PHILADELPHIA – A federal appellate court says the manufacturer of a speed pulley had no duty to warn an injured Thornton man using one of its products in the construction of a homemade zip line would be dangerous.
A panel of Third Circuit judges affirmed the ruling in plaintiff Ryan Scott Kurzinsky’s case on Dec. 24, believing the manufacturer of the zip line he used had no responsibility to caution of the “dangerous speed” associated with such use of the device, as such risk was “obvious.”
Authoring the opinion for the Court was Third Circuit Judge Anthony J. Scirica.
“On July 9, 2016, Kurzinsky constructed a zip line in his backyard using the Petzl Tandem Speed Pulley. He relied only on information he gathered from an Internet search and did not consult any instructions from Petzl concerning the construction of the zip line,” Scirica said.
“He ran a wire cable between two trees in his backyard about 80 feet apart with the wire about ten feet off the ground. Then, he tested the zip line using a wooden seat that hung from the pulley. According to Kurzinsky, the rides taken with the wooden seat were ‘slow,’ so the following day he removed the seat and attached a straight bar to the pulley in its place.”
The straight bar mandated Kurzinsky to hang from the zip line using only his grip to support his entire weight, so he climbed a ladder to reach the bar and began his descent. This time, Kurzinsky described his speed as “astronomical.” At the end of the descent, Kurzinsky either let go to avoid hitting the tree or lost his grip, falling to the ground below, suffering “severe injuries” in the process.
Kurzinsky then sued Petzl in the U.S. District Court for the Eastern District of Pennsylvania, based on claims – under Pennsylvania law – of product liability, negligence, and breach of the implied warranty of merchantability, but on Jan. 16, 2019, the trial court granted Petzl’s motion for summary judgment and dismissed all claims.
Kurzinsky felt that summary judgment was inappropriate for his product liability, negligence, and breach of warranty claims, because Petzl failed to warn that the Tandem Speed Pulley could travel on a zip line at a “dangerous speed.”
Kurzinsky argued that a genuine dispute of fact exists as to whether Petzl’s warnings were adequate, and stated that Petzl should have included a warning “regarding the dangerous speed at which the pulley could travel.”
The rationale didn’t meet with approval from the Court.
“Kurzinsky’s contentions fail. Petzl had no duty to warn of ‘dangerous speed’ because the risk of speed while going downhill on a zip line was obvious and because Kurzinsky designed the zip line while using Petzl’s pulley as a mere component in his system,” Scirica said.
Scirica then turned to the merits of the claims in the appeal.
“We first address the product liability claim. This claim was brought under Pennsylvania law for failure to warn and is informed by the Restatement (Second) of Torts Section 402A. (per Tincher v. Omega Flex, Inc.).
“A manufacturer can be liable if its product is ‘unreasonably dangerous’ absent adequate warnings. Under Pennsylvania law, however, manufacturers have no duty to warn for obvious dangers and are not required to ‘educate a neophyte in the principles of the product.’ Whether a manufacturer has a duty to warn is a question of law.”
According to Scirica, the Court’s criteria for determining if a danger is obvious is asking whether knowledge of the danger would be possessed by an objective “ordinary consumer” who buys the product. Here, Scirica said it was.
“The risk of traveling at a ‘dangerous speed’ when using the Tandem Speed Pulley on a zip line is obvious. The Tandem Speed Pulley utilizes ball bearings, which spin freely like wheels on a bicycle,” Scirica said.
“Therefore, the pulley’s speed when used on a zip line is a function of the angle and length of the descent. Like the obvious risk of riding a bicycle downhill, any ‘dangerous speed’ from using a pulley for a zip line would be obvious.”
Scirica added that Kurzinsky contributed to the obvious dangers of his zip line by using a straight bar, which required him to bear his full weight solely with his grip.
“Because grasping a bar and accelerating down a pulley system suspended 10 feet above the ground presents clear and manifest risks, we agree with the trial court that the ‘ordinary consumer’ would appreciate the obvious, ‘basic dangers’ of a zip line and the ‘increased risk of using a bar over a seat.’ Petzl had no duty to warn of “dangerous speed,” Scirica stated.
Scirica explained that the lack of a duty to warn of “dangerous speed” is bolstered by the fact that Kurzinsky, not Petzl, designed and built the zip line system of which the pulley was only a component.
“Here, Kurzinsky controlled how Petzl’s pulley was used as a component in his zip line system. Kurzinsky consulted videos from the internet that were not created by Petzl; he chose the height and incline of his zip line system; and he decided to use a straight bar 7 without a harness,” Scirica stated.
“The impact of Kurzinsky’s own design is demonstrated by the change in speed and danger when he switched from using a wooden seat to using the straight bar. According to Kurzinsky, his speed on the zip line only became ‘astronomical’ after he used the bar…Petzl had no duty to warn that its Tandem Speed Pulley could travel at ‘dangerous speed’ when used as a component of a zip line system like the one created by Kurzinsky.”
Taking said lack of duty to warn into account, Scirica stated the remaining claims should fail as a result.
“Kurzinsky’s remaining claims for negligence and breach of the implied warranty of merchantability are both based on Petzl’s alleged failure to warn of the pulley’s ‘dangerous speed.’ Because Petzl had no duty to warn of ‘dangerous speed,’ those claims fail for the same reasons stated above,” Scirica concluded.
U.S. Court of Appeals for the Third Circuit case 19-1320
U.S. District Court for the Eastern District of Pennsylvania case 2:17-cv-01234
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com