UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

PATRICK VALENTE and 

LAURA VALENTE,

Plaintiff,

v.

OAK LEAF OUTDOORS, INC.,

Defendant.

 /

Case No. 14-12892

Honorable Nancy G. Edmunds

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [18]

This products liability case comes before the Court on Defendant Oak Leaf Outdoors,

Inc.'s motion for summary judgment (ECF No. 18). Plaintiffs commenced an action in the

Macomb County Circuit Court, Michigan, alleging that Plaintiff Patrick Valente ("Plaintiff")

was injured when using a product designed, manufactured, distributed and/or sold by

Defendant Oak Leaf Outdoors, Inc. (Am. Compl. ¶ 6.) Defendant removed the action to this

Court on the basis of diversity jurisdiction pursuant to 28 U.S.C. §§ 1332 and 1441, and

now moves for summary judgment. The Court dismissed non-diverse Defendant J&E

Enterprise Company (a/k/a MJC Macomb, a/k/a MJC Archery) from this case, finding that

that defendant was fraudulently joined. (ECF No. 5.) The Court heard argument on both

this matter and Defendant's motion to exclude Plaintiffs' expert, Norman Johanson [#19],

on July 8, 2015. For the reasons stated below, Defendant's motion for summary judgment

is granted in part and denied in part. 

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I. Background

On the morning of October 5, 2012, Plaintiff was utilizing Defendant's product, Lone

Wolf climbing sticks, to ascend and descend a tree to access a Lone Wolf tree stand from

which he was going to hunt. (Def.'s Mot. Summ. J. Ex. I, Valente Dep. 19, 41.) Plaintiff has

been a hunter for 40 years and this was the first time he had hunted from this particular

tree. (Valente Dep. 40-41.) Plaintiff has hunted with other companies' tree stands and

ladders or climbing sticks in the past. (Valente Dep. 41-43.) Plaintiff testified that he

selected the Lone Wolf climbing sticks because "they looked like they were (sic) nice,

sturdy, easy to carry compact set of sticks . . . ." (Valente Dep. 48.) 

The Lone Wolf climbing sticks which Plaintiff used on October 5, the subject of this

litigation, each have three alternating steps that allow the hunter to ascend and descend

the tree. (Def.'s Mot. Summ. J. Ex. A.) Defendant's climbing stick has corrugated treads

on the steps/handholds and Plaintiff had not seen steps with corrugation prior to purchasing

Defendant's climbing sticks. (Valente Dep. 63, 66-67; Def.'s Mot. Summ. J. Exs. A, C.)

Plaintiff purchased a three-pack of the climbing sticks from Gander Mountain and a

single climbing stick from MJC for a total of four Lone Wolf climbing sticks. (Valente Dep.

49.) Plaintiff used four climbing sticks because he was trying to ascend to a height of 15

feet. (Valente 53-54.) Plaintiff had instructions for the tree stand and climbing sticks.

(Valente Dep. 51.) The treestand came in a box that included a full-body safety harness.

(Valente Dep. 58.) Plaintiff read through the instructions and there was nothing in them that

he did not understand. (Valente Dep. 58-59.) The warnings applicable to the climbing sticks

and the treestand contain the following:

WARNING!

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! Make sure you have read and understand all instructions.

! . . . 

! Always wear TMA approved fall arrest system when using any treestand.

. . . 

! Failure to follow these instructions could cause serious injury or

death.

(Def.'s Mot. Summ. J. Ex. K, Instructions, emphasis in original.)

Treestand Safety Guidelines

ALWAYS wear a Fall-Arrest System (FAS)/Full Body Harness meeting

TMA Standards even during ascent and descent. Be aware that single

strap belts and chest harnesses are no longer allowed Fall-Arrest

Devices and should not be used. Failure to use a FAS could result in

serious injury or death. 

. . . 

NEVER hurry!! While climbing with a treestand, make slow, even

movements of no more than ten to twelve inches at a time. Make sure

you have proper contact with the tree and/or treestand every time you

move. On ladder-type treestands, maintain three points of contact with

each step.

(Def.'s Mot. Summ. J. Ex. K, Treestand Safety Guidelines, emphasis in original.)

Despite reading the instructions, Plaintiff did not agree with everything in the

instructions. (Valente Dep. 72.) Plaintiff had tried to use a full body harness in the past

when hunting from a height, yet he did not like it and did not hunt with the one that came

with Defendant's tree stand. (Valente Dep. 74-75.) Plaintiff used a single strap safety belt

instead, connecting him to the tree as he went up the tree while he was installing the

climbing sticks, and while sitting in the tree, yet he was not connected to the tree when he

descended the tree. (Valente Dep. 76-82.)

On the morning of the injury, Plaintiff set up his climbing sticks and tree stand, then 

 disconnected from the tree and started to climb down the tree to retrieve his bow. (Valente

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Dep. 110.) Plaintiff testified that the following occurred when he was approximately three

feet from the ground:

A: My ring got caught on that tip of that step, and then it was like I just kind

of like just swung like a little bit from the tree, just like it broke it instantly. It

was like instantly my finger was ripped, you know, like my ring got snagged

and it just threw me off.

Q: Were you at three points of contact at the time your finger got snagged?

A: I believe I was. (Valente Dep. 114.) 

Plaintiff landed on his feet when he hit the ground. (Valente Dep. 117.) His hand was

"killing" him as soon as he hit the ground. He look at it and saw the bone and the blood

"pumping out." (Valente Dep. 118-19.) He covered it with a hood he had in his pocket, held

his hand tightly and ran from the woods to his vehicle. (Valente Dep. 119-21.) He drove to

a farmer's house, dialing 911 on his way. He found his finger "dangling by all these

tendons" from his bow. (Valente Dep. 119.) He told the dispatcher and later the ambulance

driver, what had happened. (Valente Dep. 122-23.) The EMS attendant reported that "his

ring caught on a step, thought he was only an inch or two off the ground; he was three feet

off the ground, he jumped back and felt pain in his finger." (Valente Dep. 126; see also

Bittner Dep. 40, Def.'s Mot. Summ. J. Ex. O.) Plaintiff lost his left ring finger in the accident

and brings this action for damages. (Pls.' Resp. 4.) 

II. Summary Judgment Standard

“The court shall grant summary judgment if the movant shows that 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). A moving party may meet that burden “by ‘showing’ – that is, pointing

out to the district court – that there is an absence of evidence to support the nonmoving

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party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Revised Rule 56

expressly provides that:

A party asserting that a fact cannot be or is genuinely disputed must support the

assertion by:

(A) citing to particular parts of materials in the record, including depositions,

documents, electronically stored information, affidavits or declarations,

stipulations (including those made for purposes of the motion only), admissions,

interrogatory answers, or other materials; or 

(B) showing that the materials cited do not establish the absence or presence of

a genuine dispute, or that an adverse party cannot produce admissible evidence

to support the fact.

Fed. R. Civ. P. 56(c)(1). The revised Rule also provides the consequences of failing to

properly support or address a fact:

If a party fails to properly support an assertion of fact or fails to properly address

another party’s assertion of fact as required by Rule 56(c), the court may:

(1) give an opportunity to properly support or address the fact;

(2) consider the fact undisputed for purposes of the motion;

(3) grant summary judgment if the motion and supporting materials – including

the facts considered undisputed – show that the movant is entitled to it; or

(4) issue any other appropriate order.

Fed. R. Civ. P. 56(e). “The court need consider only the cited materials, but it may consider

other materials in the record.” Fed. R. Civ. P. 56(c)(3).

When the moving party has met its burden under rule 56, “its opponent must do more

than simply show that there is some metaphysical doubt as to the material facts.” 

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Ultimately a

district court must determine whether the record as a whole presents a genuine issue of

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material fact, id. at 587, drawing “all justifiable inferences in the light most favorable to the

non-moving party.” Hager v. Pike Cnty. Bd. Of Educ., 286 F.3d 366, 370 (6th Cir. 2002).

III. Analysis

A. Prima Facie Case for Design Defect and Breach Of Implied/Express Warranty

1. Design Defect Under Michigan Law

The Court has diversity jurisdiction over this action pursuant to 28 U.S.C. § 1332. The

parties agree that Michigan law applies. See Marsh v. Genentech, 693 F.3d 546, 549 (6th

Cir. 2012). Plaintiffs allege negligence in the design of the climbing stick.1

 In Michigan, a

product liability action is defined as "an action based on a legal or equitable theory of

liability brought for the death of a person or for injury to a person or damage to property

caused by or resulting from the production of a product." Mich Comp. Laws § 600.2945(h).

"Traditional principles of products liability law recognize three types of defects:

manufacturing defects, defects due to faulty design, and defects due to inadequate

instructions or warnings." Fleck v. Titan Tire Corp., 177 F. Supp. 2d 605, 613 (E.D. Mich.

2001) (citing Restatement (Third) of Torts § 2 (1998)); see also Meemic Ins. Co. v.

Hewlett-Packard Co., 717 F. Supp. 2d 752, 767 (E.D. Mich. 2010).

"In order '[t]o provide compensation for injuries caused by such defects, Michigan

recognizes two distinct causes of action for product failures: negligence and implied

warranty.'" Meemic, 717 F. Supp. 2d at 767 (citing Gregory v. Cincinnati, Inc., 538 N.W.2d

325, 329 (Mich. 1995); Hollister v. Dayton Hudson Corp., 201 F.3d 731, 736–37 (6th Cir.

 1Plaintiffs did not set forth allegations or evidence to support a manufacturing defect

cause of action. A manufacturing defect claim "is generally alleged when the accident

product differs from comparable products typically produced by the manufacturer." Fleck

v. Titan Tire Corp., 177 F. Supp. 2d 605, 614 (E.D. Mich. 2001) (citation omitted). 

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2000)). "The 'negligence theory generally focuses on the defendant's conduct, requiring a

showing that it was unreasonable,' whereas the implied warranty cause of action 'generally

focuses upon the fitness of the product, irrespective of the defendant's conduct.'" Id. (citing

Prentis v. Yale Mfg. Co., 365 N.W.2d 176, 186 (1985)). 

These theories are not always mutually exclusive. When used to attack design

and warning defects, the two theories may effectively require the same

elements and proofs. As a result, in design defect cases against a

manufacturer, only a negligence cause of action is cognizable. Nonetheless,

the two causes of action remain separate theories with distinct elements.

Id. (citing Sundberg v. Keller Ladder, No. 00–10117, 2001 WL 1397290, at *5 (E.D.Mich.

Nov. 8, 2001)). 

"[T]o prevail on a design defect claim in [Michigan], a plaintiff must prove that '(1) the

product was not reasonably safe when it left the control of the manufacturer; and (2) a

'feasible alternative production practice was available that would have prevented the harm

without significantly impairing the usefulness or desirability of the product to the users.'" 

Palatka v. Savage Arms, Inc., 535 Fed. Appx. 448, 451-52 (6th Cir. 2013) (citing Croskey

v. BMW of N. Am., 532 F.3d 511, 516 (6th Cir. 2008)). "The second prong of this test

requires a 'risk-utility' analysis." Id. at 452. To make a case for a product liability claim

based upon a claimed design defect under Michigan law and survive a motion for summary

judgment, the Plaintiff must produce evidence showing: 

(1) that the severity of the injury was foreseeable by the manufacturer;

(2) that the likelihood of occurrence of her injury was foreseeable by the

manufacturer at the time of distribution of the product;

(3) that there was a reasonable alternative design available;

(4) that the available alternative design was practicable;

(5) that the available and practicable reasonable alternative design would

have reduced the foreseeable risk of harm posed by defendant's product; and

(6) that omission of the available and practicable reasonable alternative

design rendered defendant's product not reasonably safe.

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Id. at 452 (citing Hollister v. Dayton Hudson Corp., 201 F.3d 731, 738 (6th Cir. 2000)). 

The court applied the risk-utility analysis in Peck v. Bridgeport Machines, Inc., 237

F.3d 614 (6th Cir. 2001), when the plaintiff was injured while working with a lathe designed

and sold by the defendants. See id. at 616. The plaintiff and two other people were loading

a long metal tube into the lathe when the lathe was inadvertently activated by one of the

other individuals. See id. The plaintiff's hand was caught in the lathe and injured. See id.

The plaintiff brought claims alleging design defect and that the defendants had breached

their duty to warn of the alleged dangerousness of the machine. See id. The district court

granted summary judgment in favor of the defendants, "finding that at trial the plaintiff

would be unable to prove that an available and practicable reasonable alternative design

of the lathe would have reduced the foreseeable risk of harm posed by the product," failing

to establish the elements 5 and 6 of the prima facie case of design defect.2 Id. at 616-18.

On appeal, the circuit court found that not only did the plaintiffs fail to establish elements

5 and 6, they failed to establish elements 1 through 4, as well, contrary to the district court's

findings. Id. at 618. 

With respect to elements 1 and 2, the Peck court found that the plaintiffs "had offered

virtually no evidence regarding these elements" and "[i]n fact, Peck's expert . . . testified

that he had never heard of similar accidents occurring with lathes and did not know the

probability of a similar accident happening." Id. at 618. The court noted that one of the

 2 The district court also found in favor of defendants on the failure to warn claim "on the

ground that [the plaintiff's expert] testified in his deposition that it was not necessary to turn

off the machine to operate or load it safely, and because the court found it could not rely

on [the expert's] subsequent inconsistent affidavit." Id. 

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defendant's witnesses testified that "the designers knew of the risk of inadvertent activation,

he said they chose a design that would prevent this from happening." Id. 

The circuit court also found that the plaintiffs failed to establish elements 3 and 4. The

plaintiffs' expert "testified that he would have designed the lathe differently, with a 'safer'

lever shift mechanism, but that he had never fabricated such a design and, in fact, had

never seen his proposed design used on a lathe anywhere. He did indicate that he had

seen his proposed design used on 'cherry pickers.'" Id. at 618. The defendant's expert

testified that he "did not know whether such a design was feasible, but if it were, it would

probably entail an increase in cost of approximately 15%; but he was not sure." Id. 

Under the Michigan risk-utility test set forth in Prentis, an expert who testified

that a product could have been designed differently, but who has never made

or seen the alternative design he proposes, and therefore has no idea of its

feasibility, utility, or cost, does not make out a prima facie case that a

reasonable, practicable, and available alternative design was available. 

Id. at 618. 

Finally, the circuit court agreed with the district court that the plaintiffs did not establish

elements 5 and 6. There was "no evidence of an available and practicable reasonable

alternative design," and 

[E]ven if there were some evidence that the cherry picker design [the plaintiff's

expert] has seen was available, practicable, and reasonable, [the plaintiffs]

have not demonstrated that it would reduce the foreseeable risk of harm posed

by the lathe. Although [the plaintiffs' expert] has testified that the alternative

design would have prevented this particular accident from happening, he

offered no experiential basis for that opinion and did not testify as to whether

the design would have been safer overall. 

Id. at 618. The circuit court found that the "district court correctly concluded that the plaintiff

could not, on the basis of the evidence submitted to the court, establish an actionable claim

for design defect." Id. 

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2. Foreseeability and Likelihood

With respect to the first two elements, "(1) that the severity of the injury was

foreseeable by the manufacturer; and (2) that the likelihood of occurrence of . . . injury was

foreseeable by the manufacturer at the time of distribution of the product," Defendant

argues that Plaintiffs "have no empirical evidence of any kind to establish any defect."

(Def.'s Mot. Summ. J. 18.) Defendant argues that "[t]here is no known history of any

problems with wedding rings or other jewelry getting stuck or snagged on these climbing

stick steps." (Def.'s Mot. Summ. J. 18.) Plaintiffs argue that the absence of instances of the

identical injury having occurred to others is not required for "critiquing a fundamental design

flaw" and that "Michigan courts have long-held (sic), . . . that evidence regarding the

absence of accidents, so-called 'negative evidence,' is inadmissible to prove the absence

of negligence."3

 (Pls.' Resp. 8). Under Michigan law and federal law, evidence of similar

incidents may "be admitted to prove design defect and negligence." Croskey v. BMW of N.

Am., Inc., 532 F.3d 511, 514 (6th Cir. 2008). In the instant action, it would be one of the

ways Plaintiffs could establish that Defendant had notice of the alleged defect. In Peck, the

court in its analysis considered the plaintiff's witness's testimony that he "had never heard

of similar accidents occurring with lathes and did not know the probability of a similar

accident happening." Peck, 237 F.3d at 618. Defendant points out that there was no

 3 Plaintiffs cite Langworthy v. Green Township, 50 N.W. 130, 132 (Mich. 1891) and Larned v.

Vanderlinde, 131 N.W. 165, 166 (Mich. 1911). Neither Langworthy nor Larned was a products

liability case. The Langworthy court "properly excluded" a witness's testimony regarding whether

he knew of anyone else ever being injured on the road obstruction that was the subject of the

action. See Langworthy, 50 N.W. at 132. Similarly, Larned arose in the context of premises liability.

Larned notes "an absence of harmony in the decisions on the subject of the admissibility of proof

of other accidents in negligence cases," and notes that in Michigan, that kind of testimony "has

been held admissible in sidewalk and other highway cases, but its use has been limited to the

question of notice of defects." Larned, 131 N.W. at 166.

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showing of similar incidents that would show it had notice of the defect which Plaintiffs

allege. (Def.'s Mot. Summ. J. 18.)

Plaintiff relies on its expert Mr. Johanson's4 deposition testimony that Mr. Johanson

identified through the Consumer Product Safety Commission (CPSC) eight documented

tree stand injuries specifically related to rings on fingers. (Johanson Dep. 89, 92-93.) Mr.

Johanson testified that there were many other injuries to hands and fingers, but he only

cited those specific to rings. He testified that from the documents he cited, none of the eight

documents specifically identified "climbing sticks" yet identified "tree stands" as a category,

and Mr. Johanson did not know what type of tree stand it was. (Johanson Dep. 94-95.) 

Q: Okay. Did you find any instances where they specifically talked about

climbing sticks and ring finger injuries, any? 

A: CPSC and NEISS has categories which I reviewed that are specific to tree

stands. Unfortunately, CPSC and NEISS do (sic?) have a separate category

ladder sticks. It's lumped in with tree stands. 

Q: Did you find any instances where they identified being sticks? 

A: No, sir. 

Q: You didn't find any instances involving the Lone Wolf climbing stick where

somebody had an issue with the ring finger; is that correct? 

A: That's correct. 

Q: Other than NEISS and the CPSC, did you review any documents pertaining

to any potential injuries involving any tree stand product?

A: Repeat that? Any tree stand product? You're not saying just climbing sticks? 

Q: Correct. Because you already agreed with me that the NEISS doesn't break

down the tree stand products by specific products. 

So my question is, besides the CPSC-NEISS documents you say that you

pulled, did you review anything else pertaining to the types of injuries that could

result from using a tree stand product? 

A: No, sir.

Q: So thus far we have the evidence in the case that you reviewed, and the

CPSC documentation? 

A: Correct. 

 4 Defendants also filed a motion to exclude Plaintiffs' liability expert witness, Norman

Johanson (ECF No. 19), which the Court denied.

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Q: Did you review any statistical material pertaining to injuries in tree stand

products? 

A: Not in this case.

Q: Any statistical material pertaining to injuries in climbing sticks? 

A: No, sir.

Q: Did you -- strike that. Did you formulate any statistics? 

A: No, sir.

Q: And the only other manufacturers you looked at were those identified in

Exhibit 12? 

A. That's correct.

(Johanson Dep. 95-97.) Mr. Johanson's testimony fails to establish incidents of injuries

similar to Plaintiff's or that these were the same or even similar products or designs. 

Plaintiffs point out that Jared Schlipf, owner of the Defendant company, agreed in his

deposition that the "steps" on the climbing stick are used equally by hands and feet.

(Schlipf Dep. 63, Pls.' Resp. Ex. I.) Mr. Schlipf's testimony established that the company

had purchased the patents for the design at issue and that since he purchased the

company, there had been no testing of whether the pattern on the climbing stick steps

offered any assistance to traction. (Schlipf Dep. 61, 62-64.) Mr. Schlipf testified to the

following: 

Q: Consideration, ever any thought given to whether the gripping surface

could catch a ring or an item of clothing? 

A: Well, I would think any -- I mean, if you've got something protruding off of

a step or anything, there's always a possibility on something like this of

catching clothes or -- I think that's pretty obvious. They're pretty -- common

sense I guess I should say that it's possible.

Q: Expected. It's an expected possibility? 

A: I don't know if I can say expected. I've never seen it happen. But,

obviously, if anything when you're climbing a ladder or something that has

something sticking off of it, you would have to be careful. 

Like Peck, Plaintiff has offered "virtually no evidence" regarding these first two

elements. Of the eight documented injuries that Johanson cited, there is no evidence as

to the type of tree stand-related product from which they came, nor whether it was a

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climbing product, like Defendant's, or a tree stand itself.5

 Further, while Mr. Schlipf's

testimony may be some evidence that the possibility of the injury was foreseeable, Plaintiffs

identify no evidence to demonstrate the likelihood of such an injury. 

Mr. Johanson testified that he had not reviewed "any statistical material pertaining to

injuries" in tree stand products or climbing sticks and he did not formulate any statistics.

"Typically, courts have not permitted a plaintiff to satisfy the first element by proving that

an injury was merely foreseeable. Rather, a plaintiff is required to provide some factual

evidence which demonstrates the probability of an injury." Paul v. Henri-Line Mach. Tools,

Inc., 938 F. Supp. 2d 691, 698-99 (E.D. Mich. 2013) (Although the plaintiff "produced

sufficient factual evidence to indicate that the possibility of injury was foreseeable," the

court noted that "she has not produced any statistical evidence to demonstrate the

likelihood of an injury resulting from use of the machine. The fact that a machine is

dangerous per se is an insufficient basis to demonstrate the likelihood of an injury." Id. at

699. The plaintiff was unable to demonstrate the likelihood of a foreseeable injury.). Plaintiff

has failed to show evidence of the second element, that the likelihood of occurrence of his

injury was foreseeable. 

3. Reasonable Alternative Design That Is Practicable

Both sides have produced evidence of both similar and differing designs on the market

for related tree-climbing products. Even Plaintiffs' expert, Mr. Johanson, testified that there

 5 Defendant's expert, Lorne Smith, Jr., testified that he has performed 500 hunting

accident investigations that included about 400 tree stand cases and "[t]his is the first and

only of these type cases" he has been involved with and it "is the first case" he has had

"where someone caught a finger on a step and injured that finger." (Smith Dep 15, Pls.'

Resp. Ex. H 13, 23-25, 27.) 

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is a "leverage climbing stick" on the market that is "absolutely" a design that is similar to the

Loan Wolf climbing stick, although he testified that he considers it "a defective design."

(Johanson Dep. 68-69.) Defendant's expert testified that "[t]here are other products that

have other than smooth steps." (Smith Dep. 27, Pls.' Resp. Ex. H.) 

Mr. Johanson proposed two alternative designs. In the first, the entire tread is ground

off each step and a slip-resistant surface or coating is adhered. (Johanson Dep. 108-09,

114-15, 118-19.) Plaintiffs' expert has shown that designs exist with flat surfaces and/or no

corners or edges. (Johanson Dep. 48-49; see also Pls.' Resp. Ex. E.) Defendant's expert

testified that when he worked with a tree stand and ladder stick manufacturer, the ladder

stick had a smooth step of square tubing with nothing protruding from the step. (Pls.' Re

sp. Ex. H, Smith Dep. 8, 11-13.) One of the adhesive surfaces Plaintiffs' expert proposes

for the flat steps was actually used on another of Defendant's products. (Johanson Dep.

47 "one of the adhesive-backed textured or sandpaper-like strips that Lone Wolf provided,

at one point at least in time, with their tree stands".) In considering the evidence in the light

most favorable to the non-moving party, the Court finds that Plaintiffs have put forth enough

evidence with respect to the flat, toothless steps and adhesive grip to establish the third

element.

With respect to the second of Plaintiffs' designs, they argue that the climbing stick at

issue is a "special purpose ladder." They assert that the climbing stick is not in compliance

with the"Step Width and Rung Diameter" of the "American National Standard Institute

[ANSI] A 14.2-1990 for Ladders, Portable Metal, Safety Requirements, Articulated

Ladders," which requires that if rungs are used, "[r]ight angle or near-right angle corners

shall have their edges rounded to a radius of not less than 1/16 of an inch." (Pls.' Resp. 4-

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5.) Defendants do not concede that ANSI standards apply and neither party has fully

briefed the issue. 

Plaintiffs' second design includes beveling or slanting the step/grip to remove all sharp

points and edges on the steps, including by "rounding off" the corners and edges in

accordance with "at least a radius of 1/16th of an inch" as set forth in the American National

Standard for Ladders A 14.2. (Pls.' Resp. 6-7, Ex. D; Johanson Dep. 100-102, 120.) Upon

further testimony, Mr. Johanson indicated that he did not actually round off the very end of

any of the steps and he had only beveled one side of the top step. Mr. Johanson testified

that he had not created a complete alternative design. He testified, however that he "can

refer to and . . . document what an appropriate alternative design should be." (Johanson

Dep. 102-03.) 

Plaintiffs' expert has failed to set forth any evidence to support the alternative design

that was based on a grounding or beveling of edges and corners. Plaintiff admitted he had

not completed the design and was unable to establish evidence regarding a correct radius

in his design. 

While Plaintiff sets forth enough evidence to raise a question of fact as to the third

element, a reasonable alternative design, he fails to establish element four, that the

available alternative design was practicable. Plaintiffs' expert confirmed that no one else

in the market had tested either of his two alternative designs, he had not calculated how

much it would cost to bevel the edges, although he timed it at about "four seconds," he had

not made a determination of what savings there would be based on the cost of production

and injury, if there were any injury, he had not calculated the cost or savings he believed

existed with respect to the treadless step with the addition of the adhesive, and he testified

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that he had not seen the smooth or flattened step with the addition of the adhesive textured

surface on any other climbing stick in the industry. (Johanson Dep. 99, 110-12, 160.) 

In Peck, the plaintiff's expert testified that he "would have designed the lathe

differently, with a 'safer' lever shift mechanism, but that he had never fabricated such a

design and, in fact, had never seen his proposed design used on a lathe anywhere." Peck,

237 F.3d at 618. He testified that he had seen the proposed design used on "cherry

pickers", that he did not know whether such a design was feasible, and he provided an

estimate of an approximate cost increase, yet admitted he was not sure. See id.

Under the Michigan risk-utility test set forth in Prentis, an expert who testifies

that a product could have been designed differently, but who has never made

or seen the alternative design he proposes, and therefore has no idea of its

feasibility, utility, or cost, does not make out a prima facie case that a

reasonable, practicable, and available alternative design was available.

Id. 

Plaintiffs' expert has not completely prepared either of the alternative designs he

proposes, he has tested them only himself, admittedly without using the climbing sticks in

conditions similar to those of Plaintiff's incident, he attached only one to a tree and was only

a couple of feet off the ground, the designs have not been subjected to any further testing,

and he has prepared no calculations regarding cost or feasibility. (Johanson Dep. 54.) He

has not established a prima facie case with regard to element four. 

4. Whether The Alternative Design Would Have Reduced The

Foreseeable Risk of Harm

Even if the Court were to concede that Plaintiffs have established that there exists a

reasonable alternative design and that it was practicable, Plaintiffs' claim fails at element

five, where Plaintiffs have proposed no evidence to show that the "available and practicable

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reasonable alternative design would have reduced the foreseeable risk of harm posed by

defendant's product." Peck, 237 F. 3d at 617-18.

Plaintiff provides no evidence other than his own opinion that either of his proposed

alternative designs would have reduced the risk of an individual catching a ring on the

ladder stick step, resulting in injury to a finger. Mr. Johanson admitted that he tested

"empirically" and conducted no scientific tests on the climbing sticks. (Johanson Dep. 46.) 

He purchased an exemplar of the climbing stick on e-Bay and he used three different pairs

of boots to test the climbing stick. (Johanson Dep. 14, 17-18.) To test the stick, Mr.

Johanson affixed it to a tree, a couple of feet off the ground.6

(Johanson Dep. 21, 54.) He

climbed only two of the three steps, and stood on the step to test the treads, with more

weight on one foot than the other, and tested the foot that had less weight upon it.

(Johanson Dep. 54-56.) He concluded that the smooth surface and the discontinuous

(corrugated) surface had the same resistence, yet adding the adhesive abrasive surface

resulted in positive gripping against the sole of the foot and a better grip for the hand.

(Johanson Dep. 47, 58). 

As Defendant reminds, the risk of injury in the instant case is that of catching a ring

on the product, resulting in injury; the risk is not to slipping off the step. Mr. Johanson

testified that if the end of the step was appropriately radiused, "you will not be able to catch

something like a ring on it" yet "[y]ou could catch clothing; you could catch an article of

clothing or a rope or something of that sort on any protruding surface." (Johanson Dep.

 6 Mr. Johanson did not use the strap that came with the climbing stick to affix it to the

tree; instead, he used another similar Lone Wolf strap that he had from other equipment.

(Johanson Dep. 22-24.) 

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123.) During the deposition, Plaintiffs' expert was still able to catch a ring on the end of the

step, indicated by the following testimony:

Q: Okay. And it's your opinion that the beveling you've done, would reduce

the risk of catching a ring? 

A: Yes, sir. 

Q: Can you see if you can catch your ring on one of those. 

 You just did, didn't you? You just caught your ring?

A: I did. That depends on how I'm holding it. If I'm off on the side, I can

indeed catch it. I've reduced the catching potential as compared to the other

side where I have not put a bevel on it.

Q: But you can still catch it? 

[Plaintiff's Attorney:] Again, his hand is perpendicular. 

[Defendant's Attorney:] Let me finish the question and you can object.

Q: You can still catch your ring finger? 

A: On that one, correct.

Q: On the beveling that you've done? 

A: Yes, sir. 

(Johanson Dep. 124-25.) Plaintiffs have failed to provide evidence that there is an available

and practicable reasonable alternative design that would have reduced the foreseeable risk

of harm posed by the product. Likewise, they have failed to show evidence to support the

sixth element of the risk-utility test, "that omission of the available and practicable

reasonable alternative design rendered defendant's product not reasonably safe." Peck,

237 F.3d at 618. 

Plaintiffs have failed to establish several elements of the risk-utility test, and therefore,

they are unable to establish a prima facie case of design defect. The Court grants

Defendant's motion with respect to the design defect claim in Plaintiffs' Count I.

5. Implied/Express Warranty

With respect to Plaintiffs' breach of warranty claim, the Sixth Circuit has held that "an

implied warranty claim which is based on a product design defect requires a plaintiff to

satisfy the exact same elements of proof as a negligence claim." Paul, 938 F.Supp.2d at

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700. "The analysis of an implied warranty cause of action diverges from that of a product

design defect only when the defendant is a non-manufacturing seller." Id. at 701 (citing

Hollister, 938 F.Supp.2d at 736-37.) Here, there are no defendants to which a separate and

distinct implied warranty analysis would apply. Plaintiff has failed to establish a prima facie

case of design defect and Defendant's motion is granted with respect to Count II.

B. Failure to Warn

Plaintiff claims that Defendant was negligent in failing "to provide basic information as

to hazards and/or advise customers of the significant danger in the wearing of any ring or

jewelry when using Defendant's tree stand." (Am. Compl. ¶ 8(a).) Plaintiff argues that he

"was an experienced, careful hunter and never knew a ring was not to be worn when

climbing a ladder." (Pls.' Resp. 9, Ex. G p. 165.) Yet Defendant points out that the "risks of

catching jewelry, including a wedding ring, or snagging some other personal item on any

edge of the climbing stick step are a matter of common knowledge and daily experience"

and "[t]his is especially true with climbing sticks." (Def.'s Mot. Summ. J. 22.) 

To establish a prima facie case of failure to warn, a plaintiff must prove: (1) the

defendant owed a duty to the plaintiff; (2) the defendant breached that duty; (3)

the defendant's breach was a proximate cause of the plaintiff's injuries; and (4)

the plaintiff suffered damages. A manufacturer has a duty to warn if it has

actual or constructive knowledge of a danger, which is not obvious to users,

and the manufacturer failed to use reasonable care in informing users of the

danger or the facts tending to make the condition dangerous.

Croskey v. BMW of N. Am., Inc., 532 F.3d 511, 516 n.2 (6th Cir. 2008) (citing Gregory v.

Cincinnati Inc., 538 N.W.2d 325, 329 (Mich. 1995)). 

In response, Defendant argues that there is no duty to warn of an open and obvious

hazard. Defendant relies on Mich. Comp. Laws § 600.2948(2), which provides that 

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A defendant is not liable for failure to warn of a material risk that is or

should be obvious to a reasonably prudent product user or a material risk

that is or should be a matter of common knowledge to persons in the

same or similar position as the person upon whose injury or death the

claim is based in a product liability action.

Mich. Comp. Laws Ann. § 600.2948(2) (West). The Michigan Supreme Court in Greene v.

A.P. Products, Ltd., held that "[u]nder the plain language of MCL 600.2948(2), a

manufacturer has no duty to warn of a material risk associated with the use of a product

if the risk: (1) is obvious, or should be obvious, to a reasonably prudent product user, or (2)

is or should be a matter of common knowledge to a person in the same or similar position

as the person upon whose injury or death the claim is based." Greene v. A.P. Products,

Ltd., 717 N.W.2d 855, 859-60 (Mich. 2006). 

In Greene, the plaintiff had purchased a bottle of the defendant's hair and body oil. 

"Although the bottle's label cautioned the user never to spray the oil near sparks or an open

flame, it did not warn that the hair oil should be kept out of reach of children or that it was

potentially harmful or fatal if swallowed." Id. at 858. The plaintiff's eleven month old child

accessed the bottle and ingested and inhaled the hair oil. He died about one month later

from organ failure secondary to the ingestion. See id. The court found that the "statute does

not impose a duty to warn of a specific type of injury that could result from a risk" and

concluded that "it is obvious to a reasonably prudent product user that a material risk is

involved with ingesting and inhaling" the hair oil. See id. at 860-61. 

The court noted that the product "was not marketed as safe for human consumption

or ingestion," and "the label clearly states that the product is intended for use as a hair and

body oil." Id. at 861. The court also noted that the product label on the hair oil did "not state

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that it contains only natural oils" and listed "numerous other ingredients, many of which

would be unfamiliar to the average product user." Id. at 862. "Given such unfamiliar

ingredients, a reasonably prudent product user would be, or should be, loath to ingest it."

Id. The court held that "defendants owed no duty to warn plaintiff that her son's ingestion

and inhalation of the Wonder 8 Hair Oil posed a material risk. Moreover, defendants owed

no duty to warn of the potential injuries that could arise from ingesting and inhaling the

product." Id. at 862. The court concluded that "the statute imposes a duty to warn that

extends only to material risks not obvious to a reasonably prudent product user . . . ." Id.

at 857. 

Plaintiff cites Michigan Mutual Insurance Co. v. Heatilator Fireplace, 366 N.W.2d 202

(Mich. 1985), for the premise that even if a reasonable person would be conscious of a

vague danger associated with a product, it does "not preclude a jury from finding that a

warning was nonetheless required to give [the purchaser] a full appreciation of the

seriousness of the life-threatening risks involved." (Pls.' Resp. 10, citing Michigan Mut., 366

N.W.2d at 205.)7 The Michigan Mutual court noted that it was "not at all obvious that

blocking the air vents on a fireplace of this type will cause the outer walls of the fireplace

to overheat to the point of igniting surrounding materials." Michigan Mut. Ins. Co., 366

N.W.2d at 205.

The witness testimony, including that of Plaintiff himself, shows that a general

snagging risk, such as the ability to snag or catch clothing or something else on the steps

 7This is a 1985 decision and pre-dates Mich. Comp. Laws Ann. § 600.2948(2), enacted

by P.A. 1995, No. 249, § 1, Eff. Mar. 28, 1996. 

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of the climbing stick, was obvious. Plaintiff testified that he knew clothing could get caught

on the climbing sticks. (Valente Dep. 165.)

Q: Do you agree with me that you knew that, if you had loose clothing on, it

could possibly get caught on the steps? 

A: Sure. 

Q: And you would agree with me that you knew you could catch your ring on

the steps? 

A: No, I didn't think of that. But you know what, that Sitka gear, the reason

why I got that too is it's so tight fitting close to your body and very well

insulated, and it was like less chance of getting snagged, you know. 

 . . . 

Q: Just because you didn't think about it didn't mean you didn't know that it

could get caught, your ring? 

A: It never crossed my mind ever that my ring would get caught on a tree

step. 

(Valente Dep. 165.)

Plaintiff also recognized the potential risk of wearing jewelry on his hands at work,

despite testifying that when he was working in maintenance he wore his wedding ring all

the time and never took it off. (Valente Dep. 33.) He testified, "I guess you don't want like

to have any chains dangling or anything loose" around machines while they are operating.

(Valente Dep. 33.) 

Q: You understood -- I mean, that was a risk, having a piece of jewelry on

your hand was a risk working? 

A: At work? 

Q: Yes, at work. 

A: Yeah, I guess so, yeah. (Valente Dep. 34.) 

Yet the specific risk of snagging a ring on the corrugation or edge of the climbing stick

steps, while recognized by some, was not recognized by Plaintiff and another witness. For

example, Defendant's expert, George M. Saunders, Jr., testified that he takes his wedding

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ring off "at least 50 percent of the time" when he is climbing and that is "because of this

accident." (Pls.' Resp. Ex. J, Saunders Dep. 50.) He confirmed that he has been removing

the ring since learning about Plaintiff's injury, but not before.8 (Saunders Dep. 50.) 

Plaintiff argues that Defendant's owner, Mr. Schlipf, knew of the danger of snagging

a wedding ring in association with a hunting ladder, but that it was not an open and obvious

danger to an average person. (Pls.' Resp. 10 and Ex. I, Schlipf Dep. 67.) In fact, when Mr.

Schlipf was asked whether there was ever any "[c]onsideration, ever any thought given to

whether the gripping surface could catch a ring or an item of clothing?" he responded:

"Well, I would think any -- I mean, if you've got something protruding off of a step or

anything, there's always a possibility on something like this of catching clothes or -- I think

that's pretty obvious. They're pretty-- common sense I guess I should say that it's possible."

(Schlipf Dep. 66-67.) 

When asked about his recollection of the accident at issue, the EMS attendant, Mr.

Bittner, testified that he is a hunter himself and since the accident he had "bought a tree

blind and [he] was climbing down it one day" and it occurred to him that he "can see how

that could happen." (Def.'s Mot. Summ. J. Ex. O, Bittner Dep. 26.) He agreed that he could

see how somebody could catch their finger and agreed that it was "obvious that somebody

could catch their finger if they're not careful." (Bittner Dep. 48.) 

 8Although Plaintiffs' expert testified that he does not have opinions on the warning issue,

it is worth noting that Mr. Johanson testified that he believed someone would be able to feel

the corrugation on the steps with their hands or feet. (Johanson Dep. 61.) Mr. Johanson

testified that he takes his ring off when he works with machinery and agreed that it is

obvious that "rings could get snagged on items." (Johanson Dep. 63.) He later testified that

although he takes his ring off when working with machinery, he did not take the ring off

when he was hunting in the past and it "would never have occurred to [him] until now."

(Johanson Dep. 150.) 

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Here, both the protruding steps and the corrugated nature of the steps was readily

apparent and disclosed by no more than casual inspection. See generally, Fowler v. Jack's

Corner Stores, 2010 WL 2793649 (Mich. Ct. App. 2010) (citing Laier v. Kitchen, 702

N.W.2d 199 (Mich. Ct. App. 2005); Glittenberg v. Doughboy Recreational Indus. (On

Rehearing), 491 N.W.2d 208 (Mich. 1992)). Plaintiff's son, Anthony Valente testified that

he could see the "teeth" or corrugation on the steps in a photo and was able to see them

the day he climbed them. (Def.'s Mot. Summ. J. Ex. P, A. Valente Dep. 46-47.)

The material risk in this instance, catching or snagging an item on the climbing stick,

was obvious. Yet the record contains evidence that raises a question of material fact as to

whether the risk of catching or snagging a ring on the climbing stick tread was open and

obvious or whether the Defendant had a duty to warn about this issue. The Court denies

Defendant's motion for summary judgment as to this claim. 

C. Gross Negligence

As Defendant correctly points out, Plaintiffs have not responded to Defendant's

argument for summary judgment on their gross negligence claim. Gross negligence is

defined as "conduct so reckless as to demonstrate a substantial lack of concern for whether

injury results." Mich. Comp. L. Ann. § 600.2945(d). 

Plaintiffs have set forth no evidence of reckless conduct and did not respond to

Defendant's motion for summary judgment on this issue, therefore Plaintiffs have

abandoned their claim and Defendant's motion should be granted on this claim. See

generally Xu v. Gay, 668 N.W.2d 166, 271 (Mich. 2003)("evidence of ordinary negligence

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does not create a question of fact regarding gross negligence"). Plaintiffs' gross negligence

claim must fail. 

D. Whether Plaintiffs' Claims Are Barred By The Failure To Use The Safety

Harness

Finally, Defendant argues that it is not liable because Plaintiff failed to use the safety

harness (Full Arrest System/full body harness) with its products, as instructed. Under

Michigan law, 

(1) A manufacturer or seller is not liable in a product liability action for harm

caused by an alteration of the product unless the alteration was reasonably

foreseeable. Whether there was an alteration of a product and whether an

alteration was reasonably foreseeable are legal issues to be resolved by the

court.

(2) A manufacturer or seller is not liable in a product liability action for harm

caused by misuse of a product unless the misuse was reasonably

foreseeable. Whether there was misuse of a product and whether misuse

was reasonably foreseeable are legal issues to be resolved by the court.

Mich. Comp. Laws Ann. § 600.2947(1), (2) (West). "Misuse" of a product "includes . . .

uses contrary to a warning or instruction provided by the manufacturer, seller, or

another person possessing knowledge or training . . . ." Mich. Comp. Laws. Ann. §

600.2945(e) (West). 

It does not appear that Plaintiffs addressed this argument in their response. Defendant

cited Trotter v. Hamill Mfg. Co., 372 N.W.2d 622 (Mich. Ct. App. 1985), in which a seatbelt

assembly was removed from a 1976 Mercury and reinstalled in an assembled dune buggy.

When the seatbelt retractor was forced from its floor mounting during an accident, the

passenger was thrown from the dune buggy, resulting in his death. Id. at 623. The court

noted that the "questions of duty and foreseeability are . . . properly determined by the

court as matters of law." Id. at 625. "Liability for harm caused by a product may not be

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imposed upon a manufacturer or seller of that product where the defect was created by an

alteration which amounts to an intervening or superseding cause." Id. at 625. 

Defendant also cites this Court's opinion in Belleville v. Rockford Mfg. Grp. Inc., 172

F. Supp. 2d 913 (E.D. Mich. 2001). In Belleville, the plaintiff's decedent was fatally injured

while operating a wire draw machine at work. While it was "quite clear" that the plaintiff

"was not setting up the wire draw machine as recommended by the manufacturer at the

time of his death," the Court found that the "misuse of this wire draw machine was

reasonably foreseeable to the [d]efendant" and denied the defendant's motion for summary

judgment. Id. 915, 918. The Court considered Mich. Comp. Laws. §§ 600.2945(e) and

600.2947(2), noting that "[w]hat becomes apparent from these statutes as they apply to this

case is: (1) misuse of a product is an absolute defense for a manufacturer or seller of a

product in a product liability action; (2) if the misuse was reasonably foreseeable to the 

Defendant, the defense is obviated; and (3) the Court must make this determination." Id.

at 918.9 

There is case law holding that "[i]t is not reasonably foreseeable that a user would

disregard the operating instructions and engage in an obviously dangerous activity."

Presnell v. Cottrell, Inc., 2013 WL 878679, at *3 (E.D. Mich. Mar. 8, 2013) (citing Cobbs v.

Schwing America, Inc., 2006 WL 334271 (E.D. Mich. 2006) (obviously dangerous use of

equipment is not reasonably foreseeable.)). Here, Plaintiff did not wear the harness safety

system which was instructed and warned about in the instructions. The failure to utilize the

 9 The Court also noted that "since the above-quoted Michigan statutes are only recent

amendments, no published Michigan appellate decision has construed them," so the Court

looked to cases pre-dating the statute on the issue of reasonably foreseeable misuse. Id.

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safety harness system as instructed, when climbing to heights in a tree, may be an

obviously dangerous use of Defendant's equipment. 

Evidence establishes a question of fact whether use of the safety harness would have

prevented the injury at issue. There is testimony that shows that there would have been

some amount of slack in the harness and a question of fact whether the resultant finger

injury would have occurred even with Plaintiff wearing the harness. Plaintiff testified that

it would have been worse with the harness because he would have been hanging from the

tree "with a ripped off finger, bleeding" and trying to unhook from the harness. (Valente

Dep. 128.) Plaintiff testified that even with the harness, he still would have dropped and

"[e]ven if it was two inches [he] still would have ripped [his] finger off." (Valente Dep. 137.)

Plaintiffs' expert, Mr. Johanson, testified based on his experience using safety harnesses

and linesman belts that when an individual does separate from the tree stand, "you have

some distance and you're going to fall . . . ." (Johanson Dep. 143-45.) Similarly,

Defendant's expert, Mr. Smith, testified that there could be from zero to three feet of slack

in a safety harness while moving from one place to another. (Pls.' Resp. Ex. H, Smith Dep.

49-50.) Yet he also testified that the use of the safety belt "would have made [Plaintiff] more

cautious in climbing down the tree, and he wouldn't have jumped off the step had he had

the belt attached, then, yes, it's a factor in the case and in his injury." (Smith Dep. 48.) The

Court denies Defendant's motion as to the misuse argument. 

E. Plaintiff Laura Valente's Loss of Consortium Claim

Defendant did not move for summary judgment on the loss of consortium claim. A loss

of consortium is an independent yet derivative cause of action. Wesche v. Mecosta Cnty

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Road Comm'n, 746 N.W.2d 847, 854 (Mich. Ct. App. 2008). Here, Mrs. Valente's derivative

loss of consortium claim survives with those claims not dismissed. 

IV. CONCLUSIONS

For the reasons set forth above, Defendant's motion is granted in part and denied in

part as follows:

A. Defendant's motion is GRANTED as to Plaintiffs' product liability claim

based on design defect in Count I and the claim is DISMISSED with

prejudice; 

B. Defendant's motion is DENIED as to Plaintiffs' negligence claim based

on failure to warn in Count I;

C. Defendant's motion is GRANTED as to Plaintiffs' breach of implied

warranty claim and Count II is DISMISSED with prejudice; 

D. Defendant's motion is GRANTED as to Plaintiffs' gross negligence claim

and Count III is DISMISSED with prejudice.

 s/Nancy G. Edmunds 

Nancy G. Edmunds

United States District Judge

Dated: July 23, 2015

I hereby certify that a copy of the foregoing document was served upon counsel of record

on July 23, 2015, by electronic and/or ordinary mail.

s/Carol J. Bethel 

Case Manager

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