United States District Court, D. South Carolina, Charleston Division
ORDER AND OPINION
Richard Mark Gergel United States District Court Judge
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.
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.)
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.)
(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.)
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 ¶
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. (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." (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." (Id. at 28 - 29.) At the end
of the incident, "everything c[ame] to the ground."
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.)
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.) 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.)
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.
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)).
Defendants' Motion for Summary Judgment (Dkt. No.
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. The Court addresses each
Strict Liability Claims
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.
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.
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.)
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. Specifically, Plaintiffs mechanical
engineering expert, Dr. Jahan Rasty, opines in both his
Report and his deposition that the presence of the ...