Lomangino v. Polaris Indus.

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FRED M. LOMANGINO, et al., Plaintiffs, v. POLARIS INDUSTRIES INC., et al., Defendants.

Civil Action No. 2:21-cv-00501

United States District Court, S.D. West Virginia, Charleston Division

May 11, 2023

MEMORANDUM OPINION AND ORDER

IRENE C. BERGER UNITED STATES DISTRICT JUDGE SOUTHERN DISTRICT OF WEST VIRGINIA

The Court has reviewed Polaris' Motion for Partial Summary Judgment on Plaintiffs' Breach of Implied Warranty of Merchantability and Breach of Implied Warranty of Fitness for a Particular Purpose (Document 88), Polaris' Memorandum of Law in Support of Its Motion for Partial Summary Judgment on Plaintiffs' Breach of Implied Warranty of Merchantability and Breach of Implied Warranty of Fitness for a Particular Purpose (Document 89), the Plaintiffs' Response in Opposition to Polaris' Motion for Partial Summary Judgment on Plaintiffs' Claims for Breach of Implied Warranty of Merchantability and Breach of Implied Warranty of Fitness for a Particular Purpose (Document 106) and Polaris' Reply in Support of Its Motion for Partial Summary Judgment on Plaintiffs' Breach of Implied Warranties Claims (Document 114), as well as all exhibits.

The Court has also reviewed Polaris' Motion for Partial Summary Judgment on Plaintiffs' Punitive Damages Claim (Document 90), Polaris' Memorandum of Law in Support of Its Motion for Partial Summary Judgment on Plaintiffs' Punitive Damages Claim (Document 91), the Plaintiffs' Response in Opposition to Polaris' Motion for Partial Summary Judgment on Plaintiffs' Punitive Damages Claim (Document 103), and Polaris' Reply in Support of Its Motion for Partial Summary Judgment on Plaintiffs' Punitive Damages Claim (Document 115), as well as all exhibits.

FACTS

The Plaintiffs, Fred M. Lomangino, individually and as the parent and legal guardian of F.L., and Charles Lomangino (collectively, the Lomanginos), initiated this action with a Complaint (Document^[1]) filed on September 7, 2021. The Defendants are Polaris Industries Inc. and Polaris Inc. (collectively, Polaris). The claims relate to an October 9 2020 accident in which the Plaintiffs suffered injuries when they crashed in their 2018 Polaris RZR UTV (utility terrain vehicle). The Complaint contains the following causes of action: Count One - Strict Liability as to Polaris Industries; Count Two - Strict Liability as to Polaris, Inc Count Three - Negligence as to Polaris Industries; Count Four - Negligence as to Defendant Polaris, Inc.; Count Five - Breach of Warranties as to Defendant Polaris Industries; and Count Six - Breach of Warranties as to Defendant Polaris Inc.1They seek relief including damages for medical bills, physical injuries, emotional distress, loss of income, other compensatory damages, punitive and exemplary damages, civil penalties, property damage, attorney's fees and costs, and pre-and post-judgment interest.

Fred Lomangino purchased a used 2018 Polaris RZR with approximately 20 hours of driving time for $18,000, adding to an extensive collection of recreational vehicles. He and his family members were experienced riders and took frequent trips to ride on trails. In October 2020, the Plaintiffs, along with a group of other friends and family members, traveled from their homes in New York and New Jersey to ride on the Hatfield-McCoy trail system. The Lomanginos had taken similar trips in the past and had some familiarity with the trail system. On October 9, 2020, they began riding at around 11:30 a.m. or 12:00 p.m. Fred was operating the RZR, Charles was in the front seat, and F.L. was in the rear seat. They were all wearing helmets. The weather was clear. Fred planned to stay on the relatively easy trails marked green and blue.

At around 2:00 p.m., they were travelling on a wide trail, in the middle of their party, with vehicles both in front and behind the RZR. Fred recalled that it was a bit dusty, and they were on a slight downgrade when they encountered a shelf or a drop in the trail. “[T]he two machines in front of me went right over it no problem. The girls behind me came right over it no problem.” (F. Lomangino Depo. at 55::20-22) (Document 88-1.) He estimated that he was driving about 20 miles per hour at the time, and he may have tapped the brakes as he approached the drop. F.L. confirmed that they were cruising at a fairly constant, low speed. However, after they went over the drop, the RZR hit the ground on the trail, which had gouge marks 15.8 yards from the drop, and summersaulted end over end before finally landing on its wheels. Charles was on the ground outside the vehicle, unconscious, with severe injuries. F.L. remained in the backseat with significant injuries. Fred remained in his seat with no significant injuries. After checking on his son and determining his injuries were not life-threatening, he helped tend to Charles while awaiting EMS. He also noted that the A-arm or control arm on the RZR was bent and damaged.

An investigating officer, Ping-Heng Lee, responded to the accident scene and completed a crash report. (Hatfield McCoy Trails ATV Crash Report) (Document 88-3.) The report notes that it was a clear, dry day, and the crash occurred on a straight and graded section of the dirt trail.

Officer Lee checked a box indicating that a failure to maintain control contributed to the accident but did not indicate that the driver exceeded a safe speed. In the narrative section of the report, Officer Lee indicated that “[t]he accident was likely caused from the combination of the following factors: dry conditions obscuring [Fred Lomangino's] view of the Trail, [Fred Lomangino's lack of experience riding the Hatfield-McCoy Bearwallow Trail, and [his] use of brakes while coming down the hill.” (Crash Report at 5.) The report notes that Charles was not wearing a seatbelt, which caused him to be ejected from the vehicle, as well as referencing the possibility that he intentionally jumped from the vehicle during the crash due to his experience riding bikes and ATVs.^[2]

The Plaintiffs' expert, Dr. Marc Zupan, conducted an analysis of the RZR following the accident. (Zupan Rep.) (Document 88-6.) He reached the following conclusions:

1. The failed subject lower control arm suffered from manufacturing flaws resulting in a product that was not reasonably safe for the intended and anticipated use.

2. When benchmarked to the industry, the subject vehicle's lower control arm is substandard; the subject lower control arm is not equivalent to other available 2018 lower control arms and the materials selection in solid mechanics design embodiment is not reasonably safe for the intended and anticipated use.

3. Polaris' failure to adopt other 2018 available lower control arm best practices and state-of-the-art designs, including their own designs, resulted in a lower control arm on the subject vehicle that was not reasonably safe for the intended and anticipated use.

4. The manufacturing flaws in the subject lower control arm and deficient design resulted in diminished mechanics of materials performance and are the proximate cause of the subject lower control arm failure and the crash.

5. The subject lower control arm failed without warning in a single event.

6. The record, the data collected from the subject vehicle, and analytical crash site analysis determined that at the time of the crash, the subject vehicle was being operated under anticipated and expected conditions for the subject vehicle.

7. The totality of the investigation, including but not limited, to the observations on the physical evidence, materials testing, inspections, and analysis of the subject, as well as exemplar lower control arms, benchmarking, and review of the scientific literature, conclude that the material selection, manufacturing, and solid mechanics embodiment of that the lower control arm utilized on the subject vehicle is not reasonably safe for the intended and anticipated use on the subject vehicle.

8. The totality of the investigation concludes that if any of the other lower control arms reviewed and analyzed as part of this investigation, other than the subject lower control arm design, were utilized on the subject vehicle, the crash would not have happened.

9. The subject Polaris lower control arm failed from normal anticipated and foreseeable use. Solid mechanics and materials analysis, design-led materials selection review, concludes that the subject lower control arm solid mechanics embodiment and materials selection is of substandard merits; the consequence of the Polaris inferior design, lack of performance analysis, lack of component testing, lack of design evaluation, and material manufacturing is that the subject lower control arm is unsafe for its intended use and application.

(Zupan Rep. at 2-3.) Dr. Zupan identified manufacturing defects in the welds that impacted the performance of the lower A-arm. In addition to the welds, he noted a failure in a tube on the control arm that “occurred when the tube material strength was overcome.” (Zupan Rep. at 30.) He further found that the design was not reasonably safe for the intended and anticipated use and was inferior to other lower control arms in use in 2018, including other designs used by Polaris.

The Defendants' materials expert, Dr. Bastiaan Cornelissen also performed testing on the RZR. He concluded that the tensile properties of the lower control arms exceeded Polaris's minimum requirements. He found no significant abnormalities or deficiencies in the welds. Dr. Cornelissen opined that “Both the macroscopic and microscopic characteristics of the fractures in the subject driver's side lower control arm are characteristic of a massive mechanical overload condition. The presence of four separate fracture locations in a single welded steel component points...