RATCLIFFE v. BRP US INC et al

Filing 143

ORDER ON MOTION FOR SUMMARY JUDGMENT denying 123 Motion for Summary Judgment By JUDGE JOHN A. WOODCOCK, JR. (CCS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
STEPHEN J. RATCLIFFE,
Plaintiff,
v.
BRP U.S. INC., et al.,
Defendants.

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No. 1:20-cv-00234-JAW

ORDER ON MOTION FOR SUMMARY JUDGMENT
A manufacturer and a dealer of utility task vehicles seek summary judgment
on a plaintiff’s negligence and strict liability claims arising out of an incident in which
the plaintiff’s utility task vehicle rolled onto its side and crushed his arm. Concluding
that there is a triable issue as to whether the plaintiff understood how his conscious
decision to purchase a vehicle without window nets affected occupant safety, the
Court denies the defendants’ motion as to the plaintiff’s design defect theory.
Likewise, the Court denies the defendants’ motion as to the plaintiffs’ failure-to-warn
theory because the plaintiff has put forward sufficient evidence for a reasonable juror
to find that the allegedly inadequate warnings proximately caused the plaintiff’s
injuries.
I.

BACKGROUND
On July 2, 2020, Stephen J. Ratcliffe filed a civil action against BRP U.S. Inc.

(BRP) and Tidd’s Sport Shop, Inc. (Tidd’s). 1 Compl. (ECF No. 1). Mr. Ratcliffe

Mr. Ratcliffe’s complaint originally included a third defendant, ABC Corporation, a fictional
placeholder entity for any additional defendants found during discovery. Pl.’s Resp. to the Ct.’s Order
to Show Cause (ECF No. 19). On October 19, 2020, Judge Singal, then presiding judge, dismissed all

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brought tort claims against BRP and Tidd’s based on an incident in which an off-road
vehicle rolled onto its side and crushed his arm. Id. Counts I and III of the Complaint
assert negligence claims against BRP and Tidd’s, respectively. Id. ¶¶ 17-26, 41-48.
Counts II and IV of the Complaint assert strict liability claims pursuant to 14 M.R.S.
§ 221 against BRP and Tidd’s, respectively. Id. ¶¶ 27-40, 49-57.
On August 10, 2020, Tidd’s answered the Complaint and asserted crossclaims
against BRP for contribution and indemnification. Def. Tidd’s Sport Shop, Inc.’s
Answer to Pl.’s Compl., Cross Cl. (ECF No. 11). On August 11, 2020, BRP answered
the Complaint. Def. BRP U.S. Inc.’s Answer to Compl. (ECF No. 12). On August 17,
2020, BRP answered Tidd’s crossclaims and asserted its own crossclaims against
Tidd’s for contribution and indemnification. Def. BRP U.S. Inc.’s Answer to Tidd’s
Sport Shop, Inc.’s Cross Cl. and Cross Cl. Against Tidd’s Sport Shop, Inc. (ECF No.
13). On September 9, 2020, Tidd’s answered BRP’s crossclaims. Def. Tidd’s Sport
Shop, Inc.’s Answer to BRP U.S., Inc.’s Cross Cl. and Jury Demand (ECF No. 14).
After a protracted discovery period involving multiple discovery disputes, on
April 3, 2023, BRP filed a notice of intent to move for summary judgment pursuant
to District of Maine Local Rule 56(h). Def. BRP US Inc.’s Notice of Intent to File Mot.
for Summ. J. (ECF No. 95). On May 17, 2023, the parties filed a stipulated record.
Local Rule 56(h) Stipulated R. (ECF No. 113) (Stipulated R.). That same day, the

claims against ABC Corporation because “it is not apparent that this Court would have jurisdiction
over Plaintiff’s claims against this entity” and because the Scheduling Order provided Mr. Ratcliffe
with the “opportunity to amend his Complaint and join any additional defendants identified via
discovery.” Order (ECF No. 21). Mr. Ratcliffe never sought to add any other defendants, and thus
BRP and Tidd’s are the only Defendants.

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parties filed several additional attachments to the stipulated record. Additional
Attachs. (ECF No. 114); Additional Attachs. (ECF No. 115); Additional Attachs. (ECF
No. 116); Additional Attachs. (ECF No. 117); Additional Attachs. (ECF No. 118);
Additional Attachs. (ECF No. 119); Additional Attachs. (ECF No. 120); Additional
Attachs. (ECF No. 121). On May 26, 2023, the parties filed a stipulated statement of
material facts. Stipulated Statement of Material Facts (ECF No. 122) (JSMF).
Also on May 26, 2023, BRP filed its motion for summary judgment, a separate
memorandum of law, and its own statement of material facts. 2 Def. BRP’s Mot. for
Summ. J. (ECF No. 123) (BRP’s Mot.); Mem. of Law in Support of Def. BRP’s Mot. for
Summ. J. (ECF No. 124) (BRP’s Mem. of Law); Def. BRP’s Statement of Material Facts
in Support of Its Mot. for Summ. J. (ECF No. 125) (DSMF). That same day, Tidd’s
filed a request to join BRP’s motion for summary judgment. Def. Tidd’s Sport Shop,
Inc.’s Mot. for Summ. J. (ECF No. 126) (Tidd’s Mot.). 3
On June 15, 2023, Mr. Ratcliffe filed a supplemental record. Pl.’s Suppl.
Stipulated R. (ECF No. 128) (Pl.’s R.). On June 16, 2023, Mr. Ratcliffe filed a response
to BRP’s motion for summary judgment and a separate memorandum of law. Pl.
Stephen J. Ratcliffe’s Obj. to Def. BRP’s Mot. for Summ. J. (ECF No. 129) (Pl.’s Opp’n

As explained below, BRP seeks summary judgment on Mr. Ratcliffe’s failure-to-warn theory
and his design defect theory insofar as he claims the off-road vehicle’s lack of window nets rendered it
defective. At oral argument, counsel for BRP conceded that Mr. Ratcliffe raises two additional design
defect theories not addressed in BRP’s motion for summary judgment. Tr. of Proceedings at 48:4-11
(ECF No. 142) (Oral Arg. Tr.). BRP’s counsel further clarified that it is only seeking partial summary
judgment on the theories addressed in its motion. Id. at 48:12-15.
3
Although titled Tidd’s motion for summary judgment, in fact, Tidd’s merely joined BRP’s
motion, incorporating BRP’s statement of facts and memorandum of law, and argued that it is entitled
to summary judgment “[f]or the same reasons set forth in BRP’s motion papers.” Tidd’s Mot. at 1.
Tidd’s raised no facts or argument not contained in BRP’s motion and its motion thus stands or falls
on BRP’s arguments to the extent they are applicable to Tidd’s.
2

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to BRP’s Mot.); Pl. Stephen J. Ratcliffe’s Mem. of Law in Support of His Obj. to Def.
BRP’s Mot. for Summ. J. (ECF No. 131) (Pl.’s Mem. of Law). That same day, Mr.
Ratcliffe filed his response to BRP’s statement of material facts, Pl.’s Opposing
Statement of Material Facts at 1-16 (ECF No. 130) (PRDSMF), and his statement of
additional material facts. Pl.’s Opposing Statement of Material Facts at 16-39 (ECF
No. 130) (PSAMF). Also on June 16, 2023, Mr. Ratcliffe filed a response to Tidd’s
request to join BRP’s motion. Pl. Stephen J. Ratcliffe’s Obj. to Def. Tidd’s Sport Shop,
Inc.’s Mot. for Summ. J. (ECF No. 132) (Pl.’s Opp’n to Tidd’s Mot.).
On June 30, 2023, BRP filed a reply in support of its motion for summary
judgment and a response to Mr. Ratcliffe’s statement of additional material facts.
Def. BRP’s Reply in Supp. of Mot. for Summ. J. (ECF No. 133) (BRP’s Reply); BRP’s
Reply Statement of Material Facts (ECF No. 134) (DRPSAMF). That same day, Tidd’s
responded to Mr. Ratcliffe’s opposition to its request to join BRP’s motion for
summary judgment. Def. Tidd’s Sport Shop, Inc.’s Reply to Pl.’s Obj. to Def.’s Mot. for
Summ. J. (ECF No. 135) (Tidd’s Reply).
On July 6, 2023, Mr. Ratcliffe requested oral argument on BRP’s motion for
summary judgment and Tidd’s request to join BRP’s motion. Pl.’s [Local Rule] 7(e)
Mot. for Oral Arg. on Defs.’ Mots. for Summ. J. (ECF No. 136). On July 10, 2023, Mr.
Ratcliffe responded to BRP’s objections to his statement of additional material facts.
Pl.’s Resp. to Def. BRP’s Reply Statement of Material Facts (ECF No. 137) (Pl.’s Reply
to DRPSAMF).

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On August 30, 2023, the case was transferred from Judge Singal to this Judge.
That same day, the Court granted Mr. Ratcliffe’s motion for oral argument. Order
(ECF No. 138). The Court held oral argument on April 30, 2024. Min. Entry (ECF
No. 141). An official transcript of oral argument was docketed on May 22, 2024. Tr.
of Proceedings (ECF No. 142) (Oral Arg. Tr.).
II.

STATEMENT OF FACTS
A.

Overview of the Case

This is a products liability action initiated on July 2, 2020. JSMF ¶ 1; DSMF
¶ 1; PRDSMF ¶ 1. The product at issue is a 2019 Can-Am Turbo Maverick X3 sideby-side vehicle (Subject Vehicle), Serial Number 3JBVGAY40KK002165. JSMF ¶ 2;
DSMF ¶ 2; PRDSMF ¶ 2. The Subject Vehicle was distributed by BRP and purchased
by Mr. Ratcliffe from Tidd’s on July 30, 2019. JSMF ¶¶ 3-4; DSMF ¶¶ 3-4; PRDSMF
¶¶ 3-4. The following photograph—taken by Mr. Ratcliffe’s expert, Dr. Stephen
Batzer, during a post-accident inspection—depicts the Subject Vehicle:

5

DSMF ¶ 9; PRDSMF ¶ 9.
B.

BRP’s Development of the Subject Vehicle

While field testing a Maverick X3 prototype vehicle on February 16, 2016, BRP
documented that the operator lost control of the vehicle and rolled it as follows: “While
making the large left hand sweeping turn in the renegade s-turns the pilot lost . . ..
During the roll-over the Whip Flag was broken off.” PSAMF ¶ 46; DRPSAMF ¶ 46. 4
The February 16, 2016 rollover occurred after the vehicle had been driven for
approximately 1.6 hours and 50 kilometers. PSAMF ¶ 47; DRPSAMF ¶ 47.
While field testing a Maverick X3 prototype vehicle on March 16, 2016, BRP
documented that the driver’s side taillight fell off while running, with the probable
cause being that “[t]he unit has been rolled on its side 2 or 3 times. Damage to the
fender and light led to this failure.” PSAMF ¶ 48; DRPSAMF ¶ 48.
While field testing a Maverick X3 prototype vehicle on March 30, 2016, BRP
documented that the operator lost control of the vehicle and rolled it as follows: “While
in the north s-turns the pilot lost control of the unit causing it to roll onto its driver’s
side. Unit was righted and towed back to the shop for inspection.” PSAMF ¶ 49;
DRPSAMF ¶ 49.
During his deposition, Bruce Codere, the project manager of the Maverick X3
from 2016 to 2021, offered the following testimony:

The first part of PSAMF ¶ 46 is an incomplete sentence as set forth above. See PSAMF ¶ 46.
The statement is, however, an exact duplicate of an incomplete sentence in BRP’s Rapport D’Incidents.
See Pl.’s R., Attach. 1, Rapport D’Incidents et D’Entretien Par Système at 1.
The paragraph numbers in Mr. Ratcliffe’s statement of additional material facts begin at 46,
presumably because BRP’s statement of material facts contains 45 paragraphs. See generally DSMF
¶¶ 1-45.

4

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Q: So, all I’m trying to get at is Can-Am understood back in the 2015
and 2016 time period that it was developing this X3 that rollovers
occurred?
A: Yes, that’s why we put the driving or the warning of having your
hands inside the vehicle at all times.
PSAMF ¶ 50; DRPSAMF ¶ 50.
One of Mr. Ratcliffe’s experts, Dr. Robert Nobilini, referred to U.S. Patent No.
5290086, titled “Window Net for Racing and Off-Road Vehicles,” which Curt L.
Tucker invented in 1992 and published in 1994 (Tucker Patent). PSAMF ¶ 76;
DRPSAMF ¶ 76. The Tucker Patent provides:
The function of window nets is to retain a driver’s head, left shoulder,
and left arm within the area defined by the roll bar cage in the event of
a roll-over or side impact. The window nets are also to keep rocks, car
parts, and other foreign objects from entering the space defined by the
roll bar cage.
...
Window nets . . . are used to keep hands, arms, shoulders and heads
inside the area surrounded by the roll bar cage [] during roll-overs and
crashes with side impacts. Such window nets [] are fastened to the roll
bar cage by a lower bar [] and an upper bar [].
...
There are numerous former race car drivers with mangled left arms and
hands who could have avoided injury using window nets.
...
The window net [] of the present invention . . . has a woven mesh []. This
mesh is made of 100 percent polyester, multiple thread, cords that are
woven into a mesh . . ..
...
The woven mesh [] is similar to a home window screen in that a person
can see through the mesh reasonably well.
PSAMF ¶ 77; DRPSAMF ¶ 77.
In 2017, BRP started designing window nets for the Maverick X3. PSAMF
¶ 78; DRPSAMF ¶ 78. BRP internally referred to the Maverick X3 window nets as
“Nascar style” window nets. PSAMF ¶ 79; DRPSAMF ¶ 79. As part of BRP’s design
7

process for the “Nascar style” nets, it researched patents related to window nets, and
BRP is aware that there is a patent in the U.S. patent system for “Nascar style” nets
or something “substantially similar.” PSAMF ¶¶ 80-81; DRPSAMF ¶¶ 80-81. BRP’s
“Nascar style” nets are made of 100% polyester “heavy duty dipped mesh,” with a
100% PVC coating. PSAMF ¶ 86; DRPSAMF ¶ 86. Below is an image of BRP’s final
blueprints for the “Nascar style” nets:

PSAMF ¶ 85; DRPSAMF ¶ 85.
In 2018, BRP released window nets for sale as an accessory to the Maverick
X3. PSAMF ¶ 87; DRPSAMF ¶ 87. Below is a photograph of the Maverick X3
equipped with BRP’s “Nascar style” nets:

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PSAMF ¶ 88; DRPSAMF ¶ 88.
While developing the “Nascar style” nets, BRP performed multiple tests,
including a physical test to determine whether “[t]he net can hold passenger body
parts during [a] roll over.” PSAMF ¶ 82; DRPSAMF ¶ 82. BRP evaluated the “Nascar
style” nets to have “PASS[ED]” this test. PSAMF ¶¶ 83-84; DRPSAMF ¶¶ 83-84.
When BRP was designing the “Nascar style” nets, it researched similarly
styled nets offered by its competitors. PSAMF ¶ 89; DRPSAMF ¶ 89. BRP recognizes
the Honda Talon side-by-side as a similar vehicle to the Maverick X3. PSAMF ¶ 90;
DRPSAMF ¶ 90. One of Mr. Ratcliffe’s experts, Dr. Batzer, provided the following
opinions related to the side-by-side/UTV industry and the Honda Talon:
The lack of effective window netting is a near industry-wide problem.
That is, manufacturers such as Arctic Cat, Can-Am, HiSun, John Deere,
Polaris, and Yamaha sell UTVs without full coverage window nets. In
the same way, crossbow manufacturers, for years, manufactured and
sold crossbows without effective bowstring flight rail guards to prevent
finger injuries by the moving bowstring. The crossbow industry
changed, and now virtually all crossbows that are manufactured are
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equipped with effective bowstring guards. A similar change should come
to the UTV industry. One industry leader in this is Honda. Set forth
below is a photograph of the 2019 Honda Talon, which has an effective
window net design; it covers nearly the entire side window portal. This
is another two seat side-by-side which is designed to be a pure sport
vehicle similar to the Maverick X3.
PSAMF ¶ 91; DRPSAMF ¶ 91. The owner’s manual for the 2019 Honda Talon
contains the following discussion regarding window netting:
Your Honda SXS is equipped with side nets to prevent branches, or other
debris from getting inside the driver’s compartment, and to keep the
driver’s and passenger’s hands and arms inside the occupant protective
structure (OPS) if the vehicle ever tips or overturns.
The side nets are secured to the OPS with side net D-rings and side net
buckles. To function properly, the side nets should be tight. If a side
net is loose, tighten the belts on the side net D-rings.
Be sure the side nets are properly latched before driving your Honda
SXS, and never remove side nets from the vehicle. Inspect the condition
of the side net and its mounting hardware. If there is wear,
deterioration, damage, or they do not latch and tighten securely, see
your dealer for repair or replacement.
PSAMF ¶ 91; DRPSAMF ¶ 91. Below is an image of the Honda Talon equipped with
window netting:

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PSAMF ¶ 91; DRPSAMF ¶ 91.
In 2019, BRP sold the “Nascar nets” as an accessory. PSAMF ¶ 92; DRPSAMF
¶ 92. During this timeframe, BRP marketed certain accessories for the Maverick X3
as “MUST HAVE” accessories (e.g., front lower door panels), but BRP did not market
the “Nascar nets” as a “MUST HAVE” accessory. PSAMF ¶ 94; DRPSAMF ¶ 94. In
2019, BRP did not market the “Nascar nets” as having any safety purpose; instead,
BRP marketed the window nets as follows:
•

Window mesh screen for added protection from wind.

•

Can be easily lowered in seconds.

•

Sold in pairs.

PSAMF ¶ 93; DRPSAMF ¶ 93.
On or about July 21, 2020, BRP posted a “Can-Am Tech Talk Tuesday” video
to the Can-Am Facebook channel, titled “How to install Maverick X3 Front Window
Nets.” PSAMF ¶ 97; DRPSAMF ¶ 97. The Tech Talk Tuesday video features one of
BRP’s Can-Am brand ambassadors, Hubert Rowland, demonstrating and discussing
the installation of “Nascar style” window nets on a Maverick X3. PSAMF ¶ 98;
DRPSAMF ¶ 98. In the Tech Talk Tuesday video, Mr. Rowland states the following:
So these Can-Ams are awesome fast, awesome fun, and Travis tells
everybody: keep your arms inside the vehicle at all times. Just in case,
or a good way to do that is Can-Am door nets. Can-Am makes these door
nets on their accessory line . . . very simple thing to help guarantee your
arms will stay inside the vehicle just in case an accident happens.
...
Can-Am accessories door nets, keep your hands inside the ride at all
times.
PSAMF ¶ 99; DRPSAMF ¶ 99.
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The listed price of the Subject Vehicle at the time of Mr. Ratcliffe’s purchase
was $20,999.00, and Tidd’s sold it to Mr. Ratcliffe for $19,400 before adjusting for a
$3,000 rebate, bringing Mr. Ratcliffe’s purchase price to $16,400. PSAMF ¶ 101;
DRPSAMF ¶ 101. BRP’s cost of manufacturing a set of two “Nascar style” window
nets was approximately $46.93. PSAMF ¶ 102; DRPSAMF ¶ 102.
C.

Stephen J. Ratcliffe’s Purchase of the Subject Vehicle

Mr. Ratcliffe began operating dirt bikes and all-terrain vehicles (ATVs) around
the age of seven. DSMF ¶ 10; PRDSMF ¶ 10. Mr. Ratcliffe had driven side-by-side
vehicles—sometimes called utility task vehicles (UTVs)—at least a dozen times
before he purchased the Subject Vehicle.

DSMF ¶ 11; PRDSMF ¶ 11.

Before

purchasing the Subject Vehicle, Mr. Ratcliffe had ridden in UTVs with window
netting or webbing, including during trips to Mexico and Vermont. DSMF ¶ 18;
PRDSMF ¶ 18.
Mr. Ratcliffe had been considering purchasing a UTV for over a year before he
decided to purchase the Subject Vehicle. DSMF ¶ 13; PRDSMF ¶ 13. Before he
decided to purchase the Subject Vehicle, Mr. Ratcliffe conducted online research
regarding Can-Am UTVs and other UTVs during which he observed and watched
videos of UTVs equipped with “window netting” or “webbing." DSMF ¶¶ 14-16;
PRDSMF ¶¶ 14-16. Mr. Ratcliffe also watched numerous videos of Maverick X3
drivers performing maneuvers, including donuts, without incident of rollover and in

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vehicles that did not appear to be equipped with window nets. 5

PSAMF ¶ 60;

DRPSAMF ¶ 60.
Mr. Ratcliffe visited Tidd’s twice in connection with his purchase of the Subject
Vehicle, first on July 29, 2019, and again on July 30, 2019. DSMF ¶ 12; PRDSMF
¶ 12. Before purchasing the Subject Vehicle, Mr. Ratcliffe conducted online research
regarding the availability of aftermarket window nets or webbing that would fit the
Subject Vehicle and discussed the availability of window nets or webbing with the
salesperson at Tidd’s. 6 DSMF ¶ 19; PRDSMF ¶ 19. Mr. Ratcliffe also saw “used”
UTVs at Tidd’s dealership with window netting or webbing. DSMF ¶ 17; PRDSMF
¶ 17.

Before purchasing the Subject Vehicle, Mr. Ratcliffe was aware that

aftermarket window nets or webbing could be purchased and affixed to the Subject
Vehicle. DSMF ¶ 20; PRDSMF ¶ 20. Mr. Ratcliffe testified that, before purchasing
the Subject Vehicle, he “knew that [window nets or webbing] was something that [he]
desired to have from what [he had] seen” and that the availability of window netting

BRP denies PSAMF ¶ 60, which relies solely on Mr. Ratcliffe’s affidavit, arguing that
“Plaintiff’s affidavit is improper and should be struck from the record because it misstates the factual
record and was drafted after BRP moved for summary judgment.” DRPSAMF ¶ 60. In accordance
with the Court’s later discussion of post-summary judgment affidavits, the Court rejects BRP’s denial,
as BRP has not shown that Mr. Ratcliffe’s affidavit contradicts his prior testimony.
6
DSMF ¶ 19 reads: “Before purchasing the Subject Vehicle, Plaintiff discussed the availability
of window nets or webbing with the salesperson at Tidd’s and another local dealership, Houlton Power
Sports, and Plaintiff also conducted online research regarding the availability of aftermarket window
nets or webbing that would fit the Subject Vehicle.” Mr. Ratcliffe interposed a qualified response to
DSMF ¶ 19, arguing that “Defendant’s record citations do not support its statement that Plaintiff
discussed the availability of window nets or webbing with Houlton Power Sports; the record citations
only support that he looked at vehicles at Houlton Power Sports.” PRDSMF ¶ 19.
The Court reviewed the record citations supporting DSMF ¶ 19 and found no suggestion that
Mr. Ratcliffe discussed the availability of window nets or webbing with anyone at Houlton Power
Sports. The Court therefore strikes the reference to Houlton Power Sports from DSMF ¶ 19 and admits
the remainder of the statement.
5

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was “a high consideration” and “something [he] wanted.” DSMF ¶¶ 21-22; PRDSMF
¶¶ 21-22.
Prior to purchasing the Subject Vehicle, Mr. Ratcliffe was assured by Richard
J. Tidd, the owner of Tidd’s Sport Shop, Inc., that the Maverick X3 was unlikely to
roll over because it had a “low center of gravity,” and that in order to roll it a driver
would “have to get really nuts with it.” 7 PSAMF ¶ 59; DRPSAMF ¶ 59. On July 29
or July 30, 2019, an owner or employee of Tidd’s told Mr. Ratcliffe that the window
nets offered by BRP for the Maverick X3 were “almost like a screen of a window . . .
to keep dust and debris out.” 8 PSAMF ¶ 95; DRPSAMF ¶ 95. On or about July 29,
2019, the following conversation was video recorded at Tidd’s after Mr. Ratcliffe test
drove the Subject Vehicle:
Mr. Ratcliffe: As I was coming around the corner, I actually touched
the gas and it goes [indicating acceleration with a hand gesture].
Richard Tidd: Yeah it pulls like gangbusters.
Mr. Ratcliffe: I was afraid, I was afraid to roll it though, so I was like,
no, no, no.
BRP denies PSAMF ¶ 59, which relies in part on Mr. Ratcliffe’s affidavit, arguing that
“Plaintiff’s affidavit is improper and should be struck from the record because it misstates the factual
record and was drafted after BRP moved for summary judgment.” DRPSAMF ¶ 59. In accordance
with the Court’s later discussion of post-summary judgment affidavits, the Court rejects BRP’s denial,
as BRP has not shown that Mr. Ratcliffe’s affidavit contradicts his prior testimony.
8
BRP interposed a qualified response to PSAMF ¶ 95. DRPSAMF ¶ 95. BRP admitted that
PSAMF ¶ 95 “represents a conversation with an owner or employee of Tidd’s Sport Shop.” Id.
However, BRP continued, “to the extent that Plaintiff asserts that the only description of the window
nets was [to] ‘keep dust and debris out,’ such assertion is denied as it is not supported by the factual
record.” Id.
Under District of Maine Local Rule 56(d), a party replying to a statement of material facts
“shall support each denial or qualification by a record citation as required by subsection (f) of this
rule.” D. ME. LOC. R. 56(d). Local Rule 56(f) further provides that an appropriate record citation
includes “a citation to the specific page or paragraph of identified record material supporting the
assertion.” D. ME. LOC. R. 56(f).
BRP’s qualification did not include a record citation in violation of Local Rule 56(d). The Court
reviewed the record citation offered by Mr. Ratcliffe in support of PSAMF ¶ 95 and concludes that it
does not support BRP’s denial. Because the Court has “no independent duty to search or consider any
part of the record not specifically referenced in the parties’ separate statement of facts,” the Court
rejects BRP’s qualification. Id.
7

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Mr. Tidd: It’s a, it’s a beauty of those things, they are low to the ground.
Your center of gravity is.
Mr. Ratcliffe: You can’t roll that easy?
Mr. Tidd: It would take a bunch, I mean you’d have to get really nuts
with it.
Mr. Ratcliffe: Okay.
Mr. Tidd: If you get in a [Polaris] RZR or a [Polaris] Ranger, you’ll see,
you’re sitting [up] quite a bit higher.
Mr. Ratcliffe: Mm-hmm.
Mr. Tidd: The X3, you’re actually sitting right down, right in it, yeah.
Mr. Ratcliffe: I like that.
Mr. Tidd: Oh, it’s a blast to ride . . ..
PSAMF ¶ 96; DRPSAMF ¶ 96.
At the time of purchasing the subject vehicle, Mr. Ratcliffe did not know that
BRP’s Can-Am accessory window nets, which did not come with the vehicle, were
designed to keep body parts inside the vehicle in the event of a rollover. 9 PSAMF
¶ 61; DRPSAMF ¶ 61. Mr. Ratcliffe believed that BRP’s Can-Am accessory window
nets were designed to keep dust and debris out of the vehicle, not to keep body parts
inside. 10 PSAMF ¶ 62; DRPSAMF ¶ 62.
At the time of purchasing the Subject Vehicle, Mr. Ratcliffe did not believe that
the Subject Vehicle would abruptly roll over during a turn or that his arm would
instinctually or reflexively extend out the open window during a rollover. 11 PSAMF

BRP denies PSAMF ¶ 61, which relies solely on Mr. Ratcliffe’s affidavit, on the ground that
the affidavit “is improper and should be struck from the record because it misstates the factual record
and was drafted after BRP moved for summary judgment.” DRPSAMF ¶ 61. In accordance with the
Court’s later discussion of post-summary judgment affidavits, the Court rejects BRP’s denial, as BRP
has not shown that Mr. Ratcliffe’s affidavit contradicts his prior testimony.
10
BRP denies PSAMF ¶ 62, which relies solely on Mr. Ratcliffe’s affidavit, for the same reasons
described in the previous footnote. DRPSAMF ¶ 62. The Court rejects BRP’s denial for the reason
described in the previous footnote.
11
BRP denies PSAMF ¶ 63 because it relies solely on Mr. Ratcliffe’s affidavit, which BRP
contends “is improper and should be struck from the record because it misstates the factual record and
was drafted after BRP moved for summary judgment.” DRPSAMF ¶ 63. In accordance with the
Court’s later discussion of post-summary judgment affidavits, the Court rejects BRP’s denial, as BRP
has not shown that Mr. Ratcliffe’s affidavit contradicts his prior testimony.
9

15

¶ 63; DRPSAMF ¶ 63. Mr. Ratcliffe was never warned by BRP or Tidd’s that an
operator’s or occupant’s arm might instinctually or reflexively extend outside of the
window area in a rollover. 12,

13

PSAMF ¶ 64; DRPSAMF ¶ 64. Had Mr. Ratcliffe

received such a warning, he would not have operated the Subject Vehicle without
window nets or wrist restraints. 14 PSAMF ¶ 66; DRPSAMF ¶ 66.
D.

The July 30, 2019 Accident

Upon purchasing the Subject Vehicle, Mr. Ratcliffe hauled it about ten miles
to his family’s campsite in Houlton, Maine. DSMF ¶ 23; PRDSMF ¶ 23. Upon
arriving at the camp, Mr. Ratcliffe testified that his focus was on “getting out on the
trails as much as possible.” DSMF ¶ 24; PRDSMF ¶ 24.

BRP denies PSAMF ¶ 64, again basing its denial in part on Mr. Ratcliffe’s reliance on his
affidavit. DRPSAMF ¶ 64. The Court rejects BRP’s denial insofar as it rests on Mr. Ratcliffe’s affidavit
for the reasons described in the previous footnote.
Additionally, BRP “contends that it provided ample warnings to Plaintiff concerning the need
to keep an operator’s or occupants’ arms inside the vehicle.” Id. The Court rejects this basis for BRP’s
denial as beyond the scope of the fact asserted.
13
PSAMF ¶ 65 reads: “The lack of window nets, in combination with the vehicle’s propensity to
roll over and Mr. Ratcliffe’s human instinct or reflex to extend his arm to brace the fall during a
rollover, rendered the Subject Vehicle’s condition dangerous in a manner that Mr. Ratcliffe never
contemplated prior to this incident.”
BRP denies PSAMF ¶ 65 for two reasons. First, BRP takes issue with Mr. Ratcliffe’s reliance
on his affidavit, which BRP contends “is improper and should be struck from the record because it
misstates the factual record and was drafted after BRP moved for summary judgment.” DRPSAMF
¶ 65. Further, BRP argues that PSAMF ¶ 65 “is an improper conclusion of law unsupported by the
factual record and cannot be presented as fact in an affidavit or statement of material fact in support
of a motion for summary judgment.” Id.
The Court agrees with BRP that PSAMF ¶ 65 contains an improper conclusion of law.
Accordingly, the Court does not include PSAMF ¶ 65.
14
BRP denies PSAMF ¶ 66 because it relies solely on Mr. Ratcliffe’s affidavit, which BRP
contends “is improper and should be struck from the record because it misstates the factual record and
was drafted after BRP moved for summary judgment.” DRPSAMF ¶ 66. Further, BRP reiterates its
belief that “it provided ample warnings to Plaintiff concerning the need to keep an operator’s or
occupants’ arms inside the vehicle.” Id.
The Court rejects BRP’s denial insofar as it is grounded in Mr. Ratcliffe’s reliance on his
affidavit because BRP has not shown that Mr. Ratcliffe’s affidavit contradicts his prior testimony.
Further, BRP’s assertion that it provided ample warnings to Mr. Ratcliffe is beyond the scope of the
fact asserted, and the Court rejects BRP’s denial insofar as it rests on this basis.
12

16

The accident at issue occurred on July 30, 2019, at approximately 5:56 p.m., in
Houlton, Maine. JSMF ¶ 5; DSMF ¶ 5; PRDSMF ¶ 5. Mr. Ratcliffe had been
operating the Subject Vehicle on trails around the campsite for a “couple hours” or so
before his accident. DSMF ¶ 25; PRDSMF ¶ 25. Mr. Ratcliffe performed “donuts”
with the Subject Vehicle after purchasing it, but he was not doing donuts in the
moments leading up to the accident. DSMF ¶ 26; PRDSMF ¶ 26.
The accident occurred in an area known as Gogan’s gravel pit. DSMF ¶ 27;
PRDSMF ¶ 27. Mr. Ratcliffe testified regarding the accident sequence:
So my actions in that gravel pit consisted of really just going back and
forth in the gravel pit and using that area as the turnaround. That area
to turn around is not so wide where you could maintain a very high
velocity, but the motion would be entering – if you’re looking at that culde-sac area and you think you’re entering, say, at 6 o’clock, you would
also exit at 6 o’clock, right, or 4:00 o’clock because you kind of enter at
7:00, 6:00, 5:00 and 4:00 in that area. And as I came around – as I came
around full motion in exiting and then going to turn back into the area
where I was going back and forth, that’s where the vehicle rolls. And I
had already done that three, four, five times.
DSMF ¶ 28; PRDSMF ¶ 28. Mr. Ratcliffe described the terrain where the accident
occurred as “flat.” DSMF ¶ 29; PRDSMF ¶ 29. When Mr. Ratcliffe was turning to
the right immediately before the vehicle tipped over (a quarter roll onto its driver’s
side), he had both hands on the steering wheel. DSMF ¶ 30; PRDSMF ¶ 30; PSAMF
¶ 69; DRPSAMF ¶ 69. At the time of the accident, Mr. Ratcliffe was wearing a helmet
with a full face shield, riding gloves, and a seat belt. PSAMF ¶¶ 67-68; DRPSAMF
¶¶ 67-68.
Mr. Ratcliffe testified that, during the accident sequence, the Subject Vehicle
did not “flip completely” but instead “rolled over onto its [driver’s] side and probably
17

up a little bit from the inertia. DSMF ¶ 31; PRDSMF ¶ 31. According to Mr. Ratcliffe,
the turn maneuver preceding the accident was “just a normal radius turn,” and he
was going “no more than probably 20 miles an hour.” DSMF ¶ 32; PRDSMF ¶ 32.
Mr. Ratcliffe’s expert described the accident sequence as “slow” and “low energy,”
resulting in a 90-degree, driver’s-side-leaning tip-over. DSMF ¶ 33; PRDSMF ¶ 33.
At the time of the rollover, Mr. Ratcliffe was making what he described as an
“ordinary” turn. 15 PSAMF ¶ 70; DRPSAMF ¶ 70.
The parties attached to the Joint Stipulated Record three copies of reports
concerning the July 30, 2019 accident: the state of Maine Crash Report as Exhibit 11,
JSMF ¶ 6; the Maine Warden Service’s Incident Report as Exhibit 12, JSMF ¶ 7; and
the Houlton Police Department’s Incident Report as Exhibit 13. JSMF ¶ 8. The
Maine Warden Service Incident Report notes:
Ratcliffe was circling in a gravel pit near the ATV trail in Houlton when
the vehicle rolled over on the driver’s side. Ratcliffe attempted [to] brace
the rollover with his left arm. Ratcliffe’s left arm was nearly severed off
by the ATV’s roll bar.
PSAMF ¶ 71; DRPSAMF ¶ 71.

PSAMF ¶ 70 reads: “At the time of the rollover, Plaintiff was making an ordinary turn.” BRP
interposed a qualified response to PSAMF ¶ 70. DRPSAMF ¶ 70. BRP admitted “that Plaintiff
described the turn maneuver preceding the tipover as just a normal radius turn and testified that he
was going no more than probably 20 miles an hour.” Id. (internal quotations omitted). BRP counters,
however, that it “does not endeavor to assign its own description to the turn for purposes of its Motion.”
Id.
Rather than engage in the parties’ dispute about whether Mr. Ratcliffe’s turn can properly be
characterized as normal, the Court amended PSAMF ¶ 70 to indicate that it reflects Mr. Ratcliffe’s
description.
15

18

During the accident, Mr. Ratcliffe extended his left arm outside of the window
area instinctually, reflexively, and without volition. 16 PSAMF ¶ 72; DRPSAMF ¶ 72.
Mr. Ratcliffe alleges that he suffered an injury to his left arm as a result of the
accident. DSMF ¶ 7; PRDSMF ¶ 7. Mr. Ratcliffe’s expert, Dr. Nobilini, opines that
“Plaintiff’s injuries were consistent with his left forearm being crushed between the
driver’s side rail of the [rollover protective structure] and the ground during the
subject rollover event.” DSMF ¶ 8; PRDSMF ¶ 8.
E.

BRP’s Warnings Regarding the Maverick X3

The Subject Vehicle was sold with an operator’s guide, a copy of which was
attached to the Joint Stipulated Record as Exhibit 10. JSMF ¶¶ 6, 10; DSMF ¶ 6;
PRDSMF ¶ 6. Page 11 of the Operator’s Guide includes the following excerpt:
This is a high performance off-road vehicle. Operators must be
responsible and use care to avoid rollovers, tipovers, collisions, and other
accidents. Even with vehicle safety features (such as protective
structure, seat belts, doors) and protective gear (such as a helmet), there
is always a risk of injury or death in these accidents. To reduce the risk
of serious injury or death, follow the rules in this section. 17
DSMF ¶ 34; PRDSMF ¶ 34.

BRP interposed a qualified response to PSAMF ¶ 72. DRPSAMF ¶ 72. BRP admits “that
Plaintiff described his arm movement during the crash as instinctual,” but it “objects to Plaintiff’s
reliance on the improper affidavit filed in conjunction with Plaintiff’s Opposition to Summary
Judgment.” Id. BRP contends that Mr. Ratcliffe’s affidavit “is improper and should be struck from
the record because it misstates the factual record and was drafted after BRP moved for summary
judgment.” Id.
In accordance with the Court’s later discussion of post-summary judgment affidavits, the Court
rejects BRP’s denial, as BRP has not shown that Mr. Ratcliffe’s affidavit contradicts his prior
testimony.
17
In its statement of material facts, BRP included images of this warning, and the other
warnings reproduced in this order, as they appear in real life. See, e.g., DSMF ¶ 34. While the Court
appreciates BRP’s efforts to convey how the warnings would appear to a user of the Subject Vehicle,
the Court reproduces only the text of the warnings in this order to facilitate readability. Furthermore,
BRP has not suggested there is anything about the reproduced warnings—as opposed to the language
in the warnings—that affects the resolution of this motion.
16

19

Page 13 of the Operator’s Guide includes the following excerpt:
Never assume that the vehicle will go everywhere safely. Sudden
changes in terrain caused by holes, depressions, banks, softer or harder
“ground” or other irregularities may cause the vehicle to topple or
become unstable. To avoid this, slow down and always observe the
terrain ahead. If the vehicle does begin to topple or rollover, the best
advice is to immediately steer in the direction of the rollover! Never
attempt to prevent a rollover with your arms or legs. You should keep
your limbs inside the cage.
DSMF ¶ 35; PRDSMF ¶ 35.
Pages 19 and 20 of the Operator’s Guide read as follows:
AVOID ACCIDENTS
Avoid Rollovers and Tipovers
Side-by-side vehicles handle differently from other vehicles. Side-byside vehicles are designed to handle off-road terrain (for example, their
wheel base and track width, ground clearance, suspension, drivetrain,
tires, etc.) and, as a result, can overturn in situations where vehicles
designed for use primarily on paved or smooth terrain may not.
A rollover or other accident can occur quickly during abrupt maneuvers
such as sharp turns or hard acceleration or deceleration when turning,
or when driving on hills or over obstacles. Abrupt maneuvers or
aggressive driving can cause rollovers or loss of control even in flat open
areas. If the vehicle rolls over, any part of your body (such as arms, legs,
or head) outside of the cockpit can be crushed and trapped by the cage
or other parts of the vehicle. You can also be injured by impact with the
ground, cockpit or other objects.
To reduce the risk of rollovers:
– Use care when turning.
• Do not turn the steering wheel too far or too fast for your speed
and environment. Adjust steering inputs according to your
speed and environment.
• Slow down before entering a turn. Avoid hard braking during
a turn.
• Avoid sudden or hard acceleration when turning, even from a
stop or low speed.

20

– Never attempt donuts, skids, slides, fishtails, jumps, or other
stunts. If [the] vehicle starts to skid or slide, steer in the direction
of the skid or slide. Never slam the brakes and lock the wheels.
– Avoid paved surfaces. This vehicle is not designed to operate on
paved surfaces and is more likely to roll over. If you must drive
on pavement, turn gradually, go slowly, and avoid abrupt
acceleration and braking.
This vehicle can roll over sideways or tip over forward or backwards on
slopes or uneven terrain.
– Avoid side hilling (driving along the slope rather than up or down
a hill). When possible, drive straight up and down inclines rather
than across them. If you must side hill, use extreme caution and
avoid slippery surfaces, objects, or depressions. If you feel the
vehicle start to rollover or slide sideways, steer downhill if
possible.
– Avoid steep hills and follow procedures in this guide for climbing
and descending hills.
– Sudden changes in terrain such as holes, depressions, banks,
softer or harder ground or other irregularities may cause the
vehicle to tip or become unstable. Observe the terrain ahead and
slow down in areas of uneven terrain.
This vehicle will handle differently when carrying or pulling a load.
– Reduce speed and follow instructions in this manual for carrying
cargo or pulling a trailer.
– Avoid hills and rough terrain.
– Allow more distance to stop.
Be Prepared in Case of Rollover
– Close both doors and fasten seat belt to help you avoid sticking
out arms or legs.
– Never grab the cage while riding. Hands can be crushed between
the cage and the ground in a rollover. Keep hands on the steering
wheel or handholds.
– Never try to stop a rollover using your arms or legs. If you think
that the vehicle may tip or roll, the driver should keep both hands
on the steering wheel and the left foot firmly planted on the
footrest. The passenger should keep both hands on the handholds
and both feet firmly planted on the floor.
Avoid Collisions

21

This vehicle can reach high speeds. At higher speeds, there is an
increased risk of losing control, particularly in challenging off-road
conditions, and the risk of injury in a collision is greater. Never operate
at excessive speeds. Always go at a speed that is proper for the terrain,
visibility, and operating conditions, and your experience. Consider
reserving use of the performance key for situations in which full speed
and acceleration capability are appropriate.
Never operate this vehicle on any public street, road or highway, even
dirt or gravel ones. Riding your vehicle on roads or highways could
result in a collision with another vehicle. This vehicle is not designed
for operation on roads. For example, it does not meet motor vehicle
safety standards that apply to automobiles. In many jurisdictions it is
not legal to operate this vehicle on public roads.
This vehicle does not have the same kind of protection for collisions as a
car; for example, there are no air bags, the cockpit is not fully enclosed,
and it is not designed for collisions with other vehicles. Therefore, it is
particularly important to fasten seat belts and close doors and wear an
appropriate helmet.
DSMF ¶¶ 36-37; PRDSMF ¶¶ 36-37.
One side of the “hang tag” provided by BRP for the Subject Vehicle, as
reproduced on Page 30 of the Operator’s Guide, reads as follows:
WARNING
THIS VEHICLE IS INTENDED FOR RECREATIONAL USE AND
SECONDARY GENERAL UTILITY APPLICATIONS
NO OPERATOR UNDER AGE 16
TRAINING COURSES TO TEACH ROV DRIVING ARE
AVAILABLE. FOR INFORMATION CONTACT YOUR LOCAL
DEALER.
Read the Operator’s Guide and Safety Labels and Watch the
Safety Video.
Follow All Instructions and Warnings.
CHECK WITH YOUR DEALER TO FIND OUT ABOUT STATE
OR LOCAL LAWS REGARDING ROV OPERATION.

22

Improper Use of Off-Highway Vehicles Can Cause Severe Injury or
Death
Be Prepared
• Fasten seat belts and make sure nets or doors are securely latched
in place.
• Wear an approved helmet and protective gear.
• Each rider must be able to sit with back against seat, foot flat on
the floor or on footrest, and hands on steering wheel or handholds.
Stay completely inside the vehicle.
Drive Responsibly
Avoid loss of control and rollovers:
• Avoid abrupt maneuvers, sideways sliding, skidding or
fishtailing, and never do donuts.
• Avoid hard acceleration when turning, even from a stop.
• Slow down before entering a turn.
• Plan for hills, rough terrain, ruts, and other changes in traction
and terrain. Avoid paved surfaces.
• Avoid side hilling (riding across slopes).
Rollovers have caused severe injuries and death, even on flat, open
areas.
Be Sure Riders Pay Attention and Plan Ahead
If you think or feel the vehicle may tip or roll, reduce your risk of
injury:
• Keep a firm grip on the steering wheel or handholds and brace
yourself.
• Do not put any part of your body outside of the vehicle for any
reason.
Require Proper Use of Your Vehicle
– Do your part to prevent injuries:
• Do not allow careless or reckless driving.
• Make sure operators are 16 or older with a valid driver’s
license.
• Do not let people drive after using alcohol or drugs.
• Do not allow operation on public roads (unless designed for offhighway vehicle access) – collisions with cars and trucks can
occur.
• Do not exceed seating capacity: see information on backside of
this card.
23

THIS HANG TAG CAN’T BE REMOVED BEFORE SALE.
DSMF ¶ 38; PRDSMF ¶ 38.
The Subject Vehicle contained an on-product decal, placed in the upper left
corner of the dashboard on the driver’s side, which read:
WARNING
Improper Use of Off-Highway Vehicles Can Cause Severe Injury or
Death
Be Sure Riders Pay Attention and Plan Ahead
If you think or feel the vehicle may tip or roll, reduce your risk of injury:
• Keep a firm grip on the steering wheel or handholds and brace
yourself.
• Do not put any part of your body outside of the vehicle for any
reason.
Be Prepared
• Fasten seat belts and close doors.
• Wear an approved helmet and protective gear.
• Each rider must be able to sit with back against seat, foot flat on
floor or on footrest, and hands on steering wheel or handholds.
Stay completely inside the vehicle.
Drive Responsibly
Avoid loss of control and rollovers:
• Avoid abrupt maneuvers, sideways sliding, skidding or
fishtailing, and never do donuts.
• Slow down before entering a turn.
• Avoid hard acceleration when turning, even from a stop.
• Plan for hills, rough terrain, ruts, and other changes in traction
and terrain. Avoid paved surfaces.
• Avoid side hilling (riding across slopes).
Rollovers have caused severe injuries and death, even on flat, open
areas.
DSMF ¶ 39; PRDSMF ¶ 39.

24

Another on-product decal, placed to the upper left of the driver’s side A-pillar
on the Subject Vehicle, read as follows:
WARNING
Improper Use of Off-Highway Vehicles Can Cause Severe Injury or
Death
Be prepared in case of rollover.
NEVER
• Hold the cage while riding.
• Try to stop a rollover using your arm or leg.
ALWAYS
• Fasten seat belts and close doors.
Require Proper Use of Your Vehicle
Do your part to prevent injuries:
• Do not allow careless or reckless driving.
• Make sure operators are 16 or older with a valid driver’s license.
• Do not let people drive or ride after using alcohol or drugs.
• Do not allow operation on public roads (unless designated for offhighway vehicle access) – collisions with cars and trucks can
occur.
• Do not exceed seating capacity: 2 occupants.
Read and understand all safety labels, locate and read operator’s
guide. Watch the safety video using the QR code link or visit Can-am
web site before operation.
DSMF ¶ 40; PRDSMF ¶ 40.
During Mr. Ratcliffe’s deposition, the following exchange occurred:
Q: Do you remember having a safety instruction that said: In the case of
rollovers, never grab the cage?
...
A: I would say that there’s written instruction that say that. I’m sure in
your manual, I’m sure on the vehicle itself. When -- when your body is
falling, right, it’s almost an involuntary reaction for you to want to brace
yourself, right? And you know, someone could instruct me a thousand
times over, and I think, knowing my body and my reflexes, I would
instinctually want to brace myself from falling when I feel my body
falling.

25

Q: So do you remember reading or being instructed that if you think the
vehicle may tip or roll, the driver should keep both hands on the steering
wheel and the left foot planted on the footrest?
A: I’ll go back to my last answer to answer that, right? Sure, I may have
read that, but it’s -- you’re talking about a conscious decision versus an
involuntary, you know, reaction.
DSMF ¶¶ 42-43; PRDSMF ¶¶ 42-43.
F.

BRP’s Marketing of the Maverick X3

During his deposition, Marc Lacroix, a marketing executive at BRP, testified
that in the 2018-2020 timeframe BRP posted videos on BRP’s Can-Am Off-Road
Facebook channel. PSAMF ¶ 51; DRPSAMF ¶ 51. In particular, Mr. Lacroix offered
the following testimony:
Q: But specifically with regard to how people were operating side-bysides, why was Can-Am Off-Road posting that content?
A: In general, videos are very popular and appreciated by fan base.
Obviously, a picture is worth a thousand words, but a video is even more,
how would I say it, exciting for people to watch.
Q: So, it wanted people to watch how other consumers were using CanAm products; is that correct?
MR. MONSON: Objection.
THE WITNESS: What do you mean by other consumers?
MR. MEGA: People other than those within the video that CanAm was posting.
A: We would showcase videos, Can-Am vehicles being operated.
Q: To generate interest?
A: To generate awareness first and foremost, and, yes, interest, and to
win their hearts and minds.
Q: To show other people how consumers of Can-Am side-by-sides were
using Can-Am vehicles, right?
...
A: We showcased videos that showed the vehicles being used.
PSAMF ¶ 52; DRPSAMF ¶ 52.
On June 7, 2019, BRP posted a video to the Can-Am Off-Road Facebook
channel showing operators of Can-Am side-by-sides, including Maverick X3s,
26

performing donut maneuvers. PSAMF ¶ 53; DRPSAMF ¶ 53. BRP did not include
any disclaimers (such as professional driver, closed course, or don’t try this yourself)
in this video. PSAMF ¶ 53; DRPSAMF ¶ 53. The caption for the video read: “Here’s
your 1/2 dozen fresh outta the oven for National Donut Day.”

PSAMF ¶ 53;

DRPSAMF ¶ 53.
Mr. Ratcliffe’s counsel showed BRP’s June 7, 2019 video post to Mr. Lacroix,
who testified, “I believe it is likely that a BRP employee created this post.” PSAMF
¶ 54.; DRPSAMF ¶ 54. Mr. Lacroix further testified:
Q: Did you see a disclaimer on that video?
A: I did not notice a disclaimer on this specific video.
Q: Do you believe that video is glorifying doughnuts?
A: I believe this video is generating excitement, and it is using National
Doughnut Day as an opportunity to create excitement for doughnuts.
PSAMF ¶ 54; DRPSAMF ¶ 54.
On June 5, 2020, BRP posted a video featuring two operators of Maverick X3s
performing donut maneuvers. PSAMF ¶ 55; DRPSAMF ¶ 55. BRP did not include
any disclaimers in this video. PSAMF ¶ 55; DRPSAMF ¶ 55. Mr. Ratcliffe’s counsel
showed the June 5, 2020 video to Mr. Lacroix, who offered the following testimony:
Q: Does that depict two separate vehicles performing doughnuts at the
same time?
A: Yes, I do see two vehicles performing doughnuts in this video.
...
Q: Okay. Why would someone from BRP post that on June 5, 2020 on
social media?
...
A: As to why, I don’t know. I believe they were doing a post in line with
National Doughnut Day to generate excitement for the Can-Am brand.
Q: Is there any disclaimer on that video that someone watching it
shouldn’t try to perform those types of maneuvers, or they were contrary
to the operator’s manual?
A: I did not see a specific disclaimer in this video shown.
27

Q: Or a warning, right?
A: I did not see a warning in this specific video shown.
PSAMF ¶ 56; DRPSAMF ¶ 56.
On June 4, 2021, BRP posted another video celebrating “National Donut Day,”
featuring an operator of a Maverick X3 performing donut maneuvers. PSAMF ¶ 57;
DRPSAMF ¶ 57. BRP did not include any disclaimers in this video. PSAMF ¶ 57;
DRPSAMF ¶ 57. The caption for the video read, in part: “Happy National Doughnut
Day! Here’s our friend Ostacruiser spinnin’ up some dirt. We want YOU to celebrate
with us.” PSAMF ¶ 57; DRPSAMF ¶ 57.
Mr. Ratcliffe’s counsel showed BRP’s June 4, 2021 video to Mr. Lacroix, who
offered the following testimony:
Q: Were there any warnings or disclaimers on that video that third
parties shouldn’t perform doughnuts or operate a Can-Am side-by-side
like that person did?
A: I did not see any specific warnings or disclaimers on this specific
video.
...
Q: Is there a warning or disclaimer typed in, into the language that falls
directly below the June 4, 2021, “Doughnuts on us,” typewritten words?
A: I do not see any specific disclaimers in this text as shown here.
...
Q: So getting back to my question, as opposed to just reading the
language there: Does that encourage in your mind users of Can-Am sideby-sides to perform doughnuts themselves and to take video of those
doughnuts?
...
A: I don’t believe it encourages people to perform doughnuts. I believe
it invites people to share doughnut videos.
...
Q: Well, to share a doughnut video, you have to have done a doughnut
or videotaped a friend doing a doughnut, right?
...
A: I don’t agree with that statement. It could be a video that they found
on the Internet that they share. I don’t believe it explicitly invites them
to perform doughnuts.
28

PSAMF ¶ 58; DRPSAMF ¶ 58.
G.

The Conclusions of Stephen J. Ratcliffe’s Experts

Dr. Nobilini, a mechanical and biomedical engineer, offered the following
summary of his opinions related to the design defects of the Maverick X3:
The following opinions, in addition to those expressed elsewhere in this
report, are based upon my education, training, and experience as well
as my examination and analysis of the evidence and are stated to a
reasonable degree of engineering certainty:
• BRP was aware that a rollover was a foreseeable hazard of the
subject vehicle.
• Extending one’s arm in the direction that they are falling is a
natural protective response.
• It was foreseeable that occupants would instinctively extend their
arm outside the roll cage during a lateral rollover.
• BRP knew that occupants would instinctively extend their arms
outside of the roll cage during a lateral rollover.
• The movement of Mr. Ratcliffe’s left arm in the direction that he
was falling (i.e. towards the ground and outside of the roll cage)
was consistent with an instinctive natural protective response.
• The warnings on the subject Can-Am Maverick X3 were not an
effective measure to prevent the natural instinctive response to
extend one’s arm as they fell towards the ground during a lateral
rollover.
• Mr. Ratcliffe’s injuries were consistent with his left forearm being
crushed between the driver’s side rail of the [rollover protection
system] and the ground during the subject rollover event.
• The lack of dust and scratches in the middle of the left rail of the
roll cage was consistent with Mr. Ratcliffe’s left arm pinned
between this portion of the roll cage and the ground.
• BRP knew or should have known that if an occupant’s arm moved
outside the roll cage during a lateral rollover, their arm could be
crushed by the roll cage or the frame of the vehicle.
• The opening between the top of the door and the lateral rail of the
roll cage allowed for an occupant’s arm to move outside the roll
cage and into harm’s way.
• The lack of an adequate restraint system to prevent an occupant’s
arm from moving outside the roll cage during a lateral rollover
made the subject vehicle unreasonably dangerous for its intended
use.

29

•
•

The subject Can-Am Maverick X3 vehicle was designed and sold
in a defective condition and unreasonably dangerous to users
including Mr. Ratcliffe.
The defective design of the subject vehicle was a substantial
contributing factor to Mr. Ratcliffe’s injuries.

PSAMF ¶ 73; DRPSAMF ¶ 73; see also DSMF ¶¶ 44-45; PRDSMF ¶ 44-45.
Dr. Batzer, a mechanical engineer, offered this summary of his opinions related
to the design defects of the Maverick X3:
Enumerated case opinions, in addition to opinions expressed elsewhere
within this report, are set forth below. This list is intended to
summarize my analysis of the design of the 2019 Can-Am Maverick X3
and the details of this case.
1. This vehicle was involved in a driver’s side leading rollover
collision of approximately one quarter revolution. This overturn
occurred as Mr. Ratcliffe was circling within a gravel pit. This is
a foreseeable and promoted use of the vehicle.
2. The rollover was rather slow and resulted in cosmetic damage to
the vehicle and a life-altering injury to Mr. Ratcliffe. This was a
minor accident with serious consequences. Note that if this had
been a fast rollover, there would be more rotational inertia
present and the vehicle would have continued with more roll
quarters than were observed to occur.
3. Rollover accidents are low energy transfer rate collisions, unlike
frontal, side, and rear collisions. They are typically highly
survivable and will result in minimal or no injuries if the vehicle
has effective rollover protection and the occupant is not partially
or fully ejected.
4. The subject vehicle was designed and marketed for “spirited
driving.” This term includes jumps, stunts, slide outs, and
doughnuts. These activities are what the vehicle was made for
and marketed for. Numerous promotional internet postings and
videos [e.g., National Doughnut Day!] by BRP/Can-Am promote
spirited driving by the purchasers and users of Can-Am vehicles.
Spirited driving produces adrenaline in the target market.
5. The Can-Am Maverick X3 recreational off-highway vehicle, as
designed and as sold, was in a defective condition and
30

unreasonably dangerous to the user in rollover incidents because
it subjects the occupants to hazards which should be effectively
guarded against. The two major defects are the lack of full portal
covering window netting and the design of the roll cage (ROPS) in
which the side-rails are not recessed toward the centerline of the
vehicle, similar to the vehicles shown above as exemplars. The
implementation of window netting and/or a different ROPS
design likely would have prevented Stephen Ratcliffe’s injury.
6. There were no technological or economic barriers preventing BRP
Inc. from designing, manufacturing and equipping the subject
vehicle with factory standard side safety netting and recessed
cage fore-aft rails sufficient to the job of protecting occupant arms
and heads during foreseeable rollovers.
7. The manufacture of a Can-Am Maverick X3 with full coverage
nets and a ROPS with recessed side rails would not have
diminished the utility of the vehicle, but rather would have
improved its functionality. These additions would increase the
rollover collision crashworthiness without diminishing
performance or consequentially increasing weight or cost and
would have prevented the injuries incurred.
8. Tidd’s erroneously informed Mr. Ratcliffe that, “You’re low to the
ground . . . low center of gravity . . . it would take a bunch, I mean,
you’d have to get really nuts with it,” for the X3 to roll over. These
statements were inappropriate and factually incorrect.
9. In order to validate the safety of a system, realistic destructive
physical testing is required. The ROHVA testing produced in
discovery tests the reaction of anthropomorphic test devices
(ATDs) to quasi-static, or unrealistically slow changes in vehicle
orientation. That is, tilt table tests and hill rollovers without
forward velocity. This is unsatisfactory and represents an
omission, as Can-Am cannot rely upon any knowledge of window
net efficiency that is derived from unrealistic testing. Despite
substantial durability and handling testing, Can-Am did not
credibly test their Maverick X3 for rollover safety with a
destructive dynamic rollover. Further, they have field experience
of unplanned rollovers which act as “natural tests” of recreational
highway vehicles. These unplanned incidents show that UTV
occupants in overturns extend their hands and arms to protect
themselves. Yet, this hazard is not adequately addressed
technologically, as it is in racing contexts.
31

PSAMF ¶ 74; DRPSAMF ¶ 74. Dr. Batzer also stated:
When a person attempts to break his or her fall by interposing his arm
between his head and the impact surface, the reflexive action is to
diminish injury, not to enhance injury. Without training, a person will
typically not volitionally allow himself to be injured. When occupants,
such as Stephen Ratcliffe, place their arm outside of the occupant
compartment, it is in an attempt to diminish injury, not ensure it. Such
a reflex is not effectively overcome by a passive warning during the highpressure situation of a roll-over.
PSAMF ¶ 75; DRPSAMF ¶ 75.
Mr. Ratcliffe’s human factors expert, Dr. David Lenorovitz, offered the
following opinion:
6.3.1 UTV Driver/Rider Instinctive/Reactive Limb/Hand
Movements vs Purposeful/Intentional/Volition-Based
Movements
From an ergonomics or HFE perspective certain body part movements
can be distinguished as either being initiated with purposeful intent or
volition, or as being reactionary/instinctive/or even highly over-earned
(almost automatically executed) movements (Karnes, Lenorovitz, &
Leonard, 2010). When a driver is belted inside a vehicle that is in the
process of suddenly rolling over or flipping on its side his world is in the
process of literally “being turned upside down,” and he is likely to be
reaching out instinctively to brace himself. This is a very basic human
reflexive reaction, akin to reaching out with your hands during an
unexpected forward fall. You don’t pause and reflect and think about
what to do in such a situation ~ you just naturally react and flat out do
it. Telling someone where to “Keep” your hands, or where not to “Put”
your limbs or other body parts (see Warning Labels 1 & 3 in the
Operator’s Guide) does no good when that someone is in the middle of
such an event scenario. Your hand/arm is simply going to do what it’s
naturally going to do.
The best you can do when designing or engineering an equipment
system in which such reactionary limb movements are likely -- and,
again, BRP representatives repeatedly stated that they knew that such
rollover incidents can and do occur -- is to incorporate some type of
guard, shield, or restraint mechanism to preclude the limb (hand/arm)
from accidentally/involuntarily moving into harm’s way. The NASCARlike window net that Mr. Ratcliffe had requested is (should be) intended
32

to provide just such an economical ($46) but effective type of protection.
Another racecar-inspired economical ($17) solution is a simple
wristband restraint that attaches to the driver’s left wrist and to his seat
belt (see Figure 12). Had BRP provided either of these devices as
standard equipment safety measures (i.e., not as after-market, extracost accessory items), it is likely that Mr. Ratcliffe would not have
sustained the costly injury that he did.
PSAMF ¶ 100; DRPSAMF ¶ 100. Dr. Lenorovitz, also offered the opinion that Mr.
Ratcliffe did not “sufficiently underst[and]” the risks attendant with the use of the
Subject Vehicle. DSMF ¶ 41; PRDSMF ¶ 41.
III.

THE PARTIES’ POSITIONS
A.

BRP U.S. Inc.’s Motion for Summary Judgment

In its memorandum of law, BRP observes that Mr. Ratcliffe’s negligence and
strict liability claims both “hinge on the same two theories of liability: (i) that the
Subject Vehicle was defective in design due to the lack of netting over the driver’s
side window; and (ii) that the warnings provided by BRP were inadequate to make
Plaintiff aware of the risk of crush injuries to occupants’ upper extremities in the
event of a rollover.” BRP’s Mem. of Law. at 12.
BRP argues it is entitled to summary judgment because “Plaintiff lacks
evidence that the claimed injury to his left arm was caused by a defect in the vehicle’s
design or warnings.” Id. at 2. Regarding Mr. Ratcliffe’s design defect theory, BRP
maintains that such a claim “is actionable ‘only if the product left the seller’s hands
in a condition not contemplated by the ultimate consumer.’” Id. (quoting Burns v.
Architectural Doors & Windows, 2011 ME 61, ¶ 19, 19 A.3d 823, 828). Here, BRP
posits that “the undisputed evidence shows the Maverick was precisely what Plaintiff

33

contemplated when he purchased it: a high-powered recreational off-highway vehicle
that did not come equipped with window nets.” Id.
With respect to Mr. Ratcliffe’s failure-to-warn theory, BRP points out that Mr.
Ratcliffe testified he instinctively tried to brace himself when he felt the Subject
Vehicle tip and also “designated an expert to offer the opinion that an occupant will
instinctively extend their arm outside the roll cage during a lateral tipover as a
natural protective response.” Id. at 3 (internal quotations omitted). “Taking Plaintiff
and his expert at their word,” BRP continues, “the inescapable conclusion is that any
supposed inadequacy in BRP’s warnings did not play any role in Plaintiff placing his
arm outside the vehicle—or, in legalese, Plaintiff cannot meet his prima facie burden
to prove that a warnings defect caused his accident.” Id.
BRP spends the remainder of its memorandum of law developing these two
arguments. Beginning with the design defect theory, BRP argues that “it remains a
plaintiff’s burden to prove that the product at issue was defective and its defective
condition was the proximate and legal cause of the complained-of harm.” Id. at 12.
Notwithstanding the other elements of a design defect claim, BRP insists that “an
injured person can prevail in such a design defect claim only if the product left the
seller’s hands ‘in a condition not contemplated by the ultimate consumer.’” Id. at 1213 (quoting Burns, 2011 ME 61, ¶ 19, 19 A.3d at 828).
According to BRP, Burns forecloses Mr. Ratcliffe’s design defect theory because
“the Subject Vehicle is precisely what Plaintiff contemplated it was when he saw it
on the lot of Tidd’s dealership.” Id. at 13. In support, BRP maintains that “[t]he

34

record evidence demonstrates that, at the time he purchased the Subject Vehicle, [Mr.
Ratcliffe] was aware of the availability of window nets; that the 2019 Maverick did
not come with nets as standard equipment; that he considered nets to be [a] desirable
feature; that other UTVs could be purchased with nets; and that aftermarket nets
were available for the Subject Vehicle.” Id. Therefore, BRP argues, Mr. Ratcliffe
“cannot now be heard to complain that the vehicle is defective for lacking an element
he considered and decided was not necessary for safe operation.” Id.
Turning to Mr. Ratcliffe’s failure-to-warn theory, BRP reiterates that “Plaintiff
lacks evidence that an inadequacy in BRP’s warnings caused his injuries because no
warning would have prevented his involuntary, instinctual arm movement.” Id.
(internal quotations omitted) (capitalization altered).

In BRP’s view, to prove

causation, the third element of a failure-to-warn claim, Mr. Ratcliffe “must show that,
had a different, allegedly adequate warning been given, the plaintiff would not have
been injured.” Id. at 14 (citing Koken v. Black & Veatch Constr., Inc., 426 F.3d 39, 49
(1st Cir. 2005)).
BRP avers that Mr. Ratcliffe cannot demonstrate causation here because he
“cannot show that, had BRP provided another or a different warning regarding the
inherent risk of rollovers and the need for occupants to keep their arms and legs
inside the vehicle, his injury would have been prevented.” Id. This is so, BRP
continues, because Mr. Ratcliffe’s “deposition testimony—buttressed by his expert’s
opinion—reflects his belief that his arm exited the Subject Vehicle as a reflexive,

35

instinctual response to the low-speed tip-over.” Id. As such, BRP concludes, Mr.
Ratcliffe’s “warning-based . . . claims must fail.” Id.
B.

Stephen J. Ratcliffe’s Opposition

In his memorandum of law, Mr. Ratcliffe responds that “there is ample prima
facie evidence that a design defect (or defects) proximately caused this accident, and
prima facie evidence that inadequate warnings also proximately caused this
accident.” Pl.’s Mem. of Law at 1.
Beginning with his design defect theory, Mr. Ratcliffe asserts that “there is
evidence that this incident was caused by a design defect in the Subject Vehicle,
which was unknown to the Plaintiff, and of which he was not warned.” Id. at 8
(capitalization altered). Mr. Ratcliffe initially posits that “BRP focuses exclusively on
window nets, but Plaintiff’s experts also offer opinions that the vehicle was
unreasonably dangerous because of the design of its roll cage and its lack of wrist
restraints.” Id. at 5.
Mr. Ratcliffe accepts that he has the burden of establishing “that the product
was defectively designed,” which “involves an examination of the utility of the
product’s design, the risk of such design and the feasibility of safer alternatives.” Id.
at 8. While Mr. Ratcliffe concedes that “consumer expectations may be considered,”
he counters that “consumer expectations do not play a determinative role,” and “[t]he
mere fact that a risk presented by a product design is open and obvious, or generally
known, and that the product thus satisfies expectations, does not prevent a finding

36

that the design is defective.” Id. at 9 (quoting RESTATEMENT (THIRD) OF TORTS: PRODS.
LIAB. § 2 cmt. g (AM. L. INST. 1998)).
Here, Mr. Ratcliffe avers, BRP “did not inform Ratcliffe or the public that the
window nets it designed and sold as an accessory for the Maverick X3 had a safety
purpose until on or about July 21, 2020,” despite the fact that “BRP was aware it
could feasibly manufacture the Maverick X3 with window nets as standard
equipment in 2018 and 2019.” Id. at 10.
In Mr. Ratcliffe’s view, this case is analogous to the Maine Supreme Judicial
Court’s (Law Court) decision in Marois v. Paper Converting Machine Co., 539 A.2d
621 (Me. 1988), which upheld a jury verdict against the defendant manufacturer on
a design defect claim on the theory that “a plaintiff may be aware of a dangerous area
on a machine that could foreseeably injure his hand, but not recognize that his hand
may be drawn into that area and injured.” Id. at 10 (citing Marois, 539 A.2d at 624).
Mr. Ratcliffe casts his situation as similar to Marois because he “was aware that he
had purchased and was operating a vehicle with a roll cage and without window nets,”
but he “was not aware that during a rollover he would instinctually or reflexively
extend his arm through the open window.” Id. at 12.
Mr. Ratcliffe also takes issue with BRP’s reliance on Burns v. Architectural
Doors and Windows, 2011 ME 61, 19 A.3d 823, suggesting that “the facts and travel
in Burns do not remotely resemble the facts and travel here.” Id. at 15. In Mr.
Ratcliffe’s view, the plaintiff in Burns, who sustained injuries as a result of being
struck by a closing garage door, “failed to make proper allegations of a design defect

37

in the door, and then failed to offer any argument or evidence of a design defect in the
door.” Id. at 12, 14. Mr. Ratcliffe further notes that the evidence in Burns “showed
that [the] plaintiff had known about the door’s closing mechanism (its dangerous
condition) for three years and that he had walked in and out of the garage several
times a day during that timeframe.” Id. at 14. Finally, Mr. Ratcliffe contends that
the Burns plaintiff “did not sue the company that designed, manufactured, or
distributed the closing mechanism.” Id. (emphasis omitted).
Turning to his failure-to-warn theory, Mr. Ratcliffe contends that “BRP failed
to warn Plaintiff that he may reflexively extend his arm to brace a rollover, and failed
to inform Plaintiff of the important safety purpose and benefit of BRP’s accessory
window nets.” Id. at 16. Quoting the Law Court, Mr. Ratcliffe declares that “[a]
manufacturer has a responsibility to inform users and consumers of dangers about
which he either knows or should know at the time the product is sold.” Id. at 17
(quoting Bernier v. Raymark Indus., Inc., 516 A.2d 534, 540 (Me. 1986)). In Mr.
Ratcliffe’s view, “[a] jury will be able to find that BRP designed the Maverick X3’s
window nets for a safety purpose similar to that described in the Tucker Patent and
yet BRP failed to market its accessory nets to the public as an important safeguard
against limb injuries, until approximately two years after they were first sold.” Id.
Mr. Ratcliffe further argues that, had he been warned about the possibility of
his arm reflexively extending outside the roll cage, he “would not have operated the
vehicle without window nets or wrist restraints.” Id. at 18. As such, Mr. Ratcliffe
asserts that “[t]here is ample evidence that BRP’s failure to adequately warn its

38

customers of the Maverick X3’s dangerous condition, or adequately (or even
truthfully) inform them of the safety purpose of the window nets, was unreasonable,
reckless, and proximately caused Plaintiff’s injures.” Id.
Mr. Ratcliffe then endeavors to distinguish the cases BRP cited in support of
its argument that Mr. Ratcliffe has not proven causation. According to Mr. Ratcliffe,
in Koken v. Black & Veatch Construction, Inc., 426 F.3d 39 (1st Cir. 2005), the welder
would have consulted his foreman had he received an adequate warning, however,
there was no evidence of how the foreman would have responded in such a
consultation. Id. (citing Koken, 426 F.3d at 49). Here, Mr. Ratcliffe contends “there
is evidence that had [he] been warned that his arms may involuntarily extend outside
of the vehicle in the event of a rollover, then he would not have operated the vehicle
without window nets or wrist restraints.” Id. at 18-19.
Regarding Pottle v. Up-Right, Inc., 628 A.2d 672 (Me. 1993), the other case BRP
cited, Mr. Ratcliffe contends that the Law Court in Pottle “found evidence that the
subject scaffold had inadequate warnings regarding its locking mechanism.” Id. at
19. Here, Mr. Ratcliffe argues, “there are expert opinions that BRP’s warnings
inadequately warned operators or occupants that their arms may reflexively extend
outside of the vehicle during a roll-over.” Id. at 19. In Mr. Ratcliffe’s view, BRP’s
warnings “should have been specific to this dangerous condition.” Id. at 20.
In conclusion, Mr. Ratcliffe observes that “BRP’s warnings presuppose that an
ordinary operator will be able to follow them in a rollover event, but a jury may find
that [an] ordinary operator or occupant of the Maverick X3 could not reasonably

39

follow BRP’s instructions during a rollover event.” Id. at 20. Therefore, Mr. Ratcliffe
declares, “BRP should not be allowed summary judgment on Plaintiff’s failure to
warn claims.” Id.
C.

BRP U.S. Inc.’s Reply

Beginning with Mr. Ratcliffe’s failure-to-warn theory, BRP insists that “there
exists no record evidence that Plaintiff’s accident would have been avoided had BRP
provided some new or different warning.” BRP’s Reply at 2. BRP acknowledges Mr.
Ratcliffe’s argument that it should have warned that occupants may reflexively
extend their limbs outside the roll cage, but counters that “even if BRP had adopted
Plaintiff’s proposed language or something else entirely, no warning that BRP could
have given would have prevented Plaintiff from ‘reflexively’ and ‘instinctually’
placing his arm outside the vehicle.” Id. at 2-3.
BRP accuses Mr. Ratcliffe of attempting “to salvage his warnings claim by
submitting a self-serving affidavit prepared after BRP moved for summary
judgment.” Id. at 3 (emphasis omitted). Arguing that the Court “may not consider
an affidavit that is nothing more than an attempt to manufacture an issue of fact in
order to survive summary judgment,” BRP urges the Court to discard Mr. Ratcliffe’s
statements of material fact that rely on his affidavit. Id. at 3-4 (quoting Verrier v.
BlueTriton Brands, Inc., No. 2:20-cv-00443-JAW, 2022 U.S. Dist. LEXIS 144116, at
*74 (D. Me. Aug. 12, 2022)). Even if the Court credits the affidavit, BRP continues,
“the fact remains that nothing in the record evidence would allow a reasonable juror
to conclude that, had BRP provided yet another warning regarding the potential for

40

the Subject Vehicle to overturn and the importance of keeping limbs inside the
occupant compartment, Plaintiff would have operated the vehicle in a different
manner or would have been able to resist the ‘instinctual’ urge to place his arm
outside the window.” Id. at 4.
Turning to Mr. Ratcliffe’s design defect theory, BRP initially notes that “[w]hile
it is true that, generally, whether a product is defective in design will require an
analysis of the risks and utilities of the product at issue compared to some ostensibly
safer, feasible alternative design, the law does not provide a remedy in cases, like this
one, where Plaintiff received exactly what he bargained for.” Id. at 1.
BRP then attempts to distinguish Marois, the case Mr. Ratcliffe relies on. BRP
first avers that “the issue before the court in Marois was whether an alleged defect
caused the plaintiff’s injuries, not whether a defect existed in the first instance.” Id.
at 5 (citing Marois, 539 A.2d at 621). BRP further contends that “the circumstances
that permitted a jury to reach a finding of defect in Marois—that the ‘specific danger
of the machine’s design and clearing process was not obvious to, or known by, the
[p]laintiff’—are not applicable to this case, as Plaintiff here was well aware of the risk
of rollovers, the need to keep his arms inside the vehicle, the lack of window nets on
the Subject Vehicle, and the availability of webbing as either an aftermarket
accessory or as already installed on other vehicles present on Tidd’s lot.” Id. (quoting
Marois, 539 A.2d at 624).

41

In conclusion, BRP argues that “the record evidence shows that the Subject
Vehicle was precisely what Plaintiff contemplated when he bought it,” and “Maine
law does not afford Plaintiff a remedy under the facts presented.” Id.
IV.

LEGAL STANDARD
Summary judgment is proper when “the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” FED. R. CIV. P. 56(a). “Genuine issues of fact are those that a factfinder could
resolve in favor of the nonmovant, while material facts are those whose ‘existence or
nonexistence has the potential to change the outcome of the suit.’” Green Mountain
Realty Corp. v. Leonard, 750 F.3d 30, 38 (1st Cir. 2014) (quoting Tropigas de P.R.,
Inc. v. Certain Underwriters at Lloyd’s of London, 637 F.3d 53, 56 (1st Cir. 2011)).
When the movant “has made a preliminary showing that there is no genuine
issue of material fact, the nonmovant must ‘produce specific facts, in suitable
evidentiary form, to . . . establish the presence of a trialworthy issue.’” McCarthy v.
City of Newburyport, 252 F. App’x 328, 332 (1st Cir. 2007) (alteration in original)
(quoting Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999)).
The nonmoving party must provide “‘enough competent evidence’ to enable a
factfinder to decide in its favor on the disputed claims.” Carroll v. Xerox Corp., 294
F.3d 231, 237 (1st Cir. 2002) (quoting Goldman v. First Nat’l Bank of Bos., 985 F.2d
1113, 1116 (1st Cir. 1993)). Then, a “court views the facts and draws all reasonable
inferences in favor of the nonmoving party,” Ophthalmic Surgeons, Ltd. v. Paychex,
Inc., 632 F.3d 31, 35 (1st Cir. 2011), but disregards “[c]onclusory allegations,

42

improbable inferences, acrimonious invective, or rank speculation.” Mancini v. City
of Providence ex rel. Lombardi, 909 F.3d 32, 38 (1st Cir. 2018) (quoting Ahern v.
Shinseki, 629 F.3d 49, 54 (1st Cir. 2010)).

“[T]he plain language of Rule 56(c)

mandates entry of summary judgment . . . against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and
on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986).
V.

DISCUSSION
A.

Post-Deposition Affidavits in Opposition to Summary Judgment

At the outset, the Court considers BRP’s objections to Mr. Ratcliffe’s
submission of a post-deposition affidavit as factual support for some of his statements
of additional material fact. Specifically, BRP objects that “Plaintiff’s affidavit is
improper and should be struck from the record because it misstates the factual record
and was drafted after BRP moved for summary judgment.” DRPSAMF ¶¶ 59-66, 72.
BRP expands on this objection in its reply, which describes Mr. Ratcliffe’s affidavit
as “a self-serving affidavit prepared after BRP moved for summary judgment”
representing Mr. Ratcliffe’s attempt “to walk back deposition testimony.” BRP’s
Reply at 3 (emphasis in original). BRP maintains that the Court “may not consider
an affidavit that is nothing more than an attempt to manufacture an issue of fact in
order to survive summary judgment.” Id. (quoting Verrier v. BlueTriton Brands, Inc.,
No. 2:20-cv-00443-JAW, 2022 U.S. Dist. LEXIS 144116, at *74 (D. Me. Aug. 12,
2022)).

Further, BRP insists that a motion for summary judgment cannot “be

43

defeated by a sworn statement that ‘merely reiterate[s] allegations made in the
complaint, without providing specific factual information made on the basis of
personal knowledge.’” Id. (alteration in original) (quoting Verrier, 2022 U.S. Dist.
LEXIS 144116, at *74).
In response, Mr. Ratcliffe contends that “it is proper for a non-moving party to
respond to a motion for summary judgment with an affidavit” under Federal Rule of
Civil Procedure 56(c)(4). Pl.’s Reply to DRPSAMF at 2. Mr. Ratcliffe further argues
that BRP does not “claim that the affidavit is deficient under Rule 56(c)(4),” but
instead “claims that the affidavit ‘misstates the factual record’ without actually citing
anything in the record which is purportedly misstated or contradicted.” Id. (quoting
DRPSAMF ¶¶ 59-66, 72). According to Mr. Ratcliffe, BRP’s objection is “unfounded,
without basis in fact, and in violation” of District of Maine Local Rule 56(d), which
requires parties to support “each denial or qualification [of a statement of material
fact] by a record citation.” Id. (quoting D. ME. LOC. R. 56(d)).
The Court recently addressed the use of affidavits in opposition to motions for
summary judgment in Tucker v. Lantmännen Unibake USA, Inc., No. 2:21-cv-00087JAW, 2023 U.S. Dist. LEXIS 222363 (D. Me. Dec. 14, 2023). Quoting Verrier, the case
cited by BRP in support of its objection, the Court observed that “Rule 56 of the
Federal Rules of Civil Procedure states that a party may use an affidavit ‘to support
or oppose a motion [for summary judgment]’ if the affidavit is ‘made on personal
knowledge, set[s] out facts that would be admissible in evidence, and show[s] that the
affiant . . . is competent to testify on the matters stated.’” Id. at *9-10 (alterations in

44

original) (quoting Verrier, 2022 U.S. Dist. LEXIS 144116, at *73 (quoting FED. R. CIV.
P. 56(c)(4))). The Court also cautioned that “a party’s use of an affidavit is restricted
only ‘under limited circumstances.’” Id. at *11 (quoting Verrier, 2022 U.S. Dist.
LEXIS 144116, at *73). Specifically, 1) the affiant must have given “clear answers to
unambiguous questions,” 2) the affidavit must contradict the witness’s previous
statements, and 3) the affiant must not have given a “satisfactory explanation of why
the testimony is changed.” Id. (quoting Verrier, 2022 U.S. Dist. LEXIS 144116, at
*73-74).
The Court further clarified that “[a] subsequent affidavit that merely explains,
or amplifies upon, opaque testimony given in a previous deposition is entitled to
consideration in opposition to a motion for summary judgment.” Id. (alteration in
original) (quoting Verrier, 2022 U.S. Dist. LEXIS 144116, at *75 (quoting Gillen v.
Fallon Ambulance Serv., Inc., 283 F.3d 11, 26 (1st Cir. 2002))). A party objecting to
a post-deposition affidavit at the summary judgment stage must show that the
affidavit contradicts earlier deposition testimony: “[a]lthough the First Circuit has
found the timing of the execution of a post-deposition affidavit probative of ill motive,
it has not held that a district court may strike a post-summary judgment affidavit
solely based on when the affidavit was filed, without evidence of a contradiction
between the testimony.” Id. at *12 (quoting Verrier, 2022 U.S. Dist. LEXIS 144116,
at *76-77). “[T]he First Circuit has repeatedly held that a ‘party’s own affidavit,
containing relevant information of which [s]he has first-hand knowledge, may be selfserving, but it is nonetheless competent to support or defeat summary judgment.’”

45

Id. (quoting Velázquez-García v. Horizon Lines of P.R., Inc., 473 F.3d 11, 18 (1st Cir.
2007)).
Although BRP broadly asserts that Mr. Ratcliffe’s affidavit “misstates the
factual record” and represents an attempt “to walk back deposition testimony,” it fails
to show how the specific statements in the affidavit contradict Mr. Ratcliffe’s earlier
testimony. BRP’s discussion of Mr. Ratcliffe’s deposition testimony is limited to
claims that Mr. Ratcliffe admitted “to reading warning labels that specifically advised
of the risk of rollovers and the need to keep all limbs inside the vehicle” and “described
a conversation with a Tidd’s sales representative where he was ‘asking about the
rollovers.’” BRP’’s Reply at 3 (quoting Stipulated R., Attach. 8, Dep. of Stephen J.
Ratcliffe at 149:7 (S. Ratcliffe Dep.)). However, these portions of Mr. Ratcliffe’s
deposition testimony do not contradict his affidavit, making them an insufficient
basis for an objection to the affidavit.
BRP is correct that Mr. Ratcliffe testified at his deposition that he was familiar
with written warnings on the Subject Vehicle and in the operator’s manual
instructing occupants not to stick their arms outside the vehicle during a rollover. S.
Ratcliffe Dep. at 45:7-46:17. But Mr. Ratcliffe’s affidavit does not mention written
warnings at all, nor does it suggest that Mr. Ratcliffe was never told to keep his arms
inside the vehicle in the event of a rollover. As such, the affidavit does not “clearly
contradict[]” Mr. Ratcliffe’s “clear answers to unambiguous questions.” Calantuoni
v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4-5 (1st Cir. 1994).

46

Likewise, although Mr. Ratcliffe’s affidavit discusses a conversation between
Mr. Ratcliffe and Richard Tidd regarding the Subject Vehicle’s potential to roll, the
affidavit expands on Mr. Ratcliffe’s deposition testimony by providing more specific
details about the conversation. This is clearly permissible. See Gillen, 283 F.3d at
26 (“A subsequent affidavit that merely explains, or amplifies upon, opaque testimony
given in a previous deposition is entitled to consideration in opposition to a motion
for summary judgment”). Therefore, the Court concludes that BRP has failed to show
that Mr. Ratcliffe’s affidavit contradicts his prior deposition testimony.
BRP cannot avoid this failure by suggesting that, as a whole, the affidavit
represents Mr. Ratcliffe’s attempt to show that he “was not aware of the risk of
rollovers with the Subject Vehicle and the need to keep his arms inside the vehicle.”
BRP’s Reply at 3. As the Court has explained, an affidavit is only improper at the
summary judgment stage if it “contradicts clear answers to unambiguous questions
in an earlier deposition.” Gillen, 283 F.3 at 26. Regardless of how BRP views Mr.
Ratcliffe’s affidavit, it has failed to show a contradiction with his deposition
testimony. The Court overrules BRP’s objections and accepts Mr. Ratcliffe’s affidavit
for purposes of the present motion.
B.

Stephen J. Ratcliffe’s Design Defect Claim Against BRP U.S. Inc.

Mr. Ratcliffe advances two theories of liability in support of his negligence and
strict liability claims. 18 First, he maintains that the Subject Vehicle suffered from a

Mr. Ratcliffe’s strict liability cause of action arises under Maine’s strict liability statute, 14
M.R.S. § 221, which provides:
18

47

design defect. See Compl. ¶¶ 21, 32; Pl.’s Opp’n to BRP’s Mot. at 1 (“[T]here is prima
facie evidence that a design defect (or defects) proximately caused this accident”).
Second, he avers that BRP failed to warn him about the risks associated with using
the Subject Vehicle. Compl. ¶¶ 22, 39; Pl.’s Opp’n to BRP’s Mot. at 1 (“[T]here is . . .
prima facie evidence that inadequate warnings also proximately caused this
accident”).
Even though Mr. Ratcliffe alleges two causes of action, his design defect theory
can be analyzed the same way for purposes of the present motion.

The Maine

Supreme Judicial Court (Law Court) has “noted that ‘[i]n actions based upon defects
in design, negligence and strict liability theories overlap in that under both theories
the plaintiff must prove that the product was defectively designed thereby exposing
the user to an unreasonable risk of harm.” Canning v. Broan-Nutone, LLC, 480 F.
Supp. 2d 392, 410 (D. Me. 2007) (quoting Stanley v. Schiavi Mobile Homes, Inc., 462
A.2d 1144, 1148 (Me. 1983)); accord Guiggey v. Bombardier, 615 A.2d 1169, 1171 (Me.
1992). “Such proof will involve an examination of the utility of [the product’s] design,
the risk of the design and the feasibility of safer alternatives.” Stanley, 462 A.2d at
1148.

One who sells any goods or products in a defective condition unreasonably dangerous
to the user or consumer or to his property is subject to liability for physical harm
thereby caused to a person whom the manufacturer, seller or supplier might
reasonably have expected to use, consume or be affected by the goods, or to his
property, if the seller is engaged in the business of selling such a product and it is
expected to and does reach the user or consumer without significant change in the
condition in which it is sold. This section applies although the seller has exercised all
possible care in the preparation and sale of his product and the user or consumer has
not bought the product from or entered into any contractual relation with the seller.

48

With respect to Mr. Ratcliffe’s design defect theory, the parties disagree that
Mr. Ratcliffe can establish the Subject Vehicle “was defectively designed thereby
exposing [him] to an unreasonable risk of harm.” See Schiavi, 462 A.2d at 1148.
Specifically, they dispute whether Mr. Ratcliffe was aware of the Subject Vehicle’s
allegedly defective condition at the time he purchased it. 19
The Law Court has repeatedly noted that Maine’s strict liability statute, 14
M.R.S. § 221, was modeled after section 402A of the Restatement (Second) of Torts.
See, e.g., Austin v. Raybestos-Manhattan, Inc., 471 A.2d 280, 286 (Me. 1984) (“Maine’s
section 221 derives almost verbatim from the black letter of section 402A of the
Restatement (Second) of Torts (1965)”); Bernier v. Raymark Indus., Inc., 516 A.2d 534,
537-38 (Me. 1986) (“The Legislature formulated section 221 directly from section
402A of the Restatement (Second) of Torts (1965)”); Estate of Pinkham v. Cargill, Inc.,
2012 ME 85, ¶ 13, 55 A.3d 1, 5-6 (“We have previously noted that Maine’s strict
liability statute was fashioned after the Restatement (Second) of Torts § 402A

In their filings, the parties grounded their arguments in different versions of the Restatement
of Torts. Compare BRP’s Mem. of Law at 12-13 (discussing comment g to Restatement (Second) of
Torts § 402A), with Pl.’s Mem. of Law at 9 (discussing comment g to Restatement (Third) of Torts:
Products Liability § 2).
However, when questioned by the Court on April 30, 2024, both counsel disavowed any claim
that the distinctions between Restatements Second and Third make a difference in the resolution of
this motion. In response to the Court’s questioning, BRP’s counsel, Attorney Trischler, responded, “I
think I am arguing that the second restatement applies and bars the suit.” Oral Arg. Tr. at 15:16-17.
In response to the Court’s question as to whether it matters if the Second or Third Restatement has
been adopted in Maine, Mr. Ratcliffe’s counsel, Attorney Mega, replied, “I don’t think it matters at all.
I don’t believe that there’s a case from the Maine Supreme Court which says they’ve adopted the third
restatement, obviously, or else that would be in the brief. . . . But it makes no difference.” Id. at 32:1333:2.
As the parties agree that the Second Restatement applies, the Court does not reach whether
the Third Restatement could apply in Maine and, if so, whether the distinctions between the two
Restatements would make a difference in the resolution of this motion.
19

49

(1965)”). Accordingly, when the legislative history of 14 M.R.S. § 221 is silent as to
an issue of statutory interpretation, the Law Court looks to the comments to section
402A of the Second Restatement for guidance. See Bernier, 516 A.2d at 538 (“Since
section 221 and its legislative history does not have anything to say . . . the
commentary to section 402A is an appropriate place to begin our analysis”); Estate of
Pinkham, 2012 ME 85, ¶¶ 13-15, 55 A.3d at 6 (reviewing the comments for guidance
because “in enacting section 221, the Legislature intended to align itself with the
Restatement’s objectives”).
Relevant here, the Law Court has relied on comment g to section 402A when
discussing how consumer expectations affect design defect claims.

Comment g

provides in part that “[t]he rule stated in this Section applies only where the product
is, at the time it leaves the seller’s hands, in a condition not contemplated by the
ultimate consumer, which will be unreasonably dangerous to him.” RESTATEMENT
(SECOND) OF TORTS § 402A cmt. g (AM. L. INST. 1965) (emphasis supplied).
In Burns v. Architectural Doors and Windows, 2011 ME 61, 19 A.3d 823, the
Law Court adjudicated a products liability claim brought by an automotive repair
shop mechanic, who was struck on the head by a closing garage door. 2011 ME 61,
¶¶ 2-4, 19 A.3d at 825. At the time of the accident, the mechanic had worked at the
repair shop for three years, and he testified that “it was obvious to him that when a
garage door was closing, it would not stop if it hit a person or an object” and that “he
had seen vehicles struck by a closing door on at least two occasions.” Id. ¶ 5, 19 A.3d
at 825. The mechanic initially proceeded under a design defect theory, alleging that

50

“the garage door was in a defective condition unreasonably dangerous to the ultimate
user or consumer of the door because it did not have a mechanism that would cause
it to stop or reverse if it encountered an object.” Id. ¶ 6, 19 A.3d at 825. However,
“[b]ecause neither of the defendants manufactured, designed, or sold the door
operator,” the trial court dismissed the mechanic’s design defect theory at the
summary judgment stage. Id. ¶ 9, 19 A.3d at 826 (emphasis in original).
On appeal to the Law Court, the mechanic argued that “he should have been
permitted to offer evidence and argument of a design defect, because the garage door
that struck him was defective ‘at the time it le[ft] the seller’s hands.’” Id. ¶ 19, 19
A.3d at 828 (citation omitted) (quoting RESTATEMENT (SECOND) OF TORTS § 402A cmt.
g). The Law Court rejected this contention, writing that, “[a]s comment g makes clear
. . . an injured person can prevail in such a design defect claim only if the product left
the seller’s hands ‘in a condition not contemplated by the ultimate consumer.’” Id.
(quoting RESTATEMENT (SECOND)

OF

TORTS § 402A cmt. g).

Because “Burns

understood how the door operator functioned throughout his employment at [the
repair shop],” the Law Court concluded, “the door did not leave [the defendant’s]
hands ‘in a condition not contemplated by the ultimate consumer.’” Id. (quoting
RESTATEMENT (SECOND) OF TORTS § 402A cmt. g).
The year after it decided Burns, the Law Court again favorably quoted
comment g to section 402A of the Second Restatement in Estate of Pinkham, supra.
In that case, the Law Court noted that the “Restatement comments define ‘[d]efective
condition’ as a product that is ‘in a condition not contemplated by the ultimate

51

consumer.’” Id. ¶ 13, 55 A.3d at 6 (quoting RESTATEMENT (SECOND) OF TORTS §402A
cmt. g).
Thus, the Law Court has twice invoked comment g to section 402A for the
proposition that to succeed on a design defect claim a plaintiff must show the
allegedly defective product was “in a condition not contemplated by the ultimate
consumer.” See RESTATEMENT (SECOND) TORTS § 402A cmt. g. Accordingly, the Court
follows the Law Court’s reasoning and concludes Mr. Ratcliffe can only prevail on his
design defect theory if he can show that the Subject Vehicle left BRP’s possession “in
a condition not contemplated by the ultimate consumer.” Burns, 2011 ME 61, ¶ 19,
19 A.3d at 828 (quoting RESTATEMENT (SECOND) OF TORTS § 402A cmt. g).
Mr. Ratcliffe contends he can make this required showing.

Although he

concedes he “was aware that he had purchased and was operating a vehicle with a
roll cage and without window nets,” he argues he “was not aware that during a
rollover he would instinctually or reflexively extend his arm through the open
window.” Pl.’s Opp’n to BRP’s Mot. at 12. At oral argument, Mr. Ratcliffe’s counsel
further maintained that the record contains no evidence Mr. Ratcliffe knew the
significance of purchasing a UTV without window nets. Oral Arg. Tr. at 33:24-34:9.
In Mr. Ratcliffe’s view, while the record shows he wanted window nets, it is silent as
to why he wanted them. Id. at 34:5-9. This in turn makes summary judgment
improper, he argues, because there is a triable issue as to whether he fully understood
the Subject Vehicle’s condition. Id. at 34:5-21.

52

BRP disagrees. It argues that “the Subject Vehicle is precisely what Plaintiff
contemplated it was when he saw it on the lot of Tidd’s dealership.” BRP’s Mot. at
13. It further maintains that “[t]he record evidence demonstrates that, at the time
he purchased the Subject Vehicle, [Mr. Ratcliffe] was aware of the availability of
window nets; that the 2019 Maverick did not come with nets as standard equipment;
that he considered nets to be [a] desirable feature; that other UTVs could be
purchased with nets; and that aftermarket nets were available for the Subject
Vehicle.” Id. In BRP’s view, Mr. Ratcliffe “was well aware of the risk of rollovers, the
need to keep his arms inside the vehicle, [and] the lack of window nets on the Subject
Vehicle.” BRP’s Reply at 5.
While the parties do not explicitly frame their arguments in these terms,
resolution of their dispute turns on the proper meaning of “condition” in comment g
to section 402A. BRP’s argument interprets “condition” narrowly, suggesting Mr.
Ratcliffe’s awareness of the Subject Vehicle’s lack of window nets, by itself, forecloses
his ability to show the Subject Vehicle was in “a condition not contemplated by the
ultimate consumer.” See RESTATEMENT (SECOND)

OF

TORTS § 402A cmt. g. Mr.

Ratcliffe, on the other hand, interprets “condition” broadly, arguing the Subject
Vehicle was in “a condition not contemplated by the ultimate consumer” because he
failed to appreciate the specific safety-related function of window nets and the injury
risk associated with the absence of window nets. See id.
For guidance on this issue, the Court turns to Burns, the Law Court’s most
extensive discussion of comment g. Burns concerned garage door operators without

53

“a safety mechanism that would stop a door from closing if it encountered an
obstruction.” 2011 ME 61, ¶ 2, 19 A.3d at 825. In reciting the facts of the case, the
Law Court noted that “[a]t the time of the accident, Burns had worked at [the repair
shop] for three years, and he knew how the doors operated.” Id. ¶ 4, 19 A.3d at 825.
Burns “testified that it was obvious to him that when a garage door was closing, it
would not stop if it hit a person or an object. In fact, he had seen vehicles struck by
a closing door on at least two occasions.” Id. Concluding Burns could not proceed
under a design defect theory, the Law Court explained that “Burns understood how
the door operator functioned throughout his employment at Whited.” Id. ¶ 19, 19
A.3d at 828. In other words, the Law Court barred Burns’ recovery not because he
knew of the alleged defect, but because he knew how the alleged defect could injure
him.
Here, the record establishes that Mr. Ratcliffe was aware of the Subject
Vehicle’s alleged design defect—its lack of window nets—at the time he bought it.
Prior to purchasing the Subject Vehicle, Mr. Ratcliffe had ridden in UTVs with
window nets. DSMF ¶ 18; PRDSMF ¶ 18. He had also conducted internet research
on UTVs, during the course of which he observed and watched videos of UTVs
equipped with window nets. DSMF ¶¶ 14-16; PRDSMF ¶¶ 14-16. Mr. Ratcliffe
specifically researched the availability of aftermarket window nets that would fit the
Subject Vehicle, and he discussed the availability of window nets with the salesperson
at Tidd’s. DSMF ¶ 19; PRDSMF ¶ 19. Mr. Ratcliffe even testified that, before
purchasing the Subject Vehicle, he “knew that [window nets or webbing] was

54

something that [he] desired to have from what [he had] seen” and that the availability
of window netting was “a high consideration” and “something [he] wanted.” DSMF
¶¶ 21-22; PRDSMF ¶¶ 21-22.

Therefore, it is clear Mr. Ratcliffe consciously

purchased a UTV without window nets.
What is not clear, however, is why Mr. Ratcliffe wanted window nets and
whether he understood how he could be injured as a result of the Subject Vehicle’s
lack of window nets. The record establishes that window nets serve a critical purpose:
keeping occupants’ limbs and other body parts inside a UTV’s roll cage during a
rollover. BRP’s own “Nascar style” nets successfully passed a test to determine
whether they could “hold passenger body parts during [a] roll over.” PSAMF ¶¶ 8284; DRPSAMF ¶¶ 82-84. In addition, another UTV manufacturer, Honda, includes
window nets as standard equipment for its Talon UTV, the owner’s manual of which
cautions operators:
Your Honda SXS is equipped with side nets to prevent branches, or other
debris from getting inside the driver’s compartment, and to keep the
driver’s and passenger’s hands and arms inside the occupant protective
structure (OPS) if the vehicle ever tips or overturns.
...
Be sure the side nets are properly latched before driving your Honda
SXS, and never remove side nets from the vehicle.
PSAMF ¶ 91; DRPSAMF ¶ 91.
Although there is evidence that the UTV industry, including BRP, was aware
of the safety purpose of window nets, the record is silent as to whether Mr. Ratcliffe
understood or was told this. In fact, there is evidence Mr. Ratcliffe was misled about
the function of window nets. In 2019, the year Mr. Ratcliffe bought the Subject
55

Vehicle, BRP did not market its “Nascar nets” as having any safety related purpose.
PSAMF ¶ 93; DRPSAMF ¶ 93. Instead, BRP marketed the nets as providing “added
protection from wind.” PSAMF ¶ 93; DRPSAMF ¶ 93. Further, on July 29 or 30,
2019, an owner or employee of Tidd’s told Mr. Ratcliffe that the window nets offered
by BRP were “almost like a screen of a window . . . to keep dust and debris out.” 20
PSAMF ¶ 95; DRPSAMF ¶ 95.

A reasonable jury could find that these

representations informed Mr. Ratcliffe’s understanding of the window nets, as the
record reflects that he believed BRP’s Can-Am accessory window nets were designed
to keep dust and debris out of the vehicle, not to keep body parts inside. PSAMF
¶ 62; DRPSAMF ¶ 62.
A reasonable factfinder could also conclude that Mr. Ratcliffe did not
understand the peril posed by the Subject Vehicle’s lack of window nets. During the
accident, Mr. Ratcliffe extended his left arm outside of the window area instinctually,
reflexively, and without volition. PSAMF ¶ 72; DRPSAMF ¶ 72. As a result, his left
arm was almost severed off by the Subject Vehicle’s roll bar. PSAMF ¶ 71; DRPSAMF
¶ 71; see also DSMF ¶ 8; PRDSMF ¶ 8 (quoting Dr. Nobilini’s statement that
“Plaintiff’s injuries were consistent with his left forearm being crushed between the
driver’s side rail of the [rollover protective structure] and the ground during the
subject rollover event”).

At oral argument, counsel for BRP argued that any representations made by Tidd’s are not
legally binding on BRP. Oral Arg. Tr. at 21:14-18. The Court includes this statement, and other
statements by Tidd’s, in its analysis not because they are binding on BRP, but to show that a
reasonable factfinder could conclude they informed Mr. Ratcliffe’s understanding.
20

56

Mr. Ratcliffe’s experts agree that his reflexive arm movement was a natural
and foreseeable protective response. See PSAMF ¶ 73; DRPSAMF ¶ 73 (explaining
Dr. Nobilini’s conclusions); PSAMF ¶ 75; DRPSAMF ¶ 75 (describing Dr. Batzer’s
observations); PSAMF ¶ 100; DRPSAMF ¶ 100 (reproducing Dr. Lenorovitz’s report).
Yet there is no evidence in the record that Mr. Ratcliffe knew he would instinctively
respond to a rollover event in this way, or that his instincts would lead to such dire
consequences. In fact, Mr. Ratcliffe stated in his affidavit that when he purchased
the Subject Vehicle, he did not believe his arm would instinctually or reflexively
extend out the open window. PSAMF ¶ 63 (emphasis supplied); DRPSAMF ¶ 63.
Further, there is other evidence in the record that Mr. Ratcliffe did not fully
appreciate the Subject Vehicle’s propensity to roll. During his research on UTVs, Mr.
Ratcliffe watched numerous videos of Maverick X3 drivers performing maneuvers,
including donuts, without incident of rollover and in vehicles that did not appear to
be equipped with window nets. PSAMF ¶ 60; DRPSAMF ¶ 60. Additionally, in
response to Mr. Ratcliffe’s concerns about the Subject Vehicle rolling, Mr. Tidd
represented that the Maverick X3 was unlikely to roll because it had a “low center of
gravity,” and to roll it a driver would “have to get really nuts with it.” PSAMF ¶ 59;
DRPSAMF ¶ 59.

Therefore, the record at least suggests Mr. Ratcliffe was

misinformed about the risk of injury that accompanied operating the Subject Vehicle
without window nets.
Viewing the evidence in the light most favorable to Mr. Ratcliffe, as it must,
the Court concludes that a reasonable jury could find that, although Mr. Ratcliffe

57

consciously purchased the Subject Vehicle without window nets, he did not appreciate
(and may have been misled about) the safety purpose of window nets, how the lack of
window nets could injure him or the likelihood that he would be injured. Such a
finding would distinguish the present case from Burns. Whereas the plaintiff in
Burns “understood how the door operator functioned,” 2011 ME 61, ¶ 19, 19 A.3d at
828, the record here suggests Mr. Ratcliffe did not understand how the absence of
window nets would render the Subject Vehicle unsafe. As a result, a jury could find
that the Subject Vehicle left BRP’s hands “in a condition not contemplated by the
ultimate consumer.” RESTATEMENT (SECOND)

OF

TORTS § 402A cmt. g. The Court

denies BRP’s motion for summary judgment on Mr. Ratcliffe’s design defect theory.
C.

Stephen J. Ratcliffe’s Failure-to-Warn Claim against BRP U.S.
Inc.

As a threshold matter, Mr. Ratcliffe’s failure-to-warn theory is similar to his
design defect theory in that “[r]egardless of whether a ‘failure to warn claim is
phrased in terms of negligence [or] strict liability, the analysis . . is basically the
same.” Pottle v. Up-Right, Inc., 628 A.2d 672, 675 (Me. 1993) (second and third
alterations in original) (quoting McNeal v. Hi-Lo Powered Scaffolding, Inc., 835 F.2d
637, 641 (D.C. Cir. 1988)). “[T]he general rule [is] is that the supplier of a product is
liable to expected users for harm that results from foreseeable uses of the product if
the supplier has reason to know that the product is dangerous and fails to exercise
reasonable care to so inform the user.”

Id. (quoting McNeal, 835 F.2d at 641).

Therefore, the Court does not differentiate between Mr. Ratcliffe’s negligence and
strict liability claims in its failure-to-warn analysis.
58

“A products liability action for failure to warn requires a three-part analysis:
(1) whether the defendant held a duty to warn the plaintiff; (2) whether the actual
warning on the product, if any, was inadequate; and (3) whether the inadequate
warning proximately caused the plaintiff’s injury.” Koken v. Black & Veatch Constr.,
Inc., 426 F.3d 39, 45 (1st Cir. 2005) (quoting Pottle, 628 A.2d at 675) (applying Maine
law). “The plaintiff bears the burden of proof on each of these elements.” Id. (citing
Bouchard v. Am. Orthodontics, 661 A.2d 1143, 1145 (Me. 1995)).
The Law Court has explained that “a duty to warn arises when the
manufacturer knew or should have known of a danger sufficiently serious to require
a warning.” Pottle, 628 A.2d at 675. Further, “when a duty to warn exists, the
warning must advise the user of the risks associated with its product and offer the
user specific directions for the product’s safe use.” Id. Finally, for a plaintiff to
recover on a failure-to-warn theory, “the manufacturer’s failure to provide an
adequate warning must be a substantial factor in bringing about the plaintiff’s
injury.” Id.
Of these three elements, BRP only contests the third element, causation. 21 In
BRP’s view, Mr. Ratcliffe’s failure-to-warn theory is a nonstarter because “Plaintiff
cannot show that, had BRP provided another or a different warning regarding the
inherent risk of rollovers and the need for occupants to keep their arms and legs

In its reply, BRP declares it “did not seek summary judgment on the basis that its warnings
should be considered adequate as a matter of law—though there certainly is an argument that they
are.” BRP’s Reply at 2. In BRP’s view, the “Rule 56 motion should be granted for the simple fact that,
even if BRP had adopted Plaintiff’s proposed language or something else entirely, no warning that
BRP could have given would have prevented Plaintiff from ‘reflexively’ and ‘instinctually’ placing his
arm outside the vehicle.” Id.
21

59

inside the vehicle, his injury would have been prevented.” BRP’s Mem. of Law at 14.
BRP further avers that “nothing in the record evidence would allow a reasonable juror
to conclude that, had BRP provided yet another warning regarding the potential for
the Subject Vehicle to overturn and the importance of keeping limbs inside the
occupant compartment, Plaintiff would have operated the vehicle in a different
manner or would have been able to resist the ‘instinctual’ urge to place his arm
outside the window.” BRP’s Reply at 4.
Mr. Ratcliffe sees things differently. He suggests “[t]here is ample evidence
that BRP’s failure to adequately warn its customers of the Maverick X3’s dangerous
condition, or adequately (or even truthfully) inform them of the safety purpose of
window nets, was unreasonable, reckless, and proximately caused Plaintiff’s
injuries.” Pl.’s Mem. of Law at 18. Specifically, Mr. Ratcliffe argues that “there is
evidence that had [he] been warned that his arms may involuntarily extend outside
of the vehicle in the event of a rollover, then he would not have operated the vehicle
without window nets or wrist restraints.” Id. at 19.
After reviewing the summary judgment record, the Court concludes Mr.
Ratcliffe has the better argument. “To survive a motion for summary judgment on a
failure-to-warn claim, a plaintiff must show that an ‘inadequate warning proximately
caused the plaintiff’s injury.’” Novak v. Mentor Worldwide LLC, 287 F. Supp. 3d 85,
95 (D. Me. 2018) (quoting Pottle, 628 A.2d at 675). Mr. Ratcliffe has made such a
showing, as the record would permit a reasonable juror to find that he would not have

60

operated the Subject Vehicle without window nets or wrist restraints had he received
a different warning.
“A proximate cause is ‘a cause which, in natural and continuous sequence,
unbroken by an efficient intervening cause, produces the injury, and without which
the result would not have occurred.’” Higgins v. Huhtamaki, Inc., No. 1:21-cv-00369JCN, 2023 U.S. Dist. LEXIS 179566, at *26 (D. Me. Oct. 5, 2023) (quoting Holmes v.
E. Me. Med. Ctr., 2019 ME 84, ¶ 17, 208 A.3d 792, 798). “The question of whether a
defendant’s acts or omissions were the proximate cause of a plaintiff’s injuries is
generally a question of fact, and a judgment as a matter of law is improper if any
reasonable view of the evidence could sustain a finding of proximate cause.” Houde
v. Millett, 2001 ME 183, ¶ 11, 787 A.2d 757, 759. However, “[a] defendant is entitled
to a summary judgment if there is so little evidence tending to show that the
defendant’s acts or omissions were the proximate cause of the plaintiff’s injuries that
the jury would have to engage in conjecture or speculation in order to return a verdict
for the plaintiff.” Id.
In arguing that it is entitled to summary judgment, BRP focuses on Mr.
Ratcliffe’s deposition testimony that “he ‘instinctually’ tried to brace himself when he
felt the vehicle begin to tip.” BRP’s Mot. at 2. Specifically, BRP finds support for its
position in Mr. Ratcliffe’s statement that “when your body is falling, right, it’s almost
an involuntary reaction for you to want to brace yourself, right? And you know,
someone could instruct me a thousand times over, and I think, knowing my body and
my reflexes, I would instinctually want to brace myself from falling when I feel my

61

body falling.” PSMF ¶ 42; PRDSMF ¶ 42. BRP also cites the following exchange from
Mr. Ratcliffe’s deposition:
Q: So do you remember reading or being instructed that if you think the
vehicle may tip or roll, the driver should keep both hands on the steering
wheel and the left foot planted on the footrest?
A: I’ll go back to my last answer to answer that, right? Sure, I may have
read that, but it’s -- you’re talking about a conscious decision versus an
involuntary, you know, reaction.
DSMF ¶ 43; PRDSMF ¶ 43. Taken together, BRP argues these statements should be
read to mean that no warning could have prevented Mr. Ratcliffe from reflexively
extending his arm outside the Subject Vehicle’s roll cage when he felt it begin to tip.
The problem with BRP’s argument is that these statements are not the only
evidence of causation in the summary judgment record. The record contains evidence
that at the time Mr. Ratcliffe purchased the Subject Vehicle, he did not believe either
that the Subject Vehicle would abruptly roll during a turn or that his arm would
reflexively extend outside of the roll cage during a rollover. PSAMF ¶ 62; DRPSAMF
¶ 62. In his affidavit, Mr. Ratcliffe further asserts that had he known about these
variables, he would not have operated the Subject Vehicle without nets or wrist
restraints. PSAMF ¶ 66; DRPSAMF ¶ 66. As Mr. Ratcliffe’s expert, Dr. David
Lenorovitz, explained, either window nets or wrist restraints might have prevented
Mr. Ratcliffe’s injuries:
The best you can do when designing or engineering an equipment
system in which such reactionary limb movements are likely . . . is to
incorporate some type of guard, shield, or restraint mechanism to
preclude the limb (hand/arm) from accidentally/involuntarily moving
into harm’s way. The NASCAR-like window net that Mr. Ratcliffe had
requested is (should be) intended to provide just such an economical
($46) but effective type of protection.
Another racecar-inspired
economical ($17) solution is a simple wristband that attaches to the
62

driver’s left wrist and to his seat belt . . .. Had BRP provided either of
these devices as standard equipment safety measures (i.e., not as aftermarket, extra-cost accessory items), it is likely that Mr. Ratcliffe would
not have sustained the costly injury that he did.
PSAMF ¶ 100; DRPSAMF ¶ 100. Therefore, BRP is incorrect in arguing that “no
warning that BRP could have given would have prevented Plaintiff from ‘reflexively’
and ‘instinctually’ placing his arm outside the vehicle.” 22 BRP’s Reply at 2-3. Put
differently for purposes of the pending motion, there is a factual issue as to whether
a proper warning would have prevented the injuries Mr. Ratcliffe sustained. On this
record, even if a jury could find the facts as BRP proposes them, this does not foreclose
the reasonable possibility that a jury could find the facts as Mr. Ratcliffe sees them.
Based on the record before it, the Court determines that a reasonable juror
could find that had Mr. Ratcliffe been warned of the potential that he would
reflexively extend his arm outside the roll cage during a rollover, he would not have
operated the Subject Vehicle without restraints that could have prevented his injury.
Accordingly, the Court concludes that BRP is not entitled to summary judgment
because a reasonable juror could find that Mr. Ratcliffe has shown “that an
inadequate warning proximately caused the complained-of harm.” See Novak, 287 F.
Supp. 3d at 95 (quoting Pottle, 628 A.2d at 675). Because Mr. Ratcliffe has presented
sufficient evidence to allow a reasonable juror to find in his favor on all three elements

At oral argument, counsel for BRP maintained that Mr. Ratcliffe’s failure-to-warn claim is also
undercut by the contents of Mr. Ratcliffe’s expert reports, which purportedly state that no warning
would have prevented his injuries. Oral Arg. Tr. at 46:4-17. As an initial matter, the Court reads the
portions of the expert reports quoted in the parties’ statements of material fact as criticizing BRP’s
reliance on warnings for occupant safety. See PSAMF ¶¶ 73-75, 100; DRPSAMF ¶¶ 73-75, 100. The
Court does not view these portions of the expert reports as saying that no warning would have
prevented Mr. Ratcliffe’s injuries. Additionally, to the extent other portions of the expert reports
contradict Mr. Ratcliffe’s statements, the Court views this as a factual issue best resolved by a jury.
22

63

of a failure-to-warn claim, 23 the Court denies BRP’s motion for summary judgment
as to Mr. Ratcliffe’s failure-to-warn theory.
D.

Tidd’s Sport Shop, Inc.’s Motion to Join BRP’s Motion for
Summary Judgment

Having concluded that BRP is not entitled to summary judgment on either of
Mr. Ratcliffe’s theories of recovery, the Court briefly addresses Tidd’s request to join
BRP’s motion for summary judgment. See Tidd’s Mot. at 1. Although Mr. Ratcliffe
opposes Tidd’s request, see Pl.’s Opp’n to Tidd’s Mot., the Court does not examine the
contours of this dispute. As Tidd’s seeks summary judgment “[f]or the same reasons
set forth in BRP’s motion papers,” Tidd’s Mot. at 1, and the Court considered and
rejected BRP’s arguments, the Court denies summary judgment to Tidd’s. At trial,
Mr. Ratcliffe may pursue his design defect and failure-to-warn theories against both
BRP and Tidd’s.
VI.

CONCLUSION
The Court DENIES Defendant BRP U.S. Inc.’s Motion for Summary Judgment

(ECF No. 123) and DENIES Defendant Tidd’s Sports Shop, Inc.’s Motion for
Summary Judgment (ECF No. 126).
SO ORDERED.

/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE

Dated this 5th day of June, 2024
As noted above, BRP does not appear to contest that Mr. Ratcliffe established a triable issue
as to the first two elements of a failure-to-warn claim. In fact, counsel for BRP conceded at oral
argument that the record contains evidence that BRP’s warnings were inadequate. Oral Arg. Tr. at
44:13-15. Having reviewed the record, the Court agrees with BRP that the first two elements are not
at issue here, and for the sake of brevity, the Court has not discussed them.
23

64