In October 1990, Miriam Swann was arrested and convicted for negligent homicide and leaving the scene of an accident after her car struck a bicycle cart driven by Mary Ramos, killing her three small children.

Since Swann had minimal insurance and assets, Ramos's lawyer Wayne Kikena relied upon Hawaii's Joint and Several Liability Law, under which a secondary party found to be even 1 percent liable for damages can be forced to pay 100 percent of a judgement.

Going after that 1 percent, Kikena has brought a suit against Winchester Originals, Inc. and Everett Manufacturing Co., manufacturers of the bicycle cart and seat, alleging that they were defective products and that the companies had failed to warn the public of the danger. According to Kikena, the tan-colored seat and the tan and pale yellow cart "blended" into the surroundings, and it was therefore the fault of the manufacturers that Swann failed to see the cart. Kikena argues that the colors should have been bright instead of "earth tones."

Inconveniently for Kikena's case, Swann had earlier testified that she fell asleep at the wheel. Kikena, however, says he believes that more brightly colored bicycle equipment might have kept her awake.

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