Garrie v. Summit Treestands, LLC

• Decision Date: 30 April 2010
• Docket Number: 2080164.
• Parties: Joe F. GARRIE v. SUMMIT TREESTANDS, LLC.
• Court: Alabama Court of Civil Appeals

50 So.3d 458

Joe F. GARRIE

v.SUMMIT TREESTANDS, LLC.

2080164.

Court of Civil Appeals of Alabama.

April 30, 2010.

Thomas P. Willingham and Mary Leah Miller of Alvis & Willingham, LLP, Birmingham, for appellant.

James R. Shaw, Chris S. Rodgers, Jacob W. Crawford, and Lauren E. Davis of Huie, Fernambucq & Stewart, LLP, Birmingham, for appellee.

On Application for Rehearing

BRYAN, Judge.

This court's opinion of August 21, 2009, is withdrawn, and the following is substituted therefor.

The plaintiff, Joe F. Garrie, appeals from a summary judgment entered in favor of the defendant, Summit Treestands, LLC ("Summit"), in this action seeking damages for injuries sustained when Garrie fell from a tree stand manufactured by Summit.

Facts

On January 31, 2003, Garrie was hunting in a 1998 model "Viper" tree stand manufactured by Summit. Garrie's son had purchased the tree stand for Garrie at a store owned by Wiley Outdoor Sports, Inc. The tree stand is a two-part "climbing" tree stand, i.e., the hunter uses the tree stand to climb the tree from which he hunts. The top half of the tree stand appears to consist of the seat used by the hunter; the bottom half is the platform on which the hunter's feet rest.¹ The top half and the bottom half of the tree stand are connected by a rope or tether. The tree stand appears to be of the type in which each half of the tree stand attaches to the tree by use of an adjustable part that wraps around the tree. The adjustable part is secured around the tree in such a manner as to allow enough room to maneuver the tree stand up and down the tree while climbing. When the hunter climbs the tree, the platform of the tree stand attaches by straps to the hunter's boots. The straps have rubber bands that fit around the hunter's heels. With the hunter's feet secured to the platform, the hunter climbs up or down the tree by lifting the platform with his feet a short distance either up or down, then applying pressure by pressing down, thus securing the platform to the tree. The top half of the tree stand is operated in a similar fashion.

Garrie's tree stand was equipped with a safety belt designed to prevent falls. On one end, the safety belt fits around the hunter's body somewhere under the hunter's shoulders. The other end of the safetybelt attaches to the tree. On the day he fell, Garrie was not using the safety belt. Garrie testified that he used the safety belt for two hunting seasons when he first starting using the tree stand. Garrie stated that he stopped using the safety belt because he had heard stories about hunters "getting smothered to death and hung with [the safety belts]." Garrie also testified that he did not believe the safety belt was designed to be used while climbing up or down the tree with the tree stand.

Garrie testified that, after hunting in his tree stand during the afternoon of January 31, 2003, he began to climb down the tree using the tree stand. Garrie testified that he had climbed down the tree four or five feet when one of his feet became disengaged from the foot strap on the platform. Garrie stated that the tree stand consequently "dropped down on the side." Garrie testified that, while attempting to get his foot back into the foot strap, he slipped and fell to the ground. The fall broke Garrie's back and rendered him paraplegic. Garrie was subsequently treated at DCH Regional Medical Center ("DCH"). The medical records of Garrie's treatment at DCH indicate that he had stated that "he became ill and had a syncopal episode while hunting" on the day he fell.

Procedural History

On December 29, 2004, Garrie sued Summit and Wiley Outdoor Sports, Inc. ("Wiley Outdoor"), alleging (1) claims under the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD") for the manufacture and sale of a defective and unreasonably dangerous tree stand, (2) negligence, (3) wantonness, (4) negligent failure to warn, (5) wanton failure to warn, (6) breach of express warranty, and (7) breach of implied warranty of merchantability. Summit and Wiley Outdoor each filed a motion for a summary judgment. In Summit's summary-judgment motion, Summit asserted (1) "that [Garrie] failed to present substantial evidence of a design or manufacturing defect in the tree stand as is required in order to establish a claim under the AEMLD"; (2) "[that Garrie did] not offer substantial evidence of a safer, practical, alternative design as required under the AEMLD"; (3) "[that Garrie] failed to present any expert testimony to support the allegations contained in his complaint"; (4) "[that Summit was] entitled to a judgment as a matter of law as a result of [Garrie's] contributory negligence"; and (5) that Garrie's negligence and wantonness claims were subsumed by his AEMLD claim. Summit supported its summary-judgment motion with various evidentiary materials, including expert testimony indicating that the tree stand is not defective or unreasonably dangerous. Garrie filed a response to Summit's summary-judgment motion, which was supported by various evidentiary materials, including expert testimony indicating that the tree stand is defective and unreasonably dangerous.

The trial court entered a summary judgment in favor of Wiley Outdoor, and the trial court certified that judgment as final, pursuant to Rule 54(b), Ala. R. Civ. P. Garrie did not appeal from that judgment. The trial court subsequently entered a summary judgment in Summit's favor. Garrie filed a postjudgment motion, which was denied by operation of law. Garrie filed a timely appeal to the supreme court, and the supreme court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

Standard of Review

"In reviewing the disposition of a motion for summary judgment, 'we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact,'Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988), and whether the movant was 'entitled to a judgment as a matter of law.' Wright v. Wright, 654 So.2d 542 (Ala.1995); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is 'substantial' if it is of 'such weight and quality that fairminded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' Wright, 654 So.2d at 543 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993); Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990)."

Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997).

Discussion

On appeal, Garrie makes several arguments. We first address Garrie's argument that his negligence and wantonness claims were not subsumed by his AEMLD claim. That is, we must determine whether the negligence, wantonness, and AEMLD claims should be evaluated as separate claims or whether they should be evaluated as a single claim under the AEMLD. As noted, Summit asserted in its summary-judgment motion that Garrie's negligence and wantonness claims were subsumed by his AEMLD claim. In arguing that the negligence and wantonness claims were subsumed by the AEMLD claim, Summit cites Veal v. Teleflex, Inc., 586 So.2d 188 (Ala.1991), and federal cases. However, in Vesta Fire Insurance Corp. v. Milam & Co. Construction, 901 So.2d 84 (Ala.2004), our supreme court addressed Veal and explained that negligence and wantonness claims are not subsumed by an AEMLD claim. The supreme court stated:

"With respect to the trial court's determination that the plaintiffs' negligence and breach-of-warranty claims were subsumed by their AEMLD claims, the trial court's determination might have been supportable under Veal v. Teleflex, Inc., 586 So.2d 188 (Ala.1991), a case that discussed circumstances under which the strict-liability doctrine of the AEMLD might be viewed as imputing negligence to a defendant as a matter of law. ⁶

"More recently, however, and after the entry of the summary judgment for [the defendant], this Court specifically addressed the question whether a negligence claim is subsumed in a AEMLD claim in Tillman v. R.J. Reynolds Tobacco Co., 871 So.2d 28, 34-35 (Ala.2003):

" 'It must be remembered, however, that the AEMLD, as established in Casrell [ v. Altec Industries, Inc., 335 So.2d 128 (Ala.1976),] and Atkins [ v. American Motors Corp., 335 So.2d 134 (Ala.1976) ], is "an example of judicial legislation," not of legislative enactment. Keck v. Dryvit Sys., Inc., 830 So.2d 1, 8 (Ala.2002). This Court warned last year in Keck that "[j]udicial decision-making should not be seen as the opportunity to legislate." 830 So.2d at 8. Alabama remains a common-law state, and therefore common-law tort actions "so far as [they are] not inconsistent with the Constitution, laws and institutions of thisstate ... shall continue in force, except as from time to time ... may be altered or repealed by the Legislature." § 1-3-1, Ala.Code 1975. We will not presume to so define the boundaries of the judicially created AEMLD so that it subsumes the common-law tort actions of negligence and wantonness against the retailer defendants.'

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"⁶ After Veal, a number of cases held that negligence and wantonness claims were subsumed by an AEMLD claim. See, e.g., Brock v. Baxter Healthcare Corp., 96 F.Supp.2d 1352 (S.D.Ala.2000), and Johnson v. General Motors Corp., 82 F.Supp.2d 1326 (S.D.Ala.1997). However, a number of other cases either recognized that the issue had not been finally decided, see Grimes v.

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