Moore v. Bass Pro Outdoor World LLC et al
Filing
150
ORDER AND OPINION The Court GRANTS IN PART AND DENIES IN PART Defendants' Motion for Summary Judgment (Dkt. No. 77 ). The Motion is GRANTED as to Plaintiff's claims for a design defect and failure to warn and the Court grants Summary Judgment on those claims. The Motion is otherwise DENIED. The Court DENIES Plaintiff's Partial Motion for Summary Judgment (Dkt. No. 82 ). AND IT IS SO ORDERED. (This case has been consolidated with Case No. 2:18-cv-3017-RM G. Defendants' motion here was cross-filed in that consolidated action. This Order also disposes of that motion. (Dkt. No. 38 in case 2:18-cv-03017-RMG)). Signed by Honorable Richard M Gergel on 7/8/2019.Associated Cases: 2:17-cv-03228-RMG, 2:18-cv-03017-RMG(sshe, )
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Gene Victor Moore,
Plaintiff,
V.
BPS Direct, LLC, Bass Pro, LLC, Global
Manufacturing Company, LLC, G.M.C. ,
LLC, and Mainstream Holdings, Inc. ,
)
)
)
)
Civil Action No. 2: 17-cv-3228-RMG
)
ORDER AND OPINION
)
)
)
)
)
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Defendants.
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Before the Court is Defendants' Motion for Summary Judgment (Dkt. No. 77) and
Plaintiff's Motion for Partial Summary Judgment as to certain affirmative defenses. (Dkt. No . 82.)
For the reasons set forth below, the motions are granted in part and denied in part.
I.
Background
This is a products liability case arising out of an injury sustained by Plaintiff Gene Victor
Moore allegedly from use of an API Crusader Climbing Treestand ("Crusader Treestand")
manufactured by Defendants Mainstream Holdings, Inc. and Global Manufacturing Company,
LLC and sold by Defendants BPS Direct, LLC and Bass Pro, LLC ("Bass Pro Defendants"). (Dkt.
No . 53 .) The Bass Pro Defendants own the trademark for the API brand of treestands, which
includes the Crusader Treestand at issue here. (Dkt. No. 94-2 at 13 - 14.) Defendant Bass Pro,
LLC is the corporate entity, whereas Defendant BPS Direct, LLC handles direct and internet sales.
(Id. at 10 - 11.) Bass Pro sells API treestands and sold the Crusader Treestand at issue here to
Plaintiff. (Id. at 13; 94-3 at 40.) However, while Bass Pro owns the API trademark and sell the
products, Bass Pro has entered manufacturing agreements, first with Worldwide Industrial
Corporation (" WIC") and in 2014 with Defendant Global Manufacturing Company, LLC
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("Global") to manufacture the API treestands. (Dkt. Nos. 94-3 at 26; 94-4 at 59 - 60.) Defendant
Mainstream Holdings, Inc. ("Mainstream") is the parent company of Defendant Global. (Dkt. No.
94-4 at 262.)
The facts underlying this case are largely undisputed. The Crusader Treestand is a climbing
treestand used for hunters to hunt from a tree. (Dkt. No. 77-18.) The Treestand is made up of two
parts: a seat section and a foot section, both of which are secured to a tree by a steel chain and bark
biters. (Id. at 10.)
W ra p snap p in wll'e cl osure
around fron t o f tublng and
secure over end of sn.ap pi n .
(Id.) The hunter' s feet are attached to the foot section by a strap, and to use the Treestand the
hunter moves up the tree by alternating between lifting the seat section and setting in the bark
biters into the tree and then lifting the foot section and setting the bark biters into the tree. (Id. at
15 - 16.) The hunter repeats this process until the hunter reaches their desired hunting height.
(Id.) Importantly, the Treestand ' s instructions state that a connector rope must be attached between
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the seat section and foot section of the Treestand prior to climbing. (Id.) Further, the instructions
state that a hunter must be wearing a fall arrest safety harness attached to the tree prior to climbing.
(Id.) The tether attaching the harness to the tree is moved up while the hunter climbs the tree. (Id.)
In addition to the instructions on use, both the instructions and separate warning labels
advise the hunter of the need to wear a full body harness at all times when using the product, that
the Treestand has been tested to use with a maximum weight capacity of 300 pounds and that a
hunter must read and follow all instructions and warnings and that failure to do so "may result in
serious injury or death." (Id. at 4; Dkt. No. 77-16.) The Treestand is packed with a full body
safety harness, and the Treestand instructions include detailed instructions and warnings regarding
harness use. (Dkt. No. 77-3 at 14; 77-18 at 5 - 7.) These warnings are also included on a safety
DVD included with the Treestand. (Dkt. Nos. 77-18 at 10; 77-15 at if 43.)
Plaintiff purchased the Crusader Treestand on November 30, 2014 from Bass Pro online.
(Dkt. No. 77-8 at 14.) After purchase, Plaintiff used the Crusader Treestand a number of times in
2014 and 2015 without incident. (Id. at 21.) On November 8, 2015, Plaintiff was hunting in
Illinois. (Id. at 6.) When Plaintiff began climbing the tree he was wearing a safety harness, but he
did not connect it to the tree. 1 (Id. at 24.) Instead, Plaintiff intended to climb to his preferred
height on a tree and only then secure his harness to the tree. (Id.) While Plaintiff did not have his
safety harness attached the tree, he testified that he did connect the seat section to the foot section
with a connector rope and that it was "tethered all the time." 2 (Id. at 24, 27.) Plaintiff began
1
On the day of the incident, Plaintiff was not wearing the harness included with the Crusader
Treestand, and instead was wearing a safety harness from Hunter Safety System. (Id. at 12.) The
harness he was using also included warnings that failure to use could result in injury or death, and
was rated for up to 300 pounds. (Id. at 18; Dkt. No. 77-4 at if 12.) Regardless, the harness was
not strapped to the tree. (Dkt. No. 77-8 at 24.)
2
Defendants dispute this fact, contending that evidence indicates that the seat section and the foot
section were not properly attached with a connector rope, possibly by a failure to tie the rope at
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climbing up the tree, and once he was about eighteen to twenty feet up on the tree he decided to
throw the rope for his safety harness towards the tree in order to secure his safety harness. (Id. at
26 - 27.) As he was throwing the rope for his safety harness, the
fo~t
section of his Treestand "felt
like it slipped or it moved" and fell approximately a foot to two feet. (Id.) Plaintiff began to freefall with the foot section no longer attached to the tree. (Id.) The foot section reconnected to the
tree, either from the bark biters reengaging or from the connector rope, and was tilting at a steep
downwards angel. (Id. at 28.) After the foot section reengaged, Plaintiff had his left hand on the
seat section and the Treestand collapsed, and Plaintiff"rode both the top and bottom portion of the
treestand all the way back to the ground." 3 (Id. at 28 - 29.) At the end of the incident, "everything
c[ame] to the ground." (Id.)
It is undisputed that the Crusader Treestand here had a small "bum hole" that was caused
by the welding process that was not part of the design of the Crusader Treestand. (Dkt. Nos. 7710
at~
17; 77-3 at 60.) This hole was a "not uncommon" by-product of welding. (Id.) While
prior model of Crusader Treestands included holes in the foot sections for a heel cord, the 2014
Crusader Treestand used by Plaintiff did not include that in the design. (Dkt. No. 77-3 at 41.)
Plaintiff alleges that this hole caused the Crusader Treestand to fail on November 8, 2015,
and further faults the weight rating standards used by Defendants during the design process. (Dkt.
No. 53.) Plaintiff claims these failures proximately caused his injuries, and brings claims for strict
products liability, negligence, breach of warranty and a claim under the South Carolina Unfair
the proper location. (See Dkt. No. 77-4 at~ 15, "A shorter black rope was tied to the left perimeter
beam of the seat frame, likely as the connector rope/tether between the foot platform and seat
frame (although not at the location specified by the manufacturer)."; Dkt. No. 77-15 at~ 55,
"[Plaintiff] did not properly connect the top and standing platforms with the supplied connector
rope or the two would have been tied together and they were not.")
3
It is unclear from the record whether Plaintiffs feet remained in contact with the foot section or
whether his feet lost contact and, after free-falling, impacted the foot section. (Id. at 28.)
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Trade Practices Act ("SCUTP A"). (Id. )4 Defendants now move for summary judgment on all
four of Plaintiffs claims, and Plaintiff opposes. (Dkt. Nos. 77, 96, 107.) Concurrently, Plaintiff
also moves for summary judgment as to Defendants' defenses of contributory negligence,
assumption ofrisk and misuse, which Defendants oppose. (Dkt. Nos. 82, 88, 100.)
II.
Legal Standard
To prevail on a motion for summary judgment, the movant must demonstrate that there is
no genuine issue of any material fact and that the movant is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a). The party seeking summary judgment has the burden of identifying
the portions of the "pleadings, depositions, answers to interrogatories, any admissions on file,
together with the affidavits, if any, which show there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett,
477 U.S . 317, 322 (1986). The Court will construe all inferences and ambiguities against the
movant and in favor of the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The existence of a mere scintilla of evidence in support of the non-moving party's position is
insufficient to withstand a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 252 (1986). However, an issue of material fact is genuine ifthe evidence is such that a
reasonable jury could return a verdict in favor of the non-movant. Id. at 257.
"When the moving party has carried its burden under Rule 56( c), its opponent must do
more than simply show that there is some metaphysical doubt as to the material facts." Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "In the language of the Rule,
the nonmoving party must come forward with 'specific facts showing that there is a genuine issue
4
Plaintiffs claims under the SCUTP A are asserted in the consolidated action, Moore v. BPS Direct
et al, Civil Action No. 2:18-cv-2017-RMG, Docket Number 1, ~~ 63 - 70. (Dkt. No. 68.)
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for trial."' Id. at 587. "Where the record taken as a whole could not lead a rational trier of fact to
find for the non-moving party, there is no 'genuine issue for trial."' Id. (quoting First Nat 'l Bank
ofAriz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).
III.
Discussion
A.
Defendants' Motion for Summary Judgment (Dkt. No. 77)
Defendants move for summary judgment on each of the Plaintiffs four causes of action:
strict liability, negligence, breach of warranty and under the SCUTPA, S.C. Code Ann. §§ 39-510, et seq. 5 The Court addresses each below:6
1.
Strict Liability Claims
As this Court has previously held, as Plaintiffs injury occurred in Illinois, the Court applies
Illinois law to Plaintiffs tort claims, including his strict liability claims. See Boone v. Boone, 546
S.E.2d 191, 193 (S.C. 2001 ). Further, as explained in an Order issued concurrently with this Order,
5
Plaintiff, in their Response, make a standalone argument that the Bass Pro Defendants,
Mainstream, and Global were all part of a joint venture. (Dkt. No. 96.) However, Defendants, in
their motion, did not seek summary judgment on this point and did not move to dismiss any
individual Defendant from the case, except for the strict liability claims against the Bass Pro
Defendants. (Dkt. No. 76.) Plaintiff is entitled to make the argument at trial. The Court, however,
does note that while Plaintiff conclusorily states that the Bass Pro Defendants were part of a joint
venture, his argument focuses exclusively on the relationship between Global and Mainstream,
which is likely better analyzed as a corporate or agency relationship based on the evidence in the
record. To the extent Plaintiff argues the Bass Pro Defendants were in a joint venture with
Defendants Global and Mainstream, that argument is unavailing as there is no evidence of any
shared profits or pecuniary interest, required under both the law of Minnesota (place of
incorporation for Defendants Global and Mainstream) and Missouri (law controlling vendor
agreement between Bass Pro and Defendant Global), and instead their relationship was controlled
by a Standard Vendor Agreement that made clear it was for the purchase of products. (Dkt. No.
94-5 .)
6
Concurrent with this Order, this Court has issued an Order on the Parties' pending Daubert
motions to exclude or limit various expert testimony (Dkt. Nos. 75, 78, 79, 80, 81 , 73 , 84.) The
Court has declined to exclude any of the expert witnesses, though has ruled that some experts '
testimony must be limited. This Order therefore relies on the expert testimony deemed admissible
by that Order on the Daubert motions.
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it is undisputed that Defendants BPS Direct, LLC and Bass Pro, LLC sold but did not manufacture
the Crusader Treestand at issue, and therefore that claim is barred under the seller's exception to
strict products liability in Illinois. This first cause of action, for strict liability, therefore solely
applies to Defendants Mainstream Holdings, Inc. and Global Manufacturing Company, LLC.
"Under Illinois law, the elements of a claim of strict liability based on a defect in the
product are: ( 1) a condition of the product as a result of manufacturing or design, (2) that made the
product unreasonably dangerous, (3) and that existed at the time the product left the defendant's
control, and (4) an injury to the plaintiff, (5) that was proximately caused by the condition."
Mikolajczyk v. Ford Motor Co., 231Ill.2d 516, 543, 901N.E.2d329, 345 (2008), opinion modified
on denial of reh 'g (Dec. 18, 2008). Under this test, Illinois recognizes "three theories of strict
product liability: manufacturing defect, design defect, and failure to warn." Id. at 548. Plaintiff is
proceeding under all three theories. (Dkt. No. 96 at 11.) The Court therefore addresses each.
a.
Manufacturing Defect
Regarding strict liability for a manufacturing defect, Plaintiff contends that the hole
creating during the welding process on the Crusader Treestand was a manufacturing defect. First,
it is undisputed that the condition, namely the unintended hole, was a result of the manufacturing
as Defendants' witnesses acknowledge that the hole was created as a not-uncommon by-product
of the welding process. (Dkt. Nos. 77-10
at~
17; 77-3 at 60.) Further, there is no dispute that the
welding hole existed at the time the product left Defendants Mainstream and Global's control. The
undisputed testimony shows that the Crusader Treestand was shipped directly to Plaintiff in an
unopened box. (Dkt. Nos. 77-8 at 14 - 15; 96-6 at 14.) Finally, it is undisputed that Plaintiff
suffered an injury, a right pilon fracture, based on the Treestand's failure. (Dkt. No. 77-8 at 4.)
However, both Parties have identified extensive evidence in the record creating a genuine
dispute of material fact regarding the second and fifth factors of a manufacturing defect claim,
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namely, whether the welding hole made the Crusader Treestand unreasonably dangerous and
whether the Plaintiffs injury was caused by the defect. When assessing whether a manufacturing
defect made the product unreasonably dangerous, Illinois courts apply the consumer expectation
test, which provides that "a plaintiff may prevail if he or she demonstrates that the product failed
to perform as an ordinary consumer would expect when used in an intended or reasonably
foreseeable manner." Calles v. Scripto-Tokai Corp., 224 Ill. 2d 247, 256, 864 N.E.2d 249, 256
(2007). Plaintiff has presented record evidence that an ordinary consumer would not expect the
foot stand of the Crusader Treestand to break, even if subjected to greater than tested-for dynamic
loads. 7 Specifically, Plaintiffs mechanical engineering expert, Dr. Jahan Rasty, opines in both his
Report and his deposition that the presence of the hole resulted in a 40% reduction in fracture
strength of the Treestand, with the Treestand without the hole able to withstand 2,380 pounds of
work-energy, whereas the Treestand with the hole was only able to withstand 1,425 pounds of
work-energy. (Dkt. No. 96-5 at 28.) 8
Defendants make much of the fact that Plaintiff failed to wear his safety harness. Yet,
these defenses do not act as an absolute bar to Plaintiffs recovery in his strict liability claims, and
instead are only relevant to apportionment of damages. See Coney v. JL. G. Indus., Inc., 97 Ill. 2d
104, 119, 454 N.E.2d 197, 204 (1983) ("However, the defenses of misuse and assumption of the
7
Dynamic loads are instances where the force applied to the Crusader Treestand is changing, such
as by a weight falling on it. However, the industry standards from the Treestand Manufacturers'
Association (TMA), by contrast, only test based on static loads, or stable, unchanging weights.
(Dkt. No. 96-5 at 24; 96-6 at 31.)
8
Defendants' expert, George Saunders, contends that the Treestand failed because of Plaintiffs
failure to attach the foot section to the seat section and failure to wear his harness, which allowed
dynamic loading to the foot section after it slipped down the tree. Saunders contends the welding
hole had no substantial effect on the weight bearing capacity of the Treestand and did not lead to
the failure here. (Dkt. No. 77-4.) This dispute, between Dr. Rasty and Saunders, is a dispute of
material fact which must be submitted to a jury.
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risk will no longer bar recovery. Instead, such misconduct will be compared in the apportionment
of damages."). Furthermore, as an independent basis for finding that there is a dispute of material
fact regarding an unreasonably dangerous condition, regardless of whether Plaintiff was using the
Treestand improperly, there is record testimony from a representative of the Treestands
Manufacturers ' Association, John Louk, that it is foreseeable that hunters regularly do not wear
their safety harnesses and that hunting accidents review whether a treestand slipped off the tree.
(Dkt. No. 96-14 at 20 - 21 , 26.) Therefore, there is record testimony that the product failed to
perform, by slipping and breaking, when used in a reasonably foreseeable manner.
Finally, there is ample evidence creating a dispute of material fact regarding whether the
small welding hole caused the Plaintiffs injury. Dr. Rasty opined extensively that the hole caused
the Treestand to fail here. (See, e.g. , Dkt. No. 96-4 at 8, "What caused the failure - was a
manufacturing defect that was within the . .. railing."). The Plaintiff has also presented physical
evidence of the Crusader Treestand at issue, showing that the fracture in the Treestand occurred
directl y through the allegedly defective welding hole. (Dkt. No. 96-5 at 20.) While Defendants
dispute this evidence strongly through their own experts, there is a dispute in the record regarding
whether a manufacturing defect, namely an unintended welding hole in the foot section of the
Crusader Treestand, caused Plaintiffs injuries here. Therefore, summary judgment is denied on
Plaintiffs manufacturing defect strict liability claim.
b.
Design Defect
Plaintiff claims that the Crusader Treestand was defectively designed as the Treestand was
design with a Factor of Safety (FOS) of2, meaning it is designed to withstand double rated capacity
of 300 pounds, whereas for it to be safe it should have been designed to a FOS of 4, meaning that
it would be able to withstand four-times the rated capacity, so that it could withstand foreseeable
dynamic loads. (Dkt. No. 96 at 20.) As above with manufacturing defects, it is undisputed that
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the alleged design defect regarding the FOS is a condition of the product as a result of
manufacturing or design, that it existed at the time the product left the Defendants' control, and
that the Plaintiff was injured. Further, while Defendants have also presented a multitude of
testimony and evidence regarding the safety of the design of the Crusader Treestand, Plaintiff has
identified at least some limited evidence in the record indicating that a FOS of 2 is unreasonably
dangerous. 9 Namely, while the TMA standards only required a FOS of2, Defendant Mainstream' s
own Quality Assurance Program required a FOS of 4 for certain treestand components. (Dkt. No.
96-9.) Further, Dr. Rasty opines that Treestand should have been designed with an FOS of 4,
based in part on Defendant Global' s own Quality Assurance Program, and that this higher FOS
was particularly important as dynamic loads, which deliver greater magnitudes of force than static
loads, are foreseeable on climbing treestands. 10 (Dkt. No. 96-5 at 30.)
9
When assessing whether a product is unreasonably dangerous based on a design defect, rather
than a manufacturing defect, Illinois courts permit claims to proceed under two theories: the
consumer-expectation test, as described above, and the risk utility test. Under the risk utility test,
"a plaintiff may prove a design defect by presenting evidence of the availability and feasibility of
alternate designs at the time of its manufacture, or that the design used did not conform with the
design standards of the industry, design guidelines provided by an authoritative voluntary
association, or design criteria set by legislation or governmental regulation." Walker v. Macy's
Merch. Grp., Inc., 288 F. Supp. 3d 840, 862 (N.D. Ill. 2017) citing Winters v. Fru- Con Inc., 498
F.3d 734, 744 (7th Cir. 2007).
10
Defendants vociferously argue that the Crusader Treestand conformed to, and exceeded,
applicable TMA industry standards, both with or without the hole. (Dkt. No. 77-1at21 , 29- 30.)
However, compliance with industry standards is not a shield to liability in either a strict liability
or negligence cause of action, and therefore the Court may still assess whether Plaintiffs have
created a dispute of material fact regarding unreasonable dangerousness. Wille v. Navistar Int 'l
Transp. Corp., 222 Ill. App. 3d 833, 841, 584 N.E.2d 425, 430 (1991) (compliance with industry
standard is one factor, among multiple, in products liability case); Walker, 288 F. Supp. 3d at 861
("mere compliance with minimum industry standards is, at most, some evidence to be considered
and is not a shield to liability.") quoting Spiconardi v. Macy 's E. , Inc., 83 A.D.3d 472, 473 (N.Y.
App. Div. 2011); Carrizales v. Rheem Mfg. Co., 226 Ill. App. 3d 20, 37, 589 N.E.2d 569, 581
(1991) ("Because we recognize that possibly lagging industry standards should not allow a
manufacturer to escape liability for negligent design, we examine whether plaintiff has sufficiently
pleaded in the alternative that defendant knew or should have known, in the exercise of ordinary
care, that its product was unreasonably dangerous and failed to warn of its dangerous propensity.").
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However, Plaintiff has failed to create any dispute of fact that the identified alleged design
defects were the proximate cause of the Plaintiffs injury.
"Proximate cause encompasses two
requirements: cause-in-fact and legal cause .... If multiple factors have combined to cause an
injury, Illinois law asks whether the defendant' s conduct was a ' substantial factor' in bringing
about the injury." Malen v. MTD Prod. , Inc., 628 F.3d 296, 309 (7th Cir. 2010) (citations omitted).
"For cause-in-fact, the Court must ask ' whether the injury would have occurred absent the
defendant's conduct .... To establish legal cause, Plaintiff must show that 'the ultimate injury was
reasonably foreseeable,' which ' is satisfied by proof that a reasonable person could foresee that
his conduct could lead to the injury complained of. " ' Walker, 288 F. Supp. 3d at 856 (citations
omitted).
"Proximate cause is not established, however, where the causal connection is
' contingent, speculative or merely possible. "' Menge/son v. Ingalls Health Ventures, 323 Ill. App.
3d 69, 75 (2001). "While proximate cause is ordinarily a question for the trier of fact, it becomes
a question of law where there is no material issue of fact regarding the matter or only one
conclusion is clearly evident." Kleen v. Hornak Mfg. Co., 321 Ill. App. 3d 639, 641, 749 N.E.2d
26, 29 (2001 ). Here, Plaintiff has failed to identify any evidence creating a dispute of fact and,
instead, based on the undisputed evidence, it is evident that Plaintiff cannot draw the necessary
causal link between the design of the Crusader Treestand and Plaintiffs injury.
Tellingly, as detailed above, Dr. Rasty opined extensively that it was the manufacturing
defect, namely the improperly included hole on the foot section of the treestand, that caused the
failure. (See Dkt. No. 96-4 at 8, "What caused the failure - was a manufacturing defect that was
within the ... railing."; Id. at 9, "I really think that the cause of the accident was the hole, but the
design of the ... bolt ... may have increased the stresses somewhat. But I don't think that was the
cause of the accident."; Id. at 39, "Why did the stress exceed the strength in this case? And the
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reason for that is a manufacturing defect."; Id. "Because we tested it with and without it. It broke
exactly like the subject. You put a hole in something, it's going to fail at that point.") Dr. Rasty' s
testing also demonstrated that while the Crusader Treestand would break even without the subject
hole, it would withstand significantly higher loads when a hole was not present. (Dkt. No. 96-5
at 28 - 29.) Specifically, Dr. Rasty's tests confirmed that, even without an alternate design with a
higher FOS, the Crusader Treestand without a hole would have withstood significantly more workenergy than Dr. Rasty calculated was necessary for Plaintiff, who weighs approximately 200
pounds, to fracture the Treestand' s foot section from 7.125 inches. 11 While Dr. Rasty opines that
there are alternate designs that may be safer, and may be more consistent with possible dynamic
loads on a treestand explicitly used for climbing, Plaintiff has failed to offer evidence that the
alleged design defect was the cause of his injuries here as the record evidence instead supports
only a dispute of fact regarding whether the welding hole caused the injury here. Plaintiffs
argument, based almost exclusively on Dr. Rasty's opinion, See Dkt. No. 96 at 22 - 23, instead
constitutes nothing more than speculation that the failure to design for dynamic loads and include
a FOS of 4 caused Plaintiffs injury. Therefore, Defendants are entitled to summary judgment on
Plaintiffs design defect strict liability claim.
c.
Failure to Warn
Plaintiff states he is also asserting a claim for failure to warn. "Under a failure to warn
theory, a plaintiff must demonstrate that the manufacturer did not disclose an unreasonably
dangerous condition or instruct on the proper use of the product as to which the average consumer
11
Dr. Rasty, based on destructive testing, found that if Plaintiff fell 7.125 inches, he would have
delivered a 1,425 pounds of impact energy, sufficient to fracture the foot section. (Dkt. No. 965 at 29.) However, Dr. Rasty also opined that the Crusader Treestand without a hole would
withstand 2,380 pounds of work-energy before fracturing. (Id. at 28.)
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would not be aware." Salerno v. Innovative Surveillance Tech., Inc., 402 Ill. App. 3d 490, 499,
932 N.E.2d 101 , 109 (2010). "A manufacturer has a duty to warn where the product possesses
dangerous propensities and there is unequal knowledge with respect to the risk of harm, and the
manufacturer, possessed of such knowledge, knows or should know that harm may occur absent a
warning. " Id. (citations omitted). Plaintiff here has presented no specific evidence in support of
his failure to warn claim, instead asserting a list of eight alleged warnings that Defendants should
have included and asking the Court to rely on general recitals of fact unrelated to any allegedly
necessary warnings. (Dkt. No. 96 at 24.) Notably, though, the Crusader Treestand included
extensive and detailed warnings and instructions. (Dkt. No. 77 at 16 - 19.) Fatal to Plaintiffs
failure to warn claim is that he has not demonstrated how any of his requested warnings would
have led to his injury being avoided. See In re Testosterone Replacement Therapy Prod. Liab.
Litig. Coordinated Pretrial Proceedings, No. 14 C 1748, 2017 WL 1836435, at *17 (N.D. Ill. May
8, 2017) ("Generally speaking, a plaintiff must show that had the manufacturer provided the
warning at issue, the plaintiffs injury would have been avoided. "); Walker, 288 F. Supp. 3d at 867
("there is also no evidence from which a reasonable jury could conclude that any failure to warn
in this case was a ' material element' or ' substantial factor' in bringing about Plaintiffs injuries.")
(citations omitted). Plaintiff seeks multiple warnings, many regarding testing of the Treestand or
the need to inspect the Treestand for welding holes. Yet, in addition to the unrebutted evidence of
multiple and detailed warnings already being in place regarding proper use of the Treestand,
Plaintiff has identified no evidence indicating how the lack of any or all of the warnings were a
factor, must less a "substantial factor," leading to Plaintiff's injuries. Summary judgment is
therefore granted on Plaintiffs failure to warn claim.
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2.
Negligence
To make out a negligent product liability claim, the Plaintiff must establish " [l] the
existence of a duty, [2] a breach of that duty, [3] an injury that was proximately caused by that
breach, and [4] damages. " Jablonski v. Ford Motor Co., 2011IL110096, ~ 82, 955 N.E.2d 1138,
1153- 54 (2011 ). "A manufacturer has a nondelegable duty to design reasonably safe products."
Calles v. Scripto-Tokai Corp., 224 Ill. 2d 247, 270, 864 N.E.2d 249, 264 (2007). To demonstrate
negligent manufacturing, a plaintiff must show that the defendant either "deviated from the
standard of care that other manufacturers ... or, some evidence that [a defendant] knew or should
have known, in the exercise of ordinary care, that its product was unreasonably dangerous and
failed to warn of its dangerous propensity." Baltus v. Weaver Div. of Kidde & Co. , 199 Ill. App.
3d 82 i , 830, 557 N.E.2d 580, 586 (1990). See also Calles, 224 Ill. 2d at 270 ("A manufacturer of
a chattel made under a plan or design which makes it dangerous for the uses for which it is
manufactured is subject to liability to others whom he should expect to use the chattel or to be
endangered by its probable use for physical harm caused by his failure to exercise reasonable
care") quoting Restatement (Second) of Torts§ 398, at 336 (1965). Such liability can also extend
to a seller. See Cruz v. Midland-Ross Corp., 813 F. Supp. 628, 631 (N.D. Ill. 1993) ("under either
theory ofliability (strict tort or negligence), a seller of products must occupy a position within the
' original producing or marketing chain' in order to be liable for injuries caused by those
products."). See also Peterson v. Lou Bachrodt Chevrolet Co. , 61 Ill.2d 17, 329 N.E.2d 785 , 787
(1975) (imposing liability on suppliers, distributors, wholesalers and retailers "is justified on the
ground that their position in the marketing process enables them to exert pressure on the
manufacturer to enhance the safety of the product."). Further, a seller has a duty to discover defects
causing a product to become dangerous that can be discovered by reasonable inspection. See Kirk
v. Stineway Drug Store Co., 38 Ill. App. 2d 415 , 429, 187 N.E.2d 307, 313 (Ill. App. Ct. 1963) (
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" We believe a fair rule to be applied in such a situation is that ifthe article, being defective, thereby
becomes a dangerous instrument, the seller is required to discover such defects as may be
discovered by reasonable inspection and to disclose such defects to the buyer.").
Causation and injury in the negligence action are the same as for strict liability, and
therefore, as detailed above, Plaintiff has proffered evidence creating a dispute of material fact
regarding causation for the manufacturing defects but not for the design defect or failure to warn.
Plaintiff has identified clear evidence in the record that the manufacturing Defendants, Mainstream
and Global, knew or should have known that the way in which it manufactured its Crusader
Treestands caused the product to be unreasonably dangerous. Most notably, it is undisputed that
the Crusader Treestand here had a small "bum hole,"
and that this was known by the
manufacturers as a common by-product of welding. (Dkt. Nos. 77-1at14; 77-10
at~
17; 77-3 at
60.) Defendants, remarkably, focus repeatedly on the fact that the bum holes are fairly common,
yet this type of repeated and known issue, a hole in the foot section of a Treestand meant for
climbing tens of feet up trees which is not intended in the Treestand' s design, is precisely the type
of evidence that creates a dispute of material fact regarding whether Defendants should have
known that these repeated unintentional holes made the Treestands less dangerous.
Notably, in at least one prior case, Defendants also had notice that a Treestand will snap at
a hole in a foot stand. Plaintiff submitted a claim by Matthew Vandermast, who purchased a 2013
API Crusader climbing treestand. (Dkt. No, 96-19.) While Vandermast's treestand was produced
in 2013 by WIC, a separate manufacturer, the same design ultimately became the basis for the
2014 Crusader Treestand when the manufacturing switched over to Defendants Global and
Mainstream. (Dkt. No. 77-3 at 15 - 18; 77-14 at 27.) In the Vandermast case, the design called
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for a planned heel cord hole in the foot stand, 12 and Vandermast's treestand split exactly at the heel
cord hole while he was simply standing on the product. (Dkt. No, 96-19 at 2, 8.)
Vandermast
first contacted Mainstream holdings, and next contacted Bass Pro with information regarding the
failure. (Id. at 15 - 19.) While the Vandermast claim is most striking, Plaintiff submits other
evidence as well regarding other instances of failing treestands that were submitted to the
Defendants and an expert, Stuart M. Statler, who opined regarding what actions Defendants should
have taken in response to these reports of product defects. (Dkt. Nos. 96-11; 96-29.) While the
Treestand was produced by a different manufacturer, the record evidence demonstrates it is a
similar design and was involved in similar accidents. This evidence of similar accidents in similar
products, is admissible to show that the product was defective. See DiCosolo v. Janssen Pharm.,
Inc., 2011 IL App (1st) 093562, ~ 26, 951N.E.2d1238, 1247 (2011) (evidence of "same accidents
in similar product" can be used to show that product was defective); Bass v. Cincinnati, Inc., 180
Ill. App. 3d 1076, 1082, 536 N.E.2d 831 , 834 (1989) ("evidence of similar post-accident
occurrences or injuries on the same or substantially similar products may be admissible as evidence
of the existence of a defect."). These reports to Defendants Mainstream and Global and the Bass
Pro Defendants, further create a dispute of material fact regarding whether the Defendants knew
or should have known that the manufacturing process of their product, or (as the reports also
reached Bass Pro) that the product that they were selling, was unreasonably dangerous. 13
12
Brent Quiring, a corporate representative for Defendant Global, testified that the design for the
2014 Crusader Treestand at issue here removed the heel cord hole. (Dkt. No. 77-3 at 60, 72; 7714 at 30.)
13
The Court also notes that Defendants Global and Mainstream had a quality assurance program
indicating that they performed a "quality inspection of each product." (Dkt. No. 96-9; 96-6 at 50.)
Further, there is evidence in the record indicating that had the welding hole been discovered during
an inspection, it likely should have been removed from sale. (Dkt. No. 96-3 at 25.) It is unclear
whether the specific Crusader Treestand was inspected. (Dkt. No. 77-3 at 14.) Finally, the Bass
Pro Defendants also do not perform their own inspections, and instead relied on Defendant Global
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Defendants, in response, argue that Plaintiff cannot recover for negligence since his misuse
of the product, an undisputed failure to wear a safety harness, bars recovery. Defendants rely on
Schwartz v. Am. Honda Motor Co., 710 F.2d 378, 381 (7th Cir. 1983) to argue that the "absence
of misuse is part of a plaintiffs proof of an unreasonably dangerous condition or of proximate
cause." However, Defendants argument is misplaced. Schwartz relied on an earlier case, Illinois
State Trust Co. v. Walker Manufacturing Co., 73 Ill.App.3d 585, 589 (1979), which subsequently
has been clarified after the Illinois Supreme Court' s ruling in Coney v. JL.G. Indus., Inc., 97 Ill.
2d 104, 119, 454 N.E.2d 197, 204 (1983), which made clear that misuse would only "act to reduce
a plaintiffs damages, rather than bar the action."
Wheeler v. Sunbelt Tool Co., 181 Ill. App. 3d
1088, 1101-02, 537 N.E.2d 1332, 1342 (1989). See Ocampo v. Paper Converting Mach. Co. , No.
02 C 4054, 2005 WL 2007144, at * 10 (N.D. Ill. Aug. 12, 2005) ("Misuse as an affirmative defense,
on the other hand, is a damage-reducer, not a complete bar."). 14
Therefore, Plaintiffs claim for negligence is not subject to summary judgment.
3.
Breach of Warranty
In the first instance, the Court must clarify its prior Order on Plaintiffs motion to file an
amended complaint and hold that South Carolina law applies to the breach of warranty claims here.
(Dkt. No. 51.) Specifically, while the doctrine of lex loci deliciti applies to tort actions, breach of
warranty is a contract claim and lex loci deliciti does not apply. See Thornton v. Cessna Aircraft
to inspect, test and remove any nonconforming parts on the treestands. (Dkt. No. 96-25 at 11 12.) These facts in the record further create a dispute that require a jury to determine whether
Defendants breached their duty to inspect, based both on their own policies and a known incidence
of unintended welding holes, to determine whether the products were unreasonably dangerous .
14
The Court in Ocampo did note that misuse could be a complete bar to recovery where it prevents
demonstrating causation. However, here, as detailed above, Plaintiff has adduced evidence
creating a dispute of material fact regarding whether it was the welding hole, either in totality or
primarily, that caused the injuries here.
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Co., 886 F.2d 85, 89 (4th Cir. 1989) ("Since a claim for breach of warranty arises under the Code,
not general tort liability, the traditional lex loci delicti rule does not apply."). Instead, under South
Carolina law, for a breach of warranty action, where "a transaction bears a reasonable relation to
this State and also to another state or nation the parties may agree that the law either of this State
or of another state or nation shall govern their rights and duties. Failing an agreement, this title
applies to transactions bearing an appropriate relation to this State." Id at 90 citing S.C. Code
Ann. § 36-1-301 (formerly cited as S.C. Code Ann. § 36-1 - 105(1)). It is undisputed that the
Crusader Treestand was purchased and shipped to Plaintiffs home in South Carolina. (Dkt. No.
76-9 at 14 - 15.) Therefore, as no party has presented an agreement between the Parties indicating
that the laws of another state govern this transaction, South Carolina law applies to the breach of
warranty action. 15
Under South Carolina' s Commercial Code, "a seller of [a] product may create an express
warranty in a number of ways, including by '[a]ny affirmation of fact or promise, ... made by the
seller to the buyer, whether directly or indirectly, which relates to the goods and becomes part of
the basis of the bargain.' In addition, ' [a]ny description of the goods which is made part of the
basis of the bargain creates an express warranty that the goods shall conform to the description,.'"
Brooks v. GAF Materials Corp., 41 F. Supp. 3d 474, 480 (D.S.C. 2014) citing S.C.Code Ann. §
36-2-313(1) (2003). An express warranty cannot be disclaimed. Id To demonstrate an express
warranty, a plaintiff must show: (1) the existence of the warranty; (2) breach by the failure of the
product to meet the warranted description, and (3) proximate cause of damages from the breach.
First State Sav. & Loan v. Phelps, 299 S.C. 441 , 448, 385 S.E.2d 821 , 825 (1989).
15
While the law applicable to the breach of warranty claims is clarified, this Order does not
otherwise alter the holding of the Court' s Order granting in part and denying in part Plaintiffs
motion to amend. (Dkt. No. 51.)
-18-
Plaintiff has met its burden to identify evidence creating a dispute of material fact regarding
the existence and breach of an express warranty. Plaintiff identifies the "Standard Limited
Warranty" included with the Crusader Treestand, which warrants that the Treestand will be "free
from defect in material and workmanship for a period of twelve months" and that hardware will
be "free from physical defects" for the same period. (Dkt. No. 96-32.) However, the Crusader
Treestand here was not free from defects at the time of sale 16 and instead contained a welding hole
that did not comport with the design. Further, as described above, Plaintiff has created a dispute
regarding whether the defect caused his injuries. Plaintiffs claim for breach of an express
warranty is therefore not subject to summary judgment. See Brown v. Goodman Mfg. Co., L.P.,
No. 1:13-CV-03169-JMC, 2015 WL 1006319, at *3 (D.S.C. Mar. 5, 2015) (claim for express
warranty exists based on promise that product would be "free from defects in materials and
workmanship that affect performance under normal use and maintenance").
Plaintiff also identifies a warning label which represented that "This product has been
thoroughly tested and proper usage and following of guidelines is mandatory for the safety of the
user! " (Dkt. No. 96-33.) Plaintiff contends that the Crusader Treestand here was never actually
tested prior to sale. 17 (Dkt. No. 77-3 at 25 , 45.) A promise that a product has been tested can give
rise to an express warranty. See Royal Bus. Machines, Inc. v. Lorraine Corp., 633 F.2d 34, 42 (7th
Cir. 1980) (applying Indiana law based on the UCC, finding express warranty based on "the
assertion that the machines were tested and ready to be marketed."). Further, South Carolina law
expressly recognizes express warranties created by "affirmation of fact or promise" contained on
16
It was also not free from defects for twelve months from the purchase of the Crusader Treestand
on November 30, 2014, as the incident occurred on November 8, 2015.
17
Defendant Global instead chooses one Treestand of a specific model to send to a laboratory for
testing. (Dkt. No. 77-3 at 45 .) While it tests the model, there is no indication it performs tests on
each product.
-19-
"containers or labels."
S.C. Code Ann. § 36-2-313(1)(a). Finally, there is record evidence
indicating that had this product been tested, it likely would have been removed from sale. (Dkt.
No. 77-3 at 26; at 96-3 at 25.) As above, Plaintiff has created a dispute of material fact regarding
whether this defect caused his injuries. Therefore, Plaintiffs claim for breach of an express
warranty may proceed. 18
Defendants also seek summary judgment on Plaintiffs claim for breach of implied
warranty of merchantability.
To make out a claim for breach of the implied warranty of
merchantability, a plaintiff must prove "(1) a merchant sold goods; (2) the goods were not
' merchantable' at the time of sale; (3) the plaintiff or his property were injured by such goods; (4)
the defect or other condition amounting to a breach of the implied warranty of merchantability
proximately caused the injury; and (5) the plaintiff so injured gave timely notice to the seller."
Brooks, 41 F. Supp. 3d at 482. As detailed above, it is undisputed that the Defendants sold the
goods, there is a dispute of material fact regarding whether the goods were defective, it is
undisputed that Plaintiff was injured while using the Treestand, and there is a dispute of material
fact regarding whether the breach caused Plaintiffs injuries. Finally, as Plaintiff is alleging
personal injuries, no notice was required prior to suit. See S.C. Code Ann. § 36-2-607 ("the buyer
must within a reasonable time after he discovers or should have discovered any breach notify the
seller of breach or be barred from any remedy; however, no notice of injury to the person in the
18
Defendants' argument against the express warranty claim focuses on the assertion that Plaintiffs
complaint did not bring a claim for an express warranty in his complaint. (Dkt. No. 77-1 at 30.)
However, Plaintiffs Complaint does identify a claim for an express warranty. (Dkt. No. 53 at~
40.) Regardless, if Defendants are challenging the sufficiency of those allegations at this late stage,
the motion is controlled by Federal Rules of Civil Procedure 12(c) and 12(h)(2) and not Rule 56,
and Defendants have failed to make such a motion here. Finally, a motion under Rule 12(c) must
be "early enough not to delay trial." Trial is currently scheduled in this case for August 12, 2019.
(Dkt. No. 117.)
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case ofconsumer goods shall be required.") (emphasis added); In re Bausch & Lomb Inc. Contacts
Lens Sol. Prod. Liab. Litig., No. CIA 2:06-02716-DCN, 2008 WL 2308759, at *5 (D.S.C. Apr. 9,
2008) (citing S.C. Code Ann.§ 36-2-607 and stating that " [s]ome states have adopted ameliorative
provisions, relaxing stringent application of the notice requirement where a personal injury is
involved.") Therefore, Plaintiff may proceed with his claim for breach of implied warranty of
merchantability. 19
4.
South Carolina Unfair Trade Practices Act
To make out a claim under the South Carolina Unfair Trade Practices Act, a plaintiff must
show that: "(1) the defendant engaged in an unfair or deceptive act in the conduct of trade or
commerce; (2) the unfair or deceptive act affected public interest; and (3) the plaintiff suffered
monetary or property loss as a result of the defendant's unfair or deceptive act(s)." Wright v. Craft,
372 S.C. 1, 23 , 640 S.E.2d 486, 498 (Ct. App. 2006).
Plaintiff alleges that Defendants
representation that the Treestand had been tested, specifically on the warning label affixed to the
Treestand, constituted a deceptive act. The Supreme Court of South Carolina has indicated that
an express warranty can constitute a deceptive act which is capable of repetition. Haley Nursery
Co. v. Forrest, 298 S.C. 520, 524, 381 S.E.2d 906, 908 - 09 (1989) (holding that warranty
contained on invoices to customers could support a SCUTP A claim as the "breach of warranty
19
Plaintiff's Complaint also references implied warranties for "fit[ ness] for the ordinary purposes"
and "fit[ness] for its intended purpose." (Dkt. No. 53 at~ 40.) South Carolina recognizes two
implied warranties: "( l) the implied warranty of merchantability and (2) the implied warranty of
fitness for a particular purpose." Brooks v. GAF Materials Corp., 41 F. Supp. 3d 474, 482 (D.S.C.
2014). Further, where "the particular purpose for which a product is purchased is also the ordinary
or intended purpose of the product, the warranties of merchantability and of fitness for a particular
purpose merge and are cumulative, such that a plaintiff may proceed upon either theory." Id.
(citations omitted). Therefore, as no Party has presented any evidence or argument regarding the
warranty for fitness for a particular purpose or ordinary purpose, the Court finds that those claims
are cumulative and grants summary judgment on those other implied warranty claims.
-21-
impacts on the public interest because of the potential for repetition by publication these
misrepresentations to other consumers."). It is undisputed that the Treestand contained an express
warning that the Treestand "ha[ d] been thoroughly tested" and, further, that it was capable of
repetition as it was included with the Treestand sold to other consumers as well. Finally, the
Plaintiff suffered monetary or property loss from his medical bills and other claimed damages.
Therefore, therefore summary judgment is denied as to Plaintiffs claim under the SCUTPA.
B.
Plaintiff's Partial Motion for Summary Judgment (Dkt. No. 82)
Plaintiffs partial motion for summary judgment seeks summary judgment on three of
Defendants' asserted defenses: First, Plaintiff seeks summary judgment on all of Defendants'
defenses based on Plaintiffs alleged fault; Second, Plaintiff seeks summary judgment on
Defendant's assumption ofrisk affirmative defense; Finally, Plaintiff seeks summary judgment on
Defendant's misuse affirmative defense. (Dkt. No. 82.)
Defendants are entitled to present evidence regarding Plaintiffs alleged contributory
negligence and fault. Under Illinois law, "whether a claim is based on negligence or strict products
liability, an injured party is barred from recovering only if the trier of fact finds that his conduct
was more than 50% of the proximate cause of the injury for which recovery is sought." Malen v.
MTD Prod. , Inc., 628 F.3d 296, 313 (7th Cir. 2010) (citations omitted). Defendant is therefore
entitled to submit evidence regarding Plaintiffs alleged fault, such as his failure to secure his
safety harness, as Illinois law explicitly will bar recovery if a fact finder determines Plaintiffs
actions constituted more than 50% of the proximate cause. Plaintiff is not entitled to summary
judgment on this defense.
Turning to two of Defendant's specific defenses, assumption of risk and misuse, it is
important to note that, provided a jury does not determine that the Plaintiff actions were more than
50% of the proximate cause of the injury, assumption ofrisk and misuse do not bar recovery under
-22-
Illinois law, and instead the principle of comparative fault applies such that assumption ofrisk and
misuse may reduce damages. See Coney, 97 Ill. 2d at 119 ("However, the defenses of misuse and
assumption of the risk will no longer bar recovery. Instead, such misconduct will be compared in
the apportionment of damages."); Malen, 628 F .3d at313 ("Comparative fault applies so that
former defenses such as contributory negligence, assumption of risk, and misuse of the product
are merely damage-reducing factors."). Therefore, while the Court will assess whether Defendants
can assert these potentially damage reducing defenses at trial, neither will serve as an absolute bar
to liability.
Regarding assumption of risk, the defendant bears the burden of proving that"[ 1] plaintiff
knew the product was in a dangerous condition and [2] proceeded to use it in disregard of the
known danger." Cleveringa v. JI Case Co., 230 Ill. App. 3d 831, 852, 595 N.E.2d 1193, 1208
(1992) (citations omitted). "Assertion of this defense in a product liability suit requires proof that
the plaintiff voluntarily and umeasonably proceeded to encounter a known danger .... The test is
subjective because what must be considered is the state of mind of the particular plaintiff rather
than that of a reasonably prudent person."
Id.
Plaintiffs "age, experience, knowledge,
understanding" and "obviousness of the defect and the danger it poses," are all relevant
considerations. Id.
Here, there is at least some limited evidence creating a dispute of material fact regarding
assumption of risk.
Notably, the Instruction Manual in this case explicitly warns users to
"ALWAYS inspect the treestand and all safety devices prior to each use." (Dkt. No. 77-18 at 4.)
Further, Plaintiff testified that he read the instructions and warnings for the Treestand at issue and
tried to comply with them. (Dkt. No. 77-8 at 13 .) See Boland v. Kawasaki Motors Mfg. Corp. ,
USA, 309 Ill. App. 3d 645, 654, 722 N.E.2d 1234, 1242 (2000) (finding assumption of risk jury
-23-
instruction proper where labels warned ofrisk). Finally, Plaintiff is a welder, and therefore at least
arguably has greater knowledge regarding whether something constitutes an unintended welding
hole. (Id. at 6.) The evidence that Plaintiff would have had knowledge of the specific defect at
issue here is limited, yet the Court is cognizant that " [i]fthere is some evidence from which a jury
might infer plaintiffs assumption of the risk, then it is within the jury's province to determine that
issue." Id. Defendants met that standard here, and have proffered some evidence creating a dispute
of material fact whether Plaintiff knew of the defect based on the warning label, his statement that
he read and attempted to follow the warnings and instructions and his experience. Therefore,
Plaintiff is not entitled to summary judgment on Defendants' assumption of risk defense.
Finally, Plaintiff seeks summary judgment on Defendant's misuse defense. "Misuse is the
utilization of a product 'for a purpose neither intended nor ' foreseeable' [objectively reasonable]
by the defendant. "' Suich v. H & B Printing Mach. , Inc., 185 Ill. App. 3d 863 , 872, 541 N.E.2d
1206, 1212 (1989). Plaintiff focuses exclusively on the fact that he was purportedly using the
product for its intended and foreseeable purpose, namely as a climbing treestand, noting that
misuse is inapplicable when a product was merely used "in a manner neither intended nor
foreseeable."
Id. (emphasis in original).
However, Illinois courts have made clear that "a
manufacturer is entitled to have its instructions for the use of a product followed by the user .. .. [and
a] failure to follow instructions for the use of an object can be a use which is neither reasonably
foreseeable nor intended by the manufacturer."
Wheeler v. Sunbelt Tool Co. , 181 Ill. App. 3d
1088, 1104, 537 N.E.2d 1332, 1343 (1989). Here, it is undisputed that the instructions required
users of the Crusader Treestand to wear a safety harness attached to the tree and it is undisputed
that Plaintiff failed to attach his safety harness to the tree. Therefore, Defendants are entitled to
submit evidence of misuse.
-24-
IV.
Conclusion
For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN PART
Defendants' Motion for Summary Judgment (Dkt. No. 77). The Motion is GRANTED as to
Plaintiff' s claims for a design defect and failure to warn and the Court grants Summary Judgment
on those claims. The Motion is otherwise DENIED. The Court DENIES Plaintiff's Partial
Motion for Summary Judgment (Dkt. No. 82). 20
AND IT IS SO ORDERED.
Richard Mark
United States District Court Judge
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