Appeals court: Dealership not negligent in test drive crash

Jessica Priest By Jessica Priest

Dec. 14, 2012 at 6:14 a.m.
Updated Dec. 15, 2012 at 6:15 a.m.

Justices with the 13th Court of Appeals ruled Thursday that Euton Harley-Davidson Inc. was not negligent when an employee crashed while test driving one of its motorcycles.

Robert Zissa Jr. filed the appeal in April 2011.

Zissa ran a stop sign on July 5, 2006, while test driving a motorcycle for the dealership. He collided with a 2002 GMC Yukon sport utility vehicle, lost part of his right leg and incurred $600,000 in medical costs, according to court documents.

Zissa accused the dealership of failing to instruct its employees on how to properly operate motorcycles and to provide a safe place to test drive motorcycles.

Cindy Sheppard, who represented the business, said Friday that she was pleased the justices upheld the 135th District Court's decision.

"My clients' sympathize with Mr. Zissa's injuries, but all along they felt it was not their fault ... They feel vindicated," she said.

Sheppard said the Eutons' didn't have workers compensation at the time of the accident because of a "technical glitch."

"The commission did an audit and thought the Eutons owed them money and suspended their coverage for a certain period of time," she said. "It turns out they were incorrect, and the Eutons had actually overpaid."

She said the company gave Zissa two routes to test drive the motorcycles that they felt were the most safe.

"He, for some reason we don't know, chose to take a different route that day," Sheppard said.

Zissa's attorney, James Juranek, said no route could replace a test driving track - something he thinks the dealership should've had in place for its employees already.

"They (the justices) said that his employer didn't owe Mr. Zissa a safe place to test drive the motorcycle, and we think that Texas' law is pretty clear that there is such a duty," he said.

Juranek said it would've been impossible for Zissa to diagnose what was wrong with the motorcycle and be aware of the hazards on the road simultaneously.

The justices said Zissa's 16-year motorcycle riding career proved he was neither inexperienced nor ignorant about the dangers that come with his line of work.

"By Zissa's own admission, he test-drove motorcycles seven to 10 times a week for three years without incident. Therefore, we conclude that (the dealership's) duty to instruct did not apply to Zissa, "Justice Gina M. Benavides wrote in the opinion.

Juranek, who did not know whether his client would file a motion for rehearing by the Dec. 28 deadline, said Zissa's life has been changed forever by the accident.

"He can't do a lot of the same things he used to," Juranek said.



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