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Old 01-12-2011, 10:39 AM   #21
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Sounds like the shop had better lawyers than the owner. I would have thought once the bike is in the custody of the shop, they are responsible for what happens to it, unless a waiver is signed to the contrary. When I bought my SV I brought it to Motorcycles Unlimited to have it checked out and worked on (great work btw! ) and I know I had to sign a few things when I dropped it off, and also when I picked it up, but to be honest I just kind of signed without reading. I would think that once you sign any sort of agreement for a shop to work on your bike, they are now somewhat responsible for what happens to it, until the work is complete and you pick it up. Then again, all of my knowledge on this subject comes from television and a professional ethics course I almost failed, so I suppose I could be wrong
Waiver is in what you signed.
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Old 01-12-2011, 10:49 AM   #22
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Waiver is in what you signed.
Yeah I figured, and I guess the particular shop's responsibility for the bikes they work on is (or should be), outlined in whatever paperwork they have you sign to agree to allow them to work on your bike. That being said, I still think if the guy goes to start it and the dang thing blows up, they are at least partially responsible, as they agreed to work on the bike in the state it was brought to them. Yeah now I'm just confusing myself, I can see both sides to this thing and it's really far out of my (limited) realm of expertise.
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Old 01-12-2011, 10:54 AM   #23
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oh, well then they argued their case better...
The bike owner had no expert opinion or evidence that the shop did something wrong. He had the burden of proof. The shop didn't have to argue at all.
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Old 01-12-2011, 11:18 AM   #24
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The elements that have to be established for every negligence claim are duty, breach of duty, causation, and damages.

In the shop's case, their duty is to use ordinary care in repairing the motorcycle. In order to be found liable, it would have to be shown that they did not exercise ordinary care while fixing it (breach). This failure to exercise ordinary care resulted in some kind of harm (causation and damages).
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Old 01-12-2011, 11:35 AM   #25
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their duty is to use ordinary care in repairing the motorcycle. In order to be found liable, it would have to be shown that they did not exercise ordinary care while fixing it (breach). This failure to exercise ordinary care resulted in some kind of harm (causation and damages).
I guess this is what I'm getting hung up on. What constitutes "ordinary"? If the bike is brought to them with the fuel tank removed, it is clearly not in an "ordinary" state to begin with, therefore once the shop agrees to work on it, they should adjust the care they use to work on it in accordance with their expertise (or lack there of, as the case is attempting to be made by the bike owner).

I suppose the shop could take the position that there is no way they could have known the freakin thing was going to blow up when something as simple as an attempt to start it was made, but I'd make the argument that since the bike was in an obviously "not ordinary" state when it was brought there, they should have refused to work on it. Or put another way: by agreeing to work on it in the state it was brought to them, the implication is that they are knowledgeable enough not to cause it harm by doing said work. I'm really just playing devil's advocate here though.
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Old 01-12-2011, 11:48 AM   #26
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I guess this is what I'm getting hung up on. What constitutes "ordinary"? If the bike is brought to them with the fuel tank removed, it is clearly not in an "ordinary" state to begin with, therefore once the shop agrees to work on it, they should adjust the care they use to work on it in accordance with their expertise (or lack there of, as the case is attempting to be made by the bike owner).

I suppose the shop could take the position that there is no way they could have known the freakin thing was going to blow up when something as simple as an attempt to start it was made, but I'd make the argument that since the bike was in an obviously "not ordinary" state when it was brought there, they should have refused to work on it. Or put another way: by agreeing to work on it in the state it was brought to them, the implication is that they are knowledgeable enough not to cause it harm by doing said work. I'm really just playing devil's advocate here though.
Based on the information provided.... the owner brought it in pieces
To the shop wanting certain things done. The shop wanted the owner to show/demonstrate that there were not other issues beforehand. They had not performed any work on the bike at that point, so why should they be the liable party and not the owner?


If I ride to Motorcycles Unlimited and the bike explodes as I pull into the parking spot is it Motorcycles Unlimited's fault even though they never touched it? To me, only if Motorcycles Unlimited placed land mines in the lot w/o postingwarning signs.
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Old 01-12-2011, 11:50 AM   #27
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Quote:
Originally Posted by Conrad View Post
I guess this is what I'm getting hung up on. What constitutes "ordinary"? If the bike is brought to them with the fuel tank removed, it is clearly not in an "ordinary" state to begin with, therefore once the shop agrees to work on it, they should adjust the care they use to work on it in accordance with their expertise (or lack there of, as the case is attempting to be made by the bike owner).

I suppose the shop could take the position that there is no way they could have known the freakin thing was going to blow up when something as simple as an attempt to start it was made, but I'd make the argument that since the bike was in an obviously "not ordinary" state when it was brought there, they should have refused to work on it. Or put another way: by agreeing to work on it in the state it was brought to them, the implication is that they are knowledgeable enough not to cause it harm by doing said work. I'm really just playing devil's advocate here though.
"Ordinary care" is a legal standard. It can be established in many ways, such as looking at reasonable standards in the industry, and the foreseeability of the action. Like a lot of things in the legal world, ordinary does not mean mundane like the word normally does. It is called ordinary care because this is the default level of care assigned to most relationships. Some levels of care are higher, like the relationship between a doctor and his patient.

There is a duty of care in potentially everything we do. For example if you are suing somebody who threw a snowball at you, you would still have to establish the same four elements I outlined above. The first question would be is there a duty of care? Yes, a person should avoid injuring other people. So then what is the standard? It would be to exercise ordinary care in not injuring people and it would be foreseeable that an unexpected snowball might injure somebody, therefore a breach of the duty of care.
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Old 01-12-2011, 11:54 AM   #28
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Another way to look at it is this: did the shop exercise ordinary care (that is, what a reasonable mechanic would have done) when it started working on a bike in that condition. If there was nothing unreasonable in what the mechanic did, given the circumstances, then he exercised ordinary care and there is no breach of his duty.

So there is "ordinary care." There isn't "gas tank removed care." It's just "ordinary care" for the situation.
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Old 01-12-2011, 12:11 PM   #29
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Based on the information provided.... the owner brought it in pieces
To the shop wanting certain things done. The shop wanted the owner to show/demonstrate that there were not other issues beforehand. They had not performed any work on the bike at that point, so why should they be the liable party and not the owner?


If I ride to Motorcycles Unlimited and the bike explodes as I pull into the parking spot is it Motorcycles Unlimited's fault even though they never touched it? To me, only if Motorcycles Unlimited placed land mines in the lot w/o postingwarning signs.
Agreed, but your hypothetical scenario is different from what I understand to have happened. What I got from it, is that the shop agreed to do some work (and I'm assuming they inspected the bike at least a little prior to making this agreement). Once they make this agreement, I am arguing that there is some implication about their ability to follow through with the work they agree to do without damaging the bike. Since the bike was brought in pieces, I am saying that by agreeing to work on it that way, the definition of "ordinary care" has to be modified to suit that particular situation. Anyway, I'm going to lunch, TBC later
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Old 01-12-2011, 12:15 PM   #30
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Basically the judge ruled that the mechanic didn't do anything unreasonable. He merely hit the starter to see if the bike would turn over.

Now, could the mechanic have done more? Sure, he could have disabled the ignition coils/spark source first, but what he did do was not unreasonable.
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Old 01-12-2011, 12:20 PM   #31
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What happens if in the sign in sheet it outlines no liability on any cause, are there laws super ceding that?
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Old 01-12-2011, 12:29 PM   #32
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What happens if in the sign in sheet it outlines no liability on any cause, are there laws super ceding that?
If you sign a release, then you are releasing that person from liability and responsibility. It really depends on what is written.
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Old 01-12-2011, 12:29 PM   #33
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Agreed, but your hypothetical scenario is different from what I understand to have happened. What I got from it, is that the shop agreed to do some work (and I'm assuming they inspected the bike at least a little prior to making this agreement). Once they make this agreement, I am arguing that there is some implication about their ability to follow through with the work they agree to do without damaging the bike. Since the bike was brought in pieces, I am saying that by agreeing to work on it that way, the definition of "ordinary care" has to be modified to suit that particular situation. Anyway, I'm going to lunch, TBC later
I thik you're reading more into than there is....

Quote:
A bike has a fuel leak. The owner removes the fuel tank and transports the bike and fuel tank to a mechanic. The owner wants the bike serviced and the fuel leak fixed. The mechanic wants to turn the bike over to make sure the engine has not seized in order to ensure that servicing the bike is worthwhile.

Mechanic hits the starter and the bike basically explodes, blowing the carbs off the bike and starting a fire and damaging the bike.

Owner takes bike and tank in to shop,
Shop wants to see the bike turn over before agreeing to work on it
Mechanic pushes starter, bike does a grenade impression.

In short, the bike 'explodes' in the 'inspection' phase.
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Old 01-12-2011, 12:40 PM   #34
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I thik you're reading more into than there is....




Owner takes bike and tank in to shop,
Shop wants to see the bike turn over before agreeing to work on it
Mechanic pushes starter, bike does a grenade impression.

In short, the bike 'explodes' in the 'inspection' phase.
I'm just concerned as to the intelligence of a mechanic that attempts to start anything resembling an ignition source on a vehicle that has most obviously had fuel leaked all over it based off the information presented.
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Old 01-12-2011, 12:42 PM   #35
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I'm just concerned as to the intelligence of a mechanic that attempts to start anything resembling an ignition source on a vehicle that has most obviously had fuel leaked all over it based off the information presented.
I agree. He should have been more careful.
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Old 01-12-2011, 12:48 PM   #36
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I agree. He should have been more careful.
It's hard to get a good picture of the events solely based on the information presented. The fuel leak must have been significant for the customer to remove it from the bike. He transports the tank and the bike to the mechanic. Then makes the mechanic aware of the problem. What leap in logic makes the mechanic immediately attempt to start the bike? It must have wreaked of fuel vapors to grenade like that.

Obviously the judge decided in favor of the shop, but in this case it seems like negligance on the mechanic's part. A customer tells you there was fuel leaking from the tank...there's more or less only one place for that fuel to go on a motorcycle.

Ordinary care, in my opinion, seems to have been violated by the mechanic who quite simply should have known better based on the fact that he's a mechanic in the first place.
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Old 01-12-2011, 12:52 PM   #37
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What happens if in the sign in sheet it outlines no liability on any cause, are there laws super ceding that?
If you view a lawsuit as an uphill battle, with winning (declaring the other side negligent) as the top of the hill, a release puts you (the person suing) at the base of a hill about 1.5x as high.

I say this because releases are invalidated all the time. So the analogy is that the hill becomes harder to climb, but not that a giant unbreakable wall has been erected.

Just off the top of my head, a release on a sign in sheet could be invalidated on the following ways:

1) Involuntary consent - Consent to waive rights must be knowing and voluntary. Was the release language bold on the sign-in sheet? Did a person take the time to go through and explain what was being waived?

2) Public policy exception - Did the mechanic breach of the duty of care? A release from liability still requires that the breaching party exercise a reasonable level of care. For example, every bungee jumping facility is going to make you sign a waiver. But this isn't going to block recovery if the jumper is injured because the supervisor didn't properly tie down the bungee cable.

3) Contract of adhesion - The "absence of meaningful choice on the part of one party due to one-sided contract provisions, together with terms which are so oppressive that no reasonable person would make them and no fair and honest person would accept them." Fanning v. Fritz's Pontiac-Cadillac-Buick Inc. (just going use this quote as the easiest way to explain it).


I use these just to show you that the idea that a simple one-line release of liability (or even a multi-page one) cutting off all liability is something restricted to TV and internet forum debates. It's never that simple.
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Old 01-12-2011, 01:08 PM   #38
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hello...

"fuel leak" immediatly puts a red flag in my brain. its called "fire hazzard".

that being said, i could still see this one getting by me, and the same thing happening. if you really look at it from both sides, its a fine line.

ultimatly, i would call it the technicians mistake (though an understandable one). still...something the shop should be liable for.

in my book the morals and ethics of the situation are more important than the letter of the law. the judge clearly didnt have knowledge of mechanical issues (understandable, she is a judge, not a mechanic) and needed a expert to put in their $0.02.

its that the case goes out the window. the result should have been: re-schedule the court date for a later time and bring the expert witnesses. notice i say plural, cause im sure the shop will want to bring one also...then its back to the judge to decide...
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Old 01-12-2011, 01:19 PM   #39
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hello...

"fuel leak" immediatly puts a red flag in my brain. its called "fire hazzard".

that being said, i could still see this one getting by me, and the same thing happening. if you really look at it from both sides, its a fine line.

ultimatly, i would call it the technicians mistake (though an understandable one). still...something the shop should be liable for.

in my book the morals and ethics of the situation are more important than the letter of the law. the judge clearly didnt have knowledge of mechanical issues (understandable, she is a judge, not a mechanic) and needed a expert to put in their $0.02.

its that the case goes out the window. the result should have been: re-schedule the court date for a later time and bring the expert witnesses. notice i say plural, cause im sure the shop will want to bring one also...then its back to the judge to decide...
Well, the judge did take a recess to call an "expert". There was a dispute as to whether the bike would turn over if the kill switch was in the kill position. She spoke with someone at a Kawasaki shop that told her that on that particular model the bike would not turn over. She didn't say if she asked for any other opinion from the expert on the actions of the mechanic.
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