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Farnham v. Bombardier2/1/1994
87), which held that "a district court may not grant summary judgment sua sponte on grounds not requested by the moving party." Id. at 1192. In this case, however, defendant responded to plaintiff's allegation that the snowmobile was defective, and thus there was no sua sponte action by the court. See Black's Law Dictionary 1277 (5th ed. 1979) (defining "sua sponte" as "voluntarily; without prompting or suggestion").
In ruling against plaintiff on the element of design defect, the trial court examined the deposition testimony of plaintiff's expert, engineer Stanley J. Klein. Klein testified both to the inherent instability of the machine at high speeds and to its inadequate braking system for safe stops at high speeds. The court concluded that speeds in excess of 60 m.p.h. were not normal use and held that the expert testimony was insufficient to establish a product defect because nowhere had Klein stated that the Ski-doo was unreasonably dangerous in normal use.
On appeal, plaintiff argues that although the expert may not have uttered the "magic words," "unreasonably dangerous in normal use," the substance of his testimony was more than sufficient to show product defect. Plaintiff also argues that "normal use" includes foreseeable misuse. See Vickers v. Chiles Drilling Co., 822 F.2d 535, 538 (5th Cir. 1987) (normal use of product includes all reasonably foreseeable uses, including foreseeable misuse). Plaintiff points to defendant's own testimony that the Ski-doo ridden by Kinnarney was capable of travelling over 60 m.p.h.
We do not address these arguments at length because we agree with the trial court's Conclusion that the expert's assertions in this case, which are all plaintiff put forward during two years of discovery, are insufficient evidence of a product defect. Moreover, this case is different from Vickers. There, the manufacturer of a large air compressor built a stairway for access and egress from the top of the unit, but the stairway was not visible and plaintiff jumped off the top of the compressor, injuring himself. The court held that since the stairway was not visible, the manufacturer should have foreseen the misuse that occasioned plaintiff's injuries. Id. at 539.
The facts of this case are more like those in Menard v. Newhall, where a seven-year-old boy was blinded in a BB-gun fight. We held that the gun was not unreasonably dangerous because the fact "that a BB gun, if fired at a person, could injure an eye, is nothing that even a seven-year-old child does not already know." 135 Vt. 53, 56, 373 A.2d 505, 507 (1977). Here, as in Menard, the consequences were terrible. But the dangers of racing snowmobiles five abreast on a narrow strip of land at high speeds are manifestly within the common knowledge of the ordinary consumer. There is no evidence that the snowmobile was unreasonably dangerous under these circumstances even if it behaved as plaintiff alleges. See Elliott v. Brunswick Corp., 903 F.2d 1505, 1507 (11th Cir. 1990) (where plaintiff injured when she jumped into water next to pleasure boat, boat's unguarded propeller not dangerous beyond expectation of ordinary consumer because "consumer clearly understands that a revolving propeller involves danger"); Hylton v. John Deere Co., 802 F.2d 1011, 1015 (8th Cir. 1986) (where danger of climbing into bin of combine was open and obvious, design of combine not dangerous beyond contemplation of ordinary consumer).
Affirmed.
BY THE COURT: Frederic W. Allen, Chief Justice, Ernest W. Gibson III, Associate Justice, John A. Dooley, Associate Justice, James L. Morse, Associate Justice, Denise R. Johnson, Associate Justice
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