June 7, 2016, PLLR E-Newsletter | The American Association For Justice

June 7, 2016, PLLR E-Newsletter

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ATV steering malfunctions, throwing and injuring rider

photo of atv

The plaintiff sued the Chinese manufacturer of the vehicle and several U.S.-based companies that imported and sold it, alleging the ATV was defective and unreasonably dangerous. Bynum v. Zhejiang Peace Indus. & Trade Co., Ltd.
 

Candace Bynum’s mother purchased a small, 4-wheel ATV as a gift for her grandson. The ATV, an “Apache 110 Utility Youth w/Reverse – Big Tire,” was manufactured by Zhejiang Peace Industry & Trade Co., a Chinese company. The ATV arrived mostly assembled, and Bynum’s father completed the assembly according to the instructions by installing the wheels, handlebars, and cargo racks.

About three weeks after the ATV arrived, Bynum, 22, noticed that the engine appeared to be dying, and she decided to take the vehicle for a ride to see if she could figure out the problem. While she was riding the ATV on a flat dirt path, the steering malfunctioned, and she lost control of the vehicle. She was thrown from the ATV and suffered immediate pain in her right leg.

Bynum was taken to the hospital, where doctors diagnosed a fracture to the right tibial plateau, placed her in a knee immobilizer, and instructed her to follow up with an orthopedic surgeon. The following year, she underwent open reduction internal fixation and repair of an avulsion to the anterior cruciate ligament. Several months later, she was diagnosed with post-traumatic arthritis in her knee. She was hospitalized twice more over the next five months for manipulation of the knee and arthroscopic release of adhesions and capsules. During the second hospitalization, the internal hardware was also removed.

Continuing pain and problems with the knee prompted Bynum to seek a second opinion. A different doctor diagnosed a malunion of the fracture and continuing joint stiffness and contractures. Bynum underwent a second open reduction internal fixation procedure. About six weeks later, she underwent an open debridement procedure to release contractures causing pain and stiffness in the knee. After each of the surgeries, she underwent extensive, painful rehabilitation.

Despite the surgeries and physical therapy, Bynum has continuing pain and a greatly reduced range of motion in her knee. She walks with a limp and has difficulty standing for prolonged periods or walking distances. Her altered gait has also caused her to suffer low-back pain. She incurred about $124,800 in past medical expenses, and she will require future surgery to remove some hardware.

A clerk in a sporting goods store, she missed some time from work and incurred about $5,900 in lost earnings.

Bynum sued Zhejiang, the Chinese manufacturer, and several U.S.-based companies, including Peace Power Sports, Inc., which imported and sold the ATV. The plaintiff alleged that the ATV was defective and unreasonably dangerous under the Mississippi Products Liability Act. She was prepared to show that the vehicle’s right front tie-rod assembly and related components were defective, producing excessive play, or slack, in the steering. The lawsuit also alleged breach of warranty and negligence theories.

All of the defendants other than Zhejiang and Peace Power Sports were dismissed based on Mississippi’s “innocent seller” statute, which immunizes entities within the chain of distribution that did not alter the product. Peace Power Sports settled with the plaintiffs for $15,000.

Zhejiang failed to answer or appear, and the court granted a default judgment against it.

Considering damages, the court determined that in addition to medical expenses and lost earnings totaling about $130,700, the plaintiff was entitled to noneconomic damages of $1 million—the maximum amount allowable under Mississippi law. The court subsequently entered a default judgment of just under $1.12 million—the amount of the judgment minus the prior settlement. The plaintiff is currently attempting to collect the judgment.

Citation: Bynum v. Zhejiang Peace Indus. & Trade Co., Ltd., No. 3:12-cv-00599 (S.D. Miss. Mar. 21, 2016).

Plaintiff counsel: Robert G. Germany, Jackson, Miss.; and Eugene C. Tullos, Raleigh, Miss.