Negligent Tort

In the United States, individuals and families are constantly bombarded with advertisements for goods and services. The competition to sell these goods and services is fierce. From fast food to electronics and cars, the list goes on and on. Companies are always fighting for whatever disposable income a person may have left. The ads always make the person feel that they are going to need that new cell phone or car. It’s going to make that person feel better or make their lives much easier once they obtain this product.

So once the product is purchased, does it make it easier? Actually there may be a chance that the product may be defective and it may be recalled. “Consumers last year were deluged with 2,363 recalls or about 6. 5 recalls each day, covering consumer products, pharmaceuticals, medical devices and food, according to data from the U. S. Food and Drug Administration, the Department of Agriculture and the Consumer Product Safety Commission. The recalls announced mark a nearly 14 percent increase from 2,081 in 2010 and compare with about 1,460 in 2007”.

(Doering, 2012) Each year more and more products are being recalled due to defective issues. One such product that has been recently recalled the KTM and Husaberg Motorcycles which is made by KTM North America. According to the Consumer Product Safety Division, A total of 13 models are being recalled, eleven 2013 KTM models and two 2012 and 2013 Husaberg models. The reason for the recall is because the motorcycles are a crash hazard. On both motorcycles the “throttle cable can malfunction and result in an uncontrollable throttle. This poses a crash hazard to the rider”.

(CPSC, 2013) Approximately 7,000 units have been affected. To date no one has been injured or serious injury has not been reported due to the motorcycles defect. Can KTM North America be liable in negligence if the motorcycles had not been recalled and had caused harm to a consumer? For KTM North America to be liable for an intentional tort, three elements must be present. The three elements are an act by the company of conscious volition, intent, and damages. An act by the company of conscious volition occurs when the defendant understands what is going on.

Intent is when the defendant understood the consequences of the actions that were undertaken. If the plaintiff suffered any damages either bodily or mentally, then the company would be liable. (Seaquist, 2012) If KTM North America had knowledge of the throttle cable can malfunction and still proceeded to market and sell both the KTM and Husaberg Motorcycles which then caused hurt a person, then KTM North America will be held liable. Companies have been held liable before for knowingly selling defective products. One such case occurred with Ford Motor Company and the Ford Pinto.

In the 1971, Ford came out with the Ford Pinto to counter Asian imports that were taken over the market. During crash tests, Ford knew that there was a flaw with its design. If the Pinto was rear ended with speeds as low as 20 mph, there was a chance that the vehicle could catch fire and explode. The company chose not to implement a new design that would cost $11 per car or $137 million for all cars that would needed to be recalled. Instead Ford’s risk/ benefit analysis put $49. 5 million price tag on the deaths, injuries, and car damages, and thus Ford felt it was justified not to implement the design change.

In May 1972, Lily Gray was traveling with thirteen year old Richard Grimshaw in a 1972 Pinto when their car was struck by another car traveling approximately thirty miles per hour. The impact ignited a fire in the Pinto just as the Ford Motor crash test results had shown. The accident killed Lily Gray and Richard Grimshaw was left with devastating injuries. Grimshaw’s family sued Ford Motor an ultimately were awarded judgment in the amount of $2. 5 million in compensatory damages. The jury also awarded $125 million in punitive damages. The punitive damages were later reduced to $3.

5 million. (Leggett, 1999) The question now becomes did KTM North America have knowledge of throttle cable can malfunction on both KTM and Husaberg Motorcycles prior to the recall and was anyone hurt? Does KTM North America have a duty of care to protect its consumers? Duty of care is the legal duty to take reasonable care so that others aren’t harmed. (ADAS, 2013) If a company knowingly sells a defective product then the organization would be negligent and would violate the duty of care to its consumers. Standard of care and duty of care go hand in hand. According to Legal Dictionary.

com, standard of care is defined as “the watchfulness, attention, caution and prudence that a reasonable person in the circumstances would exercise. If a person’s actions do not meet this standard of care, then his/her acts fail to meet the duty of care which all people (supposedly) have toward others. Failure to meet the standard is negligence, and any damages resulting therefrom may be claimed in a lawsuit by the injured party. ” According to this definition, KTM North America failed to meet the standard of care if it had performed tests on the recall models and consumer was hurt in the process of operating the motorcycle.

In 1856, Judge Baron Alderson presided over Blyth v Birmingham Waterworks Co. and went on to define negligence “as an act in which a reasonable man guided upon those considerations which normally regulate human affairs would do or doing something which a reasonable man would not do. ” (Babalola, 2012) Therefore, duty of care should be obvious to all reasonable men. If KTM North America had known that the defective throttle cable could cause damage then it would have been negligent and would have been in breach of duty of care. Actual causation is also referred to as but for cause.

In other words but for the existence of A, would B have occurred? In the case of KTM North America, but for the existence of the throttle cable malfunction would have an accident that caused injury happen. Proximate Cause is a cause that is legally sufficient to result in liability. If an actual consumer were to be injured while operating a motorcycle that was sold by KTM North America, KTM would be able to provide a defense to negligence. The three defenses to negligence are contributory negligence, comparative negligence, or assumption of risk.

Contributory negligence can be argued if plaintiff’s negligence contributed even slightly to his or her injuries; the plaintiff’s contributory negligence would bar that person from recovering any damages from the defendant. (Seaquist, 2012) Suppose a plaintiff purchased a KTM or Husaberg motorcycle and modified the motorcycle. The modifications are not up to KTM North America specifications. The plaintiff has an accident that was caused by the modifications. KTM North America would argue the plaintiff contributed to the negligence because he or she modified the motorcycle and it contributed to the accident.

Comparative negligence defense allows plaintiffs whose negligence contributed to their injuries to sue negligent defendants. (Seaquist, 2012) In the case of KTM North America, both the cable malfunction, which KTM is liable for and the modifications made by the plaintiff, can be seen as contributing factors to an accident. The jury will then assign a percentage of fault to both the plaintiff and defendant. The last defense which may be used is assumption of risk. Assumption of risk is used to negate any type of recovery for the plaintiff.

An example would be if the plaintiff who has filed a lawsuit against KTM North America was performing dangerous maneuvers on the motorcycle when an accident occurred. KTM North America can also raise the assumption of risk if it has issued a recall for one of its defective products. References Seaquist, G. (2012).

Business Law for Managers. San Diego, CA: Bridgepoint Education Inc Doreing, C (2010) Surge in products being recalled may be numbing consumers retrieved from http://usatoday30. usatoday. com/news/nation/story/2012-06-08/product-recall-surge-consumer-fatigue/55466398/1.

Consumer Product Safety Division (2013) Recalls retrieved from http://www. cpsc. gov/en/Recalls/ Leggett, C (1999) Ford Pinto Case, The Valuation of Life as it Applies retrieved from http://users. wfu. edu/palmitar/Law&Valuation/Papers/1999/Leggett-pinto. html ADAS (2013) Duty of Care retrieved from https://www. adas. org. au/index. php? option=com_content&view=article&id=118&catid=46&Itemid=117 Babalola, O (2012) Breach of Duty of Care in the Tort of Negligence retrieved from http://www. scribd. com/doc/3099771/Breach-of-Duty