models. Give me a break.

    The buyer was responsible for the purchase decision and consciously chose the model they did. If HD’s models didn’t satisfy their requirements, they were free to look elsewhere.

    I’m sick and tired of businesses being forced into a corner by lawyers, sue-happy consumers, and the government. The nature of the free market is that businesses and consumers are FREE to vote with their dollars. HD is FREE to invest their budget where they deem prudent and consumers are FREE to spend their money where deem value exists. No one needs to get in between this. If the product sucks, consumers won’t buy it. Lesson learned.

  20. Westward says:

    @ Nick

    Offer, as in an option. Ducati has ABS Monsters and the same model without. Its an option. The impression from the Harley Davidson suit implies that the option was not there. ABS it a difference of $10 US or less.

    But hey, it would not surprise me coming from a country where a 57¢ ignition part was too costly for GM to prevent fatal accidents in their cars. The Pinto gas tank, Firestone tyres on Ford SUV’s, etc. etc.

  21. Westward says:

    @ Nick

    BTW, MPG is not a criteria for safety, unless you know something the rest of us do not…

    Damn Ralph Nader for forcing the US automobile industry into putting seat belts and pop-out safety glass windshield on cars. Americans should be able to die and be maimed as one sees fit. It’s Freedom I tell you, it’s the American way…

    Maybe if the USA had universal health care, the Harley couple wouldn’t have to sue Harley Davidson because their medical bills would be covered like they are in most every first world country. Sure ones taxes would be a little higher, but surely you don’t expect it to be free…

  22. TRL says:

    @ Larry Kahn, If I remember correctly the situation was even sillier than you describe, the consumer also did not know where he helmet was at the time of the accident and did not even know if it was a Bell helmet. Also, if I remember correctly, Bell settled for a large sum because it was less expensive than protracted litigation. Maybe Jensen can confirm, I assume there is some history, somewhere.

    There are several issues with airbag garments for motorcycles. For the U.S. market, one of the most critical, in terms of litigation, is not proving that the garment WILL work but proving that it WON’T activate accidentally and cause some other problem.

  23. Nick says:

    Westward –

    This is a real slippery slope. Subaru (and others) sells cars that are equipped with summer tires. These high performance summer tires don’t work in cold temperatures, let alone any trace amounts of snow. Yet, these are on all wheel drive cars sold in markets that see regular snowfall. Should we require all cars be equipped with all season tires?

    But getting back to motorcycles, should they all have traction control? Anti-low side? Adaptive headlights? Hell, people are obviously too dumb to be trusted with their suspension clickers…let’s mandate electronic suspension adjustment while we’re at it. And speaking of safety, why do motorcycles need more than 100 hp? Heck, 75 hp? We can eliminate the traction control if we just reduce power output! While we’re at it, those Piaggio MP3′s seem to be pretty stable while stopped…let’s require all motorcycles come equipped with more than 2 wheels.

    I am one for progress and technological advancement. Sometimes the government gets involved, does good things, and pushes the envelope for others (anti-shatter windshield mandate, for one). But this case is different. The plaintiffs were responsible enough to decide on a bike – evidently, chose the wrong one. Should have picked another that met their needs. Evidently personal responsibility is dying.

  24. jzj says:

    I tried to scan through all the previous comments to see if this had already been said: sorry if I missed it.

    The article said “they sued.” Not “they won.” This is what matters.

    The courts are open: anyone can sue anyone. So what? If you have a lousy case, you lose. If you lose, you have to pay your attorney (good attorneys take only good cases on contingency), and you may have to pay the other side. It takes time and effort to sue, and you also lose that time and effort when you lose the case. There is generally sufficient disincentive to bring frivolous cases. Yet, with 340 million people in the country, there are going to be some odd cases that still get filed.

    And by the way, the worst cases are invariably brought by corporations. Businesses bring the majority of cases; they are in a sense insulated because typically it is not an individual’s money at stake; and ego in business dealings is more often the cause for bringing a lousy case than personal avarice.

  25. Shawn says:

    Thank you, Mr. Singer for that post and clearing up the poster’s silly article. It really bugs me when people with just enough knowledge of the legal system to seem competent create articles and blog posts to confuse the layperson about the legal system. Sadly, just because a person attended law school or even passed the bar doesn’t guarantee they know what they are talking about half the time.

  26. Adam K says:

    Hate to be the asshole here but…

    From the linked article both occupants of the vehicle suffered skull fractures & brain injuries. It doesn’t specifically state that they were or weren’t wearing helmets. If they were not and ‘Safety’ is their legal argument I don’t think I would be able to support their claim at all. It’s unfortunate that anyone gets hurt on a bike but you need to at least take some precautions.

  27. Adam K says:

    Arg.. can’t edit a comment!! Damn these forum coders! Damn them all!

    It also looks like the the 2012 HD Electric Slide Classic Parade float also did have an option for ABS:
    http://www.totalmotorcycle.com/motorcycles/2012models/2012-Harley-Davidson-FLHTC-ElectraGlideClassic.htm

    http://www.aimag.com/2011/08/2011-electra-glide-ultra-limited-motorcycle-review/ (yea, I know it’s 2011)..

  28. proudAmerican says:

    Westward says:
    July 1, 2014 at 8:27 AM
    It’s simple, if it’s a safety feature a company offers, then offer it on all model’s.

    So, Honda should install airbags on every one of their motorcycles, not just the top-of-the-line Goldwing?

    Yes, a very slippery slope indeed.

  29. Alex says:

    Just an FYI, RS Taichi offers airbag suits and jackets in the USA.

    It seems as if this site blocks the retailer’s website, but they can be found at a place you would go if you had a sportbike and wanted some track gear.

  30. Shawn 2 says:

    @Shawn ” Sadly, just because a person attended law school or even passed the bar doesn’t guarantee they know what they are talking about half the time.”

    Which, of course, goes double for an anonymous commenter (You), and is at least as accurate for Randy B. Singer, who runs a website from 1996 that doesn’t list any educational credentials and purports to sell “Law Software” and guides for Macs.

  31. Clive Randall says:

    @Randy B Singer – thank you for your input, you have to some extent restored my faith in human common sense. And I can’t say that for too many lawyers I have had dealings with!

  32. >> …and is at least as accurate for Randy B. Singer, who runs a website from 1996 that doesn’t list any educational credentials and purports to sell “Law Software” and guides for Macs.

    I graduated from law school in 1985 and I’m licensed to practice law in California. For close to 30 years I’ve done nothing other than civil litigation all day, everyday. You can look me up on the California Bar Web site if you like.

    You really do need to learn to read. I don’t sell any software of any kind, I simply have some Web sites that offer attorneys and others advice on how to use the Macintosh computer. One of my Web sites is a list of all law office software for the Macintosh. It was created back in 1996, but that doesn’t mean that it’s gone un-updated since.

  33. Eddie says:

    @Randy B Singer

    “I graduated from law school in 1985 and I’m licensed to practice law in California. For close to 30 years I’ve done nothing other than civil litigation all day, everyday. You can look me up on the California Bar Web site if you like”

    Which, of course, in no way negates “Shawn 2″‘s point, in that your legal opinion is certainly no more valid than Jensen’s legal opinion.

  34. jzj says:

    As the expression goes, you are entitled to your own opinions but not to your own facts. Law, like pretty much everything else, is governed by rules, applications, and pattern-observation that can be described as legal facts. Singer’s comments are essentially statements of legal facts, and not subject to much criticism as opinion so much as correct (as opposed to incorrect) assessment of law’s rules, applications, and patterns.

  35. Westward says:

    @proudAmerican

    If Honda, has the technology then they should offer a it as an option. if it is a standard feature then that is obviously up to the company or country and state laws.

    In the spirit of the case in question, the technology was available but not an option, for no reason other than Harley does not offer it on that model. I think the couple feels that if it were offered they may have selected it, and the outcome of their situation may be different than what occurred.

    Why discriminate between models, give a possible safety feature to the V-Rod but not the Sportster. Like I said at Ducati you can buy a Monster with ABS or without. If all they have is one without, they can install it for a fee.

    In a capitalist system it’s a win win for everyone.

    Yeah, it is that simple

  36. Eddie says:

    @jzj

    The top nine attorneys in this country can’t come to a consensus when it comes to most of their cases. There are very few immutable facts when it comes to the law in this country, and the Supreme Court and Appellate court system illustrates that beautifully. Randy B. Singer is neither arguing the Harley case nor is he the presiding judge. Jensen may be eventually proven wrong, but RBS’s arguments here still have no extra validity.

    Most people think Liebeck v MacDonald’s was a BS suit, and yet they won.

  37. Nick says:

    @westward

    In 2008, the Triumph Tiger 1050 was available with optional ABS, yet not on the Daytona 675 or Speed Triple.

    In 2014, you can buy many Yamahas with optional or standard ABS, but not on the FZ-09 or FZ-07.

    The market plays a role in what manufacturers sell. If the market thinks pink is terrible color, the manufacturer won’t bother offering it. But, engineering decisions also play a role. You can’t apply carte blanche reasoning to technical matters. In the least, you’ll end up with a product priced out of reach of the consuming public.

  38. >>Randy B. Singer is neither arguing the Harley case nor is he the presiding judge. Jensen may be eventually >>proven wrong, but RBS’s arguments here still have no extra validity.

    Hmm…I may have a bit more experience with this kind of matter than Beeler. As in…I can do this kind of case in my sleep having handled hundreds, maybe thousands, like it. Also, there is nothing unusual or difficult about the instant case. This isn’t a matter of “first impression” which is what attorneys call a case whose subject matter is novel and hasn’t been decided before. The instant case is a simple one; its analysis isn’t a matter of “opinion”, it is a matter of legal fact. I think that any decent attorney would analyze it as I have. Feel free to get another experienced attorney to give his opinion; I’m sure that it will be similar.

    The case that was the subject of this article is an insignificant one that is unlikely to make it past the the phase that attorneys call “motion practice.” That is, at some point the case will likely be dismissed prior to trial. This case wasn’t worth writing about here. It might have been if it had been a case that made it to trial and it brought up interesting arguments, or if it had been adjudicated and won by the plaintiff, but writing about such a pedestrian and worthless case at this point should have been beneath Asphalt & Rubber.

    >>Most people think Liebeck v MacDonald’s was a BS suit, and yet they won.

    Lieback won, but the case, as represented by the media, is barely recognizable as the case that was actually presented in court. Many times I’ve read about legal cases in the newspapers and I’ve been shocked. But then I looked up the cases, and I was stunned to find that the newspapers made up just about everything about those cases!

    I could write an entire article about the Liebeck case, I don’t have room to write all about it here. But basically the newspapers reported that an elderly woman purchased coffee at MacDonald’s, spilled it on her lap, and sued and won. The media reported that this woman won loads of money based on her own negligence.

    The actual facts were that, first, the jury found that Liebeck was contributorily negligent, and they reduced her award proportionally. Second, she didn’t just spill hot coffee on her lap, she spilled scalding coffee on herself and completely burned off her external genitals and much of the surrounding area (how hot does coffee need to be to do that?) requiring something like 17 plastic surgeries to her most sensitive regions. It turns out that McDonalds was holding coffee at a temperature way too high: the manufacturer of the coffee making equipment had told them that temp was too high, and McDonalds had been sued many times previously for exactly the same thing, settling each time, and yet still holding their coffee at a way too dangerous temperature.

    There are a bunch of other interesting facts to the case, but the bottom line is that the jury was incensed at McDonalds’ arrogance and they decided that they needed to come up with an award that was sufficient to change McDonalds’ behavior (our legal system is the defacto consumer protection program in this country). So they did. As a result, customers can now get coffee at McDonald’s without fear of scalding off a bunch of flesh if they accidentally spill it on themselves (which is a foreseeable, maybe even “common” event as their coffee is sold via a drive-though.)

    Our legal system isn’t irrational and juries (comprised of folks exactly like you and I) aren’t at all interested in awarding millions of dollars to undeserving folks. (In fact, juries tend to be more conservative than the general public, in my experience). However, what you read about legal cases in the press is very often, at best, over-symplified, and at worse (and more often than you might hope) a pack of lies designed to get readers/viewers/clicks. Yellow journalism is a proven reliable way to make money. Doctors and lawyers are a popular target for it. The public loves to hate people who are successful, especially during hard economic times.

  39. Norm Fraijo says:

    I only come here for the comments.

  40. The Judge says:

    @ RBS

    Yeah, I read about the McDonald’s case. HERE on A&R coincidentally. Portrayal quite similar to yours:

    http://www.asphaltandrubber.com/popular/bmw-erection-lawsuit-mea-culpa/

  41. Edward Stewart says:

    I disagree with the extremely flawed legal analysis being made by the author. The entire premise is ludicrous if you think about it – lots of safety equipment is optional on cars and bikes on any given model year. For example, backup cameras are standard on the new Honda Fit, but not available on the 2013 model – under the author’s theory, Honda would be liable for all accidents, – ever! – on all ~100,000 Fits sold in the last few years that might have been prevented by a rear view camera. (like backing into fire hydrants or running over your little kid in the driveway).

    Also, European vehicle safety standards and requirements are irrelevant to a case being brought in the US, and besides, ABS brakes weren’t required on european market motorcycles in 2012 and aren’t now as of 2014. Very poorly written scare piece.

  42. Tom Monroe says:

    I find it somewhat alarming that my next new motorcycle will have lawyer-required ABS that I will pay extra for, and then have to disable to get the motorcycle “proper” again.

  43. proudAmerican says:

    I really don’t understand how this idiotic lawsuit is generating any interest. ABS brakes were an option on the 2012 Electra Glide Classic:

    http://www.totalmotorcycle.com/motorcycles/2012models/2012-Harley-Davidson-FLHTC-ElectraGlideClassic.htm

    (12th feature listed)

    And when you click on the “brief story” listed in the very first sentence above, one of the persons who commented on that original story is also confused, because he bought his 2012 Electra Glide Classic, and optioned for the ABS.

  44. crshnbrn says:

    The first thing that caught my attention about this article is that the couple is suing Harley-Davidson for $75,000. A corporation as large as H-D, and they are suing for only $75,000? That leads me to conclude they think H-D will settle for that amount instead of incurring the costs of this case going to court.
    The second thing that caught my attention was the statement that Harley-Davidson “did not offer the 2012 Electra Glide Classic with an anti-locking brake option.” Just a couple of minutes searching the internet found ABS listed as an option for a 2012 Electra Glide Classic.

    @Nick re: “There’s a lot of conjecture in this article, and frankly, it reads like a desperate ploy to obtain views and comments. Shame.”

    It worked.

  45. paulus says:

    I once went to watch a fight and a hockey game broke out!
    Obviously the force is strong with both sides of this discussion.

    I am off to ride (without ABS and with my own sense of responsibility)
    Enjoy

  46. Nick says:

    @crshnbrn

    I walked right into it knowing full well…I…couldn’t…help…myself!

  47. Westward says:

    If an article sparks a lively discussion, then there is no harm or foul. I suspect A&R gets plenty of views, but most people dont post comments.

    but I must agree with crshnbrn, $75,000 is a suspect amount for two people thrown from a motorcycle they feel is at fault for their injuries…

    Though now I am really interested in knowing if HD settles, I do believe the article implies that it seems they may…

  48. Justaguy says:

    So Polaris, with it’s Victory line, presents a test case.

    Their aluminum framed Cross Roads & Cross Country (fairing-less and faired touring bike like a HD Road King and Electra Glide) added ABS in it’s 2nd model year of 2011. The 2012, 2013 models included this too. For 2014 Victory released a ’8 Ball’ version of the bikes which are supposedly ‘stripper versions’.
    In reality they just a blacked out versions without cruise control or ABS, BUT ABS is not even an option. Polaris offers identical bikes, one sans ABS, one with it optional and another few with it standard. I would guess that the majority of buyers purchase a model with ABS, but for those that choose not to are they just one ‘had to lay it down’ away from a payday? Remember, last model year (2013) Victory offered the exact same lineup with ABS standard across the board and CHOSE to remove it from the option list with the rollout of what is basically just an all black version of the bike.
    Victory also produces a line of bikes built on a different steel frame that has never offered ABS and according to them “it won’t” due to the design.

    If the thesis of this article is correct (and I’m no lawyer, that’s for sure) Polaris has guaranteed themselves to be found liable in the future.

    Disclosure: I am on my 2nd Victory, currently owning a 2012 Cross Roads (with ABS). My last Victory (a 2006 steel frame model, sans ABS) launched me off in a high side approaching a curve after the back wheel locked up (the steel frame bikes are known for having terribly grabby rear brakes and could surely use ABS).

  49. jzj says:

    I have a question about braking. I have sport bikes and do a majority of my braking with my front wheel. With the types of bikes discussed here, is the majority of braking done with the rear wheel?

    I don’t mean to slight anyone, but I associate locking up the rear (and certainly the front) with poor use of brakes: is this something that cruisers are simply more prone to do?

  50. Justaguy says:

    Those 2 Victory’s are my first non-sprit bikes in 26 years of riding. I brake with the front most of the time too jzj.
    The guy’s I work with (firemen) that are older and have been on Harley’s since the late 60′s-70′s still….. even on their loaded and ABS equipped touring bikes…… barely touch their front brakes. I have had to pull newer riders aside after hearing these guys give bad advice and tell them “take a riding class, use your damn front brake” plenty of times.

    I prefer not riding in groups (I rode alone 95% of the time) and I don’t go on trips with them but even a 7 bike wreck a year ago or a 3 bike one the year before won’t get these guys to stop riding in columns and up each other’s ass. These dudes drive fire trucks for a living but fail to get that they are doing something idiotic. I know locally that many outlaw clubs pride themselves on how ‘tight’ they ride in groups but that ain’t my scene. Had I been riding cruisers my whole life I might think differently and I would bet that the younger guys that are hired and join the fireman ‘club’ with their 1st bike will think exactly like these old timers down the road. To each their own I guess. But it just has to be embarrassing as hell telling some other firemen how 7 of you wrecked because one guy spazzed out.

  51. SEan says:

    For a Japanese 250 that sells for $4000, I don’t expect standard ABS. But at Harley’s price point, what is their excuse?

  52. yama man says:

    Westward says “if Honda can do it they must offer it as an option” I want my Grom with an airbag and traction control!

  53. Randy B. Singer, you brought up a 2006 study on the increase of off-the-road fatalities on cars with ABS to make one of your points against the case that ABS is not necessarily a safety feature on motorcycles (which is the case we have been discussing). You probably know that study is old, and it is about ABS on four-wheel vehicles. Is the 2006 study still (or ever) a court standard for decisions today when new studies have updated information, based on updated ABS systems, and based on drivers that are more knowledgeable about ABS systems? And considering it is a four-wheel ABS vehicle study, is that study used on motorcycle cases?
    Thanks,
    Lion

  54. >>Randy B. Singer, you brought up a 2006 study on the increase of off-the-road fatalities on cars with ABS to >>make one of your points against the case that ABS is not necessarily a safety feature on motorcycles

    Courts (or juries) use whatever is presented to them by the litigating parties to assist them in making their decisions.

    My point wasn’t that I was presenting the best study every done, or a study that is 100% conclusive, just that there has been research done that questions the effectiveness of ABS in preventing accidents. If you have a more recent study, or a study that is unique to motorcyclists, feel free to cite it and share it with us.

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