Opinion
No. 4:19-CV-00079-JRG-SKL
01-12-2023
Charles Evan MERRELL and Casey Merrell, Plaintiffs, v. SUMMIT TREESTANDS, L.L.C., Defendant.
Roger Dereck Layne, Davis, Kessler & Davis, Chattanooga, TN, for Plaintiffs. Barry Brys Sutton, Pro Hac Vice, Steven D. Brock, Pro Hac Vice, Clark Hill PLC, Birmingham, MI, Brandon Layne Morrow, Robert L. Bowman, Kramer, Rayson LLP, Knoxville, TN, for Defendant.
Roger Dereck Layne, Davis, Kessler & Davis, Chattanooga, TN, for Plaintiffs. Barry Brys Sutton, Pro Hac Vice, Steven D. Brock, Pro Hac Vice, Clark Hill PLC, Birmingham, MI, Brandon Layne Morrow, Robert L. Bowman, Kramer, Rayson LLP, Knoxville, TN, for Defendant. MEMORANDUM OPINION AND ORDER J. RONNIE GREER, UNITED STATES DISTRICT JUDGE
This matter is before the Court on Defendant's Motion for Summary Judgment [Doc. 37]. Plaintiffs have not responded to Defendant's motion and the time to do so has expired. See E.D. Tenn. L.R. 7.1(a). For the reasons stated herein, Defendant's motion is GRANTED.
I. BACKGROUND
Plaintiff Charles Merrell is an experienced hunter who was injured when he fell from a tree while using his 2012 Viper Climbing Treestand (the "treestand") which was manufactured and designed by Defendant Summit Treestands. [Compl., Doc. 1 ¶¶ 11-14.]
A. The Treestand.
The treestand is a climbing treestand that enables hunters to climb trees and hunt from an elevated position. [Def.'s Statement Undisputed Facts, Doc. 37-1 ¶¶ 2-5.] It is comprised of two primary components: an upper climber/seat attachment (the "climber") and a lower standing platform ("the platform"). [Id.] The climber and the platform each have "teeth" to grip trees and a cable system to secure them to trees. [Id.] The treestand, which is sold as a set, also comes with a safety harness that connects a hunter to their tree in case of a fall; a tether that attaches the climber to the platform; and written warnings and an instructional DVD that explains how to use the product and unequivocally warns hunters not to use the treestand without a safety harness. [Id. ¶¶ 2-5, 35, 50.]
The cable system, which is the component at issue in this action, consists of a cable assembly (a wire rope with cable stops swaged at various intervals), a cable bracket with a keyhole slot, and a cable retention spring and release. [Id. ¶¶ 21-28.] To secure the climber and the platform to a tree, a hunter places the components' teeth against a tree, wraps the cable assembly around the tree, and inserts the cable stops into the cable bracket's keyhole slot. [Id. ¶¶ 5, 21-26.] Once the cable stops pass through the keyhole, they are automatically secured by the cable retention spring. [Id.] To detach the climber and the platform, the cable retention spring must be manually disengaged with the release. [Id.]
To climb a tree with the treestand, hunters shinny the climber and the platform up and down the tree by transferring their weight from one component to the next which causes the components' teeth to detach and reattach the tree. [Id. ¶¶ 5-8.] A complete revolution moving both components up or down a tree is called a "cycle." [Id. ¶ 79.]
Mr. Merrell acquired his treestand directly from Defendant in 2015 as a replacement for an older, recalled model and he used it extensively prior to his 2018 accident—several times per week during hunting season from September through January. [Compl., Doc. 1 ¶ 9; Attach. 4 Def.'s Mot. Summ. J., Doc. 37-4 at 28:3-7; 76:1-22.] At his deposition, he testified that he did not recall whether his treestand came with written instructions or an instructional DVD, but he admits that if it did, he would have read and watched them. [Attach. 4 Def.'s Mot. Summ. J., Doc. 37-4 at 30:1-19.] Nevertheless, he acknowledged that he had no questions or concerns regarding the operation of the treestand. [Id.] Indeed, as an experienced hunter with approximately two decades' experience, he knew how to use the treestand and was aware of its risks, including the risk of falling if using it without a safety harness. [Id. at 7:4-5; 34:8-24; 11:22-14:8; 46:20-47:10.] Moreover, due to his job as a cable and telephone installer, he understood the importance of wearing a safety harness while working at heights. [Id.]
B. Mr. Merrell's Accident.
On December 7, 2018, the day of his accident, Mr. Merrell arrived at his hunting position at around daybreak. [Id. at 94:13-96:4.] Using a flashlight, he inspected the treestand and noted no damage or defects. [Id. at 91:6-10; 96:18-98:2.] He then attached the treestand to a tree—he testified that it was attached correctly and that the cable assembly was properly secured into the cable bracket. [Id.] He did not, however, bring the treestand's harness or secure himself to the tree using any other restraint. [Id. at 102:1-3.] Mr. Merrell then climbed to height, approximately twenty feet above the ground, with no issues and hunted for several hours. [Id. at 91:13-14; 98:3-4; 103:23-25; 106:2-5.]
Mr. Merrell's accident occurred as he was descending from the tree. [Id. at 104:22-105:4; 108:20-109:3.] On his second or third cycle down, when he put his weight on the climber to detach and lower the platform, he heard a ping noise and fell backwards out of the tree. [Id.] After his fall he noticed that the climber's cable assembly was loose; during his descent, however, he did not notice anything wrong with the treestand or cable system. [Id. at 119:6-18.] Ultimately, he testified that he does not know how the cable came loose and he never tried to determine why he fell. [Id. at 119:3-5; 128:22-23.]
II. PROCEDURAL POSTURE
On December 5, 2019, Plaintiffs filed this suit against Defendant for negligence, strict liability, intentional conduct, failure to warn, and breach of warranties. [Compl. Doc. 1.] Additionally, Mrs. Merrell asserted a loss of consortium claim. [Id.] Plaintiffs allege that the treestand was defective and unreasonably dangerous because, unlike older models, the cable bracket does not have a cover plate to prevent the cable assembly from popping out. [Attach. 12 Def.'s Mot. Summ. J., Doc. 37-12 ¶¶ 13, 14.] They further allege that the cable retention spring release is inadequate. [Id.]
On August 23, 2022, Defendant moved the Court for summary judgment on Plaintiffs' claims. [Doc. 37]. Defendant argues, inter alia, that Plaintiffs have not established a prima facie case for products liability because they have no proof that the treestand was defective or unreasonably dangerous and, even if they did, it was not the proximate cause of Mr. Merrell's injuries. [Def.'s Br. Supp. Mot. Summ. J., Doc. 37-2 at 12-20.] Defendant further argues that because Mr. Merrell's claims fail, Mrs. Merrell's derivative loss of consortium claim must also fail. [Id. at 24 n.6.]
In support of its motion, Defendant submitted a 2011 Member Certification Report from the Treestand Manufacturer's Association certifying that the treestand passed design and safety testing by an independent testing firm. [Attach. 8 Def.'s Mot. Summ. J., Doc. 37-8; see also Attach. 10 Def.'s Mot. Summ. J., Doc. 37-10.] The report also certifies that, at the time of design, the treestand met or exceeded industry design and safety standards. [Id.]
Defendant has disclosed two expert witnesses who have submitted affidavits in support of its motion for summary judgment—George M. Saunders, Jr., a licensed mechanical engineer specialized in engineering investigations of hunting products, and Lorne Smith, Jr., a Mississippi certified hunting safety instructor and hunting accident investigator. [Attach. 3 Def.'s Mot. Summ. J., Doc. 37-3 ¶¶ 1-7; Attach. 7 Def.'s Mot. Summ. J., Doc. 37-7 ¶¶ 1-10.] Both of Defendant's experts interviewed Mr. Merrell and inspected the treestand. [Attach. 3 Def.'s Mot. Summ. J., Doc 37-3 ¶ 15; Attach. 7 Def.'s Mot. Summ. J., Doc. 37-7 ¶ 11.] They requested to inspect the site of Mr. Merrell's accident but Mr. Merrell refused to facilitate an inspection. [Attach. 3 Def.'s Mot. Summ. J., Doc 37-3 ¶ 15; Attach. 4 Def.'s Mot. Summ. J., Doc. 37-4 at 152:12-25; Attach. 7 Def.'s Mot. Summ. J., Doc. 37-7 ¶ 14.] Mr. Saunders' affidavit provides that the treestand's design is consistent with all Summit treestand designs for the fourteen years prior to Mr. Merrell's accident; the treestand's condition is serviceable and does not exhibit any deviation from its intended design and function; and that it exhibits no evidence of component failure, defect, or malfunction. [Attach. 3 Def.'s Mot. Summ. J., Doc 37-3 ¶¶ 11, 19.] His affidavit further provides that the cable bracket exhibits contact damage evidencing improper, partial insertion of the cable assembly on three separate occasions. [Id. ¶ 22.] Mr. Smith's affidavit states that when used as instructed, the treestand's safety harness will prevent a hunter from falling to the ground in the occurrence of a fall. [Attach. 7 Def.'s Mot. Summ. J., Doc. 37-7 ¶¶ 44-45.]
Plaintiffs have not responded to Defendant's motion and the time for doing so has expired. E.D. Tenn. L.R. 7.1(a). Moreover, Plaintiffs have not disclosed any expert testimony regarding the treestand's alleged defectiveness and unreasonably dangerous condition. [Def.'s Br. Supp. Mot. Summ. J., Doc. 37-2 at 1; Scheduling Order, Doc. 32.]
III. LEGAL STANDARD
Summary judgment is proper when the moving party shows, or "point[s] out to the district court," Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), that the record—the admissions, affidavits, answers to interrogatories, declarations, depositions, or other materials—is without a genuine issue of material fact and that the moving party is entitled to judgment as a matter of law, Fed. R. Civ. P. 56(a), (c). The moving party has the initial burden of identifying the basis for summary judgment and the portions of the record that lack genuine issues of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The moving party discharges that burden by showing "an absence of evidence to support the nonmoving party's" claim or defense, id. at 325, 106 S.Ct. 2548, at which point the nonmoving party, to survive summary judgment, must identify facts in the record that create a genuine issue of material fact, id. at 324, 106 S.Ct. 2548.
Not just any factual dispute will defeat a motion for summary judgment—the requirement is "that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" if it may affect the outcome of the case under the applicable substantive law, and an issue is "genuine" if the evidence is "such that a reasonable jury could return a verdict for the nonmoving party." Id. In short, the inquiry is whether the record contains evidence that "presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52, 106 S.Ct. 2505. When ruling on a motion for summary judgment, a court must view the facts and draw all reasonable inferences in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). "[T]he judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249, 106 S.Ct. 2505. A court may also resolve pure questions of law on a motion for summary judgment. See Hill v. Homeward Residential, Inc., 799 F.3d 544, 550 (6th Cir. 2015).
Where, such as here, a plaintiff fails to respond to a defendant's motion for summary judgment, the defendant is not entitled to a walkover. See Sammons v. Baxter, No. 1:06-cv-137, 2007 WL 325752, at *2 (E.D. Tenn. Jan. 31, 2007) (A party's failure to oppose "a summary judgment motion does not automatically result in the Court granting the motion. Rather, pursuant to well-established precedent, in the context of a summary judgment motion, the Court must still examine the record and determine whether the movant has met its burden . . . . Thus . . . a party seeking summary judgment must meet its burden as movant regardless of whether the nonmovant files a response[.]" (citing Stough v. Mayville Cmty. Sch., 138 F.3d 612, 614 (6th Cir. 1998); Wilson v. City of Zanesville, 954 F.2d 349, 351 (6th Cir. 1992); Carver v. Bunch, 946 F.2d 451, 454-55 (6th Cir. 1991))). The Court will therefore hold Defendant to its burden and not impart any leeway to it based on the fact that Plaintiffs have not responded to its motion.
IV. ANALYSIS
The Tennessee Products Liability Act ("TPLA") provides the statutory framework for bringing defective product claims against manufacturers and sellers and it "supersede[s] common law claims for personal injuries stemming from alleged defects in products or failures to warn of the dangers associated with a product." Coffman v. Armstrong Int'l, Inc., 615 S.W.3d 888, 895 (Tenn. 2021). Accordingly, Plaintiffs' claims for negligence, strict liability, intentional conduct, failure to warn, and breach of warranty are governed by the TPLA.
To establish a prima facie products-liability claim a "plaintiff must show: (1) the product was defective and/or unreasonably dangerous, (2) the defect existed at the time the product left the manufacturer's control, and (3) the plaintiff's injury was proximately caused by the defective product." Sigler v. Am. Honda Motor Co., 532 F.3d 469, 483 (6th Cir. 2008) (citations omitted). Under prong one, "defective conditions" and "unreasonably dangerous conditions" are alternatives; thus, a plaintiff may rely on either or both to satisfy the prong. Hill v. Kia Motors Am., Inc., Nos. 20-5690/5693, 2022 WL 557823, at *8 (6th Cir. Feb. 24, 2022).
A. Plaintiffs Have Offered No Proof that The Treestand was Defective.
Prong one's first alternative, "defective condition," means "a condition of a product that renders it unsafe for normal or anticipatable handling and consumption[.]" Tenn. Code Ann. § 29-28-102(2). To establish a defective condition, plaintiffs must identify a "specific error in construction or design of the product." Fulton v. Pfizer Hosp. Prods. Grp., Inc., 872 S.W.2d 908, 912 (Tenn. Ct. App. 1993) (cleaned up and quoting Browder v. Pettigrew, 541 S.W.2d 402, 404 (Tenn. 1976)). Under a negligence theory, "the plaintiff has the additional burden of proving that the defective condition of the product was the result of negligence in the manufacturing process or that the manufacturer or seller knew or should have known of the defective condition." Browder, 541 S.W.2d at 404.
Defectiveness "may be proven by direct evidence, circumstantial evidence, or a combination" of both. Id. at 405. "[F]actors to consider in assessing a product's defectiveness include technology, knowledge, customary designs, etc. of similar products at the time of manufacture" as well as "consumer knowledge about the risks inherent in the use of a product[.]" Silver v. Nat. Presto Indus., Inc., 884 F.2d 1393 (Table), at *4 (6th Cir. Sept. 15, 1989) (citations omitted). "[A]s a rule the mere occurrence of an accident is not sufficient to establish that the product was not fit for ordinary purposes." Browder, 541 S.W.2d at 406 (quoting Scanlon v. Gen. Motors Corp., 65 N.J. 582, 326 A.2d 673, 676 (1974)). Nor is defectiveness "demonstrated where it is simply shown that there was a better, safer, or different design which would have averted the injury." Kerley v. Stanley Works, 553 S.W.2d 80, 84 (Tenn. Ct. App. 1977) (citations omitted). Occasionally, defectiveness may be demonstrated using the "malfunction doctrine" which allows a defect to be inferred by the occurrence of an accident plus "additional circumstantial evidence, such as proof of proper use, handling or operation of the product and the nature of the malfunction[.]" Browder, 541 S.W.2d at 406 (quoting Scanlon, 326 A.2d at 676).
Plaintiffs have introduced no evidence from which a reasonable jury could find that the treestand's cable system was defective, such as proof regarding general treestand/cable system technology, customary designs, or evidence of similar products at the time of the treestand's manufacture. Silver, 884 F.2d 1393 (Table) at *4 (citations omitted). As to their negligence claim, they have not introduced any evidence regarding Defendant's design and manufacturing processes. Browder, 541 S.W.2d at 404 (citations omitted). Conversely, Defendant has submitted material proof that the treestand was designed and manufactured in accordance with industry standards and passed safety testing. [Attach. 8 Def.'s Mot. Summ. J., Doc. 37-8; see also Attach. 10 Def.'s Mot. Summ. J., Doc. 37-10.]
Plaintiffs' only proof of defectiveness is Mr. Merrell's anecdotal testimony regarding an older model treestand that had a cover plate over the cable bracket and his opinion that the cable system's trigger release is inadequate. [Attach. 4 Def.'s Mot. Summ. J., Doc. 37-4 at 150:6-151:14; Attach. 12 Def.'s Mot. Summ. J., Doc. 37-12 ¶¶ 13, 14.] Proof of a different design, however, is not evidence of defectiveness. Kerley, 553 S.W.2d at 84 (citations omitted). Moreover, despite Mr. Merrell's experience as a hunter, nothing in the record indicates that he is qualified to render opinions regarding treestand/cable system design or manufacturing. See Fed. R. Evid. 701, 702, 705; Cf. Wilson v. Summit Treestands, Inc., No. 1:18-cv-294, 2021 WL 5281601, at *9 (E.D. Tenn. Mar. 19, 2021) (denying defendant's motion for summary judgment where plaintiff introduced expert testimony opining that treestand design flaw could result in false positives when attaching cable). Nor have Plaintiffs disclosed an expert to render opinions on those topics, and the time for such disclosures is expired. [Def.'s Br. Supp. Mot. Summ. J., Doc. 37-2 at 1; Scheduling Order, Doc. 32.]
The Court will not allow Plaintiffs to proceed to a jury on the malfunction doctrine even though an accident occurred and Mr. Merrell self-servingly testified that, at the time of the accident, the treestand was properly secured to the tree. Tennessee courts and courts in this Circuit have applied the doctrine only sparingly where "it is difficult or impossible to establish a defect by direct evidence." Mack Indus., Inc. v. Edward T. Sitarik Contracting, Inc., No. 1:07 CV 2402, 2010 WL 1258098, at *6 (N.D. Ohio Mar. 26, 2010). Generally, that has been in circumstances where the product at issue was new or like new and/or the product's malfunction involved complex internal and/or electronic components. See Hill, 2022 WL 557823, at *8 (applying malfunction doctrine where internal electronic components at issue in car accident); Browder, 541 S.W.2d at 403, 406 (applying malfunction doctrine where 1971 vehicle involved in 1971 accident).
Those circumstances do not exist here. Although the tree stand was only used for three years, the malfunction involved an external, manual component. Further, the record is devoid of any explanation why Plaintiffs—who have the treestand in their possession, have not disclosed any expert witnesses, and failed to respond to Defendant's summary judgment motion—should be allowed to proceed to a jury under this limited doctrine. The Court can find no reason.
Ultimately, the material facts in the record show that the treestand's design was common and customary; its condition was serviceable and did not exhibit any deviation from its intended design and function; and it exhibited no evidence of component failure, defect, or malfunction. [Attach. 3 Def.'s Mot. Summ. J., Doc 37-3 ¶ 11, 19.] Accordingly, based on the record evidence, no reasonable jury could conclude that it was defective.
B. Plaintiffs Cannot Establish that The Treestand's Design was Unreasonably Dangerous.
Prong one's second alternative, "unreasonably dangerous," means "a product is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it . . . or that the product because of its dangerous condition would not be put on the market by a reasonably prudent manufacturer or seller[.]" Tenn. Code Ann. § 29-28-102(8). Importantly, "[i]t is not required that [a product's] design be perfect, or render the product accident proof or incapable of causing injury." Curtis ex rel. Curtis v. Universal Match Corp., Inc., 778 F.Supp. 1421, 1430 (E.D. Tenn. 1991).
"Tennessee law provides two tests for determining whether a product is unreasonably dangerous[,]" the "consumer expectation test" and the "prudent manufacturer test." Sigler, 532 F.3d at 483-84. The tests "are not exclusive of one another and therefore either one or both of [them] are applicable to cases where the product is alleged to be unreasonably dangerous." Jackson v. Gen. Motors Corp., 60 S.W.3d 800, 806 (Tenn. 2001). Notwithstanding their theoretical applicability, the tests have "distinct and important differences" that limit their practical application. Ray ex rel. Holman v. BIC Corp., 925 S.W.2d 527, 531 (Tenn. 1996).
The consumer expectation test considers buyers' expectations of a product's performance and safety. Id. Thus, it applies to products with which ordinary consumers have everyday experience and expectations of safety—products such as can openers and coffee pots, id., and seatbelts, Jackson, 60 S.W.3d at 804. Additionally, it applies to the obvious failures of simple components. Bradley v. Ameristep, Inc., 800 F.3d 205, 211 (6th Cir. 2015) (consumer expectation test applicable where treestand's ratchet strap degraded after minimal exposure to outdoor elements). Because the test requires a jury to "employ its own sense of whether the product meets ordinary expectations" expert testimony is not required. Id. at 210-11 (quoting Jackson, 60 S.W.3d at 805-06).
The prudent manufacturer test considers whether, given knowledge of a product's condition, "a prudent manufacturer would market the product." Coffey v. Dowley Mfg., Inc., 187 F.Supp.2d 958, 968 (M.D. Tenn. 2002) (citing BIC, 925 S.W.2d at 530). It is applicable to assessing failures of "complex products and complex failures of simple products[,]" id. (citations omitted), and it applies to products such as fuel-injection engines, BIC, 925 S.W.2d at 531, radiators, Simpson v. O'Reilly Auto. Stores, Inc., No. 2:13-cv-2684-SHL-cgc, 2014 WL 11514969, at *6 (W.D. Tenn. Dec. 30, 2014), and boom trucks, Johnson v. Manitowoc Boom Trucks, Inc., 484 F.3d 426, 428-29 (6th Cir. 2007). Because the test focuses on manufacturers, consumer knowledge is irrelevant. BIC, 925 S.W.2d at 531. Further, because it considers factors beyond those which an ordinary consumer would have knowledge, it must be supported by expert testimony. Irion v. Sun Lighting, Inc., No. M2002-00766-COA-R3-CV, 2004 WL 746823, at *7 (Tenn. Ct. App. Apr. 7, 2004).
A treestand is not an everyday item for which an ordinary consumer would have an expectation of performance and safety. See BIC, 925 S.W.2d at 531. Even more so, a treestand cable system, as compared to a simple ratchet strap, is not a component that an ordinary consumer would have any familiarity with or expectations about. See Bradley, 800 F.3d at 211. Indeed, as far as the Court can tell, treestands like the one at issue are the only consumer products with such a cable system. Accordingly, the Court finds that the prudent manufacturer test is the applicable test for assessing whether the treestand and the cable system are unreasonably dangerous. Because Plaintiffs have not disclosed an expert to testify regarding the prudence of manufacturing the product, they cannot establish that it was unreasonably dangerous. Further, as previously discussed, the record proof demonstrates that the treestand was designed and manufactured in accordance with industry standards and passed safety testing. [Attach. 8 Def.'s Mot. Summ. J., Doc. 37-8; see also Attach. 10 Def.'s Mot. Summ. J., Doc. 37-10.]
Because Plaintiffs cannot establish that the cable system was defective or unreasonably dangerous, they cannot make out a prima facie products-liability claim. Accordingly, Plaintiffs' products liability claims are DISMISSED.
C. Mrs. Merrell's Derivative Loss of Consortium Claim Fails.
Under Tennessee law, a loss of consortium claim is a derivative claim that is subject to dismissal when the underlying claim is dismissed. See Waterhouse v. Tenn. Valley Auth., 475 F.Supp.3d 817, 827-28 (E.D. Tenn. 2020). Because the Court has dismissed Mr. Merrell's products liability claims, Mrs. Merrell's loss of consortium claim also fails and, accordingly, is DISMISSED.
V. CONCLUSION
For the reasons stated above Defendant's Motion for Summary Judgment [Doc. 37] is GRANTED.
So ordered.