PITTSBURGH – The manufacturer of an off-road utility vehicle has removed litigation to federal court which accuses it of failing to properly construct and design the vehicle, in such a way as to have prevented the death of a 20-year-old Texas man in July of 2021.
Charles David McLeod Jr. and Sarah Marie McLeod (individually as the surviving parents of David James McLeod and as the personal representative of the Estate of David James McLeod, deceased) of Texas initially filed suit in the Allegheny County Court of Common Pleas on July 24 versus Polaris Industries, Inc. of Medina, Minn., M.R. Moody Sales & Service, Inc. of Mars and Justin Hollingsworth, of Pittsburgh.
“In July of 2021, the decedent, David James McLeod, was living temporarily at a farm property owned by defendant Hollingsworth, located at 498 Handwerk Road in Rockwood, Pennsylvania. The decedent was living at the farm during the summer, between college semesters at Texas A&M University, while he worked for a local construction company. During the summer that the decedent lived at the farm, defendant Hollingsworth supplied the subject vehicle to the decedent and gave him permission to use the subject vehicle. Upon information and belief, prior to using the subject vehicle, the decedent had no prior experience operating similar utility or off-road vehicles. On or about July 28, 2021, the decedent was operating the subject vehicle on the farm. The farm included multiple trails to navigate the, property using, various vehicles including the subject vehicle and other off-road utility vehicles,” the suit says.
“On or about July 28, 2021, a tree had fallen across one of the trails on the farm. On or about July 28, 2021, decedent was attempting to clear the fallen tree from the subject trail by cutting and chopping, the tree into smaller pieces. Upon information and belief, decedent intended to use the subject vehicle to transport the chopped wood away from the subject trail. The subject vehicle was equipped with a seat belt; however, the subject vehicle could be operated at a speed up to 15 miles per hour even if the seat belt was not used, by the operator. It was foreseeable and known to the defendants that the subject vehicle would be driven by operators not wearing the available seat belt.”
The suit adds that on or about July 28, 2021, at approximately 7:30 p.m., the decedent was driving the subject vehicle in a foreseeable manner on the subject trail. Decedent made a right turn and due to its defective and unreasonably dangerous condition, the subject vehicle entered into a crash sequence and rolled over.
The seat belt was not buckled at the time of the subject crash. In the subject crash, the decedent was partially ejected from the occupant compartment of the subject vehicle and ultimately entrapped underneath the roll bar of the subject vehicle.
According to the plaintiffs, the defendants knew or should have known that the subject vehicle: was susceptible to rolling at speeds 15 mph and under, speeds at which the subject vehicle could be operated without the available seat belt – and knew or should have known that rollover events occurring when the available seat belt is not engaged, exposes the driver to an unreasonable risk of ejection and serious injury.
“Decedent remained trapped under the subject vehicle until approximately 8:30 a.m. on July 29, 2021, when decedent was discovered and extricated from underneath the subject vehicle by first responders. Decedent was conscious and responsive as first responders extricated him from underneath the subject vehicle and transported him by life flight helicopter to Ruby Memorial Hospital. As a direct and proximate result of the subject crash, the defendants’ negligence, and the defective and unreasonably dangerous condition of the subject vehicle, the decedent sustained catastrophic injuries, including but not limited to, compartment syndrome in both of his legs, a left C6 bone spur fracture, any open book pelvic fracture, a pubic acetabular junction fracture and compartment syndrome in the right forearm,” the suit states.
“While at Ruby Memorial Hospital – to treat the injuries caused by the subject crash, the defendants’ negligence and the defective and unreasonably dangerous condition of then subject vehicle – the decedent underwent multiple surgical procedures including but not limited to: Two fasciotomies of both legs, two exploratory laparotomies, ligation of the iliac arteries, above the knee amputations of both legs, placement of external hardware to stabilize the pelvic fractures and the removal of necrotic tissue. Throughout his hospitalization, decedent was able to open his eyes, look at his parents and respond to their presence, by squeezing their hands. Despite extensive treatment, the decedent’s condition continued to decline until July 31, 2021, when at 2:30 p.m. plaintiffs Charles and Sarah McLeod, upon recommendation from the decedent’s treating doctors, made the incredibly difficult decision to agree to comfort measures only for their son. David McLeod succumbed to his injuries 12 minutes later at 2:42 p.m.”
On July 26, Polaris Industries removed the case to the U.S. District Court for the Western District of Pennsylvania, citing complete diversity of citizenship between the parties and the amount of damages at issue as a rationale for the removal.
For counts of strict product liability, strict liability, breach of warranty, negligence, survival and wrongful death, the plaintiffs are seeking compensatory damages and for damages in excess of $50,000 and such other relief as this Court deems just and for a trial by jury on all issues so triable as a matter of right.
The plaintiffs are represented by Daniel S. Schiffman and Jason M. Schiffman of The Schiffman Firm in Pittsburgh, plus Austin Osborn and Chris Stucky of McCartney Stucky, in Lenexa, Kan.
Defendant Polaris Industries, Inc. is represented by Clem C. Trischler of Pietragallo Bosick & Gordon, also in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:23-cv-01344
Allegheny County Court of Common Pleas case GD-23-008942
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com