IN THE DISTRICT COURT OF TULSA COUNTY, STATE OF OKLAHOMA KOLETTE SAWYER, DRAF T Plaintiff, vs Case No.: C1-2010-05897 Judge Daman Cantrell CRUZIN COOLER, LLC, Defendant. PLAINTIFF’S AMENDED AND SUPPLEMENTAL BRIEF IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Plaintiff, Kolette Sawyer, supplements her objection and response to Defendant’s motion for summary judgment, Summary judgment should be denied because there are factual disputes regarding the way the accident happened, Defendant’s expert says that Plaintiff could not have been accelerating and been thrown off the front of the cooler, while Plaintiff's expert says thata hidden defect in the design of the cooler could cause such an accident and more likely than not, did cause this accident. RESPONSE TO DEFENDANT’S STATEMENT OF FACTS 1. Plaintiffadmits the Cruzin Coolers an ice chest product designed, manufactured, distributed and sold by Defendant, and which is meant for riders, 2, Plaintiff admits the Cruzin Cooler is equipped with a motor, three wheels and a steering mechanism. 3. Plaintiff’ admits she was riding on a Cruzin Cooler on or about July 18, 2009. 4, Plaintiff admits she testified that the Cruzin Cooler unexpectedly accelerated. 5. Plaintiff denies that she testified that the unexpected acceleration threw her forward from the product causing injury. Ms, Sawyer said that the acceleration was a factor in causing theaccident, along with the unstable design of the product. Exhibit 1, Deposition of Kolette Sawyer, p. 63, 11.7-24; p. 64, Il 1-8. In addition, the testimony cited by Defendant docs not support Defendant's “fact”! 6. It is denied that it is physically impossible to be thrown over the front of the cooler if acceleration increases, The evidence upon which this statement is made is Defendant's expert’s affidavit, That affidavit says that Ms. Sawyer testified that “unexpected acceleration threw her forward from the product causing injury.” But what Ms, Sawyer actually said was that acceleration was a factor in causing the accident, along with the unstable design of the product. Exhibit 1, Deposition of Kolette Sawyer, p. 63, 117-24; p. 64, Il. 1-8. In addition, Plaintif?’s expert, Carl Martin, has testified that is it certainly possible to be thrown over the front of the Cooler as it happened in this case, Mr, Martin concluded: Based on the examination and evaluation of information provided regarding the Cruzin Cooler vehicle and the accident on July 18th, 2009, it is the opinion of Engineering Perspective that the cause of the accident was a result of a combination of design defects of the Cruzin Cooler, The identified design defects consist of insufficient support of the steering column which allows deflection of the steering column and the front tire to be pushed into the front panel of the vehicle along with other steering issues. These associated defects can cause the rider of the Cruzin Cooler to be unexpectedly thrown over the front steering column of the vehicle, The "The testimony cited by Defendant states at p. 69, lines 7, 8: Q. Inwhat direction were you launched? A. Forward, The testimony at p. 85 is: Q: You had just testified that you're not claim injuries, youclaimed that the cooler ejecting you the failure to warn caused your mused your injuries; s that correct? A. P'm saying that the lack of a warning label is not the sole reason why 1 was ejected from the cooler. It factored in, but I’m not saying it’s the sole reason and that’s not what this says, this doesn’t say it’s the sole reason. 2Affidavit of Cline Young, Exhibit 2, at § 9 (Defendant's Exhibit C) 2identified design defects result in a personal transportation vehicle that is capable of speeds up to 13 mph to be unreasonably dangerous. These defects would not be reasonably known by operators of the Cruzin Cooler. Further, the nature of these defects rises to the level for notification through the consumer product safety commission. Warnings regarding some aspects of the Cruzin Cooler Inaddition, Mr. Drole, the owner of the cooler, testified that he had seen people go over the top of the handlebars on a Cruzin Cooler when the handlebars were tured too sharply? Itis admitted that before the accident, Mr. Stecher was pushing the cooler while Ms. Sawyer ‘was riding the cooler. Mr. Stecher had stopped pushing the cooler before the accident.* 8. tis denied that the front wheel must have struck something to cause the accident. There is no evidence that the wheel struck anything. Me, Martin testified that the defeets in the steering mechanism caused the cooler body to push into the front wheel, causing the accident. 9. Itis admitted there is a warning on the cooler and other warnings in the Owner's Manual (incorrectly identified as an operator's manual).* Mr, Martin determined there wasa warming label on the cooler which said that it should not be operated by anyone under 16.’ The ‘Exhibit 5, Deposition of David Drole, p. 18. Mr. Drole testified, “I’ve seen people go over the front of [a Cruzin Cooler] before. . . a guy wasn’t paying attention, turned a wheel too sharp to miss a stationary object and went over the handlebars and landed on his face.” 4 Exhibit 6, Deposition of Jared Stecher, p. 25, 1118-25, (As I was pushing her, [let go and | ooked back to say something, and when I looked back over, the Cruzin Cooler was on its way over); p. 49, 17-21; (Mr. Stecher said he was pushing, he stopped pushing, and turned away, and when he turned back, the cooler was flipping over.) “Exhibit 3, Mr, Martin’s report at p. S-2. and photograph 82; Exhibit 4, Deposition of Carl Martin at p. 66, “Defendant attached the manual as Exhibit E; the warning quoted is attached as Exhibit 7. "See, e.g., Exhibit 3, Mr. Martin’s report at p. S-2 and photograph 82. 3