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Strong v. Wynne Outdoor Motorsports12/14/2005
reaction; however, it did not disengage.
There is no evidence before us that the throttle cable was defective at the time it left the control of the manufacturer or at the time appellant purchased it from the retailer. The motorcycle remained in a salvage yard for six months, and there is no evidence as to who had access to it or how the condition of the motorcycle changed over the course of that time. Appellant's own expert, Mr. Handford, testified that appellant's version of the accident did not "make sense" and that it would be hard for him to understand how the motorcycle could suddenly go to full throttle without warning, stating, " s far as the engine suddenly revving up without the rider doing anything at all, that doesn't make sense." He testified that some pulling force on the cable near the handlebar was the most likely cause of the throttle cable being out of its recess, but he admitted that he did not know exactly what caused it or when it occurred. Further, he stated unequivocally that the problem would have been immediately apparent because the engine would run very fast and refuse to idle. He also explained that it would not have been an intermittent problem, specifically, that if the motorcycle was idling properly when appellant first got on it, then the sheath was not out of the connector.
Contrary to appellant's theory, it is not enough for there to be an accident caused by a mysterious malfunction that he cannot explain. Although appellant claims he can create a genuine issue of material fact from circumstantial evidence, all the circumstantial evidence in this case indicates that the accident was caused by driver error rather than a defect in the motorcycle. Because there was no genuine issue of material fact remaining, we affirm.
Affirmed.
Pittman, C.J., and Hart, J., agree.
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