Whatever! – Litigiphobia: Fear of the Lawsuit

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The latest kerfuffle our man Evans Brasfield uncovered with Indian’s brake switch throttle override deal got my wheels turning once again, down the sweet memory lane of 25 years of jailhouse lawyering that of course goes hand in hand with an activity as dangerous as motorcycling.

I feel as though I could’ve been right there in the conference room as somebody with their finger on the pulse absorbed all the news about automobiles and unintended acceleration and took it upon himself not to let that happen to his motorcycles – by God! We must act now! – with a system that won’t let the motorcycle accelerate if the brakes are on. You have to admire the good intention, but you also have to wonder why nobody in that company who actually rides motorcycles told the guy that, unlike a car, sometimes big motorcycles will fall over if you can’t accelerate when you need to while dragging the rear brake a little, leading to potentially even worse consequences and even more damaging lawsuits. (I’m going to bet more than a few people tried to tell him, and decided they’d rather keep their jobs instead.)

Fear of the Lawsuit is a powerful motivating force in the USA, probably much more damaging than the lawsuit itself. Sure, you can be sued for anything, but that doesn’t mean the plaintiff’s going to succeed. Everybody hates a frivolous lawsuit, especially the ambulance chasers who file them: Those guys aren’t going to be in business long unless they take on more winning cases than losers. God forbid a frivolous case actually makes it to a jury.

I was on one back in Missouri when I was still an innocent youth, where some poor woman had hurt her back falling on an escalator in a department store. Poor thing could barely walk anymore, was in constant pain, a wheelchair and neck brace. Her tearful husband and chubby kids testified how terrible it all was. Then the defense lawyer stood up and showed us poster-sized glossies of her changing a tire on a Buick by herself at the side of the road last week. He was also able to bring up her and her family’s long history of suing other stores and individuals and stadiums for falls and other injuries, and it was all over instantly. Talk about 12 angry men.

(Please Google up the real story behind the McDonald’s hot coffee lawsuit before you throw that one up in my face.)

I’m lucky if a story gets 50 Facebook likes on here. EIC Duke’s “Top Ten Bikes for Wheelies” has 6,600 and counting.

I’m lucky if a story gets 50 Facebook likes on here. EIC Duke’s “Top Ten Bikes for Wheelies” has 6,600 and counting.

The problem with the misplaced Fear of the Lawsuit is that it hurts people. I only made it through a year of law school, but I remember there’s a principle that says you can’t get beat up for improving your product. A case in point that still makes me tear up with glee was the major manufacturer, maybe 15 years ago, whose media rep said it would not put a steering damper on its open-class sportbike, because to do so would admit that it needed one. It did need one! All the competitions’ models already had dampers. I hope nobody tankslapped into a tree as a result. Are there any big sportbikes on the market now that don’t have a good steering damper? I can’t think of any.

The reason our whole big complex judicial system exists, of course, is because people and corporations do cause harm and deserve to get sued, and in a just world, the injured parties deserve to be compensated. A lot of people didn’t think a major manufacturer of utility terrain vehicles should be sued for the things rolling over; they all do that! That’s why they have roll cages! In fact, that manufacturer was sued for not having doors on those machines to keep people from instinctively sticking their legs out just prior to rolling over. Ouch … The plaintiffs won that one, and the manufacturer retrofitted doors.

Manufacturers do have to be really careful when it comes to making claims about what their products can do, and it didn’t help that an art director at its ad agency had photoshopped some boulders into the pictures in the brochure, picturesque boulders which the vehicle would not be able to negotiate without flipping over. Whoops.

You won’t find much like this in any of the Japanese manufacturers’ advertising.

You won’t find much like this in any of the Japanese manufacturers’ advertising.

For a long time, none of the Japanese manufactures would ever picture any of their street-legal  motorcycles being operated in any way other than with both wheels on the ground, and if you pick up a brochure in a dealership (do they still print them?) or visit their websites, that policy is probably still in effect. Meanwhile, BMW S1000Rs and KTM Super Duke Rs are smoking tires and wheelying all over their websites, drinking the Japanese milkshake. Is Fear of the Lawsuit leading to less effective advertising and reduced sales for the more conservative manufacturers? Or does FoL at ground level keep them from developing exciting new products in the first place? Chicken, egg, or chickens**t?

KTM’s website isn’t afraid to show you exactly what the Super Duke R is meant to do.

KTM’s website isn’t afraid to show you exactly what the Super Duke R is meant to do.

FoL is partially what led to the symbiotic relationship with the motorcycle media: With some notable exceptions, the manufacturers’ lawyers are mostly afraid to tell you their new model will wheelie halfway down the dragstrip and smoke its tire the rest of the way, but the magazines sure could! Or could they? At certain times, after rubbing elbows too closely with the manufacturers and wishing to be as important as they are, media people will get it in their heads that they too can be held liable for promoting dangerous motorcycle riding, even though they’re only reporting what the motorcycle can do: For a long time, some magazines wouldn’t include wheelie shots, and for years most would never show a guy dragging his knee on a public road. Now it’s hard to pick up a print magazine that doesn’t have bikes wheelying or jumping across the cover – and now some websites want to teach you how to drag your knees on the street even though it’s still as silly as it ever was. We used to call it “squidly.” Ever hit a Botts Dot with your patella, Billy?

I wanted to include how I made a new helmet more comfortable in an evaluation I wrote a while back at a major magazine, by compressing the liner a little bit with a tablespoon just over the vestigial horn areas on my forehead – a trick a I read about 30 years ago in a magazine. Works like a charm, I do it on many helmets that don’t quite fit, and have never died as a result.* That magazine wouldn’t print it though: FoL. Modifying a helmet is a no-no. Slipping downslope from there, as the lawyers are so fond of doing, how can you then advise your readers it’s a good idea to modify anything that has to do with their motorcycle? Maybe your magazine should be just photos and disclaimers? Some of them are close.

I’ve been doing the magazine/website thing since 1988, and I can’t remember hearing about a single lawsuit being brought against any of them by anybody who got injured or killed as a result of somebody reading one. Imagine the reaction: Ladies and gentlemen of the jury, Tommy here was attempting a wheelie on his new Tuono, which he assumed was safe to do because here’s a guy doing it on page 32 of Wheelies Weakly, and well, ahhhh….

Truly, not many days go by that don’t amuse me with some amazing feat of stupidity or other – often my own – but nobody’s that stupid. Especially not 12 people collectively. Feel free to go ahead and sue me for anything I have said here. I am reminded again of what my granddad said to the bill collector who appeared on his doorstep during the Great Depression: “You can’t get blood out of a turnip.”

“No,” the guy replied, “but you can kick a turnip’s ass trying.”


* My Editorial Director, suffering from a rare bout of Litigiphobia, asked me to please get an official position from a helmet manufacturer on doing this. Here it is!

Chris Sackett, Vice President of Bell Helmets

“We do not recommend any alterations of any kind to the inside (or outside) of a motorcycle helmet. Helmets are designed and engineered to lower energies and any alterations to this design will cause the helmet to perform differently than intended. Be sure to select a helmet from a reputable helmet manufacture that fits your head to avoid this at all cost. Many of us have odd shaped heads and simply cannot find a helmet that will properly fit. Technologies such as Bell’s new custom fit program are just now launching that will address such issues. This new technology literally 3D maps the riders head and allows Bell to make a helmet that is a direct off-set of one’s head. If all else fails, seek out a new Bell custom fit.”

Mike Lowe, Vice President of Product Creation at Bell Helmets

“Helmets are designed, tested and certified as a system with the Shell and EPS liner. Spooning or modifying the EPS liner takes away some energy management and is not recommended. If a helmet needs to be spooned or modified, our recommendation is to move up to the next size to correct the problem. Bell’s Custom-fit program is a great option as well for people having issues with fitting a helmet properly.”

 

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  • Old MOron

    If I had a Facebook account, I’d like your stuff. Honest.

  • DavidyArica Freire

    Nice read. I hate frivolous lawsuits. We are such a sue happy society that in almost everything you do, yiy must always have the ‘liability’ mindset behind. It sort of sucks because if anything happens malicious of not, someone is to blame, even if in reality is just crappy timing and place.

  • Uncommon Sense

    You ever notice the fine print on television advertisements that say “Do Not Attempt. Professional Driver on Closed Course”. Most of the time the scene in question is usually just someone driving down the street normally! Then you get the opposite where the same warning is applied to an obvious CGI stunt scene. I saw some ad where a car jumps off the highway on to the top of a train. Do you really need to say that the whole scene was fake? Is the general populous really that stupid that you have to warn them not to attempt it? Good grief.

    • DickRuble

      Yes- the general population is that stupid, and there are lawyers to tell them they have a strong case.

      • john burns

        so angry all the time, Dick.. have you tried yoga?

  • DickRuble

    “I’m going to bet more than a few people tried to tell him, and decided they’d rather keep their jobs instead.” — welcome to the american corporation, in any field of activity.

  • JMDonald

    We need to adopt loser pays like our European brethren. Facebook like Twitter is part of a global mind control conspiracy. I refuse to participate. The gratuitous wheelie is a good thing.

  • Michael McMillan

    Classic! Ask for a professional technical opinion and got back a product placement commercial from Bell. They just happen to have a program (extra cost!) that will spoon that helmet for you because if you do it yourself you’ll die. Golf balls work as well as spoons – do they have a program for ‘balling’ your helmet?

  • Michael McMillan

    John Burns, please excuse my manners, I was so engrossed in taking shots at Bell for their gratuitous word-selfies that I did not express my admiration for your article! I’ve been a big fan across the years and various publications. You continue to be an insightful and always entertaining writer. Thank you for the smiles and miles…

    • john burns

      thank you very much, MM. And the Bell men are just doing their jobs, what did you expect them to say? I should probably make clear to the kids I don’t smash the liner down to fit a Frankenstein brow–maybe 2mm or so of compressing the liner makes a big difference in comfort sometimes.

      • Michael McMillan

        I would expect pretty much exactly what was delivered, JB. Just taking cheap shots at the Corporate Suits, I guess. (I’ve been one of those) When one asks for a technical opinion from a manufacturer one should receive a reply along the lines of: “For every 2 millimeters of spoon compression of the expanded polystyrene liner you will loose eleven hundred and seventy seven micro-mini-joules of force absorption thereby creating a protection differential during a crash event approximating being able to feed oneself upon awakening versus being told ‘The airplane spoon is approaching! Open the mouth hanger!’ in a high pitched voice. Massive Irony points awarded if it’s the same spoon that was used to modify the helmet.
        OR
        “Our lawyers say we have to tell you that you could be seriously killed if you jack around with your helmet.”
        I have a good friend who gets a “hotspot” at the front center of most helmets. I not only told him about ‘spooning’ the spot but grabbed a golf ball and fixed it for him. Now that I’ve admitted that, I’m legally liable for his safety if he crashes aren’t I?! Oh NOoooo….

  • Donnie

    So, are you saying that if I gas my motorcycle up that the front wheel could come off of the ground? The implications of that thought scare me. I am going to sue someone for putting scary thoughts into my mind.

  • howard kelly

    Well said Burnsie….

  • Oslo Norway

    John, this is a real interesting piece, I saw this from another end, talking to corporate legal counsel from Honda and researching various civil suits across the US. Back then the issue was leg protectors. It was an eye opening experience. There was a guy — I’d have to go back and dig up the article we ran — a guy from the UK, and he was pushing for mandatory leg protectors and air bags on bikes, he had a bunch of other half baked ideas as well. He was working hand in hand with the Transportation Research Laboratories (TRL) in the UK…

    Well, despite his best efforts he was not successful and he was pretty much ignored…But here is where it gets interesting. He stated publicly, fine, great, you want to ignore me? I’ll export these ideas to the United States, and I’ll do it through litigation, and he did. It was more serious than people realize. A lot of resources from the factories were used to combat this nonsense. Of course most of the motorcycling public does not sit around all day reading appellate decisions, but it was just amazing.

    What got my attention at the time were the parallels to the private aviation industry. It had been destroyed by lawsuits, and that was this guy’s announced aim for bikes here in the US…Crazy stuff dude…