Leslie Erin (Elle) Silver lost her left foot and part of her left leg while driving a 2008 Bad Boy Buggy Classic, an electric 4-wheel-drive, all-terrain vehicle (ATV), built on a golf cart chassis.
Elle was a cheerleader in her middle school in Auburn when she was injured in the accident. She was also involved in competitive cheerleading, as well. Elle, one of her friends, and her younger sister were riding the Bad Boy Buggy in their driveway when it suddenly accelerated while making a turn. The Bad Boy rolled one-half a turn, going only ten miles an hour. Elle did what most would have an instinct to do, she put her foot out to try and stop the rollover. Unfortunately, she suffered a below the knee amputation of her left leg.
Elle was very involved in school and church activities before the accident occurred. She has worked hard to move forward, even learning to do a backflip wearing her leg prosthesis.
Prior to the accident, but after the sale of the subject vehicle, Bad Boy sold its business to BB Buggies, Inc., as part of a transaction that included selected assets and liabilities. After the business sale, Buggies took over Bad Boy’s manufacturing and Bad Boy dissolved.
After the accident it was discovered that there had been three prior recalls for sudden unintended acceleration on these vehicles. While the first recall took place before the original sale, it was ineffective. The next two recall notices were not sent to the owner of the Bad Boy Buggy. Therefore, these recall notices were not transferred to the Silver family. Most people would be surprised to learn that these vehicles were designed with no engineering input and no testing whatsoever. The electronic system was designed with no redundancy.
Elle’s parents, Mark and Laura Silver, brought defective design, defective manufacture, and failure to warn claim against Bad Boy and BB Buggies (and Textron Inc.).
After the defendants moved for summary judgment, the Silvers abandoned their manufacturing defect claim and the design defect claim that was based on the vehicle’s alleged tendency to roll over. Claims that remained were the parents’ unintended acceleration design defect claim, their design defect claim based on the vehicle’s crashworthiness, their failure to warn claim, and their failure to recall claim.
On November 8th, the court granted Bad Boy’s motions to exclude evidence of pre-June 2008 Bad Boy Buggy vehicles. The court based its ruling on the Silvers’ failure to point to evidence supporting their contention that the prior model Bad Boy Buggy vehicles were substantially similar to the vehicle at issue in the case. However, the court said that it would permit the Silvers to file a motion for reconsideration of the rulings with specific citation to evidence supporting substantial similarity. The Silvers filed two motions for reconsideration.
The Silvers also pointed to evidence that the pre-June 2008 Bad Boy Buggy Classic model vehicles and the accident vehicle had the same size and shape doorways, as well as no doors or seat belts. This evidence satisfied the trial court that the pre-June 2008 Bad Boy Buggy Classic model vehicles and the accident vehicle were substantially similar in terms of their crashworthiness in tip-over accidents. Evidence that the SepEx model Bad Boy Buggy Classic Model vehicles had an increased risk of tip-overs compared to the earlier series models was also pointed out to the Silvers, making evidence that Bad Boy had notice of tip-overs and crashworthiness issues involving Series model vehicles relevant, according to the court.
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