Liability Bike:

What happens when lawyers, judges and juries become the design team for your next motorcycle

Copyright American Motorcyclist Association, 1996

Introducing. . .the motorcycle of the future!

No, it's not available in showrooms yet, but it could be soon--whether you want it or not.

Over the years, you've probably seen dozens of artists' renderings, mockups and prototypes of concept bikes--machines designed to show us where motorcycle technology is headed in the future. You seldom see bikes exactly like them go into production, but they serve to showcase features the manufacturers think could be incorporated into the motorcycles you buy.

Which brings us to this monstrosity. It could represent one vision of the future of motorcycling--a vision being perpetrated by a small group of people who claim to be protecting the rights of motorcyclists.

There is one major difference between this motorcycle and those other concept bikes you've seen, though. Instead of being created in the engineering department of a major corporation, it's literally being designed in courtrooms across the country

The features of this motorcycle (see "Form Follows Litigation'') may not be exactly what you're looking for in your next bike. But then, its "designers" are a bunch of lawyers who don't really care about that. Customer acceptance is pretty far down on their list of priorities. The only kind of interest they want to generate is the kind that accumulates in bank accounts.

As a result of their work, three things could happen to the American motorcycle market:

  1. Bikes could go up in price sharply.
  2. The price you pay could go up and the bikes you buy could become nearly unrecognizable.
  3. The U.S. motorcycle market could be substantially damaged, like the American private-airplane market was in the 1970s (see "The Plane Facts").

See those bulbous protrusions on both sides of this bike's gas tank? Those devices, known as leg protectors, are at the heart of this issue.

Motorcycle leg protectors are pretty controversial within the scientific community. Some studies have indicated that in the right kind of accident, they could be effective in protecting a rider's lower extremities. But other studies have concluded that they may just shift injuries to different parts of the body, including the head, making them worse than useless.

Despite the conflicting scientific evidence, the absence of leg protectors on today's motorcycles is at the center of a whole series of product-liability lawsuits being filed in this country. And those lawsuits may force manufacturers to install leg protectors on their machines--whether they work or not, whether you want them or not.

Recently, for instance, a jury in Mississippi awarded $3 million to a motorcyclist who lost his leg when he was hit by a truck. The U.S. Court of Appeals, which eventually reduced the award to $1 million, concluded that the lack of leg protectors on the motorcycle resulted "in a defective condition making it unreasonably dangerous to the user."

How did the court decide that leg protectors, which most of us have never even heard of, are necessary to keep motorcycles from being unreasonably dangerous? You can be assured that the jurors and judges involved didn't get that idea on their own--they got it from attorneys.

But you'll never guess where the lawyers came up with their leg-protector strategy. Would you believe it came from a frustrated former British minister for roads and traffic?

We ran our first story on the leg-protector issue back in 1991. At that time, the British minister in question, Peter Bottomley, was campaigning to require leg protectors on motorcycles sold in England, based on research conducted in that country's Transport and Road Research Laboratory (TRRL). But elected officials there balked at the notion of requiring such a massive change in the design of new motorcycles based on research that was being disputed by other labs. So Bottomley hit upon another strategy to promote his pet safety project.

"Am I right," Bottomley asked in a statement to the British Parliament, "in saying that if a person involved in a motor bike crash in the United States wanted to make a product-liability claim against the manufacturer because it has not made leg protectors available, the information from the TRRL would be made available to the lawyers?"

"At some stage," Bottomley continued, "people will reach the conclusion that a competent engineer could look at the evidence and say that if any motorcycle manufacturer does not believe that serious leg injuries could be prevented by offering leg protectors, he will expose himself to product-liability risks that may have the same impact on motor cycles as the three-wheel all-terrain-vehicle product liability claims in the United States when they were taken off the market.

"I hope that message will get through to the corporate headquarters of every motor cycle manufacturer."

Those comments were made before Parliament, but they were clearly directed at another audience. Knowing that we live in the most litigious society on earth, Bottomley was pointing the way for U.S. lawyers. What his lobbying had failed to bring about in England, he hoped the court system would accomplish in America.

Two case histories--one before Bottomley's pronouncements to Parliament and one after--suggest that his transatlantic leg-protector strategy might be working.

Before Bottomley's statement, a suit had been filed in Mississippi on behalf of a motorcycle rider named Billy Toney. Toney purchased a used Kawasaki 750 and owned it less than 48 hours when he was involved in an accident with a truck. He suffered injuries that resulted in the amputation of his left leg.

Toney's lawyers sued Kawasaki, saying that the lack of leg protectors made the motorcycle defective and unreasonably dangerous. But a district court dismissed the case, and an appellate court agreed, stating:

"The ordinary consumer could see that this motorcycle had no leg protection. It was not an unreasonably dangerous product for a manufacturer to market, nor may Toney complain that the design was negligent. No duty rests upon a manufacturer or seller to warn a purchaser of a dangerous design which is obvious. If this were not true, a manufacturer could not design and sell a pocket knife, axe, planer or gun."

All of that seems reasonable, but shortly after Bottomley's message to Parliament, another case, Satcher vs. Honda, heralded the dawn of a new era in such suits.

James Satcher also lost his leg in a motorcycle accident in Mississippi. But his attorneys were able to bring in expert witnesses, including Harry Peterson, one of the principals in the British leg-protector research, and show a TRRL-produced videotape espousing the merits of leg protectors.

Same type of accident. Same judicial district. But when the decision came down, Satcher was awarded $1 million in actual damages and $2 million in punitive damages.

The case actually gets quite complex, because in the midst of the Satcher trial, Mississippi adopted a new product-liability standard that makes it possible to successfully sue a manufacturer for product liability even if the injured person knew the product could be dangerous. That new standard went into effect after a jury made the original award in the case, but it helped influence an appeals court to uphold the $1 million award for actual damages. The appeals panel also let stand the jury's finding that the Honda motorcycle Satcher was riding was "unreasonably dangerous" by design.

Peter Bottomley's strategy to export leg protectors to the United States through our court system was beginning to bear fruit. And American lawyers quickly got the message.

Since then, a whole mini-industry in leg-protector lawsuits has sprung up in this country. And at the center of it seems to be Richard Lester, founder of AIM (Aid to Injured Motorcyclists) and NCOM (National Coalition of Motorcyclists).

Through AIM, Lester administers a nationwide network of personal-injury lawyers who, he says, will represent injured motorcyclists and protect their rights in court. Just call his toll-free telephone number and he'll put you in touch with an attorney in your area.

The AIM network files a number of lawsuits against automobile drivers who are at fault in accidents involving motorcyclists. But it recently came to light that Lester's network also pursues leg-protector suits against motorcycle manufacturers. AIM is so committed to its leg-protector agenda, in fact, that the organization has developed an 11-page model lawsuit. All the attorney has to do is fill in the blanks with the injured motorcyclist's name and a description of the accident and voila, instant lawsuit.

Judging from information the AMA has received, Lester's network of attorneys has been filling in a lot of those blanks. Reports indicate that more than 20 leg-protector cases have been filed by AIM attorneys across the country, all of them claiming that the motorcycle manufacturer sold a "dangerous, unsafe and unsuitable" product that failed "to provide proper leg protection."

Twenty lawsuits over an alleged safety device that some researchers say causes more harm than good? Why not? After all, AIM'S attorneys are probably counting on the fact that if it comes to a court trial, they're going to be sitting on one side of the room with some poor guy who lost his leg in an accident. And sitting on the other side will be lawyers for a large corporation with lots of money. Under those circumstances, juries often find a way to give some of the big company's money to the injured individual.

Actually, unlike the Toney and Satcher cases in Mississippi, it doesn't even have to go that far. Using a potential jury trial as a threat, AIM'S attorneys have been willing to negotiate out-of-court settlements. The motorcycle company hands over a big check, the lawyers get their cut (often 33 percent or more). . .and you get to pay more for your next motorcycle.

Of course, to be successful, this scheme requires more than a willing network of lawyers. You also need a constant supply of injured motorcyclists. And that's where NCOM comes in.

NCOM was established by Lester under the guise of promoting unity within the motorcycle rights movement in this country. NCOM affiliated itself with many state motorcyclist rights organizations, providing them with money to support their efforts. In turn, the state organizations provided Lester with member mailing lists and ads in their newsletters to support AIM.

The organization also has had a highly visible presence at many motorcycle shows and events, handing out stickers and signing up new "members" on the spot. The idea is that when a motorcyclist who's signed up with AIM directly or through one of the NCOM-affiliated groups is injured in an accident, he or she will naturally turn to AIM for legal assistance.

A high percentage of the riders in the motorcycle rights community are Harley-Davidson enthusiasts, and since AIM draws its clientele from the ranks of those organizations, it probably comes as no surprise that Harley is the defendant in every one of the AIM leg-protector suits we've uncovered.

And this is where the cumulative effect of AIM'S actions show up. We have located copies of six of the lawsuits AIM attorneys have pursued against Harley, including one filed by Lester's own law office in Encino, California. The total damages sought in those six cases alone total more than $150 million.

Admittedly, those cases might result in lower out-of-court settlements. But it's likely that there are a lot more of them out there we haven't been able to locate. And consider that if just those six lawsuits resulted in the awards being sought by attorneys, the costs would amount to $2,000 for every motorcycle Harley sold in the U.S. last year. Ultimately, who do you figure will pay those costs? Got your checkbook handy?

Product-liability suits are hardly unique to the motorcycle industry, but there are some substantial differences that separate these suits from the leaking breast implant/exploding gas tank category. First, it is obvious to anyone getting on a motorcycle that there is a possibility of a leg injury in an accident. It's a risk we all accept. And second, no one really knows what the effect of leg protectors would be. If you eliminate a leg injury, but increase the severity of a head injury, have you really enhanced safety?

As you might imagine, many members of NCOM and the motorcyclist rights community haven't been pleased to discover that their membership lists have provided grist for an AIM lawsuit mill based on the concept that the motorcycles they ride are inherently dangerous. So, following recent revelations in this magazine and elsewhere, Lester issued a press release stating that the lawsuits we've uncovered were merely misinterpreted.

"In response to recent rumors and misinformation regarding AIM involvement in so-called 'leg protector lawsuits,'" the release stated, "the Law Offices of Richard M. Lester and affiliated AIM attorneys nationwide have not pursued legal action against any motorcycle manufacturer to require them to put leg protectors on their motorcycles."

Strictly speaking, that's correct. Why would Lester and his fellow AIM attorneys want the manufacturers to put leg protectors on their bikes? Wouldn't they rather have the manufacturers pay them and their clients big money for not putting leg protectors on their bikes? Consider the following passages from AIM'S form-letter lawsuit:

"In fact," it states, "defendant (the motorcycle manufacturer) knew that said motorcycle was inherently dangerous in that there existed a hostile leg environment, in lacking proper conspicuity and in failing to provide proper leg protection. . .Defendant knowingly placed the motorcycle in the stream of commerce without safety guards installed as original or standard equipment."

That standard AIM lawsuit also raises other ominous possibilities. It mentions lack of conspicuity as a defect on the part of the motorcycle manufacturer no less than eight times. Does that mean an end to smaller, entry-level motorcycles because they aren't conspicuous enough? How about mandatory warning lights and neon paint jobs?

For that matter, the model AIM lawsuit refers to manufacturers allowing riders "to be lured into a trap," and calls motorcycles "inherently dangerous." Let's see, where might that lead?

The real irony of this whole affair is that through his NCOM organization and its international equivalent, ICOM, Lester has claimed to promote the cause of motorcyclists' rights--including the right to be free of intrusive government regulation. In fact, ICOM professed to support a long-running campaign by the Federation of European Motorcyclists against leg-protector regulations.

But at the same time, AIM has been, knowingly or not, carrying out Peter Bottomley's plan to promote leg protectors through U.S. lawsuits.

The effects for all of us who ride motorcycles are predictable. Clearly, new-bike buyers will pick up the tab for out-of-court settlements and jury awards related to these leg-protector cases. And at some point it may just become cheaper and simpler for the manufacturers to install leg protectors than to face an ongoing series of lawsuits.

Then, AIM or some other group of attorneys can move on to a new issue, like increased motorcycle conspicuity (it's already there in the AIM model lawsuit), or motorcycle airbags (currently under study in Europe), or perhaps even head injuries caused by, you guessed it, leg protectors. Without a single piece of legislation being passed, the design of the motorcycle you buy could change dramatically.

And someday, when the cost of litigation and product-liability insurance gets high enough, you might see motorcycle companies start to abandon the American market.

In the meantime, your new motorcycle is just about ready. Want to be taken for a ride?

Form Follows Litigation | The Plane Facts


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