The following lawsuit tries to establish that HD is responsible for the damage in this and other accidents.

Do you really have any doubts as to the dangers of riding a bike? Do you really feel not responsible for making the decision to ride a bike?

How can one claim to be reponsibile for whether or not to wear a helmet and then claim ignorance and no responsibility for riding a bike in the first place?

It is lawsuits like the one below that may forever keep helmet laws in place and worse legislate or insure us out of existance altogether.

MITCHELL E. COHEN
1400 E. Southern Avenue
Suite 915
Tempe, Arizona 85282
S.B.A. ID #7366
Phone: (602) 413-1344

Attorney for Plaintiffs


IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA




DANIEL R. SALGADO and CHRISTINE
SALGADO individually and as
husband and wife,

Plaintiffs,

vs.

HARLEY-DAVIDSON MOTOR COMPANY,
a Wisconsin corporation,

Defendant.


)
)
)
)
)
)
)
)
)
)
)
)
)
COMPLAINT AND DEMAND
FOR JURY TRIAL

(Tort - Non-Motor Vehicle)

Plaintiffs, DANIEL R. SALGADO and CHRISTINE SALGADO, by their attorney MITCHELL E. COHEN, as and/or their cause of action against the Defendant, complain and allege as follows:

1. There exists complete diversity of citizenship between the Plaintiffs and the Defendant in this action.

2. The amount in controversy between the Plaintiffs and the Defendant exceeds SEVENTY-FIVE THOUSAND ($75,000.00) DOLLARS, excluding interest and costs.

3. This Court has subject matter jurisdiction of this action pursuant to 28 U.S.C.A. ¤ 1332.

4. That at all times mentioned herein, the Plaintiffs were, and still are, residents of the State of Arizona and were husband and wife at the time of the occurrence.

5. That at all times mentioned herein, Defendant, Harley Davidson Motor Company, (hereinafter referred to as "HARLEY" was and still is a corporation incorporated under the laws of the State of Wisconsin having its principal place of business in the State of Wisconsin and conducting and transacting business in the State of Arizona.

6. Defendant, HARLEY, as a substantial aspect of its usual and customary business designs, manufactures, assembles, tests, markets, distributes, labels, sells, and advertises Harley-Davidson motorcycles.

7. Plaintiff hereby requests a trial by jury of any and all issues.


FIRST CAUSE OF ACTION - NEGLIGENT DESIGN


8. Defendant, HARLEY, derives substantial revenue from goods used or consumed or services rendered in the State of Arizona.

9. Defendant, HARLEY, derives substantial revenue from international or interstate commerce.

10. Defendant, HARLEY, is, and historically has been engaged in, among other activities, the business of designing motorcycles and the necessary accessories therefor.

11. Defendant, HARLEY, was engaged in, among other activities, the business of designing the human factor interface between and among its various models of motorcycles with potential drivers/riders thereof.

12 . Defendant, HARLEY, was engaged in, among other activities, the business of manufacturing motorcycle and the necessary accessories therefor.

13. Defendant, HARLEY, was engaged in, among other activities, the business of assembling motorcycle and the necessary accessories therefor.

14. Defendant, HARLEY, was engaged in, among other activities, the business of testing motorcycles and the necessary accessories therefor to insure that they are reasonably safe for their intended and foreseeable uses.

15. Defendant, HARLEY, was engaged in, among other activities, the business of labeling and affixing warnings, as necessary, upon motorcycles and accessories so that drivers/riders would be cognizant of the risks and hazards including the consequences of a foreseeable collision with other motor vehicles.

16. Defendant, HARLEY, was engaged in, among other activities, the business of marketing motorcycles and the necessary accessories therefor.

17. Defendant, HARLEY, was engaged in, among other activities, the business of distributing motorcycles and the necessary accessories therefor.

18. Defendant, HARLEY, was engaged in, among other activities, the business of selling motorcycles and the necessary accessories therefor.

19. Defendant, HARLEY, was engaged in, among other activities, the business of advertising motorcycles and the necessary accessories therefor.

20. Defendant, HARLEY, was engaged in, among other activities, the business of designing safety guards as standard equipment on certain models of its motorcycles, including all FLH models, all police motorcycles and all military motorcycles.

21. Defendant, HARLEY, was engaged in, among other activities, the business of manufacturing safety guards as standard equipment on certain models of its motorcycles, including all FLH models, all police motorcycles and all military motorcycles.

22. Defendant, HARLEY, was engaged in, among other activities, the business of testing safety guards as standard equipment on certain models of its motorcycles, including all FLH models, all police motorcycles and all military motorcycles.

23. Defendant, HARLEY, was engaged in, among other activities, the business of manufacturing safety guards as standard equipment on certain models of its motorcycles, including all FLH models, all police motorcycles and all military motorcycles.

24. Defendant, HARLEY, was engaged in, among other activities, the business of labeling and affixing warnings to the safety guards as standard equipment on certain models of its motorcycles, including all FLH models, all police motorcycles and all military motorcycles.

25. Defendant, HARLEY, was engaged in, among other activities, the business of marketing safety guards as standard equipment on certain models of its motorcycles, including all FLH models, all police motorcycles and all military motorcycles.

26. Defendant, HARLEY, was engaged in, among other activities, the business of distributing safety guards as standard equipment on certain models of its motorcycles, including all FLH models, all police motorcycles and all military motorcycles.

27. Defendant, HARLEY, was engaged in, among other activities, the business of selling safety guards as standard equipment on certain models of its motorcycles, including all FLH models, all police motorcycles and all military motorcycles.

28. Defendant, HARLEY, was engaged in, among other activities, the business of advertising safety guards as standard equipment on certain models of its motorcycles, including all FLH models, all police motorcycles and all military motorcycles.

29. Historically, and for all times relevant herein, Defendant, HARLEY, has been engaged in, among other activities, the business of distributing safety guards as standard equipment on certain models of its motorcycles, (other than the FLH models) upon which safety guards were standard.

30. Defendant, HARLEY, was engaged in, among other activities, the business of distributing safety guards to its various dealers across the country, either as accessories or as standard equipment.

31. Defendant, HARLEY, was engaged in, among other activities, the business of selling safety guards to owners of its motorcycles.

32. Defendant, HARLEY, was engaged in, among other activities, the business of advertising safety guards to owners of its motorcycles.

33. Defendant, HARLEY, was engaged in, among other activities, the business of designing safety guards by determining through testing and other means, the appropriate of optimal strength of safety guards.

34. Defendant, HARLEY, knowingly placed the subject motorcycle in the stream of commerce without safety guards installed as original or standard equipment and said motorcycle was purchased by Plaintiff, DANIEL R. SALGADO, herein.

35. Defendant, HARLEY, actually designed, patented, manufactured, and sold both front and rear "Safety Guards" from 1932 through 1970. Said safety guards were claimed at that time by Defendant, HARLEY, its agents, servants, dealers, employees, subsidiaries and/or predecessor/successor corporations to be efficient in preventing lower leg injuries and leg amputations.

36. From time to tie, there safety guards (or certain specific types of safety guards) were advertised as "better than insurance" by Defendant, HARLEY, its agents and/or subsidiaries and/or predecessor corporations.

37. While regularly engaged in its business activities, Defendant, HARLEY, through its predecessor/successor corporations (including its Corporate Officer, William S. Harley) did design, manufacture, assemble, test, market, distribute, sell and advertise safety guards for various makes and models of its motorcycles and from 1932 until 1970, called the devices "Safety Guards" in all accessory catalogs for those years.

38. While regularly engaged in its business activities, Defendant, HARLEY, through its predecessor/successor corporations did design, manufacture, assemble, test, market, distribute, sell and advertise safety guards of other leg protection devises for various makes and models of its motorcycles and advertised these items in its accessory catalogs and elsewhere.

39. Defendant, HARLEY, was engaged in, or should reasonably have been engaged in, among other activities, the business of testing the side contour design of its motorcycles.

40. Defendant, HARLEY, was engaged in, or should reasonably have been engaged in, among other activities, the business of testing the conspicuity of its motorcycles.

41. Defendant, HARLEY, knowing placed a certain motorcycle into the stream of commerce.

42. Defendant, HARLEY, did design, manufacture, assemble, test label, market, distribute, advertise, place into the steam of commerce and sell a certain motorcycle which, at the time of the subject accident, bore Arizona license plate number M3VA and vehicle Identification HA67627H3.

43. Defendant, HARLEY, expected, or should have expected, its acts pertaining to the design, manufacture, assembly, testing, labeling, marketing, distribution, sale, advertising and related activities, of the motorcycle to have consequences within the State of Arizona.

44. Defendant, HARLEY, while regularly engaged in its business activities, did design, manufacture, assemble, test label, market, distribute, sell, advertise and perform related activities regarding the aforesaid motorcycle, including the design and utility of warning to be affixed thereto.

45. Defendant, HARLEY, undertook to study the marketability of motorcycles with safety guards as standard equipment.

46. The aforesaid motorcycle, its accessories, appurtenant parts, controls and instructions, was negligently designed, manufactured, assembled, tested, labeled, marketed, distributed, sold, inspected and advertised by Defendant, HARLEY.

47. The aforesaid motorcycle, its accessories, appurtenant parts, controls and instructions, without accessory safety guards, was negligently designed, manufactured, assembled, tested, labeled, marketed, distributed, sold, inspected and advertised by Defendant, HARLEY.

48. Prior to designing the subject motorcycle, Defendant, HARLEY, was cognizant of, and familiar with, the incidence of angled collisions such that they were considered foreseeable.

49. Said negligent design, manufacture, assembly, testing, labeling, marketing, distribution, sale, advertisement and inspection by Defendant, HARLEY, included, but is not limited to, its decisions concerning whether or not safety guards should be installed as standard equipment, given the hostile leg environment and lack of conspicuity of the said motorcycle.

50. Defendant, HARLEY, failed to crash test its motorcycles in an adequate manner and/or make use of crash testing data concerning angled collisions involving motor vehicles and its motorcycles.

51. Defendant, HARLEY, knew or should have known, that there existed a hostile leg environment having dangerous protrusions in the area of the rider's lower extremities, in failing to provide proper leg protection, especially in light of the hostile side contour and in lacking proper conspicuity.

52. Defendant, HARLEY, failed to adequately test the potential for leg amputation in collisions between motor vehicles and its motorcycles.

53. Defendant, HARLEY, while regularly engaged in its business activities, did design manufacture, assemble, test, label, market, distribute, sell and advertise the specific aforesaid motorcycle, including the design and utility of warnings to be affixed to the motorcycle itself.

54. The aforesaid motorcycle was owned, on April 12, 1995, by Plaintiff's DANIEL R. SALGADO AND CHRISTINE SALGADO.

55. On or about April 12, 1995, the aforesaid motorcycle was being utilized by Plaintiff, DANIEL R. SALGADO.

56. Plaintiff, DANIEL R. SALGADO was injured.

57. Plaintiff, DANIEL R. SALGADO was seriously injured.

58. The aforesaid occurrence was the result of the negligence, carelessness and recklessness of the Defendant, HARLEY.

59. By reason of the foregoing, Plaintiff, DANIEL R. SALGADO, sustained severe conscious pain and suffering and permanent injuries, and Plaintiffs have been damaged in an amount which Plaintiffs are presently unable to accurately estimate, but which amount is well in excess of the minimal jurisdictional limits of this court.

60. By reason of the foregoing, Plaintiff, DANIEL R. SALGADO, has incurred medical expenses for necessary medical care and will incur additional expenses for necessary care and treatment in the future.

61. At the above mentioned time and place, Plaintiff, DANIEL R. SALGADO, was an able-bodied man who was working and earning income. As a direct and proximate result of Defendant's acts, as set forth above, and the disability that it caused Plaintiff, Plaintiff, DANIEL R. SALGADO, has been and will in the future be deprived of income.

SECOND CAUSE OF ACTION - EXPRESS WARRANTY

62. Plaintiffs repeat, reiterate and reallege each and every allegation contained in paragraph 1 through 61 as if more fully set forth at length herein.

63. Defendant, HARLEY, in connection with its business activities aforementioned, warranted and represented (expressly and impliedly) that said motorcycle, with and/or without accessories, its appurtenant parts and instructions, was fit, capable and proper for the use(s) for which it was intended, including the foreseeable angled collision environment.

64. Defendant, HARLEY, in connection with its business activities aforementioned warranted and represented (expressly and impliedly) that said motorcycle, with standard equipment, appurtenant parts, controls and instructions, was reasonable safe in connection with its intended foreseeable use(s) and further that same was of merchantable quality.

65. Plaintiff, DANIEL R. SALGADO, relied upon the skill and judgment of Defendant, HARLEY, by its agents, servants, dealers and/or employees, and their representations and warranties in connection with the use of said motorcycle, its appurtenant parts, controls and instructions, including the warranty of fitness for reasonably foreseeable use.

66. Said representations and warranties were false misleading and inaccurate in that said motorcycle, without safety guards, and with a hostile side contour but without adequate warnings, when put to the test of foreseeable use, proved to be unsound and unsuitable for the purposes for which it was intended and utilized and was unsafe, dangerous and not of merchantable quality. In fact, Defendant, HARLEY, knew that said motorcycle, its appurtenant parts, controls and instructions, was inherently dangerous n that there existed a hostile leg environment having dangerous protrusions in the area of the lower extremities, in failing to provide proper leg protection, especially in light of the hostile leg environment, and in lacking proper conspicuity.

67. On April 12, 1995, while relying upon the skills, representations and warranties of Defendant, HARLEY, Plaintiff, DANIEL R. SALGADO, was caused to suffer serious physical injuries when, in the course of using said motorcycle, he was severely and permanently injured, while driving the aforementioned motorcycle, Plaintiff, DANIEL R. SALGADO, was involved in a motor vehicle incident which resulted in the amputation of his left leg above the knee.

68. By reason of the breach of express and implied warranties by Defendant, HARLEY, Plaintiffs have been damaged in an amount which Plaintiffs are presently unable to accurately estimate, but which amount is well in excess of the minimal jurisdictional limits of this Court.

THIRD CAUSE OF ACTION - IMPLIED WARRANTY

69. Plaintiffs repeat, reiterate and reallege each and every allegation contained in paragraph 1 through 68 as if more fully set forth at length herein.

70. On April 12, 1995, Defendant, HARLEY, was in breach of implied warranty.

71. By reason of the breach of implied warranties by defendant, HARLEY, Plaintiff, DANIEL R. SALGADO, was caused to suffer serious physical injuries.

72. By reason of the foregoing, Plaintiffs have been damaged in an amount which plaintiffs are presently unable to accurately estimate, but which amount is well in excess of the minimal jurisdictional limits of this Court.

FOURTH CAUSE OF ACTION - STRICT LIABILITY

73. Plaintiffs repeat, reiterate and reallege each and every allegation contained in paragraph 1 through 72 as if more fully set forth at length herein.

74. Defendant, HARLEY, produced said product which was to be purchased and used without inspection for hidden defect by Plaintiff, DANIEL R. SALGADO, in the sense that the severe hostility of the leg environment was and is not open and obvious.

75. The aforesaid motorcycle, its appurtenant parts and instructions, lacking in adequate conspicuity, have a hostile leg environment, and without safety guards, was expected to and did reach users and/or consumers, including the Plaintiff, DANIEL R. SALGADO, without substantial change in the condition in which it was sold.

76. At the time of its sale, and on or about April 12, 1995, said motorcycle, its appurtenant parts and instructions, was in defective condition which was dangerous to users, the general public, and in particular to the Plaintiff, DANIEL R. SALGADO.

77. On April 12, 1995, the aforesaid motorcycle, its appurtenant parts, controls, and instructions, was in defective condition.

78. Said motorcycle, its appurtenant parts, controls, and instructions, was inherently dangerous.

79. Said motorcycle, its appurtenant parts, controls, and instructions, was inherently dangerous in having a hostile leg environment particularly having dangerous protrusions in the area of the lower extremities in failing to provide adequate leg protection, given the extra-severe hostility of the left leg environment, and in lacking proper conspicuity.

80. Said defects were a substantial factor in bringing about the severe injuries sustained by Plaintiff, DANIEL R. SALGADO.

81. By reason of the foregoing, Defendant, HARLEY, has become strictly liable in tort to the Plaintiff, DANIEL R. SALGADO, and CHRISTINE SALGADO, for designing, manufacturing, assembling, testing, labeling, marketing, distributing, selling and advertising a defective product.

82. By reason of the foregoing, Plaintiff, DANIEL R. SALGADO, have been damaged in an amount which plaintiffs are presently unable to accurately estimate, but which amount is well in excess of the minimal jurisdictional limits of this Court.

FIFTH CAUSE OF ACTION - LACK OF ADEQUATE WARNING

83. Plaintiffs repeat, reiterate and reallege each and every allegation contained in paragraph 1 through 82 as if more fully set forth at length herein.

84. On April 12, 1995, the subject motorcycle lacked adequate warnings, in light of its inconspicuity, hostile leg environment, and inadequate leg protection.

85. Said defects were a substantial factor in bringing about the severe injuries sustained by Plaintiff, DANIEL R. SALGADO.

86. By reason of the foregoing, Plaintiff, DANIEL R. SALGADO, have been damaged in an amount which plaintiffs are presently unable to accurately estimate, but which amount is well in excess of the minimal jurisdictional limits of this Court.

SIXTH CAUSE OF ACTION - LOSS OF SERVICES

87. Plaintiffs repeat, reiterate and reallege each and every allegation contained in paragraph 1 through 86 as if more fully set forth at length herein.

88. At the aforementioned time, Plaintiff, CHRISTINE SALGADO, was the lawful wedded wife of Plaintiff, DANIEL R. SALGADO, and, as such was entitled to his services, society and consortium.

89. As a result of the aforementioned occurrence, Plaintiff, CHRISTINE SALGADO, has been deprived of the services, society, affection and consortium of her said husband and has been caused to expend large sums of money for his medical care and treatment, and will continue to be required to do so in the future.

90. As a result of the foregoing, Plaintiff, CHRISTINE SALGADO, have been damaged in an amount which plaintiffs are presently unable to accurately estimate, but which amount is well in excess of the minimal jurisdictional limits of this Court.

PUNITIVE DAMAGES

91. Plaintiffs repeat, reiterate and reallege each and every allegation contained in paragraph 1 through 90 as if more fully set forth at length herein.

92. Defendant, HARLEY, in placing a defective and unreasonably dangerous motorcycle into the stream of commerce, consciously pursued a course of conduct that Defendant knew, or should have known, created a significant risk of injury to Plaintiff, DANIEL R. SALGADO, , and others. The Plaintiffs, accordingly are entitled to exemplary or punitive damages against Defendant, HARLEY, in such an amount as shall be deemed just and sufficient to punish or make an example of said Defendant and to deter them and others in similar circumstances from acting in like fashion in the future.

WHEREFORE, Plaintiffs demand judgment against the Defendant as follows:

1. For such general damages as may be proven at trial which would be fair to compensate the Plaintiffs, DANIEL R. SALGADO and CHRISTINE SALGADO, under the evidence adduced,

2. For the reasonable value of the medical expenses incurred to the date of trial, and those to be incurred in the future for necessary care and treatment,

3. For the income lost to the date of trial,

4. For the reasonable value of Plaintiffs' decreased earning capacity to earn income in the future.

5. For the loss of consortium of the Plaintiff, CHRISTINE SALGADO,

6. For exemplary and punitive damages in an amount as shall be deemed just and sufficient to punish or make an example of said Defendant and to deter them and others in similar circumstances from acting in like fashion in the future.

7. For Plaintiffs, costs incurred herein, and

8. For said other and further relief as the Court may deem just and proper.

DATED this 25 day of March, 1997.

LAW OFFICE OF MITCHELL E. COHEN

Mitchell signature
Mitchell E. Cohen
1400 E . Southern Avenue
Suite 915
Tempe, Arizona 85282
Attorney for Plaintiffs

Source: Kevin Dimmick, BOLT Field Intelligence


Back to AIM/Lester cover letter to this suit...

Comments? Here's the place to "aim" them. Or, send a note to AIM...

Feedback, Rants and Raves - read 'em here...

| Home | Studies | States | Nation | World | Press | Archives | Backfire | Contact Us |

© Copyright 1996-9 SAS. All Rights Reserved.