COMES NOW the Plaintiff, Jane Cyclist, by and through her lawyer, D.J. Banovitz, Esq. and files this her Complaint against the defendants and states and alleges as follows:
- Plaintiff is a citizen and resident of the City and County of Boulder, State of Colorado.
- Upon information and belief, Defendants have committed a tort in the State of Colorado.
- Upon information and belief, Defendant 3TTT TECHNO TUBO TORINO, A Division of GRUPPO SPA (hereinafter “3TTT”), is a foreign corporation that sells and/or distributes its products in the State of Colorado among other States.
- Upon information and belief, 3TTT’s agent for the USA and Canada is Velimpex Marking, Inc., 613 Lark Bunting Drive, Ft. Collins, CO 80526.
- Upon information and belief, Defendant Sigma Sport Pro Cycling Company (hereinafter “Sigma Sport”) is a foreign corporation that sells and/or distributes its products worldwide, and in the State of Colorado among other States.
- At all times mentioned herein, Defendant 3TTT designed and manufactured bicycle parts for use by ultimate consumers as including, but not limited, handlebars and/or control devices for bicycles.
- On or about March 24, 2007, Plaintiff purchased from Defendant Sigma Sport, through its website and other communications, a bicycle equipped with Defendant 3TTT More brand handlebar manufactured by Defendant 3TTT for resale to ultimate consumers. Defendant Sigma Sport, sold and installed the 3TTT More handlebars so purchased by Plaintiff and shipped and/or delivered directly to Plaintiff in Colorado.
- On or about April 9, 2003, the Plaintiff was using the bicycle purchased from Sigma Sport and equipped with 3TTT More handlebar for road cycling and the following occurred:
- Plaintiff was riding her bicycle on a rough road in Boulder Colorado when the handlebar broke without warning causing Plaintiff to fall off her bicycle and sustain serious injury, including but not limited to, a broken leg which required surgery. As a direct result of this malfunction of the 3TTT More handlebar, Plaintiff sustained the injuries hereinafter more fully alleged.
- Immediately prior to the time Plaintiff sustained such injuries, Plaintiff is informed and believed and in reliance thereon alleges that the product, 3TTT More handlebar, was then in the condition existing when Defendant 3TTT sold and delivered it to Defendant Sigma Sport and in the same condition existing when Defendant Sigma Sport sold and delivered the product to Plaintiff.
- Plaintiff is informed and believes, and in reliance thereon, alleges that the same condition of the product existed when Defendant Sigma Sport sold and delivered it to Plaintiff and the condition of the product remained unchanged when Plaintiff first removed it from the sealed packaging and sustained injuries while using it.
- As a direct and proximate result of the failure of the 3TTT More handlebar, Plaintiff suffered severe permanent personal injuries, physical and mental pain and suffering, loss of earnings and impairment of earning capacity. In addition, Plaintiff sustained medical expenses and may incur such expenses in the future.
FIRST CLAIM FOR RELIEF
STRICT PRODUCTS LIABILITY AGAINST DEFENDANTS
SIGMA SPORT AND 3TTT
- Plaintiff incorporates and realleges herein by reference paragraphs 1 through 11 as if fully set forth herein.
- Defendants designed, manufactured, assembled, inspected, tested, distributed and sold the subject handlebars so as to render the subject handlebars defective and unsafe for their intended use.
- Defendants design, manufacturing, assembling, inspection, distribution and sale of the subject handlebars caused the defective and unsafe condition as alleged herein.
- When the Plaintiff sustained injuries alleged above, the 3TTT More product was in a defective condition unreasonably dangerous to a user or consumer in that it was unfit, unsafe, not usable for the purpose for which it was intended, dangerous and defective in nature, design, and materials, defective in manufacture.
- Such condition was not observable by Plaintiff who, lacking the technical knowledge and skill, required to examine or determine said defects described above, relied on the duty of Defendants, and each of them, to deliver the 3TTT More product at the time of sale by each in a condition fit for use for the purpose intended and in a safe and operable condition.
- The breach of such duty by Defendants, and each of them, and such defective condition of 3TTT More product, was a proximate cause of injuries so sustained by Plaintiff.
SECOND CLAIM FOR RELIEF
BREACH OF IMPLIED WARRANTY OF FITNESS AND/OR
MERCHANTABILITY BY DEFENDANTS 3TTT AND SIGMA SPORT
- Plaintiff incorporates and realleges paragraphs 1 through 17 as if fully set forth herein.
- The 3TTT More handlebar manufactured by Defendant 3TTT, and sold to Plaintiff by Defendant Sigma Sport, was not of merchantable quality. Rather, it was unfit, unsafe, and not usable for the purpose for which it was intended. Such condition constituted breach of the Defendants implied warranty of merchantability and/or fitness that the 3TTT More handlebar was fit for the purpose for which it was designed, and that it was a safe and suitable instrument to be used for road biking on all roads, including rough roads.
- In purchasing and using the 3TTT More product, Plaintiff relied on Defendants skill and judgment and the implied warranty of fitness for the purpose for which Plaintiff purchased the 3TTT More handlebar.
- The 3TTT More handlebar was not fit for its intended purpose and, as a result of the Defendants’ breach of the warranty of fitness of the 3TTT More handlebar, Plaintiff suffered severe injuries of the body and/or mind.
- On or about May 12, 2003, Plaintiff gave Defendants written notice of the failure of the 3TTT handlebar and the injuries and damages sustained by him as a result thereof. A copy of said notice, a series of e-mail messages to Defendants, marked as Exhibit “1” are attached hereto and made a part hereof.
THIRD CLAIM FOR RELIEF
NEGLIGENCE OF DEFENDANTS 3TTT AND SIGMA SPORT
- Plaintiff incorporates and realleges paragraphs 1 through 22 above as if fully set forth herein.
- The Defendants negligently designed and/or manufactured and/or inspected and/or marketed and/or sold the 3TTT More handlebar and negligently placed it in the channels of trade when it knew or with reasonable care should have known said handlebar to be dangerous and defective in nature, design and materials, and in a dangerous and/or defective condition, in a manner in which Defendants should reasonably have foreseen would come into use by persons such as the Plaintiff who are ignorant of the dangerous and defective condition and Defendants’ negligence failed to use reasonable care to prevent such injury to such persons including the Plaintiff.
- The Defendants herein failed to warn Plaintiff and other consumers of the potential for sudden and catastrophic failure and or breakage of the handlebars before and after offering them for sale.
- Defendants failed to provide instructions or warning as to the inherent safety risk in using the subject handlebars on rough roads both before and after offering the handlebars for sale.
- Defendants were negligent in such other and further ways as may be discovered.
FOURTH CLAIM FOR RELIEF
BREACH OF EXPRESS WARRANTY AGAINST 3TTT AND SIGMA SPORT
- Plaintiff incorporates and realleges paragraphs 1 through 27 above as if fully set forth herein.
- Defendants expressly warranted to the Plaintiff that its 3TTT More handlebar was safe, merchantable and fit for its intended purpose and use.
- Plaintiff relied on said warranty made by Defendants and was injured as a direct and proximate result of the breach of express warranty by Defendants.
WHEREFORE the Plaintiffs request that judgment be entered in favor of the Plaintiff and against the Defendants, in an amount to fairly compensate her for the injuries as set forth above, court costs, expert witness fees, statutory interest from the date this cause of action accrued or as otherwise permitted under Colorado law and for such other and further relief as this Court deems just and proper.