In this product liability case, improper use of a climbing harness at a climbing wall led to a lawsuit. The injured climber was climbing at the gym and helped by an untrained employee. In this case, when a judge wants you to pay, you are going to suffer.
In this case, a manufacturer (Petzl) sold climbing harnesses to a climbing wall builder (Sport Rock International, Inc.) who sold a harness to a New York- climbing gym. A gym employee attached a beginner climber to the harness using a gear loop rather than the normal tie in points. The employee had little training and knew not to tie into the gear loop but accidentally did so. The beginning climber fell thirty feet when the gear loop ripped and was injured.
Plaintiff: Joseph Anaya
Plaintiff Claims: negligence and strict products liability (defectively designed and insufficient warnings)
Holding: mostly for the plaintiff
The plaintiff sued under theories of negligence and strict product’s liability. The strict product’s liability claims were for defective design of the harness and insufficient warnings on the harness. The warning issue was specifically for failure to warn of where the correct tie in point on the harness was located.
The climbing wall was also sued for negligence and product liability. The climbing wall settled with the injured plaintiff and was not part of this lawsuit. In this case, the climbing wall was a retailer because the harness, although not technically sold to a consumer, was moved into the consumer market by the climbing gym. In a product liability lawsuit, all entities in the chain of sale from the manufacturer to the consumer are brought into court.
The climbing wall and manufacturer filed separate motions for summary judgment, and the trial court granted the motions. The plaintiff appealed, and the appellate court reversed the decision of the trial court and sent the case back down for trial.
Summary of the case
To prove a case for product liability based on defective design in New York the plaintiff must prove “the product was not reasonably safe and that the defective design was a substantial factor in causing plaintiff’s injury….” This argument is similar to the proximate causation argument for a simple negligence claim; however, it is reversed. The plaintiff must prove he was injured first and that the cause of his injury was substantially caused by the design flaws of the product.
With respect to the first element — whether the product was not reasonably safe — the proper inquiry is “whether it is a product which, if the design defect were known at the time of manufacture, a reasonable person would conclude that the utility of the product did not outweigh the risk inherent in marketing a product designed in that manner”
In balancing the product’s risks against its utility and cost, the following factors must be considered: “(1) the utility of the product to the public as a whole and to the individual user; (2) the nature of the product – that is, the likelihood that it will cause injury; (3) the availability of a safer design; (4) the potential for designing and manufacturing the product so that it is safer but remains functional and reasonably priced; (5) the ability of the plaintiff to have avoided injury by careful use of the product; (6) the degree of awareness of the potential danger of the product which reasonably can be attributed to the plaintiff; and (7) the manufacturer’s ability to spread any cost related to improving the safety of the design”
This test is a little more reversed than you first might think about it. The reasonable man test is not that of the manufacturer but of someone in the community with the average knowledge and experience of a person in the community. For those things, we all know and understand such as driving, eating at a restaurant or going to a movie, the test makes sense. We understand how everything works and what we believe is best because we have experienced it.
However, for those activities or actions only practiced or experienced by a few, that test creates an education problem. You must educate the judge and the jury and convince them that the standard you are arguing is reasonable. This is difficult when they may have no idea what you are talking about.
This is a no-win test for the harness manufacturer because attempting to argue that more warnings would either defeat the use of the harness, defeat the ability to use the harness, or cost too much to create and attach to the harness is simply impossible to do. That means the test is comparing the cost of adding additional labels that warn of the risk of tying into a gear loop versus the potential for injury. The potential for injury is almost absolute, thus the manufacturer is going to fail that test 99 times out of 100 if not all the time.
For rock climbing, it is impossible to meet the test in most situations because so few people understand rock climbing. They have no experience in tying into a harness and climbing a wall. To many the whole concept is alien and scary.
While a few people who are not climbers may understand how a harness works, it is likely that knowledge will be based on work harnesses, which have no gear loops and can only be used one way. This difference alone leads to confusion and misunderstanding. If the government, OSHA, does not allow or require gear loops why did the climbing wall manufacturer have them on its harness. The harness is only seen as safety item, not as a way to haul gear and a chalk bag….as well as catch a fall.
The court made this conclusion.
Since the harness was undoubtedly meant to bear the weight of a climber, it was reasonably foreseeable that a climber might attempt to attach a safety line to various parts thereof and expect those parts to bear his weight.
Simple statement for the court to make. The harness is meant to catch the wear in a fall; therefore, all parts of the harness should be able to catch the wearer in a fall.
The manufacturers of climbing harnesses make the gear loops appear flimsy so that a climber would know not to tie into a gear loop. Whether this is an effective way to warn people that a gear loop is not meant to catch a fall was determined by the court to be a question of law to be determined by the jury. Consequently, the court had issues and did not reverse the trial court and sending the case back for trial.
The failure to warn argument was then reviewed by the court. The test of failure to warn is “A manufacturer has a duty to warn against latent dangers resulting from foreseeable uses of its product of which it knew or should have known.”
Petzl warned about the gear loop in the manual. There was also a small label with a skull and crossbones on it, which directed the user to read the manual. The flaw in this situation is the harness had been sold to a climbing wall where it would be used by dozens of climbers, none the owner of the harness and none having access to the manual.
An expert witness for the plaintiff testified that the skull and crossbones label was insufficient to give rise to notice to the consumer of the risk of tying into the gear loop. Here again, the question of fact was one that had to be determined by a jury.
What makes this case so difficult to accept is, the gear loops and labels used by Petzl are standard in the industry. We, in the industry are used to the labels and understand them. Again, the test is not of someone in the industry but of a reasonable man walking down any street, in any town USA.
The defendants then argued that the employee of the climbing gym was an intervening person between the defendant’s acts (making and selling the harness) and the injury. However, the judge rejected this argument because the intervening act cannot be a defense if it is foreseeable that someone would tie into a gear loop.
The manufacturer admitted to knowing of other cases in which people tied into the gear loop of harnesses. This knowledge then eliminated the defense that the injury was unreasonably foreseeable. This test looks at whether or not the average person in the community could guess that a person would tie in incorrectly and whether this knowledge should have been known by the manufacture. Since the manufacturer knew of similar situations then it was foreseeable.
One of the issues that jumps out of this case in reading the decision, is the court wanted to use language that assisted the plaintiff or at least was incorrect. A perfect example was calling the belay rope the safety line.
So Now What?
If you are a manufacturer, you must make sure that your warnings are sufficient that people not associated with the industry can understand their meaning. Here the appellate court had probably never worn a harness and could not understand or see the risk the warning label was attempting to identify.
If believe your market is big enough, then selling a harness to beginners (climbing gyms) that is simple and requires no warning labels might work. With no opportunity to tie into anywhere but the one tie point you eliminate this need. However, you have also eliminated part of the market that wants to get a beginning harness that can grow as their experience does. I.e. a harness that has a gear loop.
Another way would be to eliminate the warnings found in the manual and permanently attach them to the harness. A laminated or plastic card could hang from the chalk bag loop and be obvious to any climber. Beginners are not going to worry about 10 grams of weight the warning card would add to the harness. Sell the harness only to climbing gyms or rope’s courses, etc. and supply a dozen cards with each harness. Require the purchaser to put a new card on the harness anytime a harness is found without one.
Another possibility is to create a more direct relationship between the manufacturer and the user. Not the consumer but climbing walls, zip lines, rope’s courses, and guide services, etc. This relationship, if contractual (and in writing) can say that for a discount, the parties will indemnify each other, follow the rules and consider the relationship a commercial transaction, not that of a consumer transaction.
Even though Petzl had the requisite warning label on its harness, and even though it is common knowledge among anyone with any experience as a climber tying into a gear loop is not safe (as the climbing gym employee did), Petzlbecame a party to the lawsuit once an appellate court decided that the warning labels on the harness, which have been used in several other industries, were not adequate to keep the harness manufacture out of court.
What do you think? Leave a comment.
Copyright 2013 Recreation Law (720) Edit Law
Facebook Page: Outdoor Recreation & Adventure Travel Law
Mobile Site: http://m.recreation-law.com
By Recreation Law Recemail@example.comJames H. Moss Jim Moss
#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Petzl, Petzl USA, Climbing Wall, Harness, Gear Loop, Warning Label, Town Sports International, Inc, Sport Rock International, Inc., Product Liability, Defective Design, Failure to Warn,
Anaya v Town Sports International, Inc., 2007 NY Slip Op 7875; 44 A.D.3d 485; 843 N.Y.S.2d 599; 2007 N.Y. App. Div. LEXIS 10819Posted: December 30, 2013
Joseph Anaya, Plaintiff-Appellant, v Town Sports International, Inc., et al., Defendants, Sport Rock International, Inc., et al. Defendants-Respondents. Index 101027/03
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
2007 NY Slip Op 7875; 44 A.D.3d 485; 843 N.Y.S.2d 599; 2007 N.Y. App. Div. LEXIS 10819
October 18, 2007, Decided
October 18, 2007, Entered
COUNSEL: Pollack, Pollack, Isaac & De Cicco, New York (Brian J. Isaac of counsel), for appellant.
Callan, Koster, Brady & Brennan, LLP, New York (Marc R. Wilner of counsel), for Sport Rock International, Inc., respondent.
Goldberg Segalla LLP, Mineola (Joanna M. Roberto of counsel), for Petzl America, Inc., respondent.
JUDGES: Friedman, J.P., Nardelli, Sweeny, McGuire, Malone, JJ.
[**485] [***600] Order, Supreme Court, New York County (Leland DeGrasse, J.), entered January 24, 2006, which, to the extent appealed from as limited by the briefs, granted the separate motions of defendants Sport Rock International (Sport Rock) and Petzl America, Inc. (Petzl) for summary judgment dismissing the complaint as against them, unanimously modified, on the law, the motions denied with respect to plaintiff’s claims based on design defect and [***601] failure to warn, and otherwise affirmed, without costs.
Plaintiff sustained severe personal injuries when he fell from a height of approximately 30 feet while descending a rock climbing wall that was operated by defendant Town Sports International, Inc. of West Nyack (TSI). The accident occurred because an employee of TSI tied the safety line plaintiff was using to a non-weight bearing gear loop on the harness plaintiff was wearing; the line should have been tied to the “anchor point” of the harness. As plaintiff descended the wall the gear loop tore away from the harness, causing plaintiff’s fall. The harness was sold to TSI by Sport Rock and manufactured by Petzl.
Plaintiff asserts causes of action for, among other things, negligence and strict products liability. Plaintiff asserts that Sport Rock and Petzl are liable for his injuries because the safety harness was defectively designed and insufficient warnings were provided regarding where on the harness the safety line was supposed to be tied. Sport Rock moved for summary judgment dismissing the complaint and all other claims as asserted against it, and Petzl moved separately for similar relief. Plaintiff cross-moved for a special trial preference and to dismiss the affirmative defenses of Sport Rock and Petzl premised on [**486] the alleged absence of personal jurisdiction over those defendants. Supreme Court granted the motions of Sport Rock and Petzl, and denied plaintiff’s cross motion. Plaintiff appeals, as limited by his brief, from those portions [*2] of the order that granted the motions of Sport Rock and Petzl. 1
1 Plaintiff settled this action with TSI.
Petzl’s argument that plaintiff failed to oppose its motion before Supreme Court and that plaintiff therefore lacks standing to maintain this appeal is without merit. Plaintiff expressly opposed the motions of Sport Rock and Petzl for the reasons stated by TSI in its opposition to the motions.
[HN1] To establish a prima facie case for strict products liability based on defective design, the plaintiff must show that “the product was not reasonably safe and that the defective design was a substantial factor in causing plaintiff’s injury” (Voss v Black & Decker Mfg. Co., 59 NY2d 102, 107, 450 N.E.2d 204, 463 N.Y.S.2d 398 ). With respect to the first element — whether the product was not reasonably safe — the proper inquiry is “whether it is a product which, if the design defect were known at the time of manufacture, a reasonable person would conclude that the utility of the product did not outweigh the risk inherent in marketing a product designed in that manner” (id. at 108). In balancing the product’s risks against its utility and cost, the following factors must be considered: “(1) the utility of the product to the public as a whole and to the individual user; (2) the nature of the product – that is, the likelihood that it will cause injury; (3) the availability of a safer design; (4) the potential for designing and manufacturing the product so that it is safer but remains functional and reasonably priced; (5) the ability of the plaintiff to have avoided injury by careful use of the product; (6) the degree of awareness of the potential danger of the product which reasonably can be attributed to the plaintiff; and (7) the manufacturer’s ability to spread any cost related to improving the safety of the design” (id. at 109).
Since the harness was undoubtably meant to bear the weight of a climber, it was reasonably foreseeable that a climber [***602] might attempt to attach a safety line to various parts thereof and expect those parts to bear his weight. In fact, both these defendants admitted that novice climbers had been known to attach safety lines to gear loops and other parts of the harness. Rather than designing the gear loop to be weight bearing, or omitting it from the design, Petzl decided to make it appear flimsy in the expectation that the user would not attempt to attach a line to it. Whether this decision was reasonable in view [**487] of the questionable utility of a gear loop on a harness used for indoor rock climbing and the serious risk posed is a question for the jury (Voss, 59 NY2d at 108-109; see also Denny v Ford Motor Co., 87 NY2d 248, 662 N.E.2d 730, 639 N.Y.S.2d 250 ).
Triable issues of fact also exist regarding plaintiff’s cause of action for strict products liability based on failure to warn. [HN2] “A manufacturer has a duty to warn against latent dangers resulting from foreseeable uses of its product of which it knew or should have known” (Liriano v Hobart Corp., 92 NY2d 232, 237, 700 N.E.2d 303, 677 N.Y.S.2d 764 ). This rule applies with equal force to distributors and retailers (see Godoy v Abamaster of Miami, 302 AD2d 57, 754 N.Y.S.2d 301 ). Foreseeing the potential that harness users might tie safety lines to gear loops, Petzl warned against such conduct. This warning appeared in the manual accompanying the harness and in a technical notice. A small label on the harness contained a “skull and cross-bones” symbol and directed the user to refer to the manual and technical notice. There is expert evidence, however, that these warnings were inadequate because no warning on the harness itself specifically advised against tying a safety line to the gear loop. Thus, the sufficiency of the warnings must be determined by a jury.
Contrary to the assertions of Sport Rock and Petzl, we cannot determine as a matter of law that the conduct of TSI’s employee was a superseding act.
[HN3] Where the acts of a third person intervene between the defendant’s conduct and [*3] the plaintiff’s injury, the causal connection is not automatically severed. In such a case, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant’s negligence. If the intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant’s conduct, it may well be a superseding act which breaks the causal nexus (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315, 414 N.E.2d 666, 434 N.Y.S.2d 166 ).
Here, TSI’s employee testified that she knew the safety line was not to be tied to the gear loop. However, she did not know what purpose the gear loop served, and accidently tied the safety line to it. While it appears that this employee had minimal training on the proper use of the harness and had not read the manual or technical notice, the record does not permit a finding that the employee’s conduct was unforeseeable as a matter of law. The record is replete with evidence indicating the foreseeability of the risk that novice users of the harness (or for that matter other inexperienced persons such as the employee) might mistakenly tie safety lines to gear loops. Had the harness been [**488] designed without a gear loop or with a weight bearing gear loop, or had clearer warnings been on the harness itself, the accident may have been prevented. Accordingly, triable issues of fact exist regarding whether the alleged defective design [***603] of the harness, the alleged inadequate warnings, or both, was a substantial factor in causing plaintiff’s injuries (see id. [“Because [HN4] questions concerning what is foreseeable and what is normal may be the subject of varying inferences … these issues generally are for the fact finder to resolve”]).
Plaintiff’s remaining contentions are without merit.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: OCTOBER 18, 2007