Harris v. City Cycle Sales, Inc.

112 F.4th 1272

Jeremy Leon HARRIS, Plaintiff-Appellee, v. CITY CYCLE SALES, INC., Defendant-Appellant.

No. 23-3116

United States Court of Appeals, Tenth Circuit

FILED August 20, 2024

Appeal from the United States District Court for the District of Kansas (D.C. No. 2:21-CV-02264-EFM)

Sarah Lynn Baltzell, Zach Chaffee-McClure, and Taylor B. Markway, Shook, Hardy & Bacon LLP, Kansas City, Missouri, and Cynthia J. Sheppeard, Goodell, Stratton, Edmonds & Palmer, LLP, Topeka, Kansas, for Defendant-Appellant.

Jeffrey D. Rowe of Dickerson Oxton, LLC, Kansas City, Missouri, and Daniel A. Kopp, Rouse Frets White Goss Gentile Rhodes, P.C., for Plaintiff-Appellee.

Before HARTZ, PHILLIPS, and CARSON, Circuit Judges.

HARTZ, Circuit Judge.

This appeal raises interesting questions regarding the law-of-the-case doctrine. Jeremy Harris originally filed suit against City Cycle Sales, Inc. (CCS) in Kansas state court on claims related to its failure to repair the Anti-Lock Brake System (ABS) on his motorcycle, which he was riding when he was seriously injured after the ABS malfunctioned. The complaint alleged negligence and a violation of the Kansas Consumer Protection Act (KCPA), K.S.A. §§ 50-623 et. seq. But Harris abandoned the KCPA claim before the case was submitted to the jury, and the trial court's judgment, which adjudicated all his claims in a final decision, disposed of the KCPA claim with prejudice. Harris never invoked that statute on his successful appeal of an adverse judgment on the negligence claim, so the KCPA portion of the trial-court judgment was preserved. On remand to the state trial court after appeal, Harris and CCS stipulated to dismissal of the case without prejudice. Harris then sued CCS in federal district court, presenting claims of negligence and violation of the KCPA. He was awarded judgment on both causes of action.

We reverse the judgment on the KCPA claim. Harris was barred from raising the statutory claim in federal court after his abandonment of the claim in the state trial and appellate courts. Abandonment in the trial court resulted in that court's final decision against him on the claim; and his failure to challenge that decision on appeal barred him, under Kansas law-of-the-case doctrine, from trying to renew the claim after remand by the state appellate court. The without-prejudice dismissal of his state-law claims in state court could not resurrect the KCPA claim. And the federal district court was required to give full faith and credit to the Kansas proceedings, including the effect of those proceedings on his KCPA claim under Kansas law-of-the-case doctrine, when Harris refiled his claims in federal court.

We also consider CCS's challenge to the federal-court judgment against it on the negligence claim. It contends that Harris failed to present sufficient evidence that his injuries were caused by the negligence of CCS. We reject the contention and affirm the negligence judgment.

I. BACKGROUND

A. Factual Background

We summarize the evidence in the light most favorable to the verdict. See Rock v. McCoy, 763 F.2d 394, 396 (10th Cir. 1985). On February 17, 2014, Harris purchased a new 2014 Harley-Davidson VRSCDX "V-Rod" motorcycle. The motorcycle was equipped with an ABS, included as standard equipment on 2014 Harley-Davidson V-Rod motorcycles. An inexperienced motorcyclist, Harris practiced driving the vehicle in a parking lot near his home, as he did not yet feel comfortable driving on a public road. During this first practice session Harris noticed that although the brakes worked when applied, the ABS light was constantly blinking and continued doing so for the rest of the session. Harris thought he had read in the V-Rod manual that a blinking light indicated that the ABS was not working, but after the ABS activated during the session, he assumed that he had misread the manual and he did not reread it.

Soon thereafter, Harris drove the motorcycle to Texas to register it, a 1,000-mile round trip. The ABS light blinked constantly as Harris drove to Texas and during most of the return trip. But during the last 125 miles of the return trip, the ABS light's behavior changed: "It would sometimes blink; it would sometimes come on solid; and then sometimes it would be off. And this tempo seemed to happen based on road conditions or basically, like, if you hit a bump or something, it would change between those three modes of operation." Aplt. App., Vol. VII at 42. He concluded that the ABS was malfunctioning.

Concerned about the ABS, Harris took the motorcycle to CCS's service department on April 14 for scheduled 1,000-mile maintenance and service. He reported to Dean Mizes, a CCS service manager and technician, the strange behavior of the ABS light during his driving in the parking lot and on his round trip to Texas. He was not asked any follow-up questions.

The next day, CCS called Harris and told him, "Your bike is finished. We've done your thousand-mile service, and it's ready to be picked up." Id. at 45. When Harris arrived at the business, a technician explained the services rendered without commenting on the ABS issues and gave him the motorcycle's keys. Harris then inquired about the ABS issues and was told, "We checked it, we couldn't find any diagnostic trouble codes. We don't know why the light's coming on and off, but there's nothing wrong with the system. It's safe to ride." Id. at 47. The repair order handed Harris did say "ABS light was on," id. at 50, but did not indicate that CCS had performed a road test or otherwise assessed how the motorcycle actually performed.

Mizes testified at trial about how he checked out the ABS on Harris's motorcycle: First, he checked for diagnostic trouble codes and found none. Then he test rode the vehicle, but he saw no ABS light, and the ABS system worked. Although the 2014 V-Rod Electrical Diagnostic Manual directs the technician to then check for intermittent problems by performing a "wiggle" test, Mizes testified that he did not open a manual while working on the motorcycle and did not perform that test, nor did he contact Harley-Davidson technical support for assistance. After CCS's servicing, the ABS light continued to flash sporadically.

On May 20 Harris was driving the motorcycle between 20 and 25 miles per hour on his military base (he was a sergeant first-class) while wearing protective safety gear. As he neared an intersection, the stoplight turned yellow, and he began applying the brakes. The motorcycle started slowing down, but then the ABS light turned on, this time fully solid and not flashing. When he heard a tire screech, he released the front brake and kept the back brake on, but the motorcycle came down, pinned his left leg to the ground, and skidded along the pavement. As a result of the accident, Harris suffered severe injuries to his left knee, ankle, and foot and was medically discharged from the Army.

After the accident Harris took his motorcycle to Historic Harley-Davidson for repairs. Zachary Reeves, an employee at Historic, testified about the services rendered: He assessed the damage to the motorcycle, taking note of all damaged parts. After the damages were repaired, a test rider rode the motorcycle and noted that the ABS warning light came on, as Harris had said it would. Reeves then found some diagnostic trouble codes, and, after consulting the electrical diagnostic manual for the V-Rod and conferring with Harley-Davidson technical support, determined that a new ABS module was required to solve the problem and ordered one. After installing the new ABS module, Reeves test rode the motorcycle and checked for and found more diagnostic trouble codes. Despite replacement of the ABS module, the ABS light was still on. Technical support recommended he check for a damaged wire in the wiring harness, where Reeves found a pinched wire. After the wiring harness was replaced, no problems were detected in a later test ride or in a check for diagnostic trouble codes. Only after the pinched wire was repaired did the ABS light go off. Once Historic repaired the wire, there were no further issues with the ABS or ABS light, and the motorcycle functioned properly. Reeves testified that intermittent electrical problems are the most concerning type of safety issue that repair shops deal with.

Wayne McCracken, an accident reconstructionist testifying at trial as an expert witness for Harris, said that ABS on motorcycles is a very important safety feature intended to prevent wheel lockup, keep the motorcycle upright, and prevent crashes. After investigating the physical evidence— which included tire marks, damage to the vehicle, and skid marks and gouge marks on the roadway—he concluded that the motorcycle's rear wheel locked up, causing Harris to lose control and crash. McCracken further testified that the rear wheel locked up because a pinched wire caused the ABS to malfunction. Also, based on a review of Harris's testimony and the repair orders from CCS and Historic, McCracken concluded that the same intermittent electrical problem with the ABS existed from the time Harris purchased the motorcycle until the crash. He said that the pinched wire caused both intermittent problems with the ABS light and the crash.

B. Procedural History

Harris filed suit against CCS on May 19, 2016, in Kansas state district court, bringing claims for negligence and violations of the KCPA arising from CCS's service of his motorcycle as well as representations to him regarding that service. The KCPA claims were pleaded in both Harris's initial and amended complaints, and were included in his submission to the trial court in preparation for the pretrial conference. But the KCPA claims were not mentioned in Harris's proposed jury instructions, the jury instructions given by the court, or the verdict forms. According to Harris's brief on appeal, he "ultimately made a strategic decision not to submit his KCPA claims to the state court jury following the...