Hon. Norman A. Mordue, Chief U.S. District Judge
MEMORANDUM-DECISION AND ORDER
Plaintiffs Ethel Hare and Fred Hare ("plaintiffs") bring this diversity action, pro se, against defendant Hoveround Corporation ("defendant" or "Hoveround") seeking damages for personal injuries allegedly sustained by Ethel Hare. Presently before the Court is defendant's motion for summary judgment and dismissal of plaintiffs' complaint. (Dkt. No. 36). Plaintiffs oppose the motion. (Dkt. No. 42).
II. FACTUAL BACKGROUND*fn1
On January 30, 2003, plaintiffs took delivery of a Teknique Power Wheelchair, Model TEK FWD. The Teknique wheelchair was designed and manufactured by defendant and delivered for use by Ethel Hare. As Ethel Hare's power of attorney, plaintiff Fred Hare signed Ethel Hare's name to the Hoveround Corporation Delivery Ticket. The Delivery Ticket provided a list and description of the items that plaintiffs received including the TEK FWD, a TEK battery, a seat belt, MPV4 & Scooter Charger, a non-reclining seat and a footplate. The Delivery Ticket also contained a Client Orientation Checklist which indicated that plaintiffs received safety information for the motorized wheelchair including: home safety information; a safety recommendation form; safety training on wheelchair ramp use; client bill of rights; client responsibilities; Hoveround policy regarding advance directives and medical emergencies; disaster readiness information; warranty information; an owner's manual; unit charging instructions and important telephone numbers. The Delivery Ticket contained the following statement above Fred Hare's signature:
I certify that I have received the equipment listed above from the Hoveround Corporation. I also certify that I have been instructed in the proper care and the safe use of the above equipment. I have received written information pertaining to the topics outlined above in the client orientation checklist.
Despite the language in the Delivery Ticket, Fred Hare testified that he did not read the entire Delivery Ticket before he signed Mrs. Hare's name.
Upon delivery, plaintiffs were provided with a Teknique Power Wheelchairs Owner's Manual/Warranty, version code D82005582. The last page of the Owner's Manual, page 47, is entitled Limited Warranty. The Limited Warranty contained the following pertinent language:
Limitations and exclusions:
THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER EXPRESS WARRANTIES, IMPLIED WARRANTIES, IF ANY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND SHALL NOT EXTEND BEYOND THE DURATION OF THE EXPRESS WARRANTY PROVIDED HEREIN.
Plaintiffs allege that on June 18, 2004, Ethel Hare sustained injuries as a result of fall involving the wheelchair. During her deposition, Ethel Hare could not recall where the accident happened and stated that she could not remember the accident at all.*fn2
In the complaint, plaintiffs claim that on June 18, 2004, at approximately 4:00 p.m., while Ethel Hare was riding in the wheelchair, the wheelchair tipped over causing her to sustain injuries. Specifically, plaintiffs allege that due to the instability of the wheelchair, plaintiff was caused to, "tip over forward onto the ground with said wheelchair landing directly on top of her striking her body against the ground". In Count 1 of the complaint, plaintiffs claim that:
Defendant breached the duty of care owed to plaintiff in the manufacture of the power wheelchair by, inter alia:
a. failing to make or cause to be made reasonable inspections to discover, diagnose and correct defects in the wheelchair, all of which were known to defendant, or which in the exercise of due care should have been known;
b. failing to provide adequate safety precautions for the protection of persons in a situation similar to that of plaintiff, including, but not limited to, the failure to provide appropriate and adequate anti-tip wheels used in the power wheelchair and by failing to provide an appropriate safety device on said chair, which could have been provided at a cost much less than the risk presented to plaintiffs and others;
c. failing to provide adequate warnings to plaintiff of the dangers present in, and present by, use of the wheelchair and its various components such as its anti-tip wheels;
d. failing to provide cautionary instructions and warnings to plaintiff regarding the appropriate uses and limitations of said power wheelchair.
The acts and omissions complained of were a direct and proximate cause of plaintiff's injuries.
The acts and omissions complained of were reasonably foreseeable by defendant as the manufacturer and designer of said power wheelchair. In Count 2, plaintiffs allege, inter alia:
Sometime prior to June 18, 2004, defendant designed and manufactured the power wheelchair, model name "Teknique" and placed it into the stream of commerce.
The wheelchair was sold in a defective condition which made it unreasonably dangerous to persons such as plaintiff, who would reasonably have been expected by ...