WEST VIRGINIA RECORD

CLARKSBURG – Kawasaki Motors says it should not be blamed for a man's injuries after the man says a misplaced parking brake caused his vehicle to roll on top of him.

Kawasaki found itself named as a defendant in a Preston Circuit Court lawsuit filed by Paul and Mary Louise Peaslee.

In their complaint, the Peaslees claim Paul Peaslee drove a 2007 Kawasaki Mule on Aug. 22 when a design defect – a parking brake located on the driver's side of the vehicle -- caused him serious bodily injuries.

"The Plaintiff Paul Peaslee attempted to exit the vehicle and unknowingly released the parking brake by hitting the release button with his leg," the suit states. "The vehicle then drifted swiftly downhill, dragging the Plaintiff Paul Peaslee along, and upset on top of him, causing him grievous bodily injury."

Because of the incident, Paul Peaslee incurred medical costs; experienced pain, suffering and a loss of his ability to enjoy life; and lost income and his earning capacity, the complaint says.

The Peaslees blame Kawasaki for causing Paul Peaslee's injuries, saying the company should have warned them that the parking brake could unknowingly be tripped when the driver exits the vehicle.
But Kawasaki fought back in its motion to dismiss, saying the Peaslees do not provide the court with any facts to support their allegation that the Mule was defectively designed.

"Although the complaint purports to assert claims for design defect, failure to warn, breach of express and implied warranties, and even violation of UCC, the eight-paragraph Complaint consists of nothing more than conclusory buzz words and boilerplate claims that the vehicle was defective and that KMC failed to warn of dangers associated with their vehicle," the motion to dismiss states.

"Nowhere do the Plaintiffs even attempt to plead the facts necessary to establish their claims, and it is the absence of these facts that is the basis for Defendant's Motion to Dismiss. When considered collectively, none of the claims as plead can withstand the scrutiny imposed by the United States Supreme Court."

Not willing to concede to Kawasaki's arguments, the Peaslees contend their complaint does, in fact, contain enough facts to withstand court scrutiny. The couple claims Kawasaki does not specify which additional facts they need to supply in their complaint.

"Anyone reading the complaint would immediately know what is being alleged and would understand the cause of action," the Peaslees' attorney wrote in their response to the motion to dismiss. "No other facts are available or necessary for sufficient pleading."

Kawasaki stood its ground in its further support of motion to dismiss, maintaining the Peaslees need to provide additional facts to support their allegations.

"Although Plaintiffs are asserting that the subject vehicle is defective in design due to placement of the hand brake, there is no further factual allegation that would support a failure to warn claim – there is no specific averment as to what deficiency may have existed in the warnings, or what alternative warning should have been provided," Kawasaki states. "Dismissal is particularly warranted under circumstances where, as here, Plaintiffs concede that there are 'no other facts available.'"

In their complaint, the Peaslees seek an unspecified judgment, plus pre- and post-judgment interest, costs, attorney's fees and other relief the court deems just.

Kawasaki removed the Peaslees' complaint to U.S. District Court because the Peaslees – residents of Preston County – live in a different state than the California-based Kawasaki. In addition, the Peaslees seek more than $75,000, according to the complaint.

C. Paul Estep and Steven L. Shaffer of Estep and Shaffer in Kingwood will be representing the Peaslees.

Clem C. Trischler and Emily J. Hicks of Pietragallo, Gordon, Alfano, Bosick and Raspanti in Pittsburgh will be representing Kawasaki.

The case has been assigned to U.S. District Court Judge Irene M. Keeley.

U.S. District Court case number: 1:10-cv-105