Product Liability Update - October 2015

Foley Hoag LLP

Massachusetts Federal Court Holds Proof of Testing of Proposed Alternative Design Not Required in Design Defect Claim, Evidence Plaintiff Ignored Defendant’s Warnings Did Not Establish He Was Sole Proximate Cause of Injury on Design Defect Claim But Did Negate Causation for Failure to Warn -

In Garfield v. Gorilla, Inc., 2015 U.S. Dist. LEXIS 85689 (D. Mass. July 1, 2015), a hunter setting up his tree stand was severely injured when the steel cables suspending the stand’s platform gave way and he fell approximately 20 feet to the ground. The stand came with a full-body safety harness and both written and video safety instructions which repeated multiple times that “[u]sing your fall arrest device from the moment you leave the ground until the moment you return to the ground is the single most important action you can take to prevent a tree stand accident that could result in injury or death.” The written instructions also warned the user to inspect the stand before use, never use it if damaged, replace the cables every three years and never keep the stand in a tree for more than two consecutive weeks. Plaintiff was familiar with and understood these instructions but was not wearing the harness at the time of his accident. He sued the stand’s manufacturer and seller in the United States District Court for the District of Massachusetts for breach of the implied warranties of merchantability (the Massachusetts near-equivalent of strict liability) and fitness for a particular purpose, alleging the stand’s cables were defectively designed because they were susceptible to weakening from corrosion over time and defendants failed to warn of this danger. The seller moved for summary judgment on all claims, arguing (1) plaintiff’s proposed safer alternative design (stainless rather than galvanized steel cables) was untested and therefore not shown to be feasible, (2) his failure to wear the harness or heed other instructions was the sole cause of his injuries and (3) for the same reason additional warnings would not have prevented the accident.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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