How do I show that Dayton Go Trax E-bikes was not liable for injuries suffered by the purchaser given the following information?

Owner Mike Fields called because he received a call from a customer who was recently injured after falling off one of his E2-level custom-built e-bikes and Mike is concerned about liability. The customer, John Paradise is a 35-year-old single adult male who lives alone. Mike reports that John was a small guy and on the sale information, he noted that John weighed only 110 lbs and was 5' 5" tall. John picked up his e-bike six weeks ago. John told Mike that he was purchasing the E2 bike because he has asthma and needs throttle assistance to help him bike long distances. John claims that on his first use of his e-bike, the bike accelerated too quickly when he started to pedal and use the throttle assist causing him to lose control of the bike. John fell off his bike and hit his head, resulting in a traumatic brain injury. John was not wearing a helmet at the time of the accident. A semi-regular bicycler, John claims he had no idea that the throttle assist on the E2 bike would cause such a thrust. The date of the injury was August 18, 2024. John told Mike that, aside from asthma, he had never had any health issues or injuries before this incident. Mike says E-bikes generally have faster acceleration than traditional bicycles. This is because E-bikes are equipped with electric motors that provide extra power and torque to assist the rider when starting from a stop or riding up hills. The motor can provide a significant boost in acceleration, allowing e-bikes to reach speeds of 20-28 mph (32-45 km/h) much more quickly than a standard bike. This rapid acceleration is one of the key advantages of e-bikes, making them feel more responsive and dynamic to ride compared to regular bicycles. This is all common knowledge and often the reason why someone selects to purchase an e-bike. The E-2 level bike that John purchased is an E 2 bike and has a maximum speed of 20 miles per hour.

Client Mike Fields provided the following information about E-bikes Class 1 E-Bikes Class 1 e-bikes are traditionally treated like regular street and mountain bikes in the eyes of the law; however, these bikes feature pedal-assist technology that kicks into gear as you begin to pedal. While class 1 bikes do feature a motor, the motor will not run on its own unless the rider is pedaling, and this category of electric bikes can only receive a pedal-assist boost up to 20 mph. Class 1 e-bikes are a great choice for individuals new to the micromobility scene who are interested in speeding up their commute, enjoying more time outdoors, or running errands while cutting down on carbon emissions. Class 2 E-Bikes Class 2 e-bikes may appear similar to their class 1 counterparts and also have a maximum assisted speed of 20 mph, these devices offer a unique featurethrottle assistance. While most class 2 bikes also have a pedal-assist option, the throttle option allows riders to cruise without pedaling at all, instead relying on the bike's motor for support and forward propulsion. This 3 doesn't mean the assistance falters if you choose to pedal, however, if you want to exert less energy or find climbing steep hills challenging, the motor will certainly take a load off. The throttle is found on the handlebars of the bicycle and can be turned on with a twist or the flick of a lever. These e-bikes are a great option for individuals with reduced mobility or injuries and are great for traveling in groups. Most of DATYON GOTRAX's current line-up of e-bikes fall into this category. This e-bike class allows you to choose whether you engage in high-intensity exercise or a lower-effort ride, the rider has ultimate controIt is evident that Dayton Go Trax E-Bikes had a duty to warn consumers of E-bike risks that were known at the time of sale, but they had no duty to warn of those risks that were open and obvious. Dayton Go Trax E-Bikes did not have a post market duty to warn.

Courts hold that the first element that a plaintiff must establish in a failure-to-warn claim is that a duty must exist against reasonably foreseeable risks. Linert v. Foutz, 149 Ohio St. 3d 469, 476 (2016). Determining whether the applicable duty is a traditional failure-to-warn claim or post-market failure-to-warn claim will be contingent on whether the manufacturer had knowledge of the risk of defect at the time of sale or after the sale to the consumer. Id. The risk must either be of dangers that are obvious at the time of sale or become known to the manufacturer after the product is sold to the consumer. Frost v. Evenflo Co., 2023-Ohio-4561 (Ct. App. 2d Dist).

A manufacturer's duty to warn is established through a consideration of the likelihood of the risk of harm to consumers. Linert @ 469. In Linert, an individual was involved in a vehicular accident that resulted in a fuel-fed fire causing the individual's injuries. Id. at 470-471. Provided as evidence, the individual stated that six similar accidents had occurred, but the trial court found that not enough evidence was presented to make a determination as to the likeliness of the risk of harm. Id. at 479. Since the individual did not establish the likelihood of the risk of harm, the manufacturer's duty to warn was not triggered. Id. at 479. The Supreme Court of Ohio reasoned that the individual failed to provide context to the number of similar cars on the road at the time. Id. at 479. In Linert, the Supreme Court of Ohio determined that the individual did not provide enough evidence for a trier of fact to determine the likelihood of the risk. Id. at 479.

A manufacturer's general awareness of the risk associated with the product is sufficient to trigger a duty to warn, and there is no requirement to understand the specific nature of the hazard. Boyd v. Lincoln Elec. Co., 179 Ohio App.3d 559 (8^th Dist. 2008). In Boyd, a welding rod manufacturer knew of the general risks associated with the fumes given off when using the product. Id. at 570. A welder was seriously injured following a career inhaling the fumes from the welding rod manufacturer's products. Id. at 563. The appellate court reasoned that the manufacturer had an "obligation to be an expert in its product" and overturned the trial court's summary judgment granted to the welding rod manufacturer. Id. at 566. The appellate court further held that for a warning to be adequate, it must disclose all inherent risks associated with the use of the product that are or should have been known by an expert and remanded the case for further proceedings. Id. at 577.

The Court will likely find that Dayton Go Trax e-bikes did have a duty to warn John Paradise of the likelihood of the risk of harm when using the E2-level e-bike with throttle assist at the time of marketing.. Mr. Fields was aware, at the time of sale, that e-bikes have a faster rate of acceleration than their conventional bicycle counterparts. Additionally, Mr. Fields was generally aware of other e bike accidents, but the causes and severity of these were unknown to him. Furthermore, Mr. Fields was aware that e-bikes were capable of a higher rate of speed than conventional bicycles, specifically that the E-2 level e-bike was capable of reaching 20 miles per hour. The warning included with the e-bike that Mr. Paradise purchased noted that some areas require additional insurance for riders of e-bikes. Unlike the vehicle in Linert, an e-bike has a higher likelihood of risk. In Linert, the individual knew of six similar accidents resulting in the same vehicular damage. Our client, Mr. Fields, was aware of several accidents that involved e-bikes before selling this particular model. The class 2 e-bike also has a throttle assist, increasing the acceleration compared to a traditional bike. Since there have been several reported incidents, and the added danger of throttle assist, the court will likely rule that there is enough evidence to determine the likelihood of risks when riding an e-bike. Due to Mr. Fields' knowledge of risks associated with riding an e-bike, the Court will likely find that Dayton Go Trax had a duty to warn consumers of possible harms associated with the use of their e-bikes.

The risk of harm due to the acceleration applied by the throttle was so open and obvious that no duty to warn existed. Ohio Rev. Code Ann. 2307.76(B). This code states that there is no duty to warn of a risk when that risk is an "open and obvious risk or a risk that is a matter of common knowledge." In our case Mr. Paradise is claiming that the warning of risk associated with use of the throttle assist was inadequate. Not only is it common knowledge that e-bikes of this type have the ability to accelerate quickly, but Mr. Paradise knowingly purchased the bike with the assist and was aware it would accelerate when used.

In Linert, the defendant established that a risk of fire in a car accident existed regardless of where the fuel tank was placed or how it was protected. The risk of an accident causing a fire with a fuel tank was considered common knowledge and inherent in the use of a vehicle. Similarly, in our case, the risk of sudden acceleration when using an e-bike is simply inherent in the design of the product, and of such common knowledge-especially to a client who has chosen a Class 2 e-bike after being informed of the features-that it would be difficult not to come to the same conclusion, that the risks are common knowledge.

In Broyle v Kasper Mach. Co., 517 Fed. Appx. 345 (6^th Cir. 2013), a supervisor purposefully entered a dangerous maintenance area in disregard of obvious warnings and instructions. The court found that there was no additional duty to warn of the risk as it was open and obvious that circumventing these protective measures could result in harm. This is similar to our case in that Mr. Paradise had full knowledge that using the throttle would result in sudden acceleration. Further, similar to signage and fencing around the maintenance area in Broyles, there were numerous warnings of the general risks and instructions regarding wearing a helmet while using the e-bike contained in the bike packaging itself, as well as the common knowledge that wearing a helmet while riding a bike protects against the risk of injury from a fall. Similar to Broyles, a court would find that the risks, especially considering the surrounding warnings and general knowledge, are obvious.

The other side may argue that the risk is not open and obvious because the use of throttle assist on e-bikes is a newer element of bikes. Similarly, in Boyd, the risks of exposure to welding fumes was not initially known when manganese was first used in the manufacturing process. Riding a bike, however, is something that is known to a reasonable person to be risky, so the addition of throttle assist should be obviously risky. Furthermore, Mr. Paradise indicated he had a clear understanding of the throttle feature when it was explained to him during the sales process, and he stated that he was choosing a class 2 e-bike specifically to take advantage of the throttle feature on long rides, due to his asthma.

As a result, when considering whether our client was under a duty to warn of the specific risk of the throttle accelerating quickly, it is likely that a court would find any such risks to be common knowledge, and of such open and obvious nature that no duty existed.

Dayton Go Trax did not have a post-market duty to warn. While Dayton Go Trax is considered a manufacturer in that they assemble custom-built e-bikes, there is no post-market duty to warn because the incident at issue in this case was not a foreseeable risk.

The definition of foreseeable risk is "a risk of harm that satisfies both of the following: (a) It is associated with an intended or reasonably foreseeable use, modification, or alteration of a product in question. (b) It is a risk that the manufacturer in question should recognize while exercising both of the following: (i) The attention, perception, memory, knowledge, and intelligence that a reasonable manufacturer should possess; (ii) Any superior attention, perception, memory, knowledge, or intelligence that the manufacturer in question possesses." Ohio Rev. Code Ann. 2307.71.

Dayton Go Trax was aware of the general risks associated with their e-bikes. Fields became aware of one accident related to throttle control after the sale to Mr. Paradise, however the accident did not involve a Dayton Go Trax e-bike. Additionally, he learned of this through the news, not through any official regulatory body. The existence of only one known incident is less than the number of incidents noted in Linert, wherein the court found that six similar accidents was not sufficient evidence to establish a likelihood of the risk of harm, thus not triggering the manufacturer's duty to warn. Additionally, in Linert, the court, citing, Crisplip v. TCH Liquidating, said, "But a manufacturer is not liable for failing to warn unless a plaintiff shows that the manufacturer failed to take precautions that a reasonable person would take in presenting the product to the public." Linert quoting Crisplip v. TCH Liquidating Co., 52 Ohio St.3d 251, 556 N.E.2d 1177 (1990).

The other side may argue that Dayton GoTrax did have a post-market duty to warn specifically regarding the dangers of throttle assist after learning of accidents involving throttle assists after he sold the bike to Mr. Paradise. In Boyd, the welding rod manufacturer had a general awareness of the risk and a duty to be an expert in its product. This is similar to Mr. Fields, who also had a general awareness of the risk after he sold the e-bike to Mr. Paradise and a duty to be an expert as the owner of a custom E-bike outfitter. Boyd. Additionally, the other side may argue that Mr. Fields learned that the Consumer Product Safety Commission (CPSC) was considering a rule to address the risk of injury from e-bikes post-marketing, which should have prompted him to further warn against potential risks.

However, a manufacturer is not required to warn of every possible risk and must take into account the likelihood of harm. Linert. Just because accidents have happened regarding throttle assists, that does not automatically trigger a pre- or post-marketing duty to warn of that risk has a low likelihood of occurring. Id. Any number of specific hazards could occur when using an e-bike with a throttle assist, and Dayton Go Trax cannot possibly know all of them. Further, Boyd is solely persuasive authority in this jurisdiction, so Linert would govern.

Regarding the potential CPSC rule, the information that Mr. Fields became aware of was vague and not yet published. Therefore, he would not have a post-market duty to provide additional warnings. In summary, Dayton Go Trax did not have a post-market duty to warn.

l. However, be mindful of how much you rely solely on the throttle, as this feature takes a toll on the bike's battery life. Class 3 E-Bikes Class 3 bikes are similar to class 1, with the differentiating factor being the maximum assisted speedwhich is set to 28 mph, making them the fastest of the e-bike options. Additionally, these devices must feature a speedometer to remain in compliance with safety protocol. These bikes often have throttle assist as well.