Court:
Higher Regional Court of Nuremberg, Judgment of 20 May 2014, 4 U 206/14, NJW-RR 2014, 1304-1305 (Mountain Bike)
Topics
Defective product
Warnings and instructions
Instruction defect
Failure to warn
Articles
ss. 1(1), 3(1)(b) Product Liability Act (Produkthaftungsgesetz - ProdHaftG)
Facts:
The plaintiff, who was born in 2000, sued for damages under the Product Liability Act. In 2012, the frame of his mountain bike, manufactured by the defendant, had broken when the front wheel touched down on the road again after riding on the rear wheel only. The plaintiff fell off the bike and sustained dental injuries.
At first instance, the district court dismissed the plaintiff's claim. On appeal, however, the plaintiff succeeded.
Legal question:
Is it a failure to warn if the producer of a mountain bike does not, in the user manual, point out its lacking suitability for a foreseeable use (here: stoppies, wheelies, slides, riding down stairs) that may result in a frame breakage?
Decision in a nutshell:
The Higher Regional Court of Nuremberg held that the producer of the mountain bike was strictly liable under ss. 1(1), 3(1)(b) of the Product Liability Act due to a failure to warn. The court considered that the mountain bike, produced by the defendant and sold to the plaintiff, was defective as it did not provide that degree of safety which could be legitimately expected, having regard to all the circumstances, in particular its use which may be reasonably expected.
Legitimate safety expectation
In accordance with the jurisdiction of the Federal Court of Justice, the Higher Regional Court stated that the legitimate safety expectation is that a product, under foreseeable and normal conditions of use following the instructions in the user manual, does not involve any significant dangers for life and limb of the users, thus that the product is designed in a manner that, following the instructions in the user manual, it can be used safely for normal use or foreseeable misuse.
General instruction requirements
According to the court, the producer of a product shall point out the dangers resulting from the use of the product, whereby this duty also applies to foreseeable and recognisable (by the producer) misuse within the scope of the general intended use. Particularly strict standards shall be applied where physical injury or damage to health are involved.
Lack of clarity in the instructions provided by the defendant
The defendant argued that it was commonly known and known to the plaintiff that the mountain bike sold to the plaintiff was unsuitable for stunts as performed by the plaintiff, at least not to that extent, and that the plaintiff would have had to purchase a dirt bike or bmx bike designed for that kind of use. However, the Higher Regional Court disagreed and took the view that there was no classification of the sold mountain bike in the user manual.
Page 4 of the user manual stated that failure to observe the user manual could lead to dangerous riding situations, falling, accidents and material damage and that the specific information for the purchased bike could be obtained from the user manual corresponding to the relevant type of bike. Page 7 of the user manual stated that all bikes of the producer were classified into categories and that from a technical point of view the individual bike should only be used on roads or paths which are authorised for the corresponding model according to the classification in the following table by the producer. The categories were "Tour" (paths, no jumps), "Cross" (paths, no jumps), "Marathon" (unprepared paths, no jumps), "All Mountain" (unprepared paths, jumps up to 0.5 m), "Enduro" (unprepared paths with high speed, jumps up to 1 m), "Freeride" (bike park), "Dirt/BMX" (bike park), "Kids" (paths, no jumps), "Traveller" (paths, no jumps), "Countryside" (paths, no jumps), "Speedlite" (roads, paths in exceptions when smooth and firm subsurface, no jumps), "Road Race" (roads, no jumps), "bikes of each category with racing bike or racing bike style tyres" (roads, no jumps). However, it could not be ascertained, neither in the user manual nor in other documents, into which category the bike purchased by the plaintiff was to be classified and which use the producer considered to be appropriate.
Hence, in the view of the court, it was not possible for the plaintiff, on such information, to determine the appropriate use himself and to adjust the use of the mountain bike (stunts, jumps, riding down stairs) and the field of application (forest rides with steep curves) to a (non-existing) categorisation.
Duty to warn with regard to foreseeable misuse of the product
The court ruled that the producer must advise the user of those hazards that arise, even in the case of faultless manufacture, from the use of the product. The duty to warn does not only apply with regard to the proper use of the product but also to foreseeable misuse. Even assuming that the plaintiff used the mountain bike much more extensively than he admitted, there would be still a foreseeable misuse. According to the court-appointed expert, the frame breakage was caused not by a unique event but by a large number of recurring events. The detected traces of wear indicated a foreseeable use of an (unclassified) mountain bike.
Link of causation
The court took the view that the frame breakage and the following accident were based on the failure to warn. If the plaintiff or his father had known that the purchased mountain bike was not suitable to perform jumps, stunts, stair or forest rides, the mountain bike would not have been purchased due to the danger of a frame breakage.
Comments:
Whilst the district court had denied any compensation, the Higher Regional Court of Nuremberg appeared to be rather generous and granted damages for material and immaterial losses. With reference to a recent decision of the Federal Court of Justice (dated 5 February 2013, VI ZR 1/12), the Higher Regional Court came to the conclusion that in the event the user of a mountain bike fell due to a frame breakage, the producer of the mountain bike would be liable under the Product Liability Act for material and immaterial losses if the producer had failed to point out in the user manual that the bike is not suitable for being used for stunts and riding actions which are usually possible when riding a mountain bike and foreseeable for the producer.
The principles on instruction duties set down by the Federal Court of Justice
In the decision mentioned above, the Federal Court of Justice had taken the view that it could be expected by the users of a product that the product was designed in a manner that, following the instructions in the user manual, it could be used safely for normal use or foreseeable misuse. According to other Federal Court of Justice decisions, not mentioned by the Higher Regional Court of Nuremberg, the producer of a product is under a duty to warn the users of the product of those dangers emanating from normal use or foreseeable misuse and not being part of the general risk knowledge of the relevant user group. The court's decision appears to fit in these principles developed by the Federal Court of Justice, applying them generously to the individual case. Thus, the court took the view that actions like stoppies, wheelies, slides and riding down stairs formed part of a foreseeable misuse, which the producer of a mountain bike had to anticipate in the accompanying user manual, and that its lack of suitability for such actions was not part of the general risk knowledge when using an unclassified mountain bike.
'American conditions' in German product liability law?
In bicycle trade publications, not surprisingly, the decision of the Higher Regional Court of Nuremberg, met with criticism. Dirk Zedler, a technical expert for bicycles commented that with this judgment Germany was on its way to 'US-American conditions' in product liability law. It has been feared that, following this judgment, producers of bicycles might face a flood of lawsuits. According to Zedler, the judgment means for the bicycle sector that the respective user manual must state in clear terms for which uses the bicycle is suitable and for which it is not. Zedler said: "Everyone has laughed at the story of the cat in the microwave oven. Right now we are at a point where product liability in the bicycle sector is on exactly this way." He concluded that, in the future, customers had to be informed as detailed as possible assuming that they had neither experience nor that they could properly estimate their capabilities. Zedler feared: "The consequences for the manufacturers are significant. In the mentioned case, it would be necessary to describe bicycle use and limitations of use to the tiniest details to prevent the formation of the smallest information gap. This causes considerable duties for the producers - from promotion to delivery."
Stunts and driving down stairs as foreseeable use of a mountain bike?
And yes, at first sight, the judgment delivered by the Higher Regional Court may well be criticised as a decision absolving customers of their individual responsibility and their capacity of risk control when using a mountain bike in a manner which is going beyond its normal use, and imposing on the producer a duty to anticipate any potential kind of use and to point out, in the user manual, its suitability or lacking suitability for such use, may it be read or not. However, according to the Federal Court of Justice, the duties of a producer to instruct the user do not only refer to normal use but, as mentioned, also to foreseeable misuse. And actions like those performed by the plaintiff, namely stunts like stoppies, wheelies and slides or driving down stairs, certainly cannot be described as normal use, but appear nevertheless not to be outside the scope of the foreseeable use of a mountain bike, especially among youths. Therefore, pursuant to the case-law of the Federal Court of Justice, warnings and instructions specifying the appropriate use of the purchased mountain bike were required, should the bicycle not be suitable for such foreseeable use (misuse).
Instructions in the user manual useless due to lack of classification
And indeed, there were such warnings and instructions in the user manual issued by the defendant which specified the appropriate use of the produced bicycles according to their type and warned that failure to comply with the user manual could result in accidents. For the plaintiff, however, the instructions in the user manual appeared to be useless because the mountain bike he had purchased was not classified into one of the mentioned categories. Hence, due to this lack of clarity, it could not be ascertained by the plaintiff (and not even by the court-appointed expert!) which use of the mountain bike purchased by the plaintiff the producer considered to be appropriate. Thus, in terms of the instruction requirements set down by the Federal Court of Justice, the decision appears to be reasonably consistent.
Consequences
With regard to the decision of the Higher Regional Court of Nuremberg, the producer of a bicycle may be well advised, in order to reduce liability risks, to revise his or her user manuals in a manner that the user of a bike is able to ascertain which use the bicycle is suitable for and not. Determining the intended use of a product in the user manual, however, may be considered as a 'double-edged sword'. It may reduce product liability if the use of the product causing damage is so far beyond the determined scope of use that it cannot be deemed as foreseeable misuse. On the other hand, however, it may be a connecting factor for product liability in the first place as it describes the intended use which the producer assumes liability for. Notwithstanding, the user manual is only one of a number of factors recognised by the courts when considering the foreseeable use of a product.
References
- Higher Regional Court of Naumburg, judgment of 21 November 2013, 1 U 38/12, BeckRS 2014, 05588.
- Federal Court of Justice, judgment of 16 June 2009, VI ZR 107/08, NJW 2009, 2952.
- Federal Court of Justice, judgment of 17 March 2009, VI ZR 176/08, NJW 2009, 1669.
- Federal Court of Justice, judgment of 12 November 1991, VI ZR 7/91, BGHZ 116, 60 = NJW 1992, 560.
- Federal Court of Justice, judgment of 24 January 1989, VI ZR 112/88, BGHZ 106, 273 = NJW 1989, 1542.
- Federal Court of Justice, judgment of 25 October 1988, VI ZR 344/87, BGHZ 105, 346 = NJW 1989, 707.
- Wende, Herstellerhaftung: Verwendungsbestimmungen in der Bedienungsanlei-tung (18 November 2014), http://www.noerr.com/~/media/Files/de/Generated¬
- Downloads/News/2014/11/Verwendungsbestimmung.pdf?v=18112014112528 (6 December 2014).
- Zedler, OLG-Urteil: Drohen uns US-Verhältnisse?, SAZbike 21/2014.
- Zedler, Urteil zur Festlegung von Fahrradkategorien hat Folgen für Hersteller, RadMarkt 11/2014.
