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Moore v. BPS Direct, LLC

United States District Court, D. South Carolina, Charleston Division

July 8, 2019

Gene Victor Moore, Plaintiff,
v.
BPS Direct, LLC, Bass Pro, LLC, Global Manufacturing Company, LLC, G.M.C., LLC, and Mainstream Holdings, Inc., Defendants.

          ORDER AND OPINION

          Richard Mark Gergel United States District Court Judge

         Before the Court is Defendants' Motion for Summary Judgment (Dkt. No. 77) and Plaintiffs 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 ("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.)

         (Image Omitted)

(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 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 ¶ 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 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 foot section of his Treestand "felt like it slipped or it moved" and fell approximately a foot to two feet. (Id.) Plaintiff began to free-fall 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 "burn hole" that was caused by the welding process that was not part of the design of the Crusader Treestand. (Dkt. Nos. 77-10 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 Trade Practices Act ("SCUTPA"). (Id.)[4] Defendants now move for summary judgment on all four of Plaintiff s claims, and Plaintiff opposes. (Dkt. Nos. 77, 96, 107.) Concurrently, Plaintiff also moves for summary judgment as to Defendants' defenses of contributory negligence, assumption of risk 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 if the 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 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 of Ariz. 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, SC Code Ann. §§ 39-5-10, 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, 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., 231 Ill.2d 516, 543, 901 N.E.2d 329, 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, 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 ...


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