United States District Court, D. South Carolina, Anderson Division
Phillip Wade GRIMES, Personal Representative of the Estate of O.G., Plaintiff,
YOUNG LIFE, INC., Inner Quest, Inc., and Adventure Experiences, Inc., Defendants.
T. Smith, Law Offices of Brian T. Smith, Christina M.
Bradford, U.S. District Court, Greenville, SC, Lee Delton
Gunn, IV, Pro Hac Vice, Ryan A. Lopez, Pro Hac Vice, Gunn Law
Group PA, Tampa, FL, for Plaintiff.
Charles Rogers, Smith Moore Leatherwood LLP, W. Howard Boyd,
Jr., Gallivan White and Boyd, Greenville, SC, for Defendants.
OPINION & ORDER
M. HERLONG, JR., SENIOR UNITED STATES DISTRICT JUDGE
matter is before the court on Plaintiff Phillip Wade
Grimes' ("Grimes") motion for partial summary
judgment; and Defendant Inner Quest, Inc.'s ("Inner
Quest") motion for summary judgment, and motions in
limine to exclude the testimony of Grimes' expert
witnesses, William H. Avery, III ("Avery") and
Edward M. Pribonic ("Pribonic"). After
consideration, the court grants in part and denies in part
Grimes' motion for partial summary judgment and denies
Inner Quest's motion for summary judgment and motions in
FACTUAL AND PROCEDURAL BACKGROUND
case arises out of the death of Olivia Grimes
("Olivia"), at Young
Carolina Point camp facility in July 2015. (Def. Mem. Supp.
Mot. Summ. J. 2, ECF No. 140-1.) Carolina Point is a
"challenge course" facility, which includes
high-ropes courses, zip lines, and a three-person giant swing
(the "Swing"). (Id. at 3, ECF No. 140-1.)
Inner Quest designed and built the Swing pursuant to a
contract with Young Life.
(Id. at 3, ECF No. 140-1.) The Swing was designed
with a single connection point between the rider's body
harness and the Swing's crossbar, which is designed to
prevent the rider from falling out of the Swing during
operation. (Id. at 5, ECF No. 140-1.) Olivia was
killed when she fell from the Swing. (Id. at 2, ECF
No. 140-1) The parties agree that a Young
Life employee failed to attach a carabiner
connecting Olivia's body harness to the Swing's
crossbar. (Def. Mem. Supp. Mot. Summ. J. 2, ECF No. 140-1);
(Pl. Resp. Opp'n Mot. Summ. J. 1, ECF No. 151.)
December 2, 2015, Phillip Wade Grimes ("Grimes"),
Olivia's personal representative, filed the instant case
alleging wrongful death and survival claims for negligence,
gross negligence, and strict liability in the Circuit Court
for Polk County, Florida. (Not. Removal Ex. 1 (State Ct.
Docs. 10), ECF No. 1-1.) Grimes alleges that Inner Quest was
negligent, grossly negligent, and is strictly liable for
designing the Swing in a manner that made it unreasonably
dangerous and for failing to warn Young
Life that the Swing was unreasonably
dangerous. (Sec. Am. Compl. ¶¶ 57-94, ECF No. 82.)
Young Life and Adventure
Experiences, Inc. ("Adventure Experiences") removed
the case to the United States District Court for the Middle
District of Florida on January 5, 2016. (Not. Removal, ECF
No. 1.) The case was transferred to this court pursuant to 28
U.S.C. § 1406(a). (May 2, 2016 Order, ECF No. 31.)
April 5, 2017, Inner Quest filed a motion for summary
judgment. (Def. Mot. Summ. J., ECF No. 140.) Inner Quest
moves for summary judgment on the basis that: (1) Inner Quest
did not proximately cause Grimes' damages; (2)
Young Life substantially
modified Inner Quest's operational procedures for the
Swing, which bars Grimes from recovering under a design
defect theory; (3) Grimes cannot recover under a design
defect theory because the Swing conformed to industry
standards; (4) Inner Quest's alleged failure to warn was
not the proximate cause of Grimes' damages; (5) Inner
Quest had no duty to warn Grimes because
Young Life was a
sophisticated user or learned intermediary; (6) the survival
claim should be dismissed because there is no evidence that
Olivia suffered conscious pain and suffering; (7) Grimes'
punitive damages claim must be dismissed because punitive
damages cannot be awarded on the basis of strict liability
and Grimes cannot present clear and convincing evidence that
Inner Quest consciously disregarded a known risk of injury to
others. (Id., generally, ECF No. 140-1.) Grimes
responded in opposition on April 19, 2017. (Pl. Resp.
Opp'n Mot. Summ. J., ECF No. 151). On April 26, 2017,
Inner Quest replied. (Def. Reply Supp. Summ. J., ECF No.
April 5, 2017, Inner Quest filed motions in limine to exclude
the testimony of Avery and Pribonic. (Def. Mot. Limine
Exclude Avery, ECF No. 142); (Def. Mot. Limine Exclude
Pribonic, ECF No. 141.) Inner Quest argues that Avery and
Pribonic's testimony should be excluded because they lack
the necessary experience to qualify as experts and their
opinions are unreliable or irrelevant. (Id., ECF
Nos. 141 & 142.) Grimes responded on April 19, 2017. (Pl.
Resp. Opp'n Mot. Limine Exclude Avery, ECF No. 153); (Pl.
Resp. Opp'n Mot. Limine Exclude Pribonic, ECF No. 152.)
Inner Quest did not reply.
April 5, 2017, Grimes filed a motion for partial summary
judgment. (Pl. Mot. Partial Summ. J., ECF No. 143.) Grimes
argues that summary judgment is appropriate on the following
issues: (1) Inner Quest was solely responsible for the design
of the Swing; (2) Olivia was without fault for her injury and
death; (3) Inner Quest was engaged in the business of selling
giant swings; (4) the Swing was expected to and reached
Olivia and Young Life
without substantial change in the condition in which it was
sold; (5) Olivia's death was proximately caused by a
foreseeable use of the Swing; (6) a reasonable alternative
design was feasible; (7) compliance with industry standards
or the state of the art is not a bar to recovery in this
case; (8) the sophisticated user defense is not applicable;
(9) Olivia's "Camping Health, Consent and Release
Form" does not shield Inner Quest from liability; (10)
assumption of the risk is not applicable; and (11) S.C. Code
Ann. § 15-73-20 is not applicable. (Pl. Mem. Supp. Mot.
Partial Summ. J., generally, ECF No. 143-1.) Inner Quest
responded on April 19, 2017. (Def. Resp. Opp'n Mot.
Partial Summ. J., ECF No. 149.) On April 26, 2017, Grimes
replied. (Pl. Reply Supp. Partial Summ. J., ECF No. 161.)
This matter is now ripe for consideration.
DISCUSSION OF THE LAW
Summary Judgment and Partial Summary Judgment
summary judgment "is merely a pretrial adjudication that
certain issues shall be deemed established for the trial of
the case." Fed.R.Civ.P. 56 advisory committee's note
(1946). A motion for partial summary judgment is judged by
the same standard as a full motion for summary judgment.
In re Boston Sci. Corp., Pelvic Repair Sys. Prods. Liab.
Litig., No. 2:12-cv-00904, 2015 WL 1527678, at *1 (S.D.
W.Va. Apr. 2, 2015) (unpublished).
judgment is appropriate only "if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). In deciding whether a genuine issue of
material fact exists, the evidence of the non-moving party is
to be believed and all justifiable inferences must be drawn
in his favor. SeeAnderson v. Liberty Lobby,
Inc.,477 U.S. 242, 255 (1986). However, "[o]nly
disputes over facts that might affect the outcome of the suit
under the governing law will ...