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IN THE DISTRICT COURT IN AND FOR TULSA COUNTY
STATE OF OKLAHOMA
KOLETTE SAWYER, )
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Plaintiff,
vs.
CRUZIN COOLER, LLC,
Defendant.
Case No. CJ-2010-05897
Daman Cantrell
MOTION FOR SUMMARY JUDGMENT OF DEFENDANT CRUZIN COOLER, LLC
COMES NOW the Defendant, Cruzin Cooler, LLC ("Cruzin Cooler"), and pursuant to Title
12 O.S. 2056 and Rule 13 of the Rules for District Courts and moves for judgment in its favor for
the reason that the pleadings and evidentiary materials show that there is no substantial controversy
as to any material fact affecting such issues discussed herein and Cruzin Cooler is therefore entitled
to judgment as a matter of law and in support states as follows:
I. INTRODUCTION
This matter arises out of a personal injury allegedly sustained by Plaintiff Kolette Sawyer
("Sawyer") while operating a Cruzin Cooler product. The Cruzin Cooler is an ice chest designed
and manufactured to be ridden. The Cruzin Cooler is equipped with a motor, three wheels and a
steering mechanism. On or about July 18, 2009, Sawyer was riding on a Cruzin Cooler while being
manually pushed by another individual. Sawyer claims that the motor unexpectedly engaged and
threw her over the front steering mechanism of the Cruzin Cooler. As a result of her fall, Sawyer
claims she was injured.
Sawyer now makes claims against Cruzin Cooler for products liability, negligent design,
negligent manufacturing, failure to warn, breach of implied warranty of fitness for a particular
purpose, breach of implied warranty of merchantability and punitive damages.
SEP 0 2 ~ ~ \ 1
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Cruzin Cooler denies that Plaintiffs injuries happened in the manner in which she claims as
it is physically impossible to be unexpectedly accelerated forward and have the body be thrown
even further forward. Additionally, there is no evidence of any design defect and warnings were
actually provided on the product. As such, all claims by Plaintiff against Cruzin Cooler must fail as
a matter of law.
II. STATEMENT OF MATERIAL FACTS TO WIDCH
THERE IS NO GENUINE ISSUE
Based upon evidentiary material filed with this Brief, there is no substantial controversy
(solely for the purpose of this Motion for Summary Judgment) as to the following material facts:
I. The Cruzin Cooler is an ice chest product designed, manufactured and distributed by Cruzin
Cooler, LLC to be ridden. See Plaintiffs Petition a t ~ 4, attached as Exhibit A.
2. The Cruzin Cooler is equipped with a motor, three wheels and a steering mechanism. See
Exhibit A a t ~ 4.
3. On or about July 18, 2009, Sawyer was riding on a Cruzin Cooler. See Exhibit A a t ~ 8.
4. Sawyer testified that the Cruzin Cooler unexpectedly accelerated. See Deposition ofKolette
Sawyer at p.42, 11.1-4; p.46, 1.19- p.47, 1.5; p.63, 1.13- p.64, 1.8; p.69, 11.7-8, attached as
Exhibit B.
5. Sawyer testified that the unexpected acceleration threw her forward from the product
causing injury. See Exhibit Bat p.69, 11.7-8; p.85, 11.11-21.
6. It is physically impossible to be thrown over the front of the cooler if acceleration increases.
See Affidavit of Cline Young, attached as Exhibit C.
7. Just prior to Sawyer's fall, another individual had been pushing her on the Cruzin Cooler.
See Exhibit Bat p.27, 11.1-9; p.39, 1.23 -p.40, 1.2; p.41, ll.l-14; Examination under Oath of
David Drole at p.26, 11.17-24; p.27, 1.10- p.28, 1.5, attached as Exhibit D.
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8. In order for the accident to result in the cooler's fall as described by Plaintiff, the front wheel
had to have struck something. See Exhibit C.
9. The Cruzin Cooler includes warnings on the product itself and in the operator's manual. See
Owners' Manual attached as Exhibit E.
10. Sawyer testified that she never read the operator's manual. See Exhibit Bat p.82, 11.21-22;
p.88, 11.15-21.
11. Sawyer testified that she never requested to see the operator's manual for the Cruzin Cooler.
See Exhibit B at pp.88-90.
12. Sawyer testified that she never inspected the cooler for warnings. See Exhibit B at pp.86-90.
13. Sawyer testified that just prior to her accident, the motor on the Cruzin Cooler did not
appear to be working and therefore she was being manually pushed by another individual.
See Exhibit B at p.27, 11.1-9; p.39, 1.23 - p.40, 1.2; p.41, 11.1-14.
14. Someone pushing the Cooler could have generated enough force and speed to cause the
accident described. See Exhibit C.
15. Sawyer testified that the three wheel design used by the Cruzin Cooler is inherently
defective.
16. From an engineering standpoint, a three wheeled vehicle is preferable under circumstances
where there is no suspension system. See Exhibit C.
17. From an engineering standpoint, the Cruzin Cooler was not being used by the Plaintiff, in its
intended purpose. See Exhibit C.
18. The Plaintiffs misuse of the Cruzin Cooler was the cause of her accident and not the design
of the Cooler. See Exhibit C.
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19. Witness and Exhibit List were due September 1, 2011. See Affidavit of Eric Clark attached
as Exhibit F.
20. Counsel agreed to identify expert witness in Witness and Exhibit List. See Exhibit F.
21. Plaintiff has failed to provide Witness and Exhibit List or request an extension to do so. See
Exhibit F.
22. Plaintiff has no expert witness identified to provide support for claims. See Exhibit F.
III. ARGUMENTS AND AUTHORITIES
A. Standard for Summary Judgment
Rule 13 of the Rules for District Courts for Oklahoma provides that the Court may render
judgment in favor of a moving party when there is no substantial controversy as to any material
fact, and the party is entitled to judgment as a matter of law. By legislative mandate, 12 O.S.
2056 now governs summary disposition. By enacting 2056, the Oklahoma Legislature
intended to alter some aspect of summary judgment procedure. See Minnesota Mining & Mfg
Co. v. Smith, 1978 OK 98, ~ 20, 581 P.2d 31, 35 (citations omitted). The Oklahoma Supreme
Court has stated:
When amending a statute the legislature is presumed familiar with the extant
judicial construction then enforced. Similarly, it can be presumed that when
enacting a statute the legislature is familiar with the U.S. Supreme Court
jurisprudence affecting that enactment.
TXO Production Corp. v. Okla. Corp. Comm., 1992 OK 39, ~ 10, 829 P.2d 964, 970 (footnotes
omitted).
The enactment of 2056 is a legislative mandate that a motion for summary judgment in
Oklahoma is governed by the principles pronounced by the United States Supreme Court in
Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, 477 U.S. 242 (1986);
and Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574 (1986). These cases embody
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the "construction previously placed on [Fed.R.Civ.P.56] by the highest court of that
Ourisdiction] .... [O]ur legislature is presumed to have been aware of such construction and to
have adopted the statute as so construed" in 2056. Atlantic Richfield Co. v. State ex rei.
Wildlife Conservation Comm., 1983 OK 14, ~ 9, 659 P.2d 930, 934 n. 7 (citations omitted).
Under these standards, the role of the trial court in considering a motion for summary
judgment is as follows:
The inquiry performed is the threshold inquiry of determining whether there is
the need for a trial - whether, in other words, there are any genuine factual
issues that properly can be resolved only by a finder of fact because they may
reasonably be resolved in favor of either party.
Liberty Lobby, 477 U.S. at 250.
The Oklahoma Legislature has now settled the standard for summary judgment by
enacting 2056; the Courts in Oklahoma are to adhere to the principles of Celotex, Liberty
Lobby and Matsushita in ruling on a motion for summary judgment. The facts here are not in
controversy in this case and Cruzin Cooler is entitled to judgment as a matter of law.
B. Plaintiff cannot Maintain a Products Liability Claim
"The purpose behind manufacturers' products liability is to protect the ultimate consumer
from the burden of loss caused by a defective product.. .. " Tansy v. Dacomed Corp., 1994 OK
146, 890 P.2d 881, 884 (Okla.l994). Oklahoma adopted the theory of manufacturers' products
liability in Kirkland v. General Motors Corp., 1974 OK 52, 521 P.2d 1353. Kirkland teaches that
one who sells a product in a defective condition, which is unreasonably dangerous to the user or
consumer, is strictly liable for the physical harm to the person or property caused by the defect.
To maintain a cause of action under manufacturers' products liability, the plaintiff
must prove the product was the cause of the injury, that the product was defective
when it left the control of the manufacturer, and that the defect made the product
unreasonably dangerous to an extent beyond which would be contemplated by the
ordinary consumer who purchases it. Even if the defect may not have caused the ..
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accident, if it increases the severity of the injury which would have occurred
absent the defect, the manufacturer is liable for damages for increased injuries
attributable to an enhanced injury.
Bishop v. Takata Corp., 2000 OK 71, ~ 7 , 12 P.3d 459,461 (emphasis added).
In Kirkland, the Oklahoma Supreme Court set forth the definition of "unreasonably
dangerous" as follows:
The article sold must be 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.
Kirkland, 521 P.2d at 1362-1363. The Court went on to hold that:
By our adoption of manufacturers' products liability with its comparison to
liability without fault in areas such as workmen's compensation, respondeat
superior, the vicious or fractious animal, etc., we do not infer that the injury is
of itself proof of the defect, or that proof of injury shifts the burden to the
Defendant. ... Cases are legion in which we have held that the mere happening
of an accident raises no presumption of negligence on the part of the defendant.
Nor does it raise any presumption of defectiveness in the article involved in an
accident. (Emphasis added).
!d. at 1363. The Oklahoma Court of Civil Appeals has held that:
... the fact that someone was injured while using the product does not establish
that the product was unreasonably dangerous when put to its intended use.
(Citation omitted). It is not enough to merely contend that a defect existed,
show that an accident occurred, and assume the two are necessarily related.
(Citation omitted). The plaintiffs must provide sufficient evidence or in the case
of a summary judgment, evidentiary material raising a reasonable inference from
which the fact finder may rationally conclude.that plaintiffs' injuries and damages
proximately resulted from the product's failure of performance causally related to
its defective condition. (Emphasis added).
Beverly v. Wal-Mart Store, Inc., 2000 OK CIV APP 45, ~ 15,3 P.3d 163, 167.
To establish this umeasonable dangerousness of the product, Plaintiff has "the burden of
establishing circumstances from which the facts necessary to prove his claim may be inferred,
without resort to conjecture and speculation and the circumstances proved must point reasonably
to the desired conclusion and tend to exclude any other reasonable conclusion." Weatherford v.
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H K. Porter, Inc., 560 S.W.2d 31, 34 (Mo. Ct. App. 1977)(citation omitted). While the existence
of a defect may be inferred in a products liability action from circumstantial evidence the
"finding of a defect cannot rest on conjecture or speculation." See, Daniel v. Indiana Mills &
Mfg., Inc., 103 S.W.3d 302, 309-10 (Mo. Ct. App. 2003).
Sawyer has nothing but her injury from which a fact finder could determine a defect
exists in the Cruzin Cooler. The allegedly defective product, the Cruzin Cooler, has not been
examined by Plaintiff and plaintiff has not indicated her intention to hire an expert of any kind in
this matter. Plaintiff will therefore obviously be unable to establish that such was defective by
direct evidence of competent expert testimony. Thus, the best Plaintiff can offer will be
circumstantial evidence, which relies upon improper speculation. AlJ facts actually tend to
establish that the Cruzin Cooler is not defective.
Thus, what remains is the only position that Plaintiff has- the mere fact that an injury has
occurred raises some presumption or inference that the Cruzin Cooler was defective. This is
absolutely insufficient for purposes of a products liability claim. Kirkland 521 P.2d at 1363; See
also, Martin v. E-Z Mart Stores, Inc., 464 F.3d 827, 830 (8th Cir. 2006); Smith v. Michigan
Beverage Co., Inc., 495 F.2d 754, 757 (7th Cir. 1974)("Just as it is the 'general rule that the mere
fact of injury will not create an inference of negligence, the mere fact of the accident cannot
create an inference of a defect in a products case."); In Beverly v. Wal-Mart Stores, Inc., 2000
OK CIV APP 45, ~ 1 5 , 3 P.3d 163, 167, Oklahoma's Court of Civil Appeals explained that "[i]t is
not enough to merely contend that a defect existed, show that an accident occurred, and assume
the two are necessarily related." (citation omitted)(affirming summary judgment for defendant).
The mere fact that an injury has occurred does not "raise any presumption of defectiveness in the
article involved in the accident" Kirkland 521 P.2d at 1363.
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.
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Defendants have engaged the services of an expert witness, Cline Young, PhD.
("Young") to show the Cruzin Cooler is safe for operating under the conditions outlined in the
operating manual. See Exhibit C. Young explains that the accident in question could not have
happened in the manner claimed by Plaintiff. See Exhibit C. Young examined, weighed, and
operated the Cruzin Cooler. See Exhibit C. He determined that traveling on a level street
surface, there was no way that the cooler could have tipped and thrown Sawyer forward as
alleged without the front steering wheel being jerked hard to one side or being stopped by an
obstruction like a large rock or hole. See Exhibit C.
Plaintiff contends that just because the product is a 3 wheel design, the product is unsafe.
Plaintiff has no testimony or facts to support this contention. Young though, explained that, from
an engineering standpoint, the three wheel design is more stable and preferable for vehicles
which are designed to carry a load without the balancing effect of a suspension system. See
Exhibit C. If the three wheel vehicle begins to tip it is easy to put a foot down to create a fourth
point to balance and recover the load. This is a more difficult maneuver with a four wheel
vehicle. Plaintiff has no evidence showing the product to be defective and has identified no
proposed expert witness or testimony. See Exhibit F.
As the accident was the result of plaintiffs lack of attention, misuse of the cooler, and the
unfortunate location of a pothole or other hazard, Plaintiffs' claims are barred and Cruzin Cooler
is entitled to summary judgment.
C. Plaintiff cannot establish that any acts or omissions by Cruzin Cooler
were the direct cause of Sawyer's damages
Manufacturers and suppliers, even those of defective products, are not absolute insurers
of all users and consumers whom they serve. Causation of the injury by the product beyond a
mere possibility must be shown. If some act of the plaintiff caused the injury, rather than the
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product itself, causation is missing, and the plaintiff may not recover. Kirkland, 521 P.2d at
1366. This is exactly the case here. Asswning that Plaintiffs can establish that Cruzin Cooler
breached a duty owed Sawyer, Plaintiff cannot show that any breach of that duty was the cause
in fact of Sawyer's injury. In Downs v. Longfellow Corp., 1960 OK 106, ~ 22, 351 P.2d 999,
1004, the Court stated:
It is fundamental that a plaintiff, in order to impose liability upon a defendant, is
required to establish, by a preponderance of the evidence, that the defendant was
guilty of negligence which probably, not merely possibly, caused plaintiff's
InJUry.
In an annotation in 66 A.L.R., at page 1517, the author states:
'A plaintiff, in order to impose upon a defendant any obligation or liability, is
required to establish by a preponderance of the evidence the facts essential to his
right to relief. It is not enough in this respect to produce evidence sufficient to
show a possibility of the existence of the necessary facts. Verdicts must rest on
probabilities, not on mere possibilities. (Emphasis added).
In Hardy v. Southwestern Bell Telephone Co., 1996 OK 4, ~ 10, 910 P.2d 1024, 1027,
Oklahoma's Supreme Court explained:
While absolute certainty is not required, mere possibility of causation is
insufficient. When the matter is one of pure speculation or conjecture or the
probabilities evenly balanced, it is the duty of the court to direct a verdict for
defendant because a party will not be permitted to recover from another whose
acts, however wrongful, are not the proximate cause of the injury suffered.
Finally, proximate cause has been explained as "the efficient cause which sets in motion
the chain of circumstances leading to the injury; if the negligence complained of merely
furnishes a condition by which the injury was made possible and a subsequent independent act
caused the injury, the existence of such condition is not the proximate cause of the injury." Thur
v. Dunkley, 1970 OK 157, ~ 16,474 P.2d 403,405.
If the negligence complained of merely furnishes a condition by which an injury is made
possible and the subsequent independent act caused the injury, the existence of such condition is
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not the proximate cause of the injury. Thur v. Dunkley, 1970 OK 157,474 P.2d 403. If an alleged
actor's negligence, if any, is so far removed from the causal nexus in the injury, there is no
actionable negligence. Johnson v. Hillcrest Health Center, Inc., 2003 OK 16 ~ ~ 2 1 , 2 2 n30; See
also Porter v. Norton-Stuart Pontiac-Cadillac of Enid, 1965 OK 18,405 P.2d 109, 114.
Any alleged omission on the part of Cruzin Cooler (which it denies exists), was so far
down the causal nexus of injury that it caused to be the proximate cause of Sawyer's injury.
Second guessing what Cruzin Cooler should have done places factual scenarios beyond the scope
of proximate cause. As a matter of law, the Court can determine that Cruzin Cooler's actions
were not the cause in fact of Sawyer's injury.
Sawyer was riding on the Cruzin Cooler under the power of another individual. See
Exhibit B at p.42, 11.1-4; p.46, 1.19 p.47, 1.5; p.63, 1.13- p.64, 1.8; p.69, 11.7-8. Defendant's
expert, Young, has conducted testing on the Cruzin Cooler and has determined that if Plaintiff is
correct -that she was traveling in a straight line down the street- the only way the fall could have
happened in the manner described by Plaintiff is if she struck a rock or a pothole or she suddenly
turned the wheel all the way one direction. See Exhibit C. The design of the Cruzin Cooler is
not inherently flawed and Plaintiff has no evidence that it is. Plaintiff cannot demonstrate that the
existence and/or performance of the Cruzin Cooler caused Sawyer's damages.
With respect to the issue of causation in a manufacturer's products liability case, the
doctrine of res ipsa loquitur, which allows an inference of negligence from the mere fact that an
accident happened, has never been applied in Oklahoma. Dutsch v. Sea Ray Boats, 1992 OK
155, ~ ~ 12-13, 845 P.2d 187, 190. The Court in Dutsch emphasized:
A manufacturers' products liability plaintiff need not exclude all other possible
conclusions. However, the mere possibility that a defect caused the injury is not
sufficient.
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/d., 1992 OK 155, ~ 15, 845 P.2d at 191. Without a res ipsa loquitur inference, Plaintiff must
prove that the cooler was actually defective. The fact that the cooler tipped over does not
establish that the Cruzin Cooler was defective. Plaintiff has no expert testimony to show the
product was defective (See Exhibit F) and without proof that the Cruzin Cooler was defective,
Plaintiffs claim fails.
Cruzin Cooler's product did not cause Sawyer to hit whatever object was in the path of
travel chosen by Sawyer, nor did Cruzin Cooler encourage Sawyer to ride the cooler while
someone pushed her down a street, late at night, in the dark. See Exhibit B at p.19, 11.13-22; p.22,
11.20-22; p.25, 11.11-13; 27, 11.1-9; p.39, 1.23 - p.40, 1.2; p.41, 11.1-14; Exhibit D at p.19, 11.4-7; p.26,
11.17-24; p.27, 1.10- p.28, 1.5. The questions that Plaintiff is required to answer to establish
causation are: Was Cruzin Cooler unreasonably dangerous, was Cruzin Cooler aware of such,
and did Cruzin Cooler do anything that created a greater hazard? Plaintiffs have no evidence to
affirmatively answer these questions. See Exhibit F. Without a nexus to establish the cause of her
injury to any act or omission by Cruzin Cooler, Plaintiff cannot establish the required prima facie
case for negligence. In cases such as these when there is "no evidence from which the jury could
reasonably find a causal nexus between the negligent act and the resulting injury," it is the
question of law for the Court. McKellips v. Saint Francis Hosp., Inc., 1987 OK 69, ~ 9, 741 P.2d
467, 471; See also, Prince v. B.F Ascher Co., Inc., 2004 OK CIV APP 39, ~ 22, 90 P.3d 1020,
1029 ("The question [of proximate cause] becomes an issue of law when there is no evidence
from which a jury could reasonably find the required proximate, causal nexus between the
careless act and the resulting injuries."). Because Plaintiffs cannot establish that Cruzin Cooler's
caused Sawyer's injuries, Cruzin Cooler is entitled to summary judgment in this matter.
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D. Plaintiff cannot maintain her action without expert testimony.
In pursuing an action for manufactures' products liability, a Plaintiff must identify
evidence that will prove three elements:
First of all Plaintiff must prove that the product was the cause of
the injury; the mere possibility that it might have caused the
injury is not enough. Secondly, Plaintiff must prove that the
defect existed in the product, if the action is against the
manufacturer, at the time the product left the manufacturer's
possession and controL. Thirdly, Plaintiff must prove that the
defect made the article unreasonably dangerous to him or to
his property.
Kirkland v. General Motors Corp., 1974 OK 52, && 29-31, 521 P.2d 1353, 1363 (emphasis
added) (citation omitted); A/lenberg v. Bentley Hedges Travel Serv., Inc. eta/, 2001 OK 22, &
12, 22 P.3d 223, 227. Absent sufficient expert testimony or any other evidence, Plaintiff cannot
prove that (1) there was a defect in any component part of the Cruzin Cooler, (2) that the defect
caused or enhanced Plaintiff's injuries, or (3) that any alleged defect renders the product
unreasonably dangerous.
The mere fact that the cooler tipped over does not create a presumption of defectiveness,
nor does it shift the burden of proof to Cruzin Cooler to prove the absence of a defect. Kirkland,
1974 OK 52, & 28,521 P.2d at 1363. Similarly, proofofthe incident is not proof of a defect. ld.
Absent sufficient expert testimony as to the existence of a defect in the subject vehicle,
Cruzin Cooler is entitled to summary judgment. Further, absent sufficient expert testimony or
other evidence, Plaintiff is unable to prove causation. To establish causation, Plaintiff must
prove that her injury was caused, not necessarily by the negligence of Defendant, but by reason
ofa defect built in and existing at the time of his injury. Alexander v. Smith & Nephew, P.L.C.,
90 F. Supp. 2d 1225, 1232 (N.D.Okla. 2000). In Alexander, the plaintiff sued a manufacturer for
injuries allegedly sustained from the implantation of a medical device. The court found that the
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products liability claim failed because the plaintiff had put forward no evidence on the issue of
causation. !d. There, the trial court excluded the testimony of the plaintiffs expert witness as to
medical causation and concluded that without expert witness testimony, the plaintiff lacked any
evidence to prove causation. Id at 1232 (The Oklahoma Supreme Court has frequently found
expert testimony necessary to establish causation). Since the plaintiff had no expert testimony
to support the allegations of liability, summary judgment was appropriate. !d. at 1236.
Similarly, here, the Plaintiff has no expert to support either her claims that the product
was defective or that her alleged injuries were caused by Cruzin Cooler's product, (See Exhibit
F) and therefore, Plaintiff's claims fail as a matter of law.
E. Plaintiff Misused the Cruzin Cooler Resulting in the
Accident and Injury to Plaintiff.
Plaintiff misused the Cruzin Cooler by riding it while someone was pushing her rather
than m1der the power provided. See Exhibit B at p.42, 11.1-4; p.46, 1.19- p.47, 1.5; p.63, 1.13-
p.64, 1.8; p.69, 11.7-8; Exhibit D at p.26, 11.17-24; p.27, 1.10 p.28, 1.5. The Oklahoma Supreme
Court has addressed the issue of misuse in products liability cases. The Court held in Kirkland,
that: "If the plaintiff is using the product for some purpose for which it was not intended and is
consequently injured, he should not recover." 521 P.2d at 1366.
"Abnormal or misuse of a product occurs where the method of using a product is not that
which the maker intended or is a use that could not reasonably be anticipated by the
manufacturer." Treadway v. Uniroyal Tire Co., 1988 OK 37, 766 P.2d 938, 941. The Cruzin
Cooler was designed as an ice chest or cooler on which a person can ride rather than carry it. It
was designed with a motor and steering mechanism for traveling over level and even ground. It
was not designed or manufactured to travel without the motor engaged, on uneven grom1d, or
while being pushed by someone.
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Plaintiff testified that she was attempting to operate the vehicle without the motor
engaged; without having been instructed in its use; and on a darkened street in the late
nightJearly morning hours. See Exhibit Bat p.19, 11.13-22; p.22, 11.20-22; p.25, ll.ll-13; 27, 11.1-9;
p.39, 1.23 p.40, 1.2; p.41, 11.1-14; Exhibit D at p.19, ll.4-7; p.21, 1.18- p.22, 1.3; p.26, 11.17-24;
p.27, 1.10 - p.28, 1.5. Sawyer described that she was being manually pushed down the street
because the motor was not operating. See Exhibit B at p.27, 11. 1-9; p.39, 1.23 - p.40, 1.2; p.41,
11.1-14. She then stated that the motor unexpectedly engaged causing sudden acceleration which
threw her over the front of the vehicle. See Exhibit Bat p.42, 11.1-4; p.46, 1.19- p.47, 1.5; p.63,
1.13 - p.64, 1.8; p.69, ll.7-8. Plaintiff stated that the product is defective because it is designed
with only three wheels. See Exhibit Bat p.61, 11.8-19; p.73, 11.4-22.
The Oklahoma Supreme Court held in a later case that:
Generally when we speak of the defense of misuse or abnormal use of a product
we are referring to cases where the method of using a product is not that which
the maker intended or is a use that could not reasonably be anticipated by a
manufacturer.
Fields v. Volkswagen of America, Inc., 1976 OK 106, 555 P.2d 48, 56. The Court went on to
state that:
In order to determine whether the use of a product by a plaintiff is abnormal, we
must ask whether it was reasonably foreseeable by the manufacturer. A
manufacturer is not liable for injuries resulting from such use if it is not
foreseeable.
Id at 57-58. The United States Tenth Circuit Court of Appeals has also addressed the issue of
misuse and determined that:
A manufacturer of a product is not legally responsible for injuries caused by a
product if: (1) the product is used in a manner or for a purpose other than that
which was intended and which could not reasonably have been expected; and (2)
such use rather than a defect, if any, in the product caused the plaintiffs claimed
injuries. (Emphasis added).
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Weir v. Federal Ins. Co., 811 F.2d 1387, 1391 (lOth Cir. 1987).
Cruzin Cooler was designed and constructed for providing an easy way to move a heavy
cooler full of beverages and ice from one place to another, not as a recreational vehicle for joy
rides. It is not reasonable to suggest that a manufacturer should anticipate that consumers will
treat the cooler like a motor bike or go-kart. The cooler is a small vehicle without a powerful
motor capable of great speed. Furthermore, as noted above, a manufacturer is not an absolute
insurer of its products. Kirkland, supra. In this case, Plaintiff admitted that she was being
pushed rather than using the motor on the cooler as it was designed.
Plaintiff further admitted that she never asked about warnings or instructions for the
cooler. See Exhibit B at p.65, ll.16-20; p.66, ll.19-24; p. 82, 11.21-22; p.88, 11.15-21; pp.86-90;
Exhibit D at p.21, 1.18 - p.22, 1.3. Plaintiff testified that the accident occurred when another
individual was pushing the cooler because the battery had died. See Exhibit B at p.27, 11.1-9;
p.39, 1.23- p.40, 1.2; p.41, 11.1-14; Exhibit D at p.26, 11.17-24; p.27, 1.10 p.28, 1.5. She testified
that they were having fun and in effect "joy riding." See Exhibit B at p.48, 1.12 p.49, 1.2;
Exhibit D at p.23, 11.13-21. As such, Plaintiff, in effect, admitted that the accident did not occur
during the normal use of the cooler. Furthermore, such use could not reasonably be anticipated
by the manufacturer of the Cruzin Cooler, and consequently, the manufacturer cannot be held
liable for any resulting injuries.
Plaintiff can present no evidence to show that if the cooler had been powered by the
motor as it was manufactured to be, the cooler would have had the power and/or speed necessary
such that the accident still would have occurred. Plaintiff can present no evidence that the
individual pushing the cooler did not alter the manner in which the steering mechanism handled
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or the way the cooler reacted to imperfections in the traveled surface. As such, Cruzin Cooler is
entitled to summary judgment.
F. Plaintiff Cannot Prove the Elements Necessary to
Maintain an Action for Breach of the Implied
Warranty of Fitness for a Particular Purpose.
Plaintiff cannot establish an action for breach of the implied warranty of fitness for a
particular purpose. The Oklahoma Uniform Commercial Code, 12A O.S. (1961) 2-315 defines
the implied warranty of fitness for a particular purpose as:
Where the seller at the time of contracting has reason to know any particular
purpose for which the goods are required and that the buyer is relying on the
seller's skill or judgment to select or furnish suitable goods, there is unless
excluded or modified under the next section an implied warranty that the goods
shall be fit for such purpose.
Further, The Oklahoma Supreme Court, citing the Uniform Commercial Code comments, set
forth the requirements to allege the implied warranty of fitness for a particular purpose:
A particular purpose differs from the ordinary purpose for which the goods are
used in that it envisages a specific use by the buyer which is peculiar to the nature
of his business whereas the ordinary purposes for which goods are used are those
envisaged in the concept of merchantability and go to uses which are customarily
made of the goods in question. For example, shoes are generally used for the
purpose of walking upon ordinary ground, but a seller may know that a particular
pair was selected to be used for climbing mountains.
American Fertilizer Specialists, Inc. v. Wood, 1981 OK 116, 635 P.2d 592, 595, fn. 8. See also
Weir, 811 F.2d at 1393. The Tenth Circuit went on to hold that:
!d.
A reason for purchasing a particular product beyond the ordinary reason for
selecting that product must be shown in order to give rise to an implied warranty
of fitness for a particular purpose.
As set forth above, Cruzin Cooler is designed to transport a cooler full of beverages and
Ice. The cooler in question did not belong to Sawyer. See Exhibit B; Exhibit D at p.ll, 11.5-8.
Plaintiff has not alleged that she sought advice from the manufacturer or seller on the best use for
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the cooler or whether it was safe to ride while being pushed. As such, no manufacturer or seller
would have knowledge as to the specific purpose for which the cooler was to be used by the
Plaintiff. Plaintiff admitted that she did not look for warnings, did not ask for directions, and did
not read the operator's manual prior to the accident. See Exhibit B at pp.86-90; Exhibit D at
p.21, 1.18- p.22, 1.3. Plaintiff has not alleged that the cooler had been defective earlier in the
evening or that she had inquired as to the reliability and safety of the cooler. As such, the cooler
was performing for the particular purpose for which it was constructed prior to the accident.
As fully set forth above, a manufacturer and/or seller could not reasonably foresee the
misuse of the cooler that exists in the present case. Additionally, the manufacturer is not required
to manufacture its products to allow for such misuse. It is uncontroverted that Sawyer wanted to
ride the cooler for fun. See Exhibit Bat p.48, 1.12- p.49, 1.2; Exhibit D at p.23, 11.13-21. It is
also uncontroverted that the accident occurred when Sawyer was being pushed on the cooler and
it tipped causing her to fly over the handle bars. See Exhibit Bat p.27, 11.1-9; p.39, 1.23- p.40,
1.2; p.41, 11.1-14; Exhibit D at p.26, 11.17-24; p.27, 1.10- p.28, 1.5. As such, Sawyer "crashed" as
the result of use that was not communicated to and could not be anticipated or prevented by the
manufacturer and/or seller. Therefore, Plaintiff has failed to support a claim for breach of
implied warranty of fitness for particular purpose.
G. Plaintiff Cannot Prove the Elements Necessary to Maintain an Action
for Breach ofthe Implied Warranty of Merchantability.
Plaintiff has failed to establish the necessary elements to maintain a cause of action for
breach of the implied warranty of merchantability. The Oklahoma Court of Civil Appeals has set
forth the necessary elements to maintain such an action:
To recover for a breach of the implied warranty of merchantability a plaintiff
must prove: (1) a sale of goods by a merchant, (2) the goods were not
"merchantable" at the time of sale, (3) injury and damage to the plaintiff or his
17
property proximately caused by the defective nature of the goods, and (4)
appropriate notice of breach to the seller. (Citations omitted). Merchantability
has been defined in Oklahoma to mean of a quality generally sold in the market
place and suitable for its intended purpose even if not of the best quality.
Collins Radio Co. of Dallas v. Bell, 1980 OK CIV APP 557, 623 P.2d 1039, I 053. See also
American Fertilizer Specialists, Inc. v. Wood, supra. The Court in Wood agreed that a correct
statement of the law was as follows:
... where the buyer's proof is based upon speculation and conjecture, a mere
showing of poor results from the use of the product falls short of meeting the
established standard for proximate cause ...
/d. at 595.
As fully briefed above, Plaintiff has wholly failed to produce any admissible evidence
regarding the alleged product defect she claims caused the accident. See Exhibit F. Additionally,
Plaintiff can provide no credible evidence that the Cruzin Cooler was not suitable for its intended
purpose. To the contrary, Plaintiff admitted that she was misusing the Cruzin Cooler. See
Exhibit Bat p.65, 11.16-20; p.66, 11.19-24. Further, the owner of the Cruzin Cooler had used the
cooler for a period of time prior to the accident. See Exhibit D at p.l7, ll.l 0-14. The owner of
the cooler had never experienced mechanical or steering problems with the cooler. See Exhibit
D at p.l6, 11.21-24; p.l7, 11.1-9. As such, the cooler was suitable for its intended purpose at the
time of the Accident. See Exhibit C. Finally, it is uncontroverted that Plaintiff can provide no
evidence that the Cruzin Cooler was the direct or proximate cause of Sawyer's injuries. To the
contrary, the direct cause ofthe accident, as set forth above, lies with the actions of Plaintiff. See
Exhibit C. Therefore, Plaintiff has failed to establish a single necessary element to support a
cause of action for breach of the implied warranty of merchantability. Cruzin Cooler is therefore
entitled to summary judgment on that claim.
18
H. Plaintiff Cannot Prove the Elements Necessary to Maintain an Action
for Failure to Warn oflnberent Danger.
"The manufacturer of a product has a duty to warn the consumer of potential dangers
which may occur from the use of the product when it is knom1 or should be known that hazards
exist." McKee v. Moore, 1982 OK 71, ~ 4, 648 P.2d 21, 23. To recover, a plaintiff must establish
both that injury was caused by the product and by a failure to warn of a possible detrimental
reaction. ld. ~ 5, 23-24. Here, the Operators Manual clearly warns against riding the product on
uneven, unlevel surfaces, riding with excessive speed, and hitting obstructions with the front
wheel of the product. See Exhibit E.
"If the warnings are unclear or inadequate to apprise the consumer of the inherent danger,
the product may be defective, particularly where a manufacturer has reason to anticipate danger
may result from the use of his product." Steele v. Daisy Mfg. Co., 1987 OK CIV APP 64, ~ 11,
743 P.2d 1107, 1109. Manufacturers, however, are not required to foresee that consumers will
fail to read the product's warnings and then use the product in a manner that the instructions
expressly warn against. Hutchins v. Silicone Specialties, Inc., 1993 OK 70, ~ 20, 881 P.2d 64, 67;
see also RESTATEMENT (SECOND) OF TORTSS 402A, cmt. j (1965). "Only where the
seller has reason to anticipate that danger may result from a particular use, may he be required to
give adequate warning of the danger, and a product sold without such warning is in a defective
condition." Duane v. Oklahoma Gas & Elec. Co., 1992 OK 97, ~ 4, 833 P.2d 284, 286. "If a
plaintiff is using the product for some purpose for which it was not intended and is consequently
injured, he should not recover." Kirkland, ~ 45, 521 P.2d at 1366.
Sawyer has not alleged that she sought advice from the manufacturer or seller on the best
use for the cooler or whether it was safe to ride while being pushed. Plaintiff admitted that she
did not look for warnings, did not ask for directions, and did not read the operator's manual prior
19
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to the accident. See Exhibit B at pp.86-90; Exhibit D at p.21, 1.18 - p.22, 1.3. Plaintiff further
admitted that if she had seen the warnings they might not have affected her decision to ride the
product. "The plaintiff must establish that the failure to warn was a proximate, producing cause
of the injuries received." Duane, ~ 4, 833 P.2d at 286. Plaintiffs misuse of the product, and not
any action or inaction on the part of Cruzin Cooler, was the cause of her accident and resulting
injuries. See Exhibit C. Plaintiffs claims fail and Defendant is entitled to judgment as a matter
of law.
IV. CONCLUSION
Cruzin Cooler L.L.C., pursuant to Rule 13 of the Rules of the District Courts, moves this
Court for judgment in its favor for and upon the grounds that no substantial controversy as to any
material fact exists and Defendant Cruzin Cooler Cruzin Cooler L.L.C., Inc. is entitled to judgment
as a matter of law in its favor. Defendant Cruzin Cooler, Cruzin Cooler L.L.C. respectfully requests
the Court to enter an Order sustaining its Motion for Stunmary Judgment with costs and attorneys'
fees to the defendant and for any other relief this Court may deem just and proper.
By:
Respectfully submitted,
ERI& ?;_REST
~ - = - ~ - -
7134 South Yale Avenue, Suite 900
Tulsa, Oklahoma 74136
(918) 494-5905 Telephone
(918) 494-2847 Facsimile
ATTORNEYSFORDEFENDANT
20
,. . ...
CERTIFICATE OF MAILING
~ f } d . .
This is to certify that a true and correct copy of the foregoing was hand delivered this - ~ -
day of September 2011, addressed to the following:
Neal Stauffer, Esq.
Jody R. Nathan, Esq.
S. Thomas Sawyer, Esq.
STAUFFER & NATHAN
5705 East 71
5
\ Ste. B
Tulsa, OK 74136
25 \10034 sawyer\p\MSJ
21
.. 09: 18 From: HOFFMAN 2812776565 To:2814967894
IN DISTRICT COURT OJi' TULSA COUN Y
STATE OF Oia ... AHOMA
J{OLETTE
DlS'l',lrC,. 0 1 0 - 0 5 8 9 7
F
Plnintiff
SEP 1 7 )ZOlO Case No.--+--------
)
vs.
CRUZIN COOLER, LLC,

AMAN CANTREll
DEMANDED . .) JURYTRI
Defendants
) ATTORNF. '8 LIEN CLAIMED
PETITION
Pl<1intiff, Kolette Sawyer, for her Petition against Defendant, Cru in Cnoler, LLC, alleges
and states ns follows;
1. Plaintiff, Kolcttc Snwyer, is and was at all rclcvnnt times a csident ofthe County of
Tu1sa, State nfOklahoma.
2. Defendant, Cntzin LLC, is and was at all rdt.!vanlli 1cs a foreign corporation
doing bnslness in Oklahorna.
3. Defendant is and was at all rclevnnt times in the business of dt:signingl
mnnufacturing, marketing, distributing, aml selling its product, the Cru;i Cooler, throughout the
United Slates n.nd Oklahoma.
4. The Co0lcr is an icc chest designed and mnnufa tured to be Tiddcn. lt is
equipped with n three wheels, and a stccr.i ng mecha11ism for lhat
5. The Cruzin Cooler at. was sold and delivered by efendant in the State of
Oklnhoma,
6. Tbis Court has jurisdiction over the parties and the subju I mater ofthis action.
7 Venue is proper in Tulsa County flS the. incident dl:lsc: "bed herein causing Ms.
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Sawyer's injuries occurred in Tul!;a County.
CJ-20-1
-=0589'7
8. 011 or about July 18, 2009, Ms. Sawyer rode on a Cru:r.in Co lcr that was dcsi&rned,
manufactured, marketed, distributed, sold, 4nd placed into the stream of co nmerce by Defendant.
9. Without warning, Ms. Sawyer was tltrown frnr the Cruzin Cooler and
subslantial injury.
10. The Cruzin Cooler was defected in that 1t was designed and anufactured with three
wheels and equipped with n flimsy stee\ing device; hoth of which were unr asonably unstable that
cause the Cruzin Cooler to topple without warning eject the rider.
11. Titc Cruzin Cooler was unrensonnhly dangerous hecatts it was de..<;igned and
mmmfact:nrcd with three wheels :1nd equipped with a flirnsy steering devic .
12. Ms. Sawyer was injured because of the defective Cruz.in C lhal was
manufactured, marketed, distributed, sold, and placed into the of cc mmcrcc hy Defendant.
13. Saiu udi::ct was the result of Defendant's faulty de8ignlng 1d/or manufncturing of
the Cru?.:in Cooler.
14. The Cruzin Cooler was defective and unreasonably dang rous at the time it left
Defendant's possession and control.
15. The Cru1.in CnoleJ' was defective and unreasonably danger us to an. exte11t beyond
I
that which would he cmnemplatcd by the ordinary user.
16. Defendant fRilccl lo W<lrn Ms. Sawyer of the da1 gemus condition ofthe
Cruzin Cooler.
17. The failure to warn Ms. Sa.v.ryer of the dangerous 1. l'tht; Cruzin Coolerw:'!.s
the direct cause ofMs. Sawyer's injuries.
2
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18. The defective Cruzin Cooler the cause ofMs. S injuries.
19. Defendant designed, markf;!te<l, <lh;trib uteu, old, and placed into the
of commerce the defective Cruzin Cooler anci is therefore strictly I ia le under Oklahoma law
for the damages suffcl'c:d by Ms. Sawycr.
20. Defendant did not provide adequate warnings of the C zin Cooler's
condition and is therefore strictly liahle under Oklahoma law for the d rnage!'> suffered by Ms.
Sawyer.
21. Ddcndanl ncgligmlly hrcad1t:d ils duly nollu a sumer product into the
or commerce which was 1mpruperly a.nd/or rmmul'adur uml/or did not provide
adequate warnings of its dangerous condition.
22. wa!i proximate;: cause ofMs. S wyer's injuries.
At the Limen!' sale or lhc Crlfl'.in Cooler, Ddl.danl ha1l reason to know thE\t the
ultimate user ofil'\ defective CruT.in C()(',Jer was relying upon Defendan 's skill nndjudgmcnt to
furnish a Cruzin Cooler that was appropriate for its intended purpose.
24. Ms. Sawyer was unaware of the inherent flaws ofthe Cru in Cooler.
7.5. Octcndn.nt brcnchcd the i rnplkd wnrnmty of fitness for a p rticular
the Cruzin Cooler was not fit for its intended pmvose.
26. Ms. Sawyt:r was hanned as a re:n.llt ofDefendant' s breach fthe implied warranty of
fitness for a particular purpose.
27. Defendant breached the implied wan-anty of merchanta. ility because the Cruhin
Cooler js nol fit [(lr ordinary pu1poses for which it is used.
2R. Ms. Sawyer was lmnned lL'i a re!::ult ofT>efendant':) brea.r.:h fthe implied wmnnty of
3
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morcbantbilily. C .1 _ 9. l\ 1 t\ - 0 r:=; R 9 '7
29. Ms. Sawyer injuries in tm amount in of$75, 00.00
30. Ms. Sawyer pem1anet1t and suhstm1tial physical dis tgurement.
31. The Defendant's acts or failures to act were in reckless dis egard for the rigl1ts nr
others, grossly negligent, and/or intentional and with rna1ice.
WHEREFORE Plaintiff Sawyt!r respectfully requests a jud ent for:
1. Damagt:s h1 o C$75,000.00;
2. Punitive clamflgcs AS dctcnnincd by the Jury ancl/or Comt;
3. Interest, costs, and attorney's fees; and
4. Furtht:r rdl.efthe Court dt:ems equitable.
Attorneys for
JURY TR DEMANDED
ATTORNEYS LmN
4
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PR#67771 SAWYER, KOLETTE 5/6/2011
IN THE DISTRICT COURT OF TULSA COUNTY
STATE OF OKLAHOMA
KOLETTE SAWYER,
Plaintiff,
vs. No. CJ-2010-05897
CRUZIN COOLER, LLC,
Defendant.
DEPOSITION OF KOLETTE SAWYER
TAKEN ON BEHALF OF THE DEFENDANT
ON MAY 6, 2011, BEGINNING AT 1:25 P.M.
IN TULSA, OKLAHOMA
APPEARANCES
On behalf of the PLAINTIFF:
NEAL E. STAUFFER
Stauffer & Nathan
5705 E. 71st Street, Suite B
(918)592-7070
On behalf of the DEFENDANT:
ERIC L. CLARK
Secrest, Hill, Butler & Secrest
7134 South Yale, Suite 900
(918) 494 5905
ALSO PRESENT: S. Thomas Sawyer
25 REPORTED BY: Cheryl J. O'Meilia, C.S.R.
Page 1
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PR#67771 SAWYER, KOLETIE 5/6/2011
Page 19
After you got out of the vehicle, did you go inside
your house?
A. Yes.
Q. Okay. For how long were you inside your house?
A. I can't say for sure. I would guess 15 minutes to a
half an hour.
Q. Okay. And then after -- I assume you came back
8 outside; is that correct?
9 A. Yes.
10 Q. Okay. And did you come back outside to do what,
11 specifically?
12 A. We were going to sit outside and enjoy the weather.
13 Q. Okay. So you arrive somewhere between 11:30 and 12:00
14 o'clock at night; correct?
15 A. Yes.
16 Q. Okay. And your testimony is you went inside from
17 anywhere from 15 to 30 minutes; is that correct?
18 A. Yes.
19 Q. Okay. So now we're at 12:30 at night; is that
20 correct?
21 MR. STAUFFER: Objection as to form.
22 A. I'm only estimating that that's correct.
23 Q. (BY MR. CLARK) That's fine.
24 A. Because I wasn't exactly sure what time we had gotten
25 home and I'm not exactly sure how much time I spent in the
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Page 22
1 Q. Okay.
2 A. Talking with us.
3 Q. How long do you believe it took for Ben to come over
4 and --and speak with you from the time that you and your
5 husband came outside and sat in your lawn chairs?
6 MR. STAUFFER: Objection as to form.
7 A. I couldn't say for sure, but I would estimate that it
8 was five to ten minutes.
9 Q. (BY MR. CLARK) Okay. If you'll take a look back on
10 Interrogatory Number 3, you stated, "One of the neighbors was
11 riding his Cruzin Cooler." Do you know which neighbor that was?
12 A. Yes.
13 Q. Okay. Who was that neighbor?
14 A. That was Logan.
15 Q. Okay. At what point in time from when Ben Cody came
16 to speak to you did you see Logan Drolc riding -- riding his
17 Cruzin Cooler?
18 A. I couldn't say for sure exactly. I would estimate
19 that it was within a 30-minute time period.
20 Q. So that'd be somewhere around 1:00 o'clock now,
21 approximately?
22 A. I would -- I would say that's a fair estimate.
23 Q. Okay. Is there anyone else with Logan Drolc when you
24 see him riding his Cruzin Cooler?
25 MR. STAUFFER: Objection as to the form of the
Page 23
1 question. You can answer.
2 A. There was no one with him. The neighbor, his
3 roommate, Jared, had come over prior to Logan driving over on
4 his Cruzin Cooler.
5 Q. (BY MR. CLARK) And I didn't see that in your-- in
6 your statement here; is that correct? You didn't put that in
7 your interrogatory answer; is that correct?
8 A. That's correct.
9 Q. Okay. When did Jared- I believe it's Strecker--
10 come and speak to you and your husband and Ben?
11 A. It was -- again, hard --just estimating, but it would
12 have been within five to ten minutes after Ben came over.
13 Q. Okay. And then it was approximately 30 minutes after
14 Ben came over that you saw Logan driving his cooler; is that
15 correct?
16 A. Correct.
17 Q. Okay. When you see Logan Orale riding his cooler, is
18 he riding it towards you, is he just riding it around the block?
19 I mean, what do you witness Logan Drolc doing?
20 MR. STAUFFER: Objection as to the form of the
21 question.
22 A. He was driving the cooler from his house to our house.
23 Q. (BY MR. CLARK) Okay. And-- okay. Logan's driving
24 his cooler to your house. I assume he arrives at your house at
25 some point in time; is that correct?
A. Yes.
Page 24 ~
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MR. STAUFFER: Object to the form.
Q. (BY MR. CLARK) Okay. What happens after he arrives
at your house?
A. Can you be more specific?
Q. Did you say hello, do you guys start talking? I'm
just -- what happened next?
MR. STAUFFER: Objection as to form.
9 A. We start talking. As a group, we're all talking,
10 standing there talking.
11 Q. (BY MR. CLARK) Okay. Do you notice if Logan or his
roommate are drinking anything?
MR. STAUFFER: Objection as to form.
A. I couldn't recall.
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15 Q. (BY MR. CLARK) Okay. Do you know if Ben Cody was '
16 drinking any alcohol at the time?
17 A. I don't recall seeing him with any beverage.
18 Q. Okay.
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A. Alcohol beverage.
Q. Oh, is your husband still drinking at the time?
A. I believe so.
Q. Okay. If you'll look on Interrogatory Number 3, it
23 states, "I asked if I could try to ride it and he said yes."
24 We've got -- you've -- we've led up to the story that Logan has ~
25 arrived and everyone's talking; correct?
Page 25 ~
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A. Correct.
Q. Okay. From -- what happened or well, strike that.
At what point did you ask if you could ride it, and I
4 assume it Is the Cruzin Cooler; correct?
5 A. Yes.
6 Q. Okay. At what point in time did you ask if you could
7 ride it?
8 A. Again, it's hard to estimate exactly how much time,
9 but I would estimate ten to 15 minutes after he arrived that I
10 asked if I could ride it.
11 Q. So we're about somewhere between 1:00 and 1:15 when
12 you ask to ride It?
13 A. I would say that's fair.
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Q. Who did you ask to ride the Cruzin Cooler?
A. I asked Logan.
Q. You asked Logan?
Have you ever seen, at any point in time prior to you
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18 riding the Cruzin Cooler, the Cruzin Cooler? i
19 A. Yes. ~
20 Q. Okay. How many times had you seen that cooler before? ~
21 A. Once before.
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22 Q. Okay. And approximately when did you see that in
23 relation to your accident?
24 A. I don't remember for sure. I would guess a few weeks.
25 Q. And how -- how did you come by seeing it?
7 (Pages 22 to 25)
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PR#67771 SAWYER, KOLEITE 5/6/2011
Page 38
1 Q. Okay.
2 A. I don't know. It doesn't look-- it's too hard to
3 make the comparison.
4 Q. Okay. And that's fair. If you can't do that, I don't
5 want to -- I don't want to put words in your mouth. If you'll
6 take a second and look at that and see if you can compare them
7 and ...
8 A. What are you calling Line Number 1.
9 Q. I -- I'm using your mailbox or the mailbox in the
10 picture as a reference. And as you will see --
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Q. Jared Strecker?
A. Yes.
Page 40
Q. And he pushed you and for a 30 second to a minute
ride, you were propelled forward; is that correct?
MR. STAUFFER: Objection to the form of the question.
A. can you -- can you rephrase the question, please?
Q. (BY MR. CLARK) I --
A. Or repeat the question?
11 A. You're using this mailbox as a reference? 11
Q. Certainly, ma'am. Your-- you --your testimony
earlier was that you were driving in a straight direction away
from your home; is that correct?
12 Q. Yes, ma'am. The mailbox and the driveway immediately 12 MR. STAUFFER: Objection to the form of the question.
13 to -- it's, I would believe, the bottom of that mailbox. 13 A. Yes.
14 A. Well, it looks like these are the same lines. I don't 14 Q. (BY MR. CLARK) Okay. Is that a "yes", ma'am?
15 know what you're referring to as the first and the second one,
16 but it's hard to tell, is there ...
17 Q. Let's see.
18 MR. STAUFFER: So what I'm trying to-- Counsel, what
19 I'm trying to figure out is-- all I'm trying to figure out, if
ZO you look at 4 and you see the crack, but then you look at
21 Exhibit Number 3 and you can't tell -- I'm not saying it's not
22 there, but there in your Exhibit Number 4, there's a crack right
23 beside it -
24 MR. ClARK: Right.
25 MR. STAUFFER: --and you can't-- I'm not saying that
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it's not there, just that I can't see it in the photograph.
MR. ClARK: Well, I believe on, Counsel, if-- if you
want to go off the record for a second.
(Following a brief discussion, the deposition resumed
as follows:)
MR. ClARK: Back on the record.
Q. (BY MR. CLARK) Ma'am, by looking at Exhibit 3 and
Number 4, can you identify on Exhibit Number 4 where your
accident may have occurred?
A. No, not exactly.
Q. Do you think you can give an approximation of where it
may have occurred?
MR. STAUFFER: Objection.
A. I could guess.
Q. (BY MR. CLARK) Well, I -- I don't want you to guess,
ma'am. And that's fine, we'll-- we'll go ahead and move on
17 from that for now, so if you can just set those aside, I won't
18 --
A. Sure.
15
16
17
A. Yes, sorry.
Q. Okay. Thank you. That's okay.
Do you know if the vehicle is intended to be propelled
18 when the batteries are low?
19 A. I don't know.
20 Q. Okay. When you sat on the vehicle and, according to
21 your testimony, noticed that the battery was running out, did
22 you ask if it was supposed to be run without-- with low battery
23 power?
24 A. Did I ask if it was supposed to be run with -- no, I
25 did not ask.
Page 41 1
1 Q. Okay. In your interrogatories -- or statement, you
2 stated that, "He slightly pushed the cooler." Again, he is
3
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referring to Jared Strecker; correct?
A. Yes.
5 Q. Why did you use the term slightly pushed the cooler?
6 What would be slightly?
7 A. Slightly, for me, would describe him not aggressively,
8 but pushing the cooler so that I could gain some momentum from
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10 Q. Okay. Did he -- and when I reference he from this
11 point, I'm going to be referring to Jared.
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A. Uh-huh.
Q. Did he push the cooler or push your body to propel?
14 A. He pushed the cooler.
15 Q. Okay. Do you know how far he pushed you,
16 approximately?
17 A. I -- I don't know exactly how many feet he pushed me
18 before it took off.
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Q. -- won't make you ponder over them any longer for a -- 20
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Q. Okay. So when you say you don't know exactly how many ~
feet he pushed It, are -- are you referendng the cooler being ~
pushed a certain amount of feet or Jared pushing you, physically ~ at least for a little bit. 21
Okay. So to go back a few seconds, back to our 22 moving a few feet? ~
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23 timeline, Mr. Strecker offered to push you, correct, on the
24 cooler; is that correct?
25 A. Jared, yes.
23
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A. Jared-
MR. STAUFFER: Objection to the form.
A. Jared spedfically pushing the cooler.
11 (Pages 38 to 41)
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Page 42
Q. (BY MR. CLARK) Okay. And in your next sentence, it
states, 'The cooler then accelerated and I was launched off the
cooler head first into the street"; is that correct?
A. Yes.
Q. Okay. When you sat on the cooler and noticed that the
--the batteries were low, did you, I guess, turn the power
mechanism to full strength?
A. At what point are you -- can you clarify what point?
When I immediately sat on the cooler?
Q. (BY MR. CLARK) At - at any time, did you tor- -- or
torque's probably not a good word for that. Did you turn the
accelerator to full power to make it-- to make it move forward?
A. No.
Q. So at no point did you have the accelerator on full
power?
A. I don't know if it was on full power. I tried to
accelerate it at first and nothing was happening. Whether that
was all the way full power or not, I'm not really sure.
Q. Okay. So as Jared pushed you, how far do you estimate
that you, I guess, used the accelerator? Did you place it at
half speed, full speed, any idea?
MR. STAUFFER: Object to the form of the question.
A. I would - I'm not sure. I would guess it would be
between half and full speed.
Page 43
Q. (BY MR. CLARK) Okay.
A. But, again, I -- I couldn't recall if it was all the
way down, fully throttled, as you're describing it. I'm not
sure.
Q. Let's see, what were you wearing the night of the
accident?
A. I was wearing jeans and tennis shoes and I had a white
t-shirt kind of top on.
Q. Okay. Can you recall what the weather was like that
night?
A. If I recall correctly, it was -- it was beautiful. It
was calm and nice temperature outside.
Q. Not cloudy?
A. Well, it was dark, so I don't recall any
Q. Do-
A. --clouds.
Q. Okay. Do you recall if there was a full moon out that
night, half moon, was -- was the area well-lit? I'm just trying
to get at the lighting.
A. To answer your first question, I don't recall if there
was a full moon or not a full moon.
Q. Okay.
A. I do recall that the street lamps were on, which they
typically are every night, you know, along the street you'll see
a few street lamps and it's pretty well-lit at night.
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Q. And if you'll take a look at Exhibit Number 3, if
you'll look at the top left comer, there is a street sign --
A. Uh-huh.
Q. - and then another pole next to it. Is that the
street light, the pole next to it?
A. I don't know for sure. It looks like it.
Page 44
Q. Okay. If you will look at Exhibit Number 2, does that
more clearly define the street light for you, if you'lllook at
the top right-hand comer?
A. It looks like that's the street lamp-- the street
light.
Q. Okay. And at the time of your accident, if you'll
look back on Exhibit Number 3, it shows that that tree was in --
that was full of leaves; would you agree?
A. Yes.
Q. Okay. If you could tum back to Exhibit Number 1 and
look at Interrogatory Number 1 -- I mean, I'm sorry,
Interrogatory Number 4, it's on Page 4, ma'am. We had asked
you, "Did you take any precautionary measures prior to riding
the motorized vehicle, including reading any instructional
.
material or operational information?" Your response was, "I did
1
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not read any instructional material." Did you take any other-- >
or did you take any precautionary measures prior to riding the i
motorized vehicle?
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Page 45 ,
A. Can you clarify what you mean by precautionary ~
measures? ",
~
Q. (BY MR. ClARK) Sure. Did you put on any protective
!
equipment prior to-- prior to riding the vehicle?
A. Can you clarify what protective equipment is?
Q. Sure. Did you put on a helmet?
A. No.
Q. Did you wear protective gloves?
A. No.
Q. Did you wear knee pads?
A. No.
Q. Okay. Did you check the surface of the road you were i
about to ride on to verify that it was flat and level prior to :
riding on the cooler? !
A. Can you tell me what you mean by check? 1
Q. Did you examine it? ~
A. In what way?
Q. Did you look at it to see if there were any cracks in
the street?
A. Did I physically walk out there and get on my hands
and knees and look if there were any cracks, no, I did not.
Q. Well, I'm not asking if you got on your hands and
knees, but did you --
A. Well, I'm not sure what you're asking, so I'm trying
to--
~
12 (Pages 42 to 45)
.
Page 46
Q. Did you--
A. -- I'm trying to be as descriptive as I can.
1
2
3 Q. Yes, ma'am. Did you walk out into the street, in the
4 area that you were about to ride in, to see if there were any
5 cracks in the street?
6 A. No.
7 Q. Okay. Did you look to see if there were any potholes
8 in the street prior to you riding the cooler?
Page 48
1 A. Well, I was looking straight ahead, as you normally
2 would if you were driving or anything.
3 Q. Okay.
4 A. You don't look straight down, you're looking ahead of
5 what's in front of you.
6 Q. Did you check to see if there was anything inside the
7 cooler prior to riding it?
A. No.
9 A. No.
8
9 Q. Okay. Were you using the foot pegs on the cooler when
10 Q. Okay. Did you look out in the street prior to riding
11 the cooler to see if there were any rocks or other debris in the
12 street?
13 A. No.
14 Q. Okay. Let's go back to your accident, please. You've
10 you were riding it?
11
12
A. Yes.
Q. Okay. Did you inspect the condition of the cooler
13 prior to riding it?
14
15
A. What do you mean inspect?
Q. Did you look it over?
16 A. Look it over for?
~
15 got on the cooler, you stated that you ride it for 30 seconds to
16 a minute, approximately, before you were ejected. How did you
17 get ejected? 17 Q. Damage, whether it was stable
1
I mean, did you examine ~
1
18 the cooler before you sat on it to see if it was safe? 18 MR. STAUFFER: Object to the fonm.
19 Q. (BY MR. G..ARK) How did you get-- how were you
20 ejected from the cooler?
21 A. I'm not sure how I was ejected from the cooler. What
22 I do know is Jared pushed the cooler for some time, whatever
23 time -- how many seconds that was, I had the throttle on, don't
24 know if that was full throttle or half throttle, but somewhere
25 around there, and I felt a thrust from the cooler, and at that
1
Page 47
point, the cooler launched me off head first, that's what I
2 remember.
3 Q. Okay. So after the thrust, then you were launched; is
19 MR. STAUFFER: Object to the form of the question.
20 A. I did not examine it, no.
21 Q. (BY MR. CLARK) Okay. Do you know if the cooler was
22 damaged prior to you riding it?
23 A. I do not know that.
24 Q. Do you know if the cooler's steering was operating as
25 it was designed prior to riding it?
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2
3
Page 49
A. I don't know that.
Q. (BY MR. CLARK) Okay. So after the vehide thrust
4 that your testimony? 4 forward and you were ejected forward, what happened then?
5 A. Yes. 5 A. After it ejected me off?
6 Q. Okay. Did you lose control of the cooler at any 6 Q. Yes, ma'am.
7 point? 7 A. Well, my face hit the pavement and I remember just all
8 A. What do you mean lose control? 8 of a sudden I was on the ground.
9 Q. Well, you're driving the cooler; correct? 9 Q. Okay. Your face hit the pavement, did you call the
10 A. Correct. 10 emergency services?
11 Q. Okay. Did you lose control of the direction you were 11 A. Did I call the emergency services?
12 driving it? 12 Q. Yes, ma'am.
13 A. Well, I --I'll say I lost control because I had an 13 A. No. No, I did not.
14 accident, so I wasn't in control. 14 Q. Did your husband or anyone else call the- an
15 Q. Did your-- did you turn your steering mechanism to 15 ambulance?
16 either the right or the left while you were driving the cooler? 16 A. No, he did not call an ambulance.
17 A. No. 17 Q. Okay. So after you fall and hit your face on the
18 Q. Okay. Do you know if you hit anything in the street? 18 ground, what happens next?
19 A. I don't know if I hit anything in the street. I don't 19 A. I stand up and I start walking toward the driveway or
20 recall hitting anything or seeing anything in the -- in the 20 my house.
21 street. 21 Q. Okay. What part of your face hit the concrete, was it ~
22 Q. So were -- were you --were you looking at the ground 22 the entire face or the lower portion, a side? Do you understand <
23 while you were driving? 23 what I'm asking?
i
24 MR. STAUFFER: Object to the form. 24 A. I think so. I don't remember my face actually hitting
25 Q. (BY MR. G..ARK) Or were you looking straight ahead? 25 the pavement, I don't remember that-- what that felt like or,
13 (Pages 46 to 49)
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Page 61
1 it's dangerous.
2 Q. Okay. So a -- an object is dangerous to you if an
3 accident occurs from it?
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A. That's --no, that's not what I'm saying.
Q. (BY MR. CLARK) Okay. Then could you elaborate on why !l
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you feel this particular product is dangerous?
A. It's --I -- I think it's dangerous because of the way
1
it's manufactured.
Q. Okay. Let's stop there. How is it manufactured
that's dangerous?
A. You have a square or rectangular cooler sitting on
three wheels.
Q. Okay.
A. And just the nature of that design creates it to be
very tippy, very unstable. The small wheels on it are also very
touchy, it's not -- it's just not a-- a stable product.
Q. And when did you come to that conclusion?
A. Well, when my face hit the pavement was a good start.
Q. Okay. You said it's not a very stable product, but
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when you described your accident, you haven't elaborated that it ~
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shook or rocked or anything like that. Did the stability of the
fE
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cooler have any effect on how you were ejected from the cooler
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itself?
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...
Page 62
A. Can you rephrase the question, what you mean by
stability of the cooler?
Q. (BY MR. CLARK) Well, you've just testified that the
cooler is not stable; correct?
A. I don't believe it's stable, right.
Q. Okay. First, when did you come to that -- you -- you
testified that that -- you came to that conclusion after you
were ejected; correct?
A. Yes.
Q. Okay. How did the stability of the cooler, in which
you're claiming to be unstable, impact your accident?
A. I believe it -- it launched me off -- the the
cooler launched me off. If I'm steering straight and I'm
watching the road in front of me, as I should be, and I've got
my feet on the pegs, there would be no reason for that cooler,
scooter, Cruzin Cooler, to create an accident like that, other
than the cooler itself being flawed or unstable or dangerous.
Q. Did the cooler wobble while you were driving it?
A. I don't recall it wobbling.
Q. Did it - well, let me ask you this: How did it act
- strike that.
Did it shake while you were driving it, the cooler?
A. I don't recall it shaking.
Q. Okay. Did it tilt to the right as you were driving
it?
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that caused it.
Q. The motion forward?
A. I think that was part of it.
Q. Okay. This --
Page 64 ;
A. The unexpected thrust of the cooler, yes, in addition
to having a rectangular balanced on three wheels, in my mind,
says that it's an unstable product or unstable or dangerous
product.
Q. Well, did you know it had three wheels before you sat
on it?
A. I don't - I'm not sure if I knew it had three wheels.
Q. You didn't look at the product before you sat down and
put your feet on it?
A. I didn't look at it that closely, no.
Q. Okay. I want to go back to the stability of the
cooler, because you've stated, in part, the thrust was one of
the reasons why you believe you were ejected from the cooler; is :,
that correct?
A. Uh-huh, yes.
Q. Okay. What other aspect of the cooler caused it to be
unstable?
A. I believe it's the design of the cooter, as well as
that unexpected thrust that caused the accident, and that is why ~
I believe it's a dangerous product.
Q. Okay. Now, if I brought the cooler in here, would you
r-----------------------------------------------1-----------------------------------------------,l
Page 63
1 A. Did it tilt to the right?
2 Q. As you were driving it, correct.
3 A. I don't recall it tilting.
4 Q. Do you recall it tilting to the left while you were
5 driving it?
6 A. As I said, I don't recall it tilting.
7 Q. Okay. Again, I want to go back to you and your
8 statement that the cooler was unstable and had caused your
9 accident. Can you tell me how it caused your accident, beyond
10 the fact that you were ejected? Was there any movement in the
11 cooler which forced you forward off the cooler?
12 MR. STAUFFER: Object to the form.
13 A. Well, the the thrust of the - the cooler, the --
14 that final thrust that made it lunge forward was a--
15 Q. (BY MR. CLARK) So --
16 A. -- factor in that.
17 Q. Okay. So you're --you're speaking of the forward
18 propulsion; correct? The forward momentum; correct?
19 MR. STAUFFER: Object to the form.
20 A. Yes.
21 Q. (BY MR. CLARK) Okay. What else, what other motion of
22 the cooler caused your accident?
23 A. I don't know.
24 Q. Okay.
25 A. I don't know if it's just the motion of the cooler
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Page 65 I
be able to identify the cooler as the one you had an acddent j
on?
A. Oh, I don't know. It's been over -- it's been how
many years, two years now, almost two years.
Q. Okay. Could you testify that the cooler was in the
same condition today as it was the day of your accident?
A. I don't know if it would be in the same condition.
Q. Okay. Do you know how many people have owned that
cooler?
A. No.
Q. Okay. Do you know if the cooler has been modified by
any of the users? Or I'm sorry, strike that
Do you know if the cooler has been modified by any of
the owners?
Q. Okay. Do you know if the cooler was used according to
the directions provided by the manufacturer? ~
MR. STAUFFER: Object to the form, assumes a fact not ,
in evidence.
Q. (BY MR. ClARK) Okay.
regularly maintained?
Do you know if the cooler was
Q. Do you know if the cooler was operating in the same
manner as when it initially left the manufacturer?
~
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17 (Pages 62 to 65)
...
PR#67771 SAWYER
1
KOLETIE 5/6/2011
Page 66
1 A. I don't know that.
2 Q. Do you know if the cooler had been wrecked or damaged
3 prior to you riding it that night?
4 A. I don't know that
5 Q. Okay. Did you ask. if the cooler was operating
6 properly?
7 A. Yes, to a certain extent.
8 Q. Elaborate, please.
9 A. When I initially had gotten on it and moved the
10 throttle, nothing happened. And I asked, "Am I doing this
11 right, because nothing's happening?" So in that aspect, I did
12 ask. if I was operating it correctly because it wasn't moving at
13 that point.
14 Q. Okay. And what was the response -- well, strike that.
15 Who did you ask. if you were doing it correctly?
16 A. I asked Logan.
17 Q. Okay. And what was Logan's response?
18 A. His response was, 'The battery might be running low."
19 Q. Okay. And knowing that the battery was running low,
20 do you think it was reasonable to ride it?
21 A. I'm not sure I understand the question.
22 Q. Well, I mean, the vehicle was intended to be propelled
23 on its own; is that correct?
24 A. Correct
25 Q. Okay. And if it wasn't able to be propelled on its
Page 67
1 own, do you think it was reasonable that you should have ridden
2 it?
3 A. I didn't say --
5 Q. (BY MR. CLARK) You may answer.
6 A. I didn't say it -- I didn't say that it wasn't able to
7 propel on its own.
8 Q. Okay. Let's-- let's go back. When you sat on the
9 cooler and you tumed the accelerator, did it propel forward on
10 its own?
11 A. At that point, it did not.
12 Q. Okay. And then how did it-- how was it propelled,
13 then?
14 A. At that time, that's when Jared offered to push me,
15 said, "I'll - I'll push you a little bit to help get it going."
16 Q. Okay. So it's your testimony that it had to be
17 propelled by human power, in addition to whatever remaining
18 battery power was in it?
20 A. That's what happened.
21 Q. (BY MR. CLARK) Okay. So did the cooler propel itself
22 on its own power?
23 MR. STAUFFER: Objection to the form of the question.
24 A. I believe it did, that was the thrust that I felt, you
25 know, right before it launched me, right before I -the
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accident.
Q. (BY MR. CLARK) Let me ask it this way: Did the
cooler always propel itself while you were sitting on it with
its own power?
A. No.
Page 68 ~
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7 Q. (BY MR. CLARK) Okay. Do you know how the cooler was ~
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stored prior to you riding it -- riding it?
A. I don't.
Q. Okay. Do you know how it was stored after you had
ridden the cooler and had your accident, ma'am?
A. I don't. I saw it sitting in their garage, but I
couldn't say that that was the way they were storing it.
Q. Okay. I'm still-- I'm still trying to get a grasp on
the stability aspect of-- of your claim. You've mentioned that
the design, because it's a rectangular design with three wheels,
in your belief, makes it dangerous; correct?
A. Yes.
Q. (BY MR. CLARK) That was your testimony; correct?
A. Yes.
Q. Okay. What about the fact that it has three wheels
makes it -- and it's In a rectangular form, makes It dangerous?
A. I don't know how to describe that without being an
engineer, but it's-- it's just-- It's difficult to balance
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Page 69 t
something like that when you have just that one wheel in the l
front with a rectangular object sitting on top of it. :
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Q. Okay. And at any time, did you have difficulty ~
balancing the cooler?
t
5 A. Just until it launched me off, that would be the
6 difficulty, yeah.
7 Q. In what direction were you launched?
8 A. Forward.
9 Q. Okay. And, again, it's your testimony that you don't
10 know if you hit anything in the road; correct?
11
12
13
A. I don't recall hitting anything on the road, no. l
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Q. (BY MR. CLARK) Okay. And it was your testimony that
14 you did not inspect the road to see if there were any -- if
15 there was any debris in the road prior to riding; is that
16 correct?
17
18
19
A. I did not inspect the road.
(Defendant's Exhibit 5 marked for identification).
Q. (BY MR. CLARK) Okay. I want to mark as--
20 MR. CLARK: We're on 5; is that correct? Okay.
21 Q. (BY MR. QARK) I'll mark as Exhibit Number 5 --
22 Defendant's Exhibit Number 5 as your petition. Take a look at
23 that. And if you could tum to the second page, on Page 2,
2.4 Paragraph 10, please, your statement In this petition is, 'The
25 Cruzin Cooler was defective, in that it was designed and
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18 (Pages 66 to 69)
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PR#67771 SAWYER,KOLETTE 5/6/2011
1
Page 70
manufactured with three wheels and equipped with a flimsy
2 steering device, both of which were unreasonably unstable that
3
4
5
caused" -- I'll put the "D" in there -- "caused the Cruzin
Cooler to topple without warning and eject the rider." Okay.
let's start with the flimsy steering device statement. How is
6 -- well, first of all, is it still your contention in your
7 testimony that the steering mechanism was flimsy?
8
9
A. Yes, it is.
Q. Okay. And did you state that in your interrogatory
Page 7 2 ~
1 start on another day. ~
2 MR. CLARK: Well, then we'll start another day. ..
3 MR. STAUFFER: Okay.
4 MR. CLARK: I mean, it's -- instead of your -- your
5 client walking through and just explaining what happened, I'm ~
6 having to draw it out, so as we discussed, her answers are the ' f.
, - ~
7 -- would depend on how long this would take. $
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8 Q. (BY MR. CLARK) But back to my question. ,
9 MR. STAUFFER: Well, you know, my client might thin!<
10 responses, ma'am? 10 if you asked better questions. We could go -- i
11 A. I don't remember if I did. 11 MR. CLARK: Could be the truth. ,
12 Q. Okay. Have you stated today when we were discussing 12 MR. STAUFFER: --either way-- either way you look at ~
13 the stability or the design, which you felt this vehicle was 13 it.
14 dangerous, at any time did you mention that it was a-- that it 14 MR. CLARK: It absolutely could be the truth.
15 had a flimsy steering device? 15 Q. (BY MR. CLARK) Going back to the flimsy -- your
16 A. I referred to the fact that it had a small wheel on 16 statement that it's a flimsy steering device, are --are you
17 the front and because of the rectangular shape sitting on three 17 claiming that the neck of the handlebars is flimsy?
18 wheels, one small wheel in the front makes it flimsy, as an 18 A. I don't know.
19 entire product, not referring to the handlebars being flimsy 19 Q. Okay. Any of the brackets which hold it in place, are
20 themselves, but just the device as a whole, I'm trying to 20 those flimsy?
21 describe the product and why it's dangerous. 21 A. I don't know.
22 Q. So-- well, let's talk about that. What part did you 22 Q. Okay. So you really don't know which part of the
23 just reference was flimsy? The product as a whole; is that your 23 steering mechanism is flimsy?
24 statement? 24 A. No, I didn't design the product, I'm not an engineer,
25 A. Well, in particular, the way the -- it's a -- it's 25 I couldn't describe to you in that detail specifically what
Page 71
1 flimsy steering in the way that it's one wheel in the front with
2 a rectangle sitting in the middle with two wheels in the back.
3 It's flimsy in the sense that it's difficult to control the
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Page 73
components cause it to be flimsy.
Q. Okay. And that is a perfectly fair statement, ma'am.
If you'll look back on Interrogatory Number 12, on
Exhibit Number 1, Page 7. All right. We've discussed -- in
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4 steering. It's not-- it's not a very well-balanced product,
5 the way it's designed. 5 your answer to the interrogatory response, I was asking you to J
6 basically talk about the design, why you feel it's a -- a ~ 6 Q. Because it has a tendency to flip forward?
7 A. Because it had a tendency to flip me forward, yes.
8 Q. Okay. Okay. So when we were discussing the-- the
9 flimsy steering device, as stated in your petition, you're not
10 referencing that the handlebars are flimsy; correct?
11 A. Correct.
12 MR. STAUFFER: Object-- well.
13 THE WITNESS: Sorry.
14 MR. STAUFFER: It's fine. Just-- you need to let me
15 have time to object.
16 THE WITNESS: Sorry.
17 Q. (BY MR. CLARK) Are you --
18 MR. STAUFFER: You're in a hurry, getting-- trying to
19 get out of here; aren't you?
20 Q. (BY MR. CLARK) We got a ways to go.
21 When it comes to the -- the actual neck of the -- of
22 the handlebar, do you --
23 MR. STAUFFER: You're not going past 5:00; are you?
24 MR. ClARK: I don't know, depends on --
25 MR. STAUFFER: If you are, then we're going to have to
7 dangerous -- in its manufacture or design. ~
8 A. Uh-huh. ~
9 Q. You've stated that the product is unreasonably '
10 dangerous because it's a rectangular cooler and it sits on three ~
11 small wheels with a flimsy steering device, which you've just fl
12 opined to. ~
13 A. Oh, okay. You're up here now? Okay.
14 Q. Yes, ma'am. You also state in your answer that the
15 nature of the design causes the vehicle to be unreasonably
16 stable and difficult to control, you've opined to that. You've
17 stated that the balance is difficult to control and the
18 slightest turn of the front wheels causes the vehicle to tip.
19 Your testimony earlier was that you were driving forward and
20 that you didn't attempt to turn left or right; correct?
22 A. Correct.
23 Q. (BY MR. CLARK) Okay. So how do you know if the
24 slightest tum of the front wheels causes the vehicle to tip?
25 A. Because a couple of days later, we went back and
19 (Pages 70 to 73)
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Page 82
A. Correct.
Q. Okay. And you don't know if there was anything that
Page 84 ~
1 Q. Okay. Was there any warning that would have prevented
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2 you from riding the cooler that night?
3 they should not have done, as to the design, because you're not 3 MR. STAUFFER: Object to the form of the question.
4 an engineer; correct?
5 A. Correct.
6 Q. Okay. Do you know if the steering was flimsy at the
7 time it left the manufacturer?
8 A. I don't know that
9 Q. Okay. Could the steering have been flimsy because of
10 the condition the cooler was actually in?
12
13
Q. (BY MR. OARK) Okay. Do you believe that the
14 motorized cooler could have caused injury if it was not driven
15 correctly?
17 A. I don't know that. 1 guess 1 don't know what you're
18 saying-- what - how to-- how do you define driven correctly?
19 Q. (BY MR. CLARK) By the manufacturer's standard of
20 operation.
21 A. I haven't seen the manufacturer's standard of
22 operation, so I don't know.
23 Q. Okay. Did you ever ask to see it?
24 A. No.
25 Q. Okay. You've also claimed in this lawsuit that the
Page 83
1 Cruzin Cooler failed to warn of the dangers of the cooler;
2 correct?
3 A. Correct.
4 Q. Okay. What warning would you have liked to have seen
5 the defendant provide you?
7 A. I don't know.
8 Q. (BY MR. CLARK) Well, I mean, you're claiming they
9 didn't warn you. What -- what did you want to be warned of?
10 A. I don't understand the -- I don't understand the
11 question.
12 Q. Well, you have alleged that they failed to wam you of
13 the dangers of this product; correct?
14 A. Correct.
15 Q. Okay. What didn't they wam you of?
16 A. That it was a dangerous product.
17 Q. Okay. And what aspect would you have wanted to be
18 warned about?
19 A. What do you mean what aspect? I'm not...
20 Q. Well, I mean, are you just wanting to know that it was
21 a dangerous product in general?
22 A. I would say yes, I would want to know that.
23 Q. And if there was a warning that stated this product
24 may be dangerous, would you not have ridden it?
25 A. I don't know.
4 A. I don't know. J
5 Q. (BY MR. CLARK) Okay. If the manufacturer would have
6 warned you that there are dangers associated with the cooler
7 because of its three wheel design, would that have prevented you
8 from riding it that night?
9 MR. STAUFFER: Objection, called for speculation.
10
11
A. I don't know. k
Q. (BY MR. CLARK) Well, I mean, you've claimed that they
12 failed to warn you.
13 A. I understand that.
14 Q. And-- and that this failure of warning caused your
15 injury, so what -- what could have they provided you to prevent
16 this injury from occurring?
18 A. 1 did not claim that the lack of the warning caused my
19 injuries, I claimed that the design of the cooler and the way it
20 propelled me and lunged me caused my injuries. The accident
21 caused my injuries, not the lack of a warning label --
22 Q. (BY MR. CLARK) Okay. Well, let's turn to Exhibit
23 Number 5, please, your petition. And look specifically to
24 Number 17 on Page 2, where it states, "The failure to warn Ms.
25 Sawyer of the dangerous condition of the Cruzin Cooler was the
1
Page 85 ~
direct cause of Ms. Sawyer's injuries." So are you now saying
2 that the failure to warn was not a direct cause of your
3 injuries?
4 A. I think we're misinterpreting this.
5 Q. Ma'am, I mean -
6 A. No, I'm not-- I'm not -- repeat the question so I can
7 --
8 Q. Okay.
9 A. -phrase it correctly.
10 Q. You have stated in the petition- strike that.
11 You had just testified that you're not claiming the
12 failure to warn caused your injuries, you claimed that the
13 cooler ejecting you caused your injuries; is that correct?
14 MR. STAUFFER: Object to the form of the-- objection
15 to the form of the testimony. He's trying-- attempting to
16 repeat her testimony, which is subject to- subject to the
17 record. You can answer the question, if you can.
18 A. I'm saying that the lack of a warning label is not the
19 sole reason why I was ejected from the cooler. It factored in,
20 but I'm not saying it's the sole reason and that's not what this
21 says, this doesn't say it's the sole reason.
22 Q. (BY MR. ClARK) It-- 17, 'The failure to warn Ms.
23 Sawyer of the dangerous condition of the Cruzin Cooler was the
24 direct cause of Ms. Sawyer's injuries."
25 A. Right, but not the -- necessarily the only cause.
22 (Pages 82 to 85)
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Page 86
Q. Okay. So how did the failure to warn partially cause
your injury?
A. Because I wasn't aware that it was a dangerous
product.
Q. Okay.
A. And at that point in time, I may have made a different
7 decision not to ride it.
8 Q. All right. Specifically, how would you have wanted to
9 have been warned?
11 A. l don't know.
12 Q. (BY MR. CLARK) Would you have wanted a manual?
13 MR. STAUFFER: Object to the form question.
14 Q. (BY MR. CLARK) To warn you of the dangers of this--
15 of the vehicle?
16 A. I don't know.
17 MR. STAUFFER: Continue to object to the form of the
18 question.
19 Q. (BY MR. CLARK) Okay. Would you have preferred an
20 engraving?
21 A. I don't --
22
23
24
A. I don't know and I don't appreciate the sarcasm.
Q. (BY MR. CLARK) Well, ma'am, you're claiming that you
25 weren't warned and when I'm asking you how do you want to be
Page 88 ~
1 Q. (BY MR. CLARK) Question is you really don't know what ~
2 you wanted? ;
3 MR. STAUFFER: Objection to the question. Quit ~
4 badgering the witness.
5 MR. CLARK: All right.
6 MR. STAUFFER: She's already told you she's tired of
7 it, I'm getting tired of it.
8 Q. (BY MR. CLARK) Are there any precautions you would
9 have liked to have been informed of?
10 MR. STAUFFER: Already asked and answered that one,
11 too. Object to the forrn of the question.
12 A. I'm not sure how it's-- how that's any different than
13 a warning. Isn't a warning inherently a precaution? I guess I
14 don't understand the question.
15 Q. (BY MR. CLARK) Well, here, I'll just ask another one,
16 then. Do you know if the cooler came with an operational
17 manual?
19 Q. Okay. Do you know if it came with safety
20 instructions?
22 Q. Do you know if it came with a service or maintenance
23 requirements?
24 A. I don't know that.
25 Q. Okay. Did you ask if it had any warning instructions
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Page 87
1 warned or what you want to have been warned from and you can't
2 answer and this is your claim, so I'm just asking--
3 MR. STAUFFER: Objection to the form of the question.
4 Also, Counsel, it's not her duty to put the warnings on the
5 product, it's their duty.
6 MR. CLARK: I'm asking her what did she want to be
7 warned of and she can't testify as to what warning she needed to
8 prevent this accident. She's daiming it was a direct cause of
9 her injury, so how did It cause, what warning did she need, what
10 Jack of warning? I haven't heard anything as to any warning.
11 MR. STAUFFER: There isn't any warning on this
12 product, from what we've been able to see.
13 MR. CLARK: Well, you've seen --
14 MR. STAUFFER: Do you have the product here?
15 MR. CLARK: I've got it in my --
16 MR. STAUFFER: Let's go look at it.
17 MR. CLARK: --truck-- my car.
18 MR. STAUFFER: Well, let's go look at it right now,
19 see if there's a warning on it.
20 MR. CLARK: But you see -- welt, let's continue. l'm
21 going to ask my questions, ma'am.
22 Q. (BY MR. CLARK) So, again, how do- how did you want
23 to be warned of this --
24 MR. STAUFFER: And I'm going to continue to object to
25 the questions, asked and answered.
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Page 89 1
on it?
A. I did not ask.
Q. Did you look for any warning instructions on the
cooler itself?
A. No.
Q. So if you didn't look the night of the acddent for
any warnings, how can you say that a -- another warning would
have prevented you from having this accident?
A. I didn't look. I didn't see. I wasn't going to tip
it over and look at the bottom.
Q. Did you look at - did you look on the side of the
cooler to see if there was a warning?
A. I wasn't specifically moving the object around to look
for a a warning label.
Q. Did you look anywhere on the cooler to see if there
was a warning?
A. No.
Q. Okay. And you never asked for the safety
instructions; correct?
A. No, I did not.
Q. (BY MR. OARK) Okay. Do you know if there was--
there -- if there were wamings on the packaging of the cooler
when it was sent from the manufacturer?

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Page 90 Page 92 ~
1 Q. Did you ask Logan or Jared if there were any warning 1 cooler that you had an accident on; correct? i
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2 labels that had been removed from the cooler? 2 A. Correct.
3 A. I -- I did not ask them, no. 3 Q. Okay. If Logan Drolc told me and --and initialed it
4 Q. Do you know if there were any warning labels on the 4 on 1/19/11 that this was the cooler, in fact, that you did wreck
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5 original packaging prior to you riding the vehicle? 5 on, would you have any reason to disbelieve him?
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6 A. I do not know that. 6 A. No.
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7 Q. Did you examine the cooler to see if there were any 7 Q. Okay. Now, what I'm going to ask you to do, and we
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8 warning labels engraved on the cooler? 8 discussed this earlier, is if you could sit on the cooler so I
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9 A. No. 9 can get a sitting measurement. And I won't touch you, I can
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10 Q. Okay. Do you know if the cooler came with any 10 just do it from the side, but you're in a skirt
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11 information related to the extent of harm that could result in 11 A. Skirt.
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12 riding the cooler? 12 Q. -- so if you just want to sit seat-wise, if that's
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13 A. I do not know that. 13 okay, and-- I
14 Q. And it was dark the night -- 14 A. Like this?
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15 MR. CLARK: Yeah, let's take a break and I'm going to 15 Q. Yeah, that's -- I just need a sitting measurement of
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16 go get the cooler. 16 your height.
17 (A break was taken at 3:30 p.m. The deposition 17 A. Okay.
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18 resumed at 3:39 p.m. as follows:) 18 Q. On the cooler. So sit on it however you feel
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19 Q. (BY MR. CLARK) All right. Ms. Sawyer, we're back on 19 comfortable, we can brace it for you if you're -- is everything
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20 the record after a short break to retrieve the cooler. If you 20 okay?
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21 could stand up or can you see the cooler from where you're at? 21 A. Uh-huh.
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22 A. Partially, yes. 22 Q. Okay. This is directly behind you and I'm looking
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23 Q. Is that the cooler that you had an accident on? 23 horizontally. It appears to be fifty-three and one-quarter J ~
24 A. It looks like it. 24 inches. Mr. Sawyer, would you have any -- there we go.
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f 25 Q. Okay. Is it in the same condition as the night you 25 Fifty-two and one-quarter inches would be your sitting height.
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1 were in an accident? 1 You may get up. That's all I needed for that.
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2 A. I don't know what you mean by condition, but. 2 Okay. Mrs. Sawyer, I'm going to have to ask you a
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3 Q. Does anything look different from the night that you 3 very personal question, I know you don't want to answer it, but
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4 rode that? 4 I'm going to have to ask you. What was your weight, if you can,
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5 A. Not that I can recall, no. 5 the night of the accident, as best as you can give me?
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6 Q. Okay. So let's-- on the record, let's identify this. 6 A. Oh, boy, 145, 150.
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7 If you could come over and take a look at it and describe what 7 Q. Okay. Have we addressed --let me strike that.
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8 you see, if there are any blemishes, marks, is there anything as 8 Are there any other damages which you are claiming
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9 you look around this cooler that you see different than the 9 today that we've not discussed related to the injuries of July
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10 night you rode it? 10 18, 2009?
~ 11 MR. STAUFFER: Point of clarification. Are you 11 A. You mean physical damages?
12 talking except for where the two big chunks taken out of it? 12 Q. Any damages whatsoever that you're claiming? ~
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13 MR. CLARK: That would be a dog bite, from what Logan 13 MR. STAUFFER: Do you understand his question?
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15 MR. STAUFFER: Is that a dog bite? 15 Q. (BY MR. CLARK) Okay. Let's try it this way. Do you
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16 MR. CLARK: That's a dog chewing on it. 16 know what your current medical expenses are, to date?
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17 MR. STAUFFER: Because I don't know. That's the first 17 A. I couldn't recall off the top of my head.
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18 time I've ever seen it. The dog chewed that up before the 18 Q. Would you agree they're somewhere between $10,800 and
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19 accident or after the accident? 19 $11,000 or have they increased from February 22, 2011?
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20 MR. CLARK: You know, I'd have to go back and look at 20 A. That sounds about right.
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21 my notes. That's why I'm asking. 21 Q. Okay. And in your initial disclosures to the
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22 Q. (BY MR. CLARK) Did it have that chew mark the night 22 defendant, you stated that your future medical expenses would be
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23 you rode it? 23 approximately between 20,000 and 30,000; is that correct?
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24 A. I don't know. I don't remember. 24 A. That sounds right.
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25 Q. Okay. But to your knowledge and belief, this is the 25 Q. Is there any reason to believe that they would be
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JLS/unl
STATE OF OKLAHOMA
KOLETIE SAWYER. )
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Plaintiff,
vs. Case No. CJ-201 0-05897
Daman Cantrell
CRUZIN COOLER, LLC,
Defendant.
AFFIDAVIT OF CLINE YOUNG, P.E.
COMES NOW the undersigned, Cline Young, P.E., being of lawful age and duly sworn,
states as follows:
1. That the attached is a copy of my curriculum vitae.
2. That I am President and owner of Cline Young Consulting Engineer.
3. I examined the Cruzin Cooler product involved in the accident that is the subject of the
above captioned lawsuit.
4. I measured and tested the Cruzin Cooler product involved in the accident that is the subject
of the above captioned lawsuit.
5. The Cruzin Cooler is an ice chest product designed, manufactured and distributed to be
ridden.
6. The Cruzin Cooler is equipped with a motor, three wheels and a steering mechanism.
7. I reviewed the deposition testimony ofKolette Sawyer related to the Cruzin Cooler product.
8. Sawyer testified that the Cruzin Cooler unexpectedly accelerated.
9. Sawyer testified that the unexpected acceleration threw her forward from the product
causmg InJury.
l 0. It is physically impossible to be thro\\'11 over the front of the cooler if forward acceleration
increases.
11. In order for the accident to result as described by Plaintiff, there has to be a sudden
deceleration of the cooler, which would be consistent with the front wheel striking
something.
12. Sawyer testified that just prior to her fall, another individual had been pushing the cooler
with the Plaintiff riding on it.
13. Someone pushing the Cooler could have generated enough force and speed to cause the
accident described.
14. Sawyer testified that the three wheel design used by the Cruzin Cooler IS inherently
defective.
15. From an engineering standpoint, a three wheeled vehicle is preferable under circumstances
where there is no suspension system.
16. From an engineering standpoint, the Cruzin Cooler was not being used by the Plaintiff, in its
intended purpose.
17. The Plaintiff's misuse ofthe Cruzin Cooler was the cause of her accident and not the design
of the Cooler.
FURTHER AFFIANT SA YETH NOT.
CLINE YOUNG, P.E.. . j
STATE OF / -f2...' fl S
COUNTYOF Va. //as
)
)
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ss.
On the day of , 20lt, before me personally
appeared Cline Young, to me kno to be he person named herein and who executed the above
and foregoing and he acknowledged that he voluntarily executed the same.

Notary
My Commission Expires:
/d. -dll-;3
[SEAL]
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PR#65076 DROLC, DAVID 1/19/2011
IN THE DISTRICT COURT OF TULSA COUNTY
STATE OF OKLAHOMA
KOLETTE SAWYER,
Plaintiff,
vs. No. CJ-2010-05897
CRUZIN COOLER, LLC.,
Defendant.
EXAMINATION UNDER OATH OF
DAVID LOGAN DROLC
TAKEN ON JANUARY 19, 2011, BEGINNING AT 10:05 A.M.
IN TULSA, OKLAHOMA
APPEARANCES
On behalf of the DEFENDANT:
ERIC L. CLARK
Secrest, Hill, Butler & Secrest
7134 S. Yale, Suite 900
(918)494-5905
ALSO PRESENT: Neisha Dorrell
REPORTED BY: Cheryl J. O'Meilia, C.S.R.
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PR#65076 DROLC, DAVID 1/19/2011
Page 11
A. No, I -- not me personally.
Q. Okay.
A. So.
Q. Well, now I want to discuss a little bit of
information about the cooler. Can you -- well, how did you
acquire the cooler?
A. It was given to me as a Christmas gift from my
parents.
Q. Okay. And did your parents - strike that.
How did your parents acquire the cooler?
A. They bought it from a buddy of mine here 1n Tulsa.
Q. And that person's name is?
A. Jeremy Parchman.
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Q. Jeremy Parchman. And do you have a contact number for ~
Jeremy Parchman?
A. Yeah.
Q. Could we have it? And could you spell, while you're
looking that up, Parchman's last name to the best of your
ability?
A. Phone number is 918-277-9119. Parchman,
P A-R-C-H M-A-N.
Q. Okay. Now, when you were given the cooler, did it
come with directions?
A. I believe so.
Q. Okay. Do you still have those directions?
....
PR#65076 DROLC, DAVID 1/19/2011
Page 14
1 seem to be beat in a little bit, it has dog bites, scuff marks. 1 A. It's been --
Page 16 ~
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2 I want to talk about it looks like some of the -- the vents 2 Q. Well, now, when you asked, "define dropped," has it
3 on the side have been broken out. I'd like to discuss the
4 cooler and its condition and- and how it came to that
5 condition if we can. So I guess my f1rst question is, and I'm
6 going to use this term very loosely, have you ever wrecl<ed the
7 cooler before or tipped it over or
8 A. Yeah, it's been tipped over.
9 Q. Okay. How many times would you say?
10 A. It's hard to say. Several, I mean.
11 Q. Over 10?
12 A. Oh, yeah, I'd -- I'd probably say well over 20 times,
13 I'm sure.
14 Q. Okay. And and can you give me any specific
15 examples how it was tipped over?
16 A. Just riding it, cutting a corner too sharp or -- you
17 know, or catching a bump in the road or something like that, I
18 guess, or --
19 Q. Okay.
20 A. -- just fooling around on it.
21 Q. And on the top hatch of the cooler, it appears that a
22 dog has chewed through that; is that correctly -- is that
23 correct?
24 A. Yeah, it had been stored in a -- in a shed over the
25 winter and the dogs got let loose in there and forgotten about
3 can you give me an example of what you were thinking of dropped?
4 A. You know, I got a six or eight-inch deck at home. You
5 know, it'll get-- you know, me or any --whoever is riding it
6 would ride it off the-- ride it off the deck, you know, or
7 whatever it is and, you know, pretty hard it.
8 Q. So almost as if jumping?
9 A. Jump -- yeah, jumping.
10 Q. Jumping the deck?
11 A. Yeah.
12 Q. Okay. Would had that occurred prior to the
13 plaintiffs accident?
14 A. No.
15 Q. Okay. Is the cooler running property?
16 A. Flat tires, but other than that, yeah, it still runs.
17 Q. Okay.
18 A. Batteries are worn out.
19 Q. The batteries drain pretty quickly?
20 A. Yeah.
21 Q. Okay. Had you ever had any difficulty or mechanical
22 malfunctions or any malfunction with the cooler?
23 A. Just flat tires is about the biggest issue we've ever
24 had with it.
25 Q. Okay. And so would you agree that the cooler had not
Page 15 Page 17
1 inside the shed for a couple of hours and they decided to chew 1 malfunctioned while it was in your position prior to the
2 on the cover.
3 Q. And on the front right foot peg, it looks as if the
4 peg has been dented in. Do you recall how that occurred?
5 A. That would be just from leaning over, turning corners
6 and stuff like that and that rubbing on the ground.
7 Q. Okay. Let me walk around it. And were any of the
8 items I've identified so far that are damaged, was it damaged
9 that way prior to you receiving it?
2 accident?
3
4
5
A. No, no.
Q. Had you--
A. Mechanically, I guess, like I said, just flat tires
6 was -- was it.
7 Q. Had you ever had any difficulty with the steering
8 mechanism before or after the accident?
9 A. No.
10 A. No. Everything was brand new when I had received it. 10 Q. Okay. How many times had you ridden the cooler prior
11 I mean, everything was in mint condition.
12 Q. Okay. So on the back, right side there it looks like
13 ventilation slats, several have been knocked out, that was done
14 by you or while it was in your possession; is that correct?
15 A. Yeah.
16 Q. Okay. Looks like the right side took the most
11 to the accident?
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17
A. Prior to the acddent?
Q. Prior to the accident.
A. Hundreds.
Q. Okay. And during --
A. It's --
17 beating?
18 A. Yeah.
Q. I'm sorry. And during any of those instances would

18 you testify that you had never run into any malfunctioning parts ~
19 on the cooler; correct? I 19 Q. And is this a --well, strike that.
20
21
Has the cooler ever been dropped before?
A. Define dropped.
20 A. Yeah, never had any problems with it -- ;
21 Q. Okay. ~
22 Q. Dropped, as in being carried and dropped to the ground 22 A. - before then. I
23 more than two feet? 23 Q. Have you had any problems after the accident?
24
25
A. Not that I can recall - can recall, I guess. 24 A. I mean, nothing that can't be expected, you know, from
Q. Okay. 25 tipping it over and wrecking it, you know.
5 (Pages 14 to 17)
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PR#65076 DROLC, DAVID 1/19/2011
Page 18
Q. Now, I'd like to talk about where you have ridden the
cooler, what type of terre ins, and let's start with what type of
terrain have you ridden this cooler on?
A. Most of it's all been on asphalt or concrete streets
or sidewalks. It's been inside buildings for shows, you know,
on concrete floors. Very, very briefly on grass, but it don't
work so well on grass, but 95 percent of it's on concrete or
asphalt.
Q. Have you ridden it on dirt pavement - or dirt roads
or--
A. I don't think it has been.
Q. Okay. Now, I'd like to switch gears referencing the
accident itself. Where did the plaintiff live in relation to
you?
A. lived I think three or four houses to the north of me
on 91st East Avenue.
Q. Now, I'd like you to walk through in chronological
order the events of that day, starting with you and your
roommate coming home on your motorcycle; is that correct?
A. Yes, we was coming home from eating, coming to the
neighborhood on our motorcycles, seen Tom and Kolette and their
friend sitting out in the driveway and whatnot and -- and my
roommate had known them and wanted to go talk to them. My
girlfriend was with me and we were, like I said, coming into the
neighborhood when I pulled into our house, parked the bikes, me
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Page 20
A. It was running fine. The batteries were low, I guess.
As I was going down the low battery light had come on. So, I
mean, other than that, it was -- it was working fine.
Q. So when you get off of it and -- and were the
batteries did they have any charge, whatsoever, or --
A. Just a very, very little. It was on its last leg, you
know.
Q. How long would the cooler typically last after that
battery light came on?
A. Depends on how hard you ride it. I mean, it could be
anywhere from ten minutes to maybe -- maybe 30 minutes if you're
lucky, I suppose.
Q. Okay. Now, you arrived to the to where the
plaintiffs are standing. Who is there?
A. It's me, my roommate, Tom and Kolette and then there
was another friend there. I don't -- I can't remember if it was
a neighbor or a friend, but there was three of them down there
in the driveway, plus us two.
Q. Was the neighbor a male or female?
A. Male.
Q. Can you give me an approximate age?
A. I'd guess mid thirties.
Q. Can you give me any other description; white,
Caucasian, Hispanic?
A. White.

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Page 19
1 and my roommate went down the street, I hopped on my cooler and
2 went down and he walked down. The girlfriend went into the
3 house. Rode the cooler down to the driveway.
4 Q. Well, let me stop you right there. What time of day
5 was this?
6 A. Night, 10:00, 11:00 o'dock at night, I suppose it
7 was. It was fairly late.
8 Q. And the location of where the plaintiffs house is, is
9 -- were there any street lights dose to the proximity, where
10 one was--
11 A. Yeah, there's a street light right across, the light
12 on the corner from their -- from their house.
13 Q. So the area that the cooler was ridden in, to your
14 knowledge, was it well-lit?
15 A. It was fairly well-lit, I mean.
16 Q. Okay. Okay. I interrupted you. You --where you
17 left off is, you had ridden your cooler down to the Sawyers and
18 then what happened next?
19 A. I had received a phone call from my girlfriend to go
20 back to the house. You know, we had to go back and talk. Went
21 bad< to the house and -- and come back -- bad< out, you know, I
22 don't know, I guess 20 minutes, 30 minutes later, if it was even
23 that long.
24 Q. let me stop you right there. When you rode your
25 cooler down to the plaintiff, was it functioning properly?
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Q. Okay.
A. And probably six foot tall, I guess.
Q. So you receive a phone call from your girlfriend and
you go back to your house; correct?
A. Correct.
Q. Did the plaintiff ask your permission to ride your
vehicle?
A. I can't recall.
Q. Okay. Do you recall giving permission for anyone to
ride your vehicle?
A. I can't recall that either.
Q. Okay. Did your roommate own any interest in the
cooler?
A. No.
Q. Okay. Was he authorized by you to to give
permission for other individuals to ride the cooler?
A. Just an understood meaning, I guess.
Q. Okay. Did the plaintiff read any directions prior to
riding the cooler?
A. Not that I know of.
Q. Okay. Did she ask you how to ride it?
A. No.
Q. Did you witness her asking anyone how to operate the
vehide?
A. No.
6 (Pages 18 to 21)
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PR#65076 DROLC, DAVID 1/19/2011
Page 22
Q. Did she ask you to demonstrate how to operate the
cooler?
A. No.
Q. Had the plaintiff ever used the cooler prior to the
night of the accident?
A. No.
Q. When you arrived to the plaintiff's, was she drinking
any alcoholic beverages?
A. Yes.
Q. Okay. What -- what do you recall the plaintiff
drinking?
A. I remember going down there and they had some homemade
beer that they were drinking and they -- they had shared with us
some of that.
Q. Do you recall how much that you witnessed the
plaintiff drink?
A. Maybe a glass or two. I -- I never really-- I wasn't
paying attention.
Q. Okay. Did you have any-- you mentioned that they had
shared your -- your beer-- or their beer with you --
A. Right.
Q. --correct?
How many did you drink?
A. Maybe half a glass before I got called back.
Q. Okay. And you mean by called bacK, by your
Page 23
girlfriend; correct?
A. Yes.
Q. Okay. Did you witness the accident itself?
A. No.
Q. Okay. How do you know what happened with the
plaintiff?
A. Just from what my roommate told you and -- and what
Tom had said, you know, everybody was saying. And it's all
hearsay for me, what they were telling me.
Q. Well, let's -- let's talk about what your roommate
discussed with you. What- what exactly did your roommate tell
you?
A. As far as I know, is -- they were cruising around on
the cooler. I left the cooler down there and then they got on
it and wanted to ride it and I-- as far as I know, they were
riding it around and the battery died and they hadn't ridden it
very much and they wanted to ride some more, so I -- my
roommate, I guess, was pushing them and as far as I know, they
were cruising up, I don't know, southbound on the street
wherever it was and they ended up hitting a pothole in the road
and she went ended up tipping the cooler over. You know,
exactly how it went, I don't know, but I was-- remember showing
up and a bunch of blood laying on the street there and everybody
was walking back to the house when I was walking down the
street. And then that's-- after that, sat in the house,
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Page 24 ~
cleaned her up, you know, and then they ended up taking her to t
the hospital there.
Q. Okay. So when you were --just so I get a dear
record --when you returned back from speaking with your
girlfriend you witnessed everyone walking back to the house; is
that correct?
A. Yes.
Q. Okay. And let's-- like I said, I want to kind of
keep this in chronological order. You see them walking back.
What do you do next?
A. I walked down there, I grabbed the cooler and we moved
the cooler over, get it off the street, put it in their driveway
and then we walk Inside and can see what the damage to her-- to
her face was, I guess.
Q. Okay. Let me stop you right there. When you moved
the cooler over into their driveway, were you able to operate,
ride it over?
A. I had to push it, I guess.
Q. And why did you have to push it?
A. Batteries were dead.
Q. Okay. And then was it your testimony that you went
into the house and watched them clean her up; correct?
A. Yes.
Q. Okay. What did they clean up?
A. They were wiping all the blood off her face and
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whatnot and checking her teeth there. But most of it was just
holding ice and a washcloth up to her face.
Q. Did you assist in cleaning her up?
A. No.
Q. Did you -- so you physically saw her injuries?
A. Yeah.
Q. And what were her injuries?
A. As far as -- I mean, I could just see a lot of blood
coming from her mouth. As -- I mean, as
cut itself, I did not see that.
as far as seeing the
Q. Okay. Did you see if she was injured anywhere else?
A. I think she had a scrape on her arm or shoulder or
something like that, if I remember right, and then her -- her
face was all scraped up pretty good.
Q. Did -- while you're in the house and they're cleaning
up the plaintiff, did the plaintiff say anything to you or in
general about how the accident occurred?
A. Not that I recall. I mean, the only thing that was
talked about was trying to get her into the hospital was the
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biggest concern at that point in time and who would drive. ~
Q. Did her husband mention how it occurred while you were i
in there? And -- and what I mean "in there," in the house?
A. In the house. If he did I don't recall it. He very
well may have.
Q. Okay. Did the plaintiff ever talk to you about the
7 (Pages 22 to 25)
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PR#65076 DROLC, DAVID 1/19/2011
Page 26
1 accident and I mean the plaintiff, Kolette?
2 A. Kolette, no.
3 Q. Okay. Did her husband ever speak to you about the
4 accident?
5 A. Yes.
6 Q. And what did he say or ask or what did you discuss?
7 A. He was just trying to get ahold of who sold me the
8 cooler and the manufacturer and everything to try to get them --
9 to get a call or -- and discuss whatever they were discussing
10 about the -- the acddent there. But as far as my stuff, he was
11 just trying to get the cooler -
12 Q. Okay.
13 A. -- information, I guess.
14 Q. Did he tell you or advise how the accident occurred?
15 Did he ever discuss that with you?
16 A. Just that I think we discussed it once, where just
17 saying that Jared was pushing and they ended up hitting that
18 hole in the road there and --
19 Q. So the part --
20 A. -- she -- she landed on her face without using her
21 hands.
22 Q. So Tom actually told you that she was being pushed by
23 your roommate?
24 A. Yeah.
25 Q. Okay. And that while she was being pushed they hit a
Page 27
1 hole or something in the sidewalk; correct?
2 A. Right, on the street.
3 Q. Okay. And that's when the plaintiff, Kolette Sawyer,
4 fell off the cooler; correct?
5 A. I believe so.
6 Q. Okay. And -- and that's just from testimony from Tom;
7 correct?
8 A. Yeah, between Tom and -- and Jared.
9 Q. Okay. But, I mean, I'm just - right now I'm just
10 talking specifically about Tom. Did Tom tell you that his wife
11 was being pushed by your roommate?
12 A. Yeah, I believe so.
13 Q. And that they hit the pothole in the street; correct?
14 A. Right
15 Q. And that's when she fell off the cooler; correct?
16 A. Yeah.
17 Q. Okay. And that story has been told to you by your
18 roommate as well; correct?
19 A. Correct.
20 Q. That he was pushing the plaintiff; correct?
21 A. True.
22 Q. And that they hit a pothole; correct?
23 A. Yes.
24 Q. And they were pushing It because the batteries were
25 dead; correct?
1 A. Yes.
Page 2 8 ~
2 Q. How did you get the cooler back to your house?
3 A. Pushed it.
4 Q. And that was because the batteries were dead; correct?
5 A. Yes.
6 Q. When did you bring it back home? After you-- was it
7 before or after you left the-- the plaintiff's residence?
8 A. Right as I was leaving the -- the plaintiff's
9 residence, I took the cooler with me. And they were all backing
10 out of their driveway to -- to go to the hospital, so I had to
11 move the cooler and I just pushed it home at that point in time. ,
12 Q. Okay. And, again, you pushed it home because the
13 batteries were dead; correct?
14 A. Yes.
15 Q. Okay. Have you been able to charge the cooler back up
16 since the accident and ride it again?
17 A. Yes.
18 Q. Okay. And would you testify that you've had-- you
19 have not had any problems after the accident with the cooler,
20 minus deflated tires and dogs chewing on your cooler; correct?
21 A. Yeah, I mean, just normal wear and tear.
22 Q. Okay. And have you crashed, tipped over, banged it
23 against anything since the accident?
24 A. Yeah.
25 Q. Would you say a lot?
1 A. Yeah.
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Page 29
2 Q. Okay. Would you say this cooler is in substantially
3 the same condition it was during-- as it was during the
4 accident or --
5 A. I mean, it's a little more tom up than it was during
6 the accident. I mean, It's seen its better days since then.
7 Q. Okay. So-- and that's what I want to clarify is, was
8 the cooler in more of a newer condition when the accident
9 occurred?
10 A. Yes.
11 Q. Okay. And-- and would you say that the cooler is not
12 in new condition as of --
13 A. Not anymore.
14 Q. -- today?
A. No. 15
16 Q. Okay. I think -- Jet's take a break. I want to talk
17 with Neisha to make sure I've covered all of our bases and then
18 I'm going to get on the horn with- if you don't mind, if you
19 can wait for a few minutes, I'm going to call the manufacturer,
20 that way we can work something out with this.
21 MR. ClARK: Let's go ahead and go off the record.
22 (A break was taken at 10:35 a.m. The examination under
23 oath resumed at 10:38 a.m. as follows:)
24 MR. ClARK: We're back on the record after a short break.
25 Q. (BY MR. ClARK) Could you come back and take a look at
8 (Pages 26 to 29)
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.................... .... ., .. ................... ............. -........ .. .
Cruzin Cooler.com
PATENTS PENDING
MADE IN CHINA
Speciflcetlons m.y change notice.
CruUI Cooler, LLC A!nun TX
Revision 3103106a. OCO!rilthl 200S C.,.;ln C<><>lef, LLC.
Owner's Manual
50 SERJES CRUZIN COOLERS
Patents Pending-AM r1ghts reserved.
Index
1. Safety information
2. Important final assembly check points
3. How to operate
4. Assembly
5. Operational legal issues
6. Normal maintenance
7. Cleaning
B. Warranty
9. Disclaimer
10. Service
11. Accessories
12. Registration
13. Parts
14. Troubleshooting
15. Electrical Charging Instructions
16. Technical Specifications
1. SAFETY INFORMATION
.& IMPORTANT SAFETY INFORMATION! Cruzin Coolers
are motorized vehicles and as such are inherently dangerous. A driver or
passenger may suffer serious injury or death while operating this vehicle.
Extreme caution should be used while operating these units. All riders
need to wear protective gear including an approved helmet. These units
are designed for operation with only one passenger not weighting more
than 200 pounds and at least 18 years of age. It js ullimatety yp to the
parents of children to decide if their children are old enough to ride a
Cruzin Cooler and are solely responsible for their decision. These
coolers are designed to be used on flat level payed syrfaces gn!y!
Grades may make the cooler run at excessive speeds downhill. Many of
the coolers are of a three-wheel design. This design is known to be less
stable than a 4-wheel configuration and could cause the vehicle to
become unstable and cause an accident. Again, extreme caution should
be used while riding this vehicle. These coolers primarily use a single
braking system and at some point in time this system could possibly fail.
The operator should use their feet, with rubber soled shoes, to stop the
vehicle if this occurs or in conjunction with the existing braking system.
Rubber soled shoes are recommended for all operators.
Page 2
M

t L a1n enance og
Date Service
Page 15
Maintenance Lo
Page 14
.&. IS IT LEGAL TO OPERATE? Cruzin Coolers may or may
not be legal to operate on public property. You should contact local law
enforcement offices where you are going to be operating your cooler to
see if it is legal or not. Many jurisdictions may allow the electric version to
be operated in the same class as disabled person's vehicles. Check with
the local law jurisdiction before use .
.&. ACCIDENT PREVENTION An accident may be caused
from the front tire hitting an obstacle, such as a rock or hole, which it is
unable to go over. This will cause the short wheel based cooler to flip
forward. Always operate the Cruzin Cooler on smooth level pavement
free of obstacles and holes.
2. Assembly
Your Cruzin Cooler comes with the front end disassembled. Follow the
following steps to assemble.
STEP 1:
Unpack the box and check for the following components (Keep the box if
you ever need to return the cooler for service):
A. Cooler body with motor and lid.
B. Lower front fork with tire.
C. Upper steering "T" bar assembly.
D. Tool kit.
E. Registration Card.
F. Owners Manual.
STEP 2:
Slide lower fork assembly into slot on front end of cooler from the bottom
sliding in an upward motion until safety clip latches front end into place. If
safety latch does not catch, the front end may come loose while riding
and could cause damages or serious injury.
Page 3
STEP 3:
Slide upper "T" bar onto lower fork assembly. Be sure retainer clip is
around upper "T" bar. Face "T" bas so that holes for handles are facing
inward. Front fork is offset for tire stability so the tire is slightly back. Be
sure that front tire is in position so that it is closer to cooler body, see Fig.
STEP 4:
C. Tighten clamp to
secure upper "T"
bar. Tighten clamp
with enclosed allen
wrench so that
upper "T" bar is
secure and unable
to be turned
separately from
lower fork, Fig. D.
Insert throttle and brake handle into the ends of the "T" handle with the
STEP 5:
throttle on the right side, when you are
sitting on the cooler. The handlebars must
be inserted completely into the "T" bar so
that the brass retainer buttons are clearly
visible through the "T" bar lock holes. Failure
to fully engage the handles into the "T" bar
may cause serious injury. See Fig. E.
Must see brass retainer pins in holes!
You can adjust the handlebars to the desired height by loosening the
clamp and tightening where desired.
3. Important final assembly check points
Be sure that the clamp is tight on the upper "T" bar. If this is loose or
becomes loose the front tire may turn unexpectedly; independent of the
steering "T" handle. This could cause an accident, See Fig. D.
Always check your cooler prior to operating for loose parts, worn tires or
unsafe items. Repair or replace any worn or damaged items prior to
operation.
If you are purchasing a gasoline unit be sure that you mix the gasoline
and oil in a ratio of:
25:1
This is twenty-five parts of gasoline to one part of oil. This is
approximately 'l:z cup of oil, or 4 oz. Per gallon of gas.
Page4
GENERAL & GAS PARTS
Page 13
"" ....
REPLACEMENT PARTS, continued
Page 12
4. How to operate
Before you start riding your cooler check the brakes for proper operation.
The brakes should be tight enough to stop the cooler, but not too tight as
to keep the vehicle from moving freely while the brakes are released. If
they are too loose you can tighten the adjustable nut on the brake lever.
If the brakes will not tighten enough or are too tight you can adjust the
cable at the caliper in the rear of the cooler.
GASOLINE:
1. You must first add the gasoline/oil mixture to the fuel tank.
2. Reach into the cooler and pump the primer bulb on the bottom of
the carburetor.
3. Lift the choke lever to the upper position.
4. Pull the handle until the unit starts. You may need to tum the
throttle to the full open position to get the unit started. We
recommend that you keep a can of starting ether handy in cases
where you are having trouble starting the cooler. A small spray
towards the carburetor will usually get the unit started easily.
5. Move the choke lever down, shut the lid and you are ready to go.
6. Twist the right throttle lever for power, release to decrease power.
7. Start off slow to get use to the driving characteristics of your new
cooler. Check your brakes for proper operation.
ELECTRIC:
1. Make sure that batteries are charged on your new cooler.
2. Turn on the on/off switch located on the handlebar or in rear plate.
3. Twist the right throttle lever for power. release to decrease power.
4. Start off slow to get use to the driving characteristics of your new
cooler. Check your brakes for proper operation.
In the event of brake failure you can always stop you cooler by placing
your feet (with rubber soled shoes) down and is considered secondary or
backup braking.
5. Operational legal issues
Operation on public property (roads and highways) is governed by
Federal, State and Local laws. This cooler might or might not be legal in
some cities or counties around the US; therefore it is up to the operator
to check on the legality of the operation of these coolers on public
property. It is possible that they may be legal in one city and against the
law in another.
The electric coolers are more likely to be legal than the gas units. This is
because of the legality of disabled electric vehicles in many cities. It is
solely the responsibility of the operator to find out if it is legal to operate
the cooler at any particular location.
Page 5
6. Normal maintenance
Be sure to see if your chain needs tightening. It must not be too tight or
too loose. If the chain is too tight it will keep the cooler from operating at
full speed and will use more power. If the chain is too loose it will come
off or start slipping. This will prematurely wear the sprocket teeth down.
Check the tires for wear and proper inflation. If the tire pressure is too
low it could cause the cooler to slow and might drag over small
obstacles. If the tires are inflated to high they may hit the support
brackets or explode.
Check the air filter every month for any accumulated dirt, especially if
driving the unit in a dusty or dirty area.
Check wheel bearings and front end bearings for wear and tear. It is
possible for these to eventually wear out and become dangerous. For
chain adjustment information see 14.F
7. Cleaning
You can clean the cooler with soap and water or even a powered bleach
product for the food and beverage area. Do not get water into the motor
area. This could cause failure of electrical components. You can wipe
down your motor and motor area with normal motor cleaning products.
DO NOT use alcohol, solvents, alcohol-based products, or ammonia
based products. These products may melt or discolor plastics and
decals.
8. Warranty
Manufacturer warranties products to be free of manufacturing defects for
a period of 120 days from the date of original purchase. This warranty
does not cover wear and tear, tires, tubes, brakes or cables, overloading,
Page6
REPLACEMENT PARTS
Page 11
16. Technical Specifications
The following technical specifications is the best data available at the
time of printing. Some specifications may be different than what is shown
in the table below.
Size
Net weight
ELECTRICAL PARTS
64
Electrical Parts
Page 10
physical damages or failure from misuse. This limited warranty is issued
to the original purchaser only. If there is a defect in workmanship or
materials during the warranty period, we will repair, replace or refund the
product, at our option. This warranty is voided if the product is used in a
manner other than for what it was designed for, modified in any way,
over1oaded, leased or rented, used for racing or for off road purposes,
unreasonably used, improper1y assembled, or damaged by accident,
negligence, or misuse. The manufacturer is not liable for incidental or
consequential damages or losses due directly or indirectly from the use
of this product. THIS LIMITED WARRANTY EXCLUDES shipping costs,
compensation for inconvenience or loss of use, any consequential or
incidental damages. RETURNS must be authorized by Cruzin Cooler,
must be within the warranty period and must be returned to our facilities
for repair, replacement or refund.
9. Disclaimer
Purchaser/user/assigns shall indemnify, protect, defend and hold
harmless Cruzin Cooler, LLC its partners, officers, employees and
agents, from and against any and all claims, costs, liabilities, losses,
damages, injuries, judgments and expenses (collectively, the Claims"
including, without limitation, attorney's fees, court costs, including those
incurred at the trial and appellate levels and in any bankruptcy,
reorganization, insolvency or other similar proceedings, and other legal
expenses, arising out of or resulting from: (i) accidents, injuries or death
from Cruzin Cooler products: (ii) any misrepresentation, breach of
warranty or negligence of Cruzin Cooler, it's directors, officers,
managers, employees or agents, and (iii) incidental or consequential
damages or losses due to directly or indirectly from the use of this
product. I have read the Safety Warnings, Warranty and Disclaimer and
understand and agree to these terms, as a condition of operation of any
Cruzin Cooler product.
10.Service
The most current service information can be obtained online at the
Cruzin Cooler's web site at www.cruzincooler.com. At the time of
printing all factory service will be performed at our service facilities in
Houston, TX. We always recommend that the owner keep the original
box in the event that the cooler needs to be sent in for service.
11.Accessories
You can order any accessory we offer online at www.cruzincooler.com.
You can also purchase most accessories from any retailer where you
purchased the original unit from.
Page 7
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12. Registration
There are two ways to register; you can either register your cooler by
email to regjster@cruzjncooler.com, or by mailing the registration form
to the address on the enclosed card.
13. Parts
Any part you could ever need is available online at
www.cruzincooler.com. We stock over 10,000 parts for your cooler
everyday. Parts are quick and easy to order and recommend that all
parts be ordered over the Internet, to be sure that you can verify the
parts you are ordering, to prevent possible mistakes.
14. Troubleshooting
A. I have trouble starting the gas unit, What do I do?
Keep a small can of starting ether handy to make cold starting
easier. Almost all 2-cycle motors may take a few pulls to get going.
To start your cooler use the following procedure:
a. Pump the primer bulb under the carburetor.
b. Move the choke lever up to choke the carburetor.
c. Tum the throttle all the way to maximum and pull start cord.
d. If it does not start after a few pulls you can spray a little ether
close to the air cleaner. Remember ether is a dangerous
flammable gas, which could ignite and cause a fire!
e. Check to see that the carburetor bolts are tight and that the air
cleaner is clean.
f. Check the spark plug. Since this is a two-cycle motor the plug
can sometimes foul or become so contaminated that it is difficult
to start the cooler.
B. The electric unit will not start, what should I do?
There are two fuses in these units. One in the exterior charge plate
area (this may be changed to a circuit breaker) and one in the
electronic controller inside the cooler where all of the wires converge.
Check these first. If they are good check your battery connections. If
the connections are good you will need to get a voltmeter to check
your power at the motor and at the batteries. Ohm out the motor. If it
is good your problem lies in the throttle or the controller.
C. My unit is under warranty and it won't start, what should I do?
Follow the steps above first. If you still have problems you can ship it
to our Service Center. Also try service@cruzincooler.com.
D. What do I do if I need parts?
This is one of our biggest target areas for complete customer
satisfaction. One of the biggest complaints from other people who
Page 8
buy scooters from overseas is lack of parts and service, therefore we
will stock everything you could ever need for your cooler, all the time.
E. What do 1 do if I wrecked my cooler and it needs service?
If you damage your cooler beyond normal repair you can ship it to
our service center. We will call or email you a quote to repair or
replace your cooler, servjce@cruzjncooler.com.
F. The chain is loose, slipping or comes off frequently?
i.) Loose chain- Loosen the two lock nuts at the bottom rear of
the cooler. Adjust the two larger nuts equally until the proper
tension is achieved. Retighten the two lock nuts.
ii.) Slipping - Loosen the two lock nuts at the bottom rear of the
cooler. Adjust the two larger nuts equally until the proper
tension is achieved. Retighten the two lock nuts.
iii.) Comes off - The chain may be out of alignment due to
excessive lateral stress. Check to see if the motor sprocket
and lower drive sprocket are aligned correctly. If not you may
need to either send the unit in for adjustment or try to
purchase and install spacers or washers to correct the
alignment problem.
G. The cooler sputters and stops and will not restart, What do I do?
The motor may be getting too hot. Try pumping the primer bulb and
see if you are getting lots of air in the lines by looking through the
clear return line. If there are a lot of bubbles you may be over
exerting the cooler. Let the unit cool and try to lower the load or
stress on the unit. Too heavy a load, too hot an operating
environment or going up and down hills can all contribute to
overheating.
15.Eiectrical Charging Instructions
Charge when low or every 90 days to keep batteries fresh.
A. Turn off power switch
B. Plug charger into Cooler first and then into wall outlet. The red
light will come on if the batteries need charging. If the red light
does not come on and you know that the unit needs charging
you may have a service problem. Some units do not have lights.
C. Charger will need 6-8 hours of charging to reach the full battery
capacity.
D. Unplug charger from unit and place rubber socket protector back
over charging port.
The battery in your unit is a sealed lead-acid battery. If you notice a
leak or crack in the battery dispose of it immediately, according to
local disposal of hazardous waste laws.
Page 9
JLS/tml
STATE OF OKLAHOMA
KOLETTE SAWYER, )
)
)
)
)
)
)
)
)
Plaintiff,
vs. Case No. CJ-2010-05897
Daman Cantrell
CRUZIN COOLER, LLC,
Defendant.
AFFIDAVIT OF ERIC L. CLARK
COMES NOW the undersigned, Eric L. Clark being of lawful age and duly sworn, states as
follows:
1. I represent Cruzin Cooler, LLC as counsel in the above styled matter.
2. During discussions to create a proposed scheduling order with Plaintiff's Counsel, Thomas
Sawyer, an agreement was made between Plaintiff's counsel and myself that expert
witnesses were to be identified in the Witness & Exhibit lists on their scheduled due date.
3. The current scheduling order required that Preliminary Witness & Exhibit lists were due on
September 1, 2011 .
4. On August 31, 2011, Plaintiff's counsel acknowledged that the Preliminary Witness &
Exhibit lists were due on September 1, 2011, during a phone conversation with me.
5. To date, Plaintiff's counsel has not provided his Preliminary Witness & Exhibit list, nor
requested an extension of time to provide said list.
FURTHER AFFIANT SA YETH NOT.
~ . t i C ~
Eric L. Clark
STATE OF
COUNTY OF
11 ))

ss.
On the clJ day of , 2011, before me personally
appeared Eric L. Clark, to me known to be the person named herein and who executed the above
and foregoing and he acknowledged that he volunt executed same.
fajtJL
Not
My Commission Expires:
[SEAL]
:>.."<.
N0!3.ry r'L.:'Ji'C OKCl'' :_;r,c,
(:t OFFICiAL SE.:-.L ',
. 'i'N' JAYNE A. ,,
Tuisa Cow"" .,
00009869 Exp. f; ..

11.09.02 DF MSJ

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