By Pamela C. Maloney, J.D.
Parents of a minor who was seriously injured when a fiberglass arrow shot from a compound bow shattered sufficiently pleaded that the arrow manufacturer’s failure to warn the retailer and the consumer proximately caused the accident and that the arrow was defectively manufactured.
A fiberglass arrow manufacturer’s motion to dismiss products liability manufacturing defect and various failure to warn claims brought on behalf of a minor who was seriously injured when the arrow exploded after being shot from a compound bow was denied by the U.S. District Court for the Northern District of Georgia because the complaint adequately pleaded that the lack of package warnings and a manufacturing defect were proximate causes of the minor’s injuries. The parent’s negligence claim, which was based on the arrow manufacturer’s alleged failure to instruct the retailer about the product also survived the motion to dismiss However, the parent’s breach of implied warranty claim was dismissed because there was no privity between the manufacturer and the minor who was the ultimate user of the arrow (Morgan v. Dick’s Sporting Goods, Inc., February 13, 2019, Story, R.).
A minor sustained serious injury to his left hand and thumb when a brand-new fiberglass arrow exploded as it was fired from a brand-new compound bow. Splintered pieces of fiberglass became imbedded in the minor’s hand and thumb, requiring immediate removal surgery. Unfortunately, not all of the shards of fiberglass could be removed during the initial surgery and the minor underwent several additional removal procedures as the shards worked their way to the top of his skin. The parents filed products liability claims against Precisions Shooting Equipment, Inc. (PSE), the manufacturer of the fiberglass arrow, and Dick’s Sporting Goods, Inc., the retail seller of both the bow and the arrow. The complaint set forth claims for negligent failure to warn, products liability failure to warn, products liability manufacturing defect, and breach of implied warranty. PSE moved to dismiss the complaint for failure to state a claim.
Duty to warn retailer. The parents’ alleged that the manufacturer was negligent in failing to warn the retailer that the arrows should be displayed in such a way to prevent damage and that youth fiberglass arrows should not be sold with compound bows. They further alleged that the manufacturer had been negligent in not implementing protocols with its retailers to ensure that these safety measures were implemented. The court was not convinced that this was a cognizable claim under Georgia law, which imposed a duty on the manufacturer to warn consumers based on the products liability failure to warn test of foreseeability of use, foreseeability of danger, and the user’s knowledge of the product. Neither party had identified any authority discussing a consumer’s right to bring an action against a manufacturer for failing to warn a retailer. Moreover, the court expressed its doubts that the parents even had standing to bring such a claim.
However, finding that the parents had pled proximate cause and the other elements necessary for a general negligence claim, and in the absence of authority to support the parties’ arguments for or against the claim, the court permitted this negligent failure to warn claim to proceed in order for the parties to develop evidence that would help the court resolve this issue.
Failure to read instructions. The arrow manufacturer argued that the court should dismiss the parents’ claim that the packaging of the arrows did not contain a warning regarding the use of fiberglass arrows with compound bows, even though the arrow maker knew that the bow manufacturer had not recommended these arrows for use with its compound bows. According to the arrow maker, the lack of warnings on the arrow packaging was not the proximate cause of the minor’s injuries because the parents had not read the printed warning on the compound bow’s packaging. However, the arrow manufacturer could not piggy-back off the warnings on a completely separate product. The parents’ allegations that had a warning not to use fiberglass arrows with compound bows been provided with the arrows, they would not have used them and the injuries at issue would not have occurred was sufficient to plead proximate cause and to survive a motion to dismiss.
The court additionally held that the arrow manufacturer’s argument that it had no duty to warn in this case because the parents were aware of the incompatibility danger posed by the use of fiberglass arrows with compound bows was an evidentiary matter that could not be determined as a matter of law.
Open and obvious danger. The arrow manufacturer also argued that it had no duty to warn consumers that damaged or defective arrows could fail during use and result in injury to the user because the danger was obvious. The issue of whether a danger was open and obvious was to be determined from an objective, rather than a subjective, point of view, the court explained, adding that the parents’ actual knowledge of the danger was not necessary to invoke the open and obvious danger rule. In this instance, the fact that arrows are a product that can cause injury was obvious, but the type of harm allegedly sustained by the minor was outside of the scope of the type generally contemplated. The minor was not shot by an arrow, but was injured when a new arrow exploded, which was not an open and obvious danger associated with the use of arrows. Thus, the court could not hold, at this stage in the litigation, that the danger in this case was open and obvious, and that no warnings were required.
Manufacturing defect. In support of their manufacturing defect claims, the parents alleged that (1) their son had shot two arrows—the first one firing without issue while the second unexpectedly shattered causing injury to his hand; and (2) because the second arrow exploded, it deviated from the manufacturer’s specifications at the time it left the manufacturer’s control. These allegations, when combined with the allegations that the defect must have existed when sold because the arrow was new and that, as a result, the manufacturing defect was the proximate cause of the minor’s injury, adequately set forth all the elements of a manufacturing defect claim.
The case is No. Civil Action 2:18-CV-28-RWS.
Attorneys: Daniel L. Parr, Sr. (Weaver Law Firm) for David Morgan. Parks Kalervo Stone (Wilson Elser Moskowitz Edelman & Dicker LLP) for Dick’s Sporting Goods, Inc. Daniel Jay Offenbach (Leahy, Eisenberg & Fraenkel, Ltd.) and Kathleen M. Hurley (Cruser, Mitchell, Novitz, Sanchez, Gaston & Zimet, LLP) for Precision Shooting Equipment, Inc. d/b/a PSE Archery.
Companies: Dick’s Sporting Goods, Inc.; Precision Shooting Equipment, Inc. d/b/a PSE Archery
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