In 2013, Lou Pole flew over the handlebars of his motorcycle while racing at a motocross contest. Lou landed on his head, flipped over, and came to rest face down in the dirt. As a result of the accident, Lou became a quadriplegic. Lou was wearing all of the recommended safety equipment, including a $500 Fox Racing Helmet, a full-face motocross helmet that was designed for off-road use. The Fox helmet complied with the U.S. Department of Transportation standards and also exceeded the Snell 2010 and DOT standards. The Snell Foundation is a leading worldwide helmet research and testing laboratory. The owner’s manual for the helmet included the following:
Five Year Limited Warranty: Any Fox helmet found by the factory to be defective in materials or workmanship within five years from the date of purchase will be repaired or replaced at the option of the manufacturer. This warranty is expressly in lieu of all other warranties, and any implied warranties of merchantability or fitness for a particular purpose created hereby, are limited in duration to the same duration of the express warranty herein. Fox shall not be liable for any incidental or consequential damages…
Introduction: Your new Fox Racing helmet is another in the long line of innovative off-road helmets from Fox. … [T]he primary function of a helmet is to reduce the harmful effects of a blow to the head. However, it is important to recognize that the wearing of a helmet is not an assurance of absolute protection. NO HELMET CAN PROTECT THE WEARER AGAINST ALL FORESEEABLE IMPACTS.
Lou filed suit against Fox. Lou testified at trial that he had purchased the helmet based on the manufacturer’s assertion that the helmet’s primary function was to reduce the harmful effects of a blow to the head.
On what grounds could Lou sue Fox?
What will Fox argue in its defense?
Who will prevail?
Could Fox have done anything that would have avoided this lawsuit?
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