By Miriam A. Friedman, J.D.
Although the absence of expert testimony precluded a triable issue with regard to the lack of a safety on the trigger of a crossbow implicated in injuries sustained by a woman using the weapon, her design defect claim against the manufacturer could move forward based on the lack of a guard on the product, a federal district court in Texas ruled. The court also found no evidence in the record to support the consumer’s negligence claims. Therefore, the court granted in part and denied in part the manufacturer’s summary judgment motion on strict liability while granting its motion with regard to negligence and gross negligence (Kleppel v. Hunter’s Manufacturing Co., Inc., December 7, 2018, Hanen, A.).
The consumer lost part of her thumb while using a TenPoint Titan TL-4 crossbow, manufactured by Hunter’s Manufacturing Company, Inc. d/b/a TenPoint Crossbow Technologies. She sued the manufacturer, claiming strict products liability based on a design defect theory, negligence, and gross negligence. The manufacturer moved for summary judgment.
Design defect claim. Because the mechanics of crossbow triggers and the interaction of the trigger mechanism with a potential safety button constituted matters beyond the general experience and common understanding of laypersons, the court found that expert testimony was required to show that including a safety was "an economically and technologically feasible safer alternative design." Furthermore, the court pointed out that not only was it the consumer’s burden to show that a safer alternative design was feasible, the manufacturer had actually offered expert testimony that despite the fact that other models it produced did have a safety, such a safety would not work on the model in question. Because the consumer offered no expert testimony, her argument that the lack of a safety was a design defect was ineffective.
With regard to the issue of a guard, however, the court was not prepared to say, as a matter of law, that the consumer did not establish a factual issue as to the existence of a safer alternative design. As a preliminary matter, the court found that under the exception within Federal Rule of Evidence 407, the fact that the manufacturer ultimately distributed a guard for which it had applied for a patent prior to production of the model in question was admissible to provide the feasibility of precautionary measures. The court mentioned that, in contrast to the testimony regarding the safety, the manufacturer’s expert did not address the feasibility of adding a guard to the product. The court concluded that, despite the lack of expert testimony, "the patent application, together with the basic simplicity of the winged-grip design and [the manufacturer’s] eventual production of a TL-4-compatible Guard" suggested the existence of a fact issue regarding whether implementing a winged grip was "economically and technologically feasible" at the time the product in question was manufactured. That is, "the nearly unique degree of simplicity, involving a weapon that the manufacturer repeatedly states is over 2,000 years old, distinguishe[d] the instant case from much of the caselaw on the need for expert testimony."
Furthermore, the court found that the evidence indicating that the guard that was ultimately produced was designed "precisely to prevent or significantly reduce the risk of [this] type of injury," was enough that reasonable jurors could disagree about whether there was a safer alternative design. And with regard to the risk-utility analysis, the court found that this "was not a case where the evidence allows but one reasonable conclusion." As such, after delineating the relevant five factors, the court concluded that most of the factors were "hardly conclusive" and that the one remaining factor, although "implicat[ing] certain evidence favorable to the manufacturer with respect to the alleged obviousness of the danger and the provision of warnings with the product," was not sufficient to allow the court to rule that the product was not unreasonably dangerous as a matter of law. Finally, the court determined that there was, at a minimum, a fact question about whether the lack of a guard was a "producing cause"—i.e., a substantial and but-for cause—of the consumer’s injury.
Negligence and gross negligence claims. The court found that even assuming a post-sale duty to the consumer, there was no evidence that such a duty was breached. That is, the consumer had presented no expert testimony as to what a "reasonably prudent" crossbow manufacturer or seller would have done and no evidence setting out the appropriate standard of care or demonstrating that the manufacturer, or any of its employees, failed to conform to the appropriate standard of care. As such, the court concluded that the consumer did not meet her burden to produce sufficient evidence to support the essential elements of her negligence claims. Finally, because a defendant "cannot be grossly negligent without being negligent," the court found no basis for the gross negligence claim.
The case is No. 4:16-cv-03715.
Attorneys: Joseph Michael Gourrier (Joseph Michael Gourrier, Attorney at Law) for Kathy Kleppel. Jim Preston Wrotenbery (Klosterboer & Assoc.) and Barry B. Sutton (Clark Hill PLC) for Hunter's Manufacturing Co., Inc. d/b/a TenPoint Crossbow Technologies.
Companies: Hunter's Manufacturing Co., Inc. d/b/a TenPoint Crossbow Technologies
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