Kurzinsky v. Petzl Am., Inc., CIVIL ACTION No. 17-1234
| Decision Date | 16 January 2019 |
| Docket Number | CIVIL ACTION No. 17-1234 |
| Parties | RYAN SCOTT KURZINSKY, Plaintiff, v. PETZL AMERICA, INC., Defendant. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Defendant Petzl America, Inc. moves for summary judgment on the negligence, strict liability, and implied warranty claims brought against it by Plaintiff Ryan Kurzinsky. Def. Mot. (doc. 36) at 1; Pl. Resp. (doc. 39) at 1; see also Reply (doc. 44). For the following reasons, I grant summary judgment in favor of Defendant Petzl on all claims and dismiss this suit.
Summary judgment is appropriate where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The evidence and any inferences from the evidence must be viewed in the light most favorable to the non-moving party. See Ray v. Warren, 626 F.3d 170, 173 (3d Cir. 2010). If reasonable minds could conclude that there are sufficient facts to support one of Kurzinsky's claims, Petzl's summary judgment motion should be denied. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). It should be granted only if no "reasonable jury could return a verdict" for Kurzinsky based on the evidentiary record. Reedy v. Evanson, 615 F.3d 197, 210 (3d Cir. 2010).
On or about July 4, 2016, Kurzinsky purchased a used Petzl Tandem Speed Pulley (the "Pulley") from an anonymous eBay seller. Plaintiff's Proposed Undisputed Facts ("PUD") (doc. 40) ¶ B.1. Kurzinsky intended to use the Pulley in a homemade backyard zip line. Id. ¶ B.2. The eBay seller described the Pulley as a "zipline trolley" in "great working condition." Id.; Pl. Resp. Ex. B ("Pl. Ex. B").
A sticker on the Pulley includes the words "Petzl" and "Tandem Speed" along with three cartoons. Def. Ex. F; see also Def. Ex. G at 81 (). The first cartoon is of a book slightly overlapping a triangle around an exclamation point. Def. Ex. F. The second cartoon, next to the words "Tandem Speed," is a drawing of a ball bearing joint, and the third is a cartoon of a zip liner crashing into a cliff with a skull-and-crossbones. Id.
The Pulley came with at least a few of Petzl's six pages of warnings and instructional materials, but without its original product box or "hang tag." PUD ¶ B.2, Def. Mot. at 22, Def. Ex. L; see also Ex. A, attached. Kurzinsky reviewed all six pages of Petzl's warnings and instructions before building his zip line.1 Pl. Ex. A at 172; PUD ¶ B.3. The first page shows a drawing of a seated, helmeted zip liner, using the Pulley on a single line. Id. It also includes three cartoons of zip liners using the Pulley for tyrolean traverse in double-line systems.2 Id. The first page further includes a combination of pictures and language that detail the Pulley'sbraking load and working load limit, the size of the ropes and/or cables required, and the maximum speed. Id. With a combination of pictures and words, this first page explains that speed pulleys use ball bearings, while cable pulleys use self-lubricating bushings. Id.
The second page contains cartoons of various hazards associated with using the Pulley, including hurting one's hand while grabbing a rope or cable, catching one's hair in gears, and being stranded in the middle of a sagging zip line. Id. at 2. One cartoon with two panels shows that a single-line zip liner using a cable pulley will be "OK!," while a single-line zip liner using a speed pulley at the same angle of descent will crash. Id. In addition to depicting the zip liner crashing into the cliff, the speed pulley cartoon has an exclamation point inside a triangle. Id. Other cartoons on the second page show how to use the Pulley in direct and indirect hauling systems. Id.
The third page contains a series of four cartoons, depicting an individual attached to a zip line but standing on the ground, with an arrow and two large question marks suggesting a zip liner must determine how low his or her line will sag. Id. at 3. It contains three additional cartoons, each adorned with a skull-and-crossbones and a giant "X," depicting zip line users crashing their heads on the ground at the end of zip lines, and hitting the ground in the middle of a zip line that passes too low over a ridge. Id.
The fourth, fifth, and sixth pages contain "instructions for use" in 18 different languages. Id. at 4-6. The only English-language instructions are on the fourth page. Id. at 4. In accordance with a diagram on the first page of the instructions, the various parts of the Pulley are identified. Id. The instructions state the "Fixed-side double pulley with stainless steel sheaves [is] for use on a cable or rope tyrolean." Id. Then: Id. There are no instructions for setting up a single line zip line like the kind Kurzinsky built in his backyard. Instead, the instructions name and provide specific advice for the five double-cable tyrolean setups depicted on the first two pages of the instructions. Id.
After purchasing the Pulley and separately purchasing a cable from Home Depot, Kurzinsky set up the zip line in his backyard with the help of his brother. Id. ¶ B.5. Kurzinsky reviewed instructional videos prior to setting up the zip line in his backyard. Id. ¶ B.6. The instructional videos were not created by Petzl, marketed by Petzl, or found via the Petzl website. Def. Ex. G at 43. Instead, Kurzinsky located the videos using Google and YouTube. Id. These videos repeatedly recommended Petzl pulleys as "the best" for zip line use. Id. at 46.
Kurzinsky knew the used Pulley he purchased through eBay did not incorporate a braking system before he decided to use it. Id. at 193. When his zip line was assembled, Kurzinsky and his brother tested it by first sending the wooden seat they had attached to it down the line without a passenger. Def. Ex. E at 7. Next, they used it themselves. Id.; Pl. Ex. A at 106. Seated on the wooden seat, Kurzinsky was suspended approximately two to three feet off the ground. PUD ¶ B.7; Def. Ex. G at 206. With the wooden seat attached, the zip line worked as expected without any great speed. PUD ¶ B.8. Kurzinsky and his brother both successfully traversed the zip line without incident using the seat on July 9, 2016. Id.
On the morning of July 10, 2016, Kurzinsky replaced the seat with a straight bar. Id. ¶ B.9. With just the straight bar, Kurzinsky was more than nine feet off the ground. Pl. Ex. A at 113. He did not test the straight bar without a passenger first. Def. Ex. E at 7. Using just the straight bar, Kurzinsky traveled at a much higher rate of speed than he had traveled with the seat attachment. PUD ¶¶ B.10-11. The additional speed caused him to lose his grip and fall to theground, sustaining severe injuries. Id. ¶¶ B.10-12.
The instructions from the Petzl website and insert that Kurzinsky reviewed are identical to those attached to the Pulley when it is purchased new. Id. ¶¶ B.15-17. The box that the Pulley would have come in had Kurzinsky purchased it new does not contain any additional safety instructions regarding zip line setup or use beyond those that Kurzinsky reviewed on the Petzl website. Id. ¶ B.18.
Petzl knew that its Pulley could be utilized as a component of a zip line system. Id. ¶ B.19. Petzl's testing of the Pulley included zip line testing. Id. Petzl contemplated that a straight bar could be attached to the Pulley to traverse a zip line. Id. ¶ B.20. Petzl also contemplated that the Pulley could be used for other purposes, including for hauling. Def. Ex. I at 1. Petzl does not manufacture Pulleys with built-in braking mechanisms. Id. at 1-2. The Pulley's functionality for other uses, including direct and indirect hauling, tyrolean traverse, and rope tensioning, would be degraded if it included a built-in braking mechanism. Id. at 1.
Petzl pulleys are sometimes "sold with" zip line braking mechanisms like the "Brakehawk," which allows users to slow and stop themselves. Def. Ex. E at 15-16. Commercial zip line standards require zip lines to incorporate a braking system that functions independently of the user, either in addition to or in place of a user-operated braking system. Def. Ex. I at 2 (citing ANSI-ACCT 03-2016). These braking mechanisms are safer than user-operated braking systems like the Brakehawk because they are not vulnerable to user error. Id.
Kurzinsky brought three claims: (1) negligence, (2) product liability, and (3) breach of implied warranty. Cplt. (doc. 4) at 3-6. Petzl seeks to dismiss them all. Def. Mot. at 1.
Pennsylvania4 follows the Restatement (Second) of Torts for strict liability, which requires a plaintiff to prove: (1) a defective condition (2) that proximately caused an injury and (3) existed at the time the product left the manufacturer's control. Tincher v. Omega Flex, Inc., 104 A.3d 328, 335 (Pa. 2014). Defective conditions come in various forms, including "manufacturing defects," "design defects," and informational defects known as "failure to warn" cases. Dorshimer v. Zonar Systems, Inc., 145 F. Supp. 3d 339, 351 (M.D. Pa. 2015). Kurzinsky does not pursue a manufacturing defect theory, Pl. Resp. at 16-17, but instead poses alternate design defect and failure to warn theories, id. at 15-19. He argues Petzl's failure to include a built-in braking system constituted a design defect, and the failure to adequately inform consumers of the dangers that come from not having a braking system constituted a failure to warn. Id.
To establish a "design defect," a plaintiff can use either the Consumer Expectations Test or the Risk Utility Test. Tincher, 105 A.3d at 401. Under the...
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