DiCola v. White Brothers Performance Products, Inc.
filed January 2, 2008, Fourth District, Div. One,
Cite as 2007 SOS 16

Summary Judgment In Torts Case Sustained For Insufficient Evidence

Thomas DiCola and his wife, Janice, rode a motorcycle that Thomas himself built. While they were riding, the side stand failed to retract which caused an accident. As a result, DiCola was killed and his wife was injured.

Janice sued motorcycle parts manufacturer Tolemar, Inc., and parts distributor White Brothers Performance Products, Inc. for product liability caused by the defective kickstand that resulted in the wrongful death of her husband and for her injuries.

In response, White and Tolemar denied placing the defective kickstand on the market and moved for summary judgment on the case.

To dispute the claim, Tolemar’s president, Steve Ramelot, presented four other side stands, three of them manufactured by Tolemar, and offered evidences on how their products differed with the other one stand.

On the other hand, White offered evidence that it did not manufacture side stands and neither recognized nor distributed the subject side stand.

In rebuttal, Janice offered the following important issues of the case:

1. an expert testimony that the subject stand was made by the same manufacturer as stand “B.”


2. the declaration of her attorney, Stacy King, who declared that exemplar “B” had been sent to her office by the attorney for another parts manufacturer. That attorney had advised her that exemplar B was not one of his client’s parts, but was instead manufactured and distributed by White.


3. King declared that when she received the part, it was in its original packaging. The stand was in an un-opened, vacuum-sealed package. Inside the package was an instruction sheet for proper mounting of the side stand. On this sheet, the side stand indicated it was a White Brothers product, “part 12-1200X.”

However, despite Janice’s objections, the trial court ruled that Attorney King’s declaration regarding the genesis of exemplar B was inadmissible hearsay.

The trial court granted summary judgment for both Tolemar and White on the following grounds:

• that Janice had failed to show the subject kickstand was manufactured or distributed by either of them.


• Janice had failed to rebut Tolemar’s expert testimony regarding the dissimilarity between the subject stand and exemplars C, D, and E, all of which were manufactured by Tolemar.


• Janice had also failed to show that exemplar B was either manufactured or distributed by White.

In reviewing the case, the court of appeal of the Fourth District (Division One) affirmed the decision of the district court, based on the following reasons:

• that Janice failed to show that either Tolemar or White was responsible for the defective side stand.


• that the evidence offered by Tolemar and White constituted prima facie evidence that Tolemar did not manufacture and White did not distribute the subject side stand.


• The burden of producing controverting evidence was thus shifted to Janice, who was unable to meet that burden.

Further, the appeals court also held that the trial court did not err in granting summary judgment to Tolemar and White in wrongful death and products liability case as the defendants showed sufficient prima facie evidence to support their claim that it was not the manufacturer or distributor who was at fault. The court also noted that the plaintiff (Janice) did not bring up adequate arguments at trial to shift the burden of proof.

Thus, the Fourth Appellate District affirmed the judgment which held that defendants were entitled to summary judgment where the plaintiff in this product liability action was unable to show their relationship to the offending product.