Grimes v. Young Life, Inc.

          Brian 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.

          Robert Charles Rogers, Smith Moore Leatherwood LLP, W. Howard Boyd, Jr., Gallivan White and Boyd, Greenville, SC, for Defendants.

          OPINION & ORDER

          HENRY M. HERLONG, JR., SENIOR UNITED STATES DISTRICT JUDGE

         This 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 limine.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         This case arises out of the death of Olivia Grimes ("Olivia"), at Young Life, Inc.'s ("Young Life") 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.)

         On 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.)

         On 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. 160.)

         On 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.

         On 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.^[1] (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.

         II. DISCUSSION OF THE LAW

         A. Summary Judgment and Partial Summary Judgment Standard

         Partial 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).

         Summary 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 ...