Tatrow v. Yamaha Motor Corporation, USA et al

Filing 40

MEMORANDUM OPINION & ORDER granting in part and denying in part (1512) (14) Motion to Dismiss in case 3:09-cv-00996-JBC by Judge Jennifer B. Coffman on 10/12/2010; granted as to count six and denied as to count 7 of plaintiff's complaint. Associated Cases: 3:09-md-02016-JBC, 3:09-cv-00996-JBCcc:counsel (CSD) Modified on 10/13/2010 to correct docket text and change document type to opinion (CSD).

UNITED STATES DISTRICT COURT W ESTERN DISTRICT OF KENTUCKY LOUISV ILLE DIVISION

IN RE: YAMAHA MOTOR CORP. RHINO ATV PRODUCTS LIABILITY LITIGATION _____________________________________ JAM ES TATROW, Plaintiff v. YAM AHA MOTOR CO., LTD., ET AL., Def endant s

Case No. 3:09-MD-02016-JBC M DL No. 2016

Case No. 3:09-CV-996-JBC

M EM ORANDUM OPINION AND ORDER ************ This matter is before the court upon the defendants' Fed. R. Civ. P. 12(b)(6) m ot ion to dismiss counts six and seven of the plaintiff' s complaint, to w hic h the plaint if f has not responded. R.14. For the follow ing reasons, the motion w ill be grant ed in part and denied in part. Plaint if f James Tatrow w as injured on October 13, 2007, allegedly as a result of his operation of a Yamaha Rhino. On December 28, 2009, Tatrow lodged a complaint w it h this court. His complaint contains several causes of action, including strict liability, negligence, breach of w arrant y , and tw o statutory causes of action. Plaintiff' s sixth cause of action must fail because the provision of the statute allegedly violated does not support a private right of action. In his complaint, the

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plaint if f claims that the defendants violated the Federal Consumer Product Safety A ct (" CPSA " ), 1 15 U.S.C. § 2051. R. 1 at 20. Specifically, he argues that the def endant s failed to report the dangerous propensities of the Rhino, as required by t he CPSA. How ev er, a majority of courts, including the Sixth Circuit, have held that v iolat ions of the CPSA' s reporting requirements do not support a private right of act ion. The statutory language alone does not answ er w het her the CPSA supports t he plaintiff' s cause of action. Section 2072 provides that " [ a] ny person w ho shall sust ain injury by reason of any know ing (including w illf ul) violation of a consumer product safety rule, or any other rule or order issued by the Commission may sue any person w ho know ingly (including w illf ully ) violated any such rule." The " rules" allegedly violated by the defendants are 16 C.F.R. 1115 and 1116. These require t hat a manufacturer w ho learns that a consumer product creates an unreasonable risk of serious injury report the danger to authorities. Courts interpreting the CPSA, how ev er, have held that this language cannot support a private claim. In an unpublished opinion, the Sixth Circuit joined several ot her circuits in holding that violations of these reporting requirements do not support a private right of action. See Daniels v. American Honda Motor Co., 1992 U. S. App. LEXIS 32592 at * 1 1 -1 2 (6th Cir. Dec. 7, 1992) (" W e agree w it h the

The CPSA has been extensively amended and is now cited as the Consumer Product Safety Improvement Act of 2008. 63B Am. Jur. 2d Products Liability § 1 9 9 0 (2010). 2

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reasoning of those circuits, and join in their conclusion that the Consumer Products Saf et y Act does not recognize a private cause of action for violations of the Act' s report ing requirements." ) (citations omitted). See also Copley v. Heil-Quaker Corp., 8 1 8 F.2d 866 at * 4 -5 (6th Cir., May 20, 1987). This interpretation has gained broad support. See, e.g., Kloepfer v. Honda Motor Co., 898 F.2d 1452, 1457 (1 0 t h Cir. 1990); Drake v. Honeyw ell, 797 F.2d 603 (8th Cir. 1986); Kukulka v. Holiday Cycle Sales, Inc., 680 F. Supp. 266, 268-69 (E.D. Mich. 1988). This court declines to depart from this long line of cases and agrees that there is no private right of action for violations of the CPSA' s reporting requirements. Count seven of the plaintiff' s complaint alleges that the defendants violated t he Tennessee Consumer Protection Act (" TCPA " ), § 47-18-101, et seq. Specifically, the plaintiff claims that the defendants concealed or failed to reveal inf orm at ion about the Yamaha Rhino, in violation of the TCPA. Tw o courts have held that this act cannot be a basis for recovering damages for personal injuries. See How ard v. R.J. Reynolds Tobacco Co., 2005 U.S. Dist. LEXIS 34458 (E.D. Tenn. , Aug. 25, 2005); Kirksey v. Overton Pub., Inc., 804 S.W.2d 68 (Tenn. Ct. A pp. 1990). Although the court acknow ledges these decisions, this challenge nonet heless involves specific questions of state law . Therefore, a trial court w ill be in a better position than is this MDL court to make a decision regarding the seventh cause of action. A ccordingly , IT IS ORDERED that the defendants' motion to dismiss (R. 14) is GRANTED as to count six of the plaintiff' s complaint and DENIED as to count 3

sev en of the plaintiff' s complaint.

Signed on October 12, 2010

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