Wade Clark Mulcahy LLP

<p style="text-align: justify;">In Pennsylvania products liability law, a defendant may avoid liability by asserting that a plaintiff misused a product. However, the case of <a href="https://caselaw.findlaw.com/pa-superior-court/1897099.html"><em>Zimmerman v. FallTech</em></a> establishes just how difficult meeting that burden can be in the event a design defect is alleged.</p>
<p style="text-align: justify;">In 2008, James Zimmerman came to help a friend cut down a dead tree and he used a FallTech safety harness. He skimmed the instructions and used the product relying on his common sense and intuition. However, he put it on backwards—the harness D-ring was facing his chest instead of his back—and suspended himself from the tree.<span class="Apple-converted-space">  </span>A gust of wind caused Zimmerman to change his position, causing his full weight to bear on the harness. The harness failed; he plunged thirty-five feet resulting in a collapsed lung and a leg fracture which ultimately needed amputation.<span class="Apple-converted-space"> </span></p>
<p style="text-align: justify;">FallTech argued it was entitled to summary judgment because Zimmerman misused the product. Specifically, he put the harness on backwards and tied it to a tree. This use was not foreseeable and therefore Zimmerman could establish the causation element of the claim.<span class="Apple-converted-space">  </span>The trial court agreed and granted the motion.</p>
<p style="text-align: justify;">On appeal, Zimmerman argued that under Pennsylvania law, Zimmerman offered sufficient evidence to survive the motion.  The Superior Court agreed with Zimmerman. When a defendant asserts misuse as a defense, it must prove that the misuse “solely caused the accident.” Here, Zimmerman’s expert offered no less than sixteen design defects. Therefore, even if Zimmerman misused the product, FallTech was not entitled to summary judgement because there is sufficient evidence that the misuse was not solely the cause of the accident.<span class="Apple-converted-space">  As such, the t</span>he Superior Court reversed the trial court and remanded for a trial.</p>
Thanks to Ellis Palividas for his contribution to this post and please write to <a href="mailto: mbono@wcmlaw.com">Mike Bono</a> for more information.