Rozbicki v. Max Cycles, LLC

Filing 164

ORDER denying 95 & 96 Motions for Summary Judgment, granting 111 Motion to Amend/Correct, denying as moot 112 & 113 Motions to Strike, granting 134 & 135 Motion for Leave to File. Please see attached Ruling and Order. Signed by Judge Robert N. Chatigny on 9/27/17. (Jones, P.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ZBIGNIEW ROZBICKI,
Plaintiff,
v.
MAX CYCLES CT, LLC, et al.,
Defendants.

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Case No. 3:14-cv-1422 (RNC)

RULING AND ORDER
Plaintiff Zbigniew Rozbicki brings this action against Max
Cycles CT, LLC (“Max Cycles CT”) and BMW of North America, LLC
(“BMW”) seeking damages for injuries sustained in a motorcycle
accident.

The complaint alleges that the accident was caused by

the failure of the motorcycle’s anti-lock brake system (“ABS”),
misrepresentations regarding the safety of the motorcycle and
inadequate dashboard warnings of the ABS failure.1

Max Cycles CT

has moved for summary judgment as to Count II, arguing that it is
incorrectly named as a defendant.

In response, plaintiff has

moved for leave to amend to substitute the proper defendant.

In

addition, both defendants have moved for summary judgment
contending that plaintiff cannot prove his claims at trial.

For

the reasons that follow, plaintiff’s motion for leave to amend is
granted and the motions for summary judgment are denied.

1

Plaintiff asserts five claims in his amended complaint. Counts I and
II are against Max Cycles CT for negligence and strict liability,
respectively. The remaining counts are against BMW for strict
liability, negligence and breach of warranty.

1

I.

Background
On August 26, 2012, plaintiff was operating his 2007 BMW

K1200Rsport motorcycle in Ancram, New York.

According to his

account, he was operating the motorcycle on Country Route 3 when
he slowed down to make a turn onto Roche Drive.

He was leaning

slightly left and traveling approximately thirty miles per hour.
When he applied the front brake with normal, gradual pressure,
the motorcycle’s front wheel locked and the motorcycle went down.
At the time of the accident, Rozbicki had forty-five years of
experience riding motorcycles with and without ABS.
Approximately one month before the accident, in mid-June
2012, Rozbicki noticed that the “BRAKE FAILURE” light on the
motorcycle dashboard was illuminated.

He brought the motorcycle

to a friend, Rick Bell, and asked him to check the brakes.

Per

Bell’s instructions, Rozbicki made an appointment at Max Cycles
CT for June 29, 2012, and took his motorcycle there for brake
repairs that day.

At the conclusion of the appointment, Rozbicki

received a receipt for work performed that stated: “CODES STORED
FOR NO POWER TO ABS PUMP. FAULT PRESENT.”
II.

Max Cycles CT’s Motion for Summary Judgment on Count II and
Plaintiff’s Motion for Leave to Amend
In Count II, plaintiff alleges that Max Cycles CT is

strictly liable as the seller of the motorcycle.

To recover

under strict liability, the plaintiff must show that the
defendant was a product seller.

Metro. Prop. & Cas. Ins. Co. v.
2

Deere & Co., 302 Conn. 123, 131, 25 A.3d 571, 579 (2011).

Max

Cycles CT moves for summary judgment on the ground that it did
not sell the motorcycle.

ECF No. 96.

In response, plaintiff

moves for leave to amend to substitute the proper defendant, Max
Stratton d/b/a Max BMW Motorcycles (“Stratton”).

ECF No. 111.2

Max Cycles CT argues that the statute of limitations has passed
and an amended complaint adding a new defendant to Count II
should not be allowed to relate back to the time of the original
filing.
An amended complaint substituting a party as a defendant can
relate back if the party received notice of the lawsuit such that
it will not be prejudiced in defending on the merits and knew or
should have known the action would have been brought against it
but for a mistake.

Fed. R. Civ. P. 15(c)(1).

The rule “asks

what the prospective defendant knew or should have known . . .
not what the plaintiff knew or should have known at the time of
filing [the] original complaint.”

Krupski v. Costa Crociere S.

p. A., 560 U.S. 538, 548 (2010).
I conclude that the proposed amended complaint naming
Stratton as the defendant on Count II satisfies the requirements
of Rule 15(c)(1).

Based on the parties’ submissions, it is

reasonable to infer that Stratton had timely notice of this

2

The parties appear to agree that plaintiff purchased the
motorcycle from a Max BMW Motorcycles dealership in Brunswick,
New York, owned by Max Stratton d/b/a Max BMW Motorcycles.
3

lawsuit.

There are several Max BMW locations and it appears that

Stratton owns and controls all of them.

It would be surprising

if Stratton did not receive notice of the lawsuit soon after it
was filed.

There is no suggestion that Stratton will be

prejudiced in defending on the merits if the amended pleading is
allowed.

And it is reasonable to think Stratton knew or should

have known the plaintiff made a mistake in naming Max Cycles CT
as the seller.

Therefore, plaintiff’s motion for leave to amend

is granted and Max Cycles CT’s motion for summary judgment as to
Count II is denied as moot.
III. Defendants’ Joint Motion for Summary Judgment
Defendants move for summary judgment contending that
plaintiff cannot prove any of his claims at trial.

They contend

that whether the ABS failed and the ABS warnings were inadequate
are matters requiring expert testimony and that plaintiff’s
expert witnesses should not be permitted to testify.

In the

absence of competent and reliable expert testimony on accident
reconstruction and warning systems, they argue, plaintiff’s
claims must fail as a matter of law.3

In addition, they contend

that plaintiff cannot meet his burden of proving that the
warnings he claims should have been given would have altered his
3

Defendants also move to strike, in part, affidavits included in
plaintiff’s opposition to the motion for summary judgment. “On a
summary judgment motion, the district court properly considers only
evidence that would be admissible at trial.” Nora Beverages, Inc. v.
Perrier Group of America, Inc., 164 F.3d 736, 746 (2d Cir. 1998). The
Court has disregarded any inadmissible evidence in deciding this
motion and, accordingly, the motion to strike is denied as moot.

4

behavior to prevent the accident.
is needed.

I agree that expert testimony

I also agree that plaintiff may well have difficulty

persuading a jury that his behavior would have been altered.

In

the absence of a better developed record, however, I conclude
that the motion for summary judgment must be denied.
A. Expert Testimony
Plaintiff has disclosed two liability experts: Kristopher
Seluga and Albert Angelovich.

Seluga has testified that the

accident occurred when the front tire of the motorcycle skidded
on gravel after Rozbicki applied the brakes and the accident
would not have occurred if the motorcycle’s ABS system had been
working properly.

Angelovich has testified that the ABS warning

signal on the dashboard of the motorcycle should have included
“ABS” lettering, rather than simply stating “BRAKE FAILURE,” and
the absence of a proper ABS warning signal caused the accident.
Defendants contend that the testimony of both witnesses is
inadmissible in its entirety.
Under Federal Rule of Evidence 702, expert testimony is
admissible if it will help the jury understand the evidence or
determine a fact in issue, is based on sufficient facts or data,
is the product of reliable principles and methods, and the expert
has reliably applied the principles and methods to the facts of
the case.

Normally, a challenge to the admissibility of expert

testimony is presented by a motion in limine under Federal Rule

5

of Evidence 104(a).

When a motion in limine challenges the

admissibility of expert testimony, the Court may, if necessary,
conduct an evidentiary hearing.

When a motion for summary

judgment turns on the admissibility of expert testimony, a Rule
104(a) hearing ordinarily precedes consideration of the motion.
In this case, defendants’ submissions in support of their
joint motion for summary judgment fall short of demonstrating
that neither of the plaintiff’s experts should be allowed to
testify.

Seluga is a licensed professional engineer in New York

and Connecticut who has provided expert opinions on accident
reconstruction in hundreds of cases.

In preparing his accident

reconstruction in this case, he inspected the accident site, and
reviewed police reports, photos of the scene, plaintiff’s medical
records, the motorcycle’s Rider Manual and the deposition
testimony of the witnesses.

Defendants argue that Seluga’s

experience is not motorcycle-focused and his accident
reconstruction is speculative.

I am not persuaded that his lack

of prior experience as an expert in a case involving a motorcycle
accident disqualifies him from testifying in this case or that
his testimony would not be helpful to the jury.
The admissibility of the testimony of Angelovich presents a
closer question.4

Angelovich is an engineer whose relevant

experience includes designing helicopter dashboard displays.
4

Plaintiff has moved to supplement Angelovich’s opinion with
additional affidavits. The motion is granted.

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In

addition, he has fifty years of experience riding and maintaining
motorcycles.

As defendants argue, however, he apparently has no

experience in motorcycle safety design, his work on dashboard
displays for helicopters ended when he retired 17 years ago and
he had little knowledge of how ABS systems functioned prior to
his involvement in this case.
Angelovich’s lack of experience designing and evaluating
safety warnings for motorcycles is troubling.

Even so, I am not

persuaded that his testimony must be excluded in its entirety.
Angelovich’s education, training and experience as an engineer
may qualify him to provide testimony on technical matters
relating to safety warnings and dashboard displays that will
assist the trier of fact in understanding and determining a fact
in issue.

In formulating his opinions in this case, he visited

the accident scene and spent substantial time inspecting
dashboard warnings of an identical motorcycle.

Since his

deposition, he has reviewed applicable federal and international
standards regarding ABS warning signals.

On the limited record

before me, I cannot conclude that his testimony is wholly
inadmissible.5
5

Plaintiff argues that his failure to warn claim does not
require expert testimony because the jury merely has to examine
the “Brake Failure” warning light to determine that it failed to
provide adequate warning. I disagree that a jury can be expected
to make a proper determination of the adequacy of the “Brake
Failure” warning light simply by looking at it themselves.
Whether the “Brake Failure” warning was inadequate requires
consideration of technical matters that are a proper subject of
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B. Plaintiff’s Burden
Defendants contend that plaintiff is unable to meet his
burden of proving that a warning light with “ABS” lettering would
have helped prevent the accident.

They point out that he was on

notice of a brake problem and knew from his years of riding
motorcycles that he had to brake differently depending on whether
the motorcycle had ABS.

These facts do pose an obstacle for the

plaintiff to overcome.

On the present record, however, I cannot

conclude that a jury would have to reject the plaintiff’s claim.
IV.

Conclusion
To recap: plaintiff’s motion for leave to amend, ECF No.

135, is granted; Max Cycle CT’s motion for summary judgment, ECF
No. 96, is denied as moot; defendants’ motion for summary
judgment, ECF No. 95, is denied; and plaintiff’s motion for leave
to supplement Angelovich’s opinion, ECF No. 134, is granted.
So ordered this 27th day of September 2017.

Robert N. Chatigny
United States District Judge

expert testimony.
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