                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         FEB 24 1999
                           FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    KERRY BREWER; MERCY
    BREWER,

              Plaintiffs-Appellants,
                                                       No. 98-6198
    v.                                           (D.C. No. CIV-97-955-R)
                                                       (W.D. Okla.)
    HARLEY-DAVIDSON, INC., a
    Wisconsin Corporation,

              Defendant,

    HARLEY-DAVIDSON MOTOR
    COMPANY, a Wisconsin Corporation,

              Defendant-Appellee.




                           ORDER AND JUDGMENT           *




Before PORFILIO , BALDOCK , and HENRY , Circuit Judges.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

      Plaintiffs Kerry and Mercy Brewer, husband and wife, appeal from the

district court’s order granting summary judgment in favor of defendant

Harley-Davidson Motor Co.     1
                                  in this diversity action alleging products liability and

negligence claims. We have jurisdiction to consider this appeal,       see 28 U.S.C.

§ 1291, and we affirm.

      This action arises out of an automobile and motorcycle collision. Mr.

Brewer was riding a 1993 Harley-Davidson motorcycle when he was struck by an

automobile. His left leg was crushed, and later amputated below the knee. The

motorcycle lacked any leg protection.

      Believing that the injury was due, at least in part, to the lack of leg

protection, plaintiffs filed suit against defendant, the manufacturer, alleging that

the motorcycle was defective and unreasonably dangerous and that it lacked

adequate warnings and safeguards, such as crash guards or leg guards, which

would provide some measure of leg protection in the event of a collision. The


1
      Plaintiffs do not appeal the district court’s dismissal of defendant
Harley-Davidson, Inc. This order and judgment therefore refers only to
Harley-Davidson Motor Co. as the defendant.

                                             -2-
complaint included the following theories for recovery: negligence, products

liability, failure to warn, failure to provide leg protection, and failure to warn or

modify the motorcycle post-sale.

       Defendant moved for summary judgment arguing, as is relevant to this

appeal, (1) plaintiffs have no cause of action for manufacturer’s products liability

because the alleged danger of a leg injury is open and obvious and no more

dangerous than the ordinary consumer expects; (2) it had no duty to warn because

the danger is obvious to an ordinary consumer; and (3) the negligence claim fails

because it had no duty to warn or to modify the motorcycle’s design to address the

obvious risk inherent in the product. The district court agreed with defendant,

and granted summary judgment. Plaintiffs appealed.

       “We review the grant . . . of summary judgment de novo, applying the same

legal standard used by the district court pursuant to Fed. R. Civ. P. 56(c).”   Kaul

v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996). Under Rule 56(c), summary

judgment is appropriate “if the pleadings [and] depositions, . . . together with the

affidavits, if any, show that there is no genuine issue as to any material fact and

that the moving party is entitled to judgment as a matter of law.” Because this is

a diversity case, we must ascertain and apply the correct Oklahoma law, “with the

goal of insuring that the result obtained is the one that would have been reached

in the state courts.”   Allen v. Minnstar, Inc. , 8 F.3d 1470, 1476 (10th Cir. 1993).


                                             -3-
We review de novo the district court’s determinations of state law.       See Salve

Regina College v. Russell , 499 U.S. 225, 231 (1991).


                               I. CRASHWORTHINESS

       Plaintiffs argue that they should have been permitted to present the issue of

whether the motorcycle was crashworthy to a jury. The district court stated that

Oklahoma has not applied the crashworthiness doctrine to motorcycles.

Oklahoma, however, has not been presented with the question of the applicability

of the crashworthiness doctrine to motorcycles. Citing       Lee v. Volkswagen of

America, Inc. , 688 P.2d 1283 (Okla. 1984), plaintiffs submit that even though

Oklahoma has not specifically applied the doctrine to motorcycles, it has applied

it to motor vehicles, and a motorcycle is a motor vehicle.    2
                                                                  See Appellants’

Opening Br. at 14.




2
      The Oklahoma Supreme Court has not actually referred to the
crashworthiness doctrine. Rather, it has referred to a “second collision or impact”
or “collision impact” when addressing the defectiveness of a design of an
automobile. Lee , 688 P.2d at 1286. In doing so, however, it cited to the
landmark case establishing the crashworthiness doctrine.   See id. (“We agree with
the Larsen [v. General Motors Corp. , 391 F.2d 495 (8th Cir. 1968),] holding that
the manufacturer’s liability for injuries proximately caused by latent defects
should not be limited to collisions in which the defect caused the accident, but
should extend to situations in which the defect caused injuries over and above
that which would have occurred from the accident, but for the defective design.”).


                                            -4-
       For purposes of this appeal only, we assume that Oklahoma would apply the

crashworthiness doctrine to motorcycles.       See, e.g. , Tafoya v. Sears Roebuck &

Co. , 884 F.2d 1330, 1338 (10th Cir. 1989) (recognizing that other jurisdictions

have held that crashworthiness doctrine applies to motorcycles),         overruling on

other grounds recognized by     Wagner v. Case Corp. , 33 F.3d 1253, 1257 n.4 (10th

Cir. 1994); Nicholson v. Yamaha Motor Co. , 566 A.2d 135, 144-45 (Md. Ct.

Spec. App. 1989) (holding crashworthiness doctrine applies to motorcycles).            But

see, e.g. , Kutzler v. AMF Harley-Davidson      , 550 N.E.2d 1236, 1239-40 (Ill. App.

Ct. 1990) (refusing to recognize crashworthiness doctrine in Illinois which, like

Oklahoma, follows consumer expectation test). Application of the doctrine is not

determinative of liability, however.

       Under the crashworthiness doctrine, as applied in Oklahoma to automobile

cases, a plaintiff has the same burden as in other products liability cases.     See

Lee , 688 P.2d at 1285. A plaintiff “must prove that the product was the cause of

the injury, that the defect existed in the product at the time it left the control of

the defendant and that the defect made the product unreasonably dangerous as

defined by ordinary consumer expectations.”         Id. (citing Kirkland v. General

Motors Corp. , 521 P.2d 1353, 1363 (1974));        see also id. at 1286 (“Plaintiff has

the same burden as in other products cases as to whether the product was in a

defective condition that was unreasonably dangerous as defined by ordinary


                                             -5-
consumer expectations when it left the control of the manufacturer.”). A product

“is unreasonably dangerous if it is dangerous to an extent beyond that which

would be contemplated by the ordinary consumer who purchases it, with the

ordinary knowledge common to the community as to its characteristics.”

Attocknie v. Carpenter Mfg., Inc.    , 901 P.2d 221, 227 (Okla. Ct. App. 1995)

(further quotation omitted). This is an objective test.   See Cox v. Murray Ohio

Mfg. Co. , 732 F. Supp. 1555, 1560 (W.D. Okla. 1987).

       Plaintiffs argue that the motorcycle is unreasonably dangerous and

therefore defendant is strictly liable for failing to employ adequate leg protection

on the motorcycle. They further believe that when a safer, alternative design for a

product exists, a manufacturer must adopt that design.

       We agree with the district court that the lack of leg protection is an obvious

danger inherent in the product. Although the motorcycle perhaps could have been

made safer by leg protection, failure to provide the protection did not prove that

the motorcycle is unreasonably dangerous beyond the contemplation of the

ordinary consumer.     See Lamke v. Futorian Corp. , 709 P.2d 684, 686 (Okla.

1985). This is especially true here where the alleged defect “is the failure to

minimize an obvious danger which is inherent in the product itself.”    Id.

       Because the dangers associated with motorcycles which are not
       equipped with leg guards are open and obvious and ordinary
       consumers know and can observe that a motorcycle without leg
       guards or other protective features would not afford leg protection in

                                             -6-
       the event of a side-impact collision, a motorcycle such as the subject
       Harley herein, which is unequipped with leg guards or other
       leg-protective structures, cannot, as a matter of law, be more
       dangerous than would be contemplated by the ordinary consumer.

Appellants’ App. at 196-97 (district court’s order). As a matter of law, defendant

is not strictly liable for failing to provide leg protection on the motorcycle.


                               II. FAILURE TO WARN

       Plaintiffs next argue that defendant is strictly liable for injuries caused by

its failure to adequately warn of the motorcycle’s dangers and to provide

instructions for the safe use of the motorcycle. According to plaintiffs, defendant

failed to warn users that leg protection could be installed on the motorcycle.

       The district court correctly noted that a manufacturer is not required to

warn of obvious dangers.     See, e.g. , Steele ex rel. Steele v. Daisy Mfg. Co.   ,

743 P.2d 1107, 1109 (Okla. Ct. App. 1987). Because the risk of harm to a

motorcycle rider’s legs during a collision is obvious and a risk which an ordinary

user would expect, defendant had no duty to warn of the danger.         See Daniel v.

Ben E. Keith Co. , 97 F.3d 1329, 1334 (10th Cir. 1996);       Duane v. Oklahoma Gas

& Elec. Co. , 833 P.2d 284, 286-87 (Okla. 1992). Accordingly, as a matter of law,

the motorcycle is not defective due to defendant’s failure to warn.       See Steele ,

743 P.2d at 1109; see also Byrnes v. Honda Motor Co. , 887 F. Supp. 279, 281

(S.D. Fla. 1994) (concluding as a matter of law that “danger to a motorcyclist’s


                                            -7-
legs in the event of a collision is obvious, obviating warnings” and listing other

cases with similar conclusions).

       Plaintiffs argue defendant had a continuing post-sale duty to warn of the

danger involved in the use of its product. This argument necessarily fails

because, as indicated above, there is no duty to warn of a danger that is obvious

to the ordinary user.


                                  III. NEGLIGENCE

       Lastly, plaintiffs argue that defendant should be held liable under

negligence law. They contend that defendant breached its duty to use reasonable

care in producing a safe product with leg protection.   See Bruce v.

Martin-Marietta Corp. , 544 F.2d 442, 445 (10th Cir. 1976) (stating that under

Oklahoma law negligence question is whether defendant exercised reasonable

care). This argument also fails as a matter of law. Defendant had no duty to

either warn of the danger or to equip the motorcycle with leg protection since the

defect is open and obvious.    See Lamke , 709 P.2d at 687; see also Nicholson , 566

A.2d at 145.




                                            -8-
     The judgment of the United States District Court for the Western District of

Oklahoma is AFFIRMED.



                                                  Entered for the Court



                                                  Robert H. Henry
                                                  Circuit Judge




                                       -9-
