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Howerton v. Arai Helmet6/17/2003
plaintiff detrimentally relied upon a statement or misrepresentation and he or she `suffered actual injury as a proximate result of defendant's deceptive statement or misrepresentation.'" Forbes v. Par Ten Group, Inc., 99 N.C. App. 587, 601, 394 S.E.2d 643, 651 (1990) (citation omitted).
In the case sub judice, even assuming that Arai engaged in an unfair and deceptive trade practice in or affecting commerce, the deposition testimony of Dr. Howerton clearly demonstrates that he did not, in fact, detrimentally rely on the assumed misrepresentation.
Q: You had testified the other day that you, based on the ads you had seen, had formed the impression that the Arai helmet was a great helmet . . . . And my question to you is superior in what way?
A. I think my choice was based on aesthetics, who wore the helmet. Those two things.
Q. Did you form any impressions about the mouth or rock guard . . . based on the advertisements that you had viewed?
A. No, sir.
Q. Or judgments about it?
A. No judgments.
Q. When did you first realize that [the rock guard] was an adjustable or removable piece?
A. I knew it was adjustable from the pictures that I had seen of the helmet.
Q. These are before you ever bought it?
A. That's correct.
Q. What function did you expect the mouth guard to perform?
A. Protection from falling, protection from debris.
Q. Debris?
A. From the back wheel of other vehicles -- other off-road vehicles.
Q. . . . . Protection from falling in what sense? Face plant?
A. It could be a face plant. This is what I thought at the time. Side protection. If I fell from the side, I would expect it . . . the chin or jaw, the mandible.
Q. Do you remember seeing ever anything in the [Arai helmet] ads that had to do with the neck?
A. No sir.
Q. Did neck protection have anything to do with your purchase of the Arai helmet?
A. I wasn't thinking of neck protection per se in purchasing. . . .
Q. And what do you understand the purpose of a helmet to be?
A. Protection of the head area.
Q. Before your accident, had you read anything or heard anything from any source concerning whether the Arai . . . helmet might have anything to do with neck injuries, either causing them or preventing them?
A. No, I hadn't read anything.
Despite this testimony, Dr. Howerton argues (1) that he had a pattern and practice of reading all of the ads in "Dirt Rider" magazine, which contained the offending ads, and that he simply did not remember his reliance upon these ads, and, in the alternative, (2) proof of "specific reliance" is not required under Chapter 75, but, instead, "as long as Arai's marketing campaign, taken as a whole, convinced plaintiff that the [Arai] helmet was the functional equivalent of a full-face helmet, then Arai's unfair and deceptive conduct was at least one of the proximate causes of plaintiff's injury ." These arguments are without merit. Because plaintiff failed to forecast evidence creating a genuine issue of material fact with respect to proximate causation, the trial court properly granted Arai's summary judgment motion.
Affirmed.
Judges TIMMONS-GOODSON and LEVINSON concur.
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