PITTSBURGH – A skateboard manufacturer with ties to Australia and Michigan has denied responsibility for hip and shoulder injuries allegedly suffered by a Westmoreland County man, when he was launched off an electric skateboard the defendants produced.
David Joseph Kemerer and Rosslyn Kemerer of Ligonier initially filed suit in the U.S. District Court for the Western District of Pennsylvania on July 19 versus Evolve Skateboards PTY LTD of Varsity Lakes, Australia and Evolve Sports Group, LLC (formerly known as “Evolve Longboards USA, LLC”) of Ada, Mich.
“In July of 2020, Mr. Kemerer purchased a ‘Bamboo GTR All Terrain’ skateboard (the ‘Electric Skateboard’) from Evolve through its website. Evolve shipped Mr. Kemerer the Electric Skateboard to his address in Pennsylvania. Based on information and belief, Evolve shipped the Electric Skateboard from its distribution center in Carlsbad, Calif. Mr. Kemerer did not make any alterations to the Electric Skateboard after his purchase,” the suit said.
“At all times relevant, Mr. Kemerer used the Electric Skateboard for its intended purpose. From the time of purchase, Mr. Kemerer used the Electric Skateboard exclusively on paved roads and paths. Prior to using the Electric Skateboard for the first time, Mr. Kemerer reviewed the manual and checked the Electric Skateboard for any apparent issues. At all times relevant, Mr. Kemerer used the Electric Skateboard in ‘Eco Mode,’ which limited its top speed to no greater than 12 miles per hour.”
The suit added that on July 26, 2020, while Mr. Kemerer was using the Electric Skateboard in a “prudent and reasonable fashion”, the Electric Skateboard malfunctioned and launched him off the device.
“At the time of the incident, a defect in the front truck caused the front truck wheel assembly to rotate beyond 90 degrees from center, resulting in the Electric Skateboard abruptly and without warning coming to an immediate stop. At the time of the incident, Mr. Kemerer was an experienced operator of both powered and non-powered skateboards. At the time of the incident, Mr. Kemerer was operating the Electric Skateboard in a prudent and conservative fashion within the parameters of the Electric Skateboard’s anticipated use. Mr. Kemerer was not offered any warning that the Electric Skateboard was likely to malfunction,” the suit stated.
“Based on information and belief, the Electric Skateboard was improperly designed, manufactured and/or assembled. Based on information and belief, there was a defect in the front truck of the Electric Skateboard, which caused the front truck assembly to disengage from the baseplate allowing the front truck assembly to come out of a safe position and to rotate beyond 90 degrees from center. Based on information and belief, the defect in the Electric Skateboard was the direct and proximate cause of the incident. As a result of the incident, Mr. Kemerer suffered various injuries, including, but not limited to, a left hip intertrochanteric fracture, requiring an open reduction and internal fixation; a left shoulder greater tuberosity fracture; and various scrapes, contusions, abrasions, and soft tissue injuries.”
UPDATE
The defendants answered the complaint on Sept. 19, denying its substantive allegations and presenting no less than 20 affirmative defenses against the suit.
“Plaintiffs’ claims against defendants are barred because the claims in the complaint fail to state any cause of action upon which relief can be granted as a matter of fact and/or law. Plaintiffs’ claims against defendants are barred in whole or in part by applicable statutes of limitation. Plaintiffs’ claims against defendants are barred in whole or in part by plaintiff David Kemerer’s modification of the skateboard after purchase. Defendants allege that said alteration or modification of the subject skateboard voids the express or implied warranties. Defendants allege that plaintiffs’ damages, if any, were caused or contributed to by the misuse, abuse and/or the failure to properly maintain and/or repair the skateboard by plaintiff, or other third parties unrelated to defendants,” the defenses stated, in part.
“Plaintiffs’ claims against defendants are barred in whole or in part by plaintiff David Kemerer’s use of the skateboard in a manner for which it was not intended. Plaintiffs’ claims against defendants are barred in whole or in part by plaintiff David Kemerer’s assumption of the risk. Plaintiffs’ claims against defendants are barred in whole or in part by the risk-utility test. Defendants allege that plaintiffs’ damages, if any, were caused or contributed to by the negligence or fault of other individuals, firms, corporations, or entities over whom defendants have or had no control or right of control, and for whom they are not responsible, and that plaintiffs’ recovery, if any, should therefore be diminished or barred in accordance with law. Plaintiffs’ claims against defendants are barred in whole or in part by plaintiff David Kemerer’s failure to heed warnings.”
The defendants additionally countered that the plaintiffs’ claims against are barred in whole or in part by plaintiff David Kemerer’s comparative negligence, that the plaintiffs’ claims and/or causes of action are barred, in whole or in part, by the doctrine of pre-emption and further barred by the equitable doctrines of laches, unclean hands, waiver and/or estoppel.
For multiple counts of strict products liability (each for manufacturing defect, design defect and failure to warn), negligence, breach of express warranty, breach of implied warranty of merchantability and loss of consortium, the plaintiffs are seeking damages in excess of $75,000, plus interest, costs and such other relief as the Court deems appropriate.
The plaintiffs are represented by R. Sean O’Connell of Robb Leonard Mulvihill, in Pittsburgh.
The defendants are represented by Ashley N. Rodgers and Mark T. Caloyer of Lewis Brisbois Bisgaard & Smith, also in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania 2:22-cv-01038
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com