September 12, 2017, PLLR E-Newsletter
Treestand maker failed to warn that polypropylene straps would degrade
The plaintiffs alleged that the treestand’s manufacturer failed to provide an adequate warning that the polypropylene straps sold with the stand would degrade significantly with environmental exposure. The jury awarded approximately $18.49 million. O’Bryan v. Primal Vantage Co.
Kevin O’Bryan, 48, went with his 10-year-old son on a hunting trip. Neither had hunted before. Joined by O’Bryan’s friend, the group obtained a landowner’s permission to use his property, which contained a treestand manufactured by Primal Vantage Co.
Seconds after the group sat on the treestand’s bench, the stand collapsed, although the three were well within the 500-pound rated weight limit. The bottom fell out beneath them, and they plummeted from the tree.
O’Bryan’s son and friend escaped major injuries, but O’Bryan suffered shattered vertebrae, resulting in paralysis. He now has only limited sensation below his waist. Moreover, because his neural pathways send mismatched signals, he suffers extreme, chronic pain in his groin, hips, and legs. Formerly a longtime UPS air marshal who loved his work, O’Bryan had to leave his job. He and his wife, Santé, later divorced, and he moved in with his elderly parents, who care for him.
An investigation revealed that the landowner had strapped the stand to the tree about five years before the incident and that he and his family and friends had used it on a routine basis.
Before their divorce, the O’Bryans sued Primal Vantage in both strict liability and negligence, alleging that the company failed to provide an adequate warning regarding the use of the polypropylene straps. The plaintiffs contended that Primal Vantage failed to warn consumers and users that the polypropylene straps, which were sold with the treestand, degrade significantly with environmental exposure. Specifically, the plaintiffs contended that the company knew the straps would have only 55 percent of their original strength after just one year of exposure, but there was no mention of this in the stand’s instructions or warnings.
The plaintiffs also asserted that treestand manufacturers tout their products’ safety as being certified by the Treestand Manufacturer’s Association (TMA) but that the trade association promulgates standards without government or consumer representation. The plaintiffs contended that for decades, manufacturers have not changed their design or materials, which include a one-inch polypropylene strap to hold the platform level to a tree at 15 to 20 feet above ground. The plaintiffs offered evidence that the industry knew that the straps would degrade and lose strength with outdoor exposure and that, when they did, the entire stand would collapse.
The defendant argued that O’Bryan was comparatively negligent for failing to inspect the stand before using it and failing to use a safety harness.
The jury found for the plaintiffs on both the strict liability and negligence-based warning claims, and it awarded approximately $18.49 million, allocating fault at 50 percent to the defendant and 50 percent to O’Bryan. In addition to economic damages, the award included $13 million for O’Bryan’s pain and suffering and loss of enjoyment of life. The award also included $80,000 for loss of consortium to Santé, who was divorced from O’Bryan by the time of the trial.
Primal Vantage has filed motions for a new trial and for judgment n.o.v.
Citation: O’Bryan v. Primal Vantage Co., No. 12-CI-006326 (Ky. Cir. Ct. Jefferson Cnty. Aug. 10, 2017).
Counsel for Kevin O’Bryan: AAJ members Ann Oldfather, Sean Deskins, and Michael Hasken, all of Louisville, Ky.
Counsel for Sante O’Bryan: AAJ members Jeff Adamson and Paul Casi III, both of Louisville.
Comment: The plaintiffs also sued Dick’s Sporting Goods, which sold the stand, but the court granted the retailer a directed verdict. O’Bryan has filed a motion for a new trial as to those claims.