Facts

On Nov. 27, 2002 at 7:10 pm., Robert Allen, a 39-year-old California Highway Patrol Officer, was driving his 2000 BMW R-100 RT motorcycle on Von Sosten Road approaching the intersection with Grunauer in a rural area near Tracy while on-duty. The motorcycle was involved in an accident with a Honda XR70 motorbike operated by a 16-year-old, causing Officer Allen's fuel tank to shatter, releasing gasoline onto Officer Allen that burst into flames. The unlicensed 16-year-old was driving a motorbike in darkness that had no lights and he was driving on the wrong side of the road. The collision was an offset frontal collision that occurred in Officer Allen's lane. The 16-year-old died as a result of the collision.

Officer Allen was covered in flames and was standing when an off-duty Oakland Police Officer arrived first on the scene and was able to extinguish the flames on Allen. The accident was investigated by CHP MAIT team who were able to gather several pieces of the plastic fuel tank that had fractured as a result of the impact, but had not remained with the motorcycle which was engulfed in the fire.

PLAINTIFFS' CONTENTIONS:
The plaintiffs contended that the BMW plastic fuel tank fractured in a brittle manner and was not crashworthy. The fuel tank was made of nylon that did not have an elastomer added to it that would have made it strong and resistant to fracture. An elastomer increases the ability of the plastic to deform or bend without breaking into pieces.

Plaintiffs produced evidence of a memorandum of a meeting of the Product Safety Group at BMW World Headquarters in Munich, Germany on December 3, 1992. The subject of the meeting was to consider the material to be used for the plastic fuel tanks on the new R259 series of motorcycles. The problem was a risk of the plastic fuel tank breaking when impacted. The BMW Product Safety Group recommended that an elastomer called NYRIM be added to the nylon to increase the resistance to breakage by impact. Although the addition of NYRIM would increase the cost by only $3.16, BMW did not follow the Group's recommendation. The fuel tanks, including the R1100 RT motorcycles, did not contain a fracture toughener. Plaintiffs' plastic expert Dr. Rondinone tested and analyzed pieces of the subject tank and testified that the gas tank experienced a brittle fracture on the right side of the tank as a result of defects in the tank's surface. In Dr. Rondinone's opinion, adding an elastomer to the tank could have significantly reduced the tanks. The tank fractured and the gasoline ignited, covering Officer Allen in flames.

Plaintiffs contended that BMW sold their authority motorcycles to the CHP based on CHP specifications that required the motorcycles to give maximum performance and safety. The tank did not provide maximum safety and was not suitable for the particular purpose.

Plaintiffs contended the forces of the accident were under 5,000 pounds with a delta V of only 11 mph. Officer Allen did not receive any severe bone fractures and was able to walk away from the accident, indicating the impact was not as severe as defense contended.

DEFENDANTS' CONTENTIONS:
BMW claimed the fuel tank was not defective. The 1992 recommendation was for a different motorcycle, NYRIM was not available, and cladding parts protected the tank. There have been no other accidents involving this plastic fuel tank. The high closing speed of the two motorcycles of over 70 mph caused a severe impact that no fuel tank could withstand. The Honda was traveling over 36 mph and Officer Allen was traveling at 60 mph. The forces were as much as 16,000 pounds.

Specials in Evidence

$ 696,570; $207,964; $1,525,995

Damages

Officer Allen returned to limited duty and was forced to retire from the CHP in 2006.

Injuries

Severe burn injuries to his face, arms, wrists, hands and thighs. He underwent three skin grafts, a neck tissue expander with stapling of neck skin flap over his right lower face, three scar excisions with skin flap replacement and kenalog injections. Future surgeries include further scar revision surgeries, laser surgeries and kenalog injections. Plaintiffs presented evidence only of the burn injuries and not for any other injuries.

Result

Verdict for $4,304,534. Robert Allen received $904,534 for past economic loss, $1 million for future economic loss, $ 1.2 million for past non-economic loss, and $800,000 for future non-economic loss. $400,000 for loss of consortium to Ann Allen, his wife.

Other Information

In a special verdict, the jury found that the risks of the motorcycle's design outweighed the benefits of the design, that BMW was negligent in designing the motorcycle, that the motorcycle failed to have the same quality as represented to the CHP and was not suitable for the particular purpose of CHP. The percentage of liability were 80 percent to BMW AG, BMW NA, LLC and A+S Motorcycle Parts, Inc. and 20 percent to the 16-year-old motorbike operator. Defense's post-trial motion for judgment notwithstanding the verdict was denied on Sept. 11, 2007.

Deliberation

three days

Poll

11-1

Length

one month