USCA11 Case: 20-14078 Date Filed: 05/18/2022 Page: 1 of 14
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14078
____________________
PAUL CREWS,
Plaintiff-Appellee,
versus
TAHSIN INDUSTRIAL CORP. USA,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Georgia
D.C. Docket No. 5:18-cv-00078-LGW-BWC
____________________
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2 Opinion of the Court 20-14078
Before WILLIAM PRYOR, Chief Judge, JORDAN, Circuit Judge, and
BROWN,* District Judge.
PER CURIAM:
Plaintiff Paul Crews was injured after his hunting tree-stand
collapsed. He filed a products liability action under Georgia law
against Tahsin Industrial Corp. USA (“Tahsin”), the manufacturer
of the tree-stand, for an alleged manufacturing defect, failure to
warn, and breach of warranty. The district court granted Tahsin
summary judgment on all three claims, finding Mr. Crews failed to
offer sufficient evidence from which a reasonable juror could con-
clude the tree-stand had a manufacturing defect that proximately
caused his injuries.
Mr. Crews appeals the district court’s grant of summary
judgment. Because we conclude the district court improperly
weighed evidence about the date on which Mr. Crews bought the
stand, we reverse in part.
I. BACKGROUND
The tree-stand, a fifteen-foot ladder with a two-person seat
at the top, essentially leans against a tree to provide an elevated
position for hunters. If properly installed, five straps hold the stand
to the tree. Mr. Crews says he bought the tree-stand in August or
September 2015 from a Wal-Mart store in Waycross, Georgia. He
* Honorable Michael L. Brown, United States District Judge for the Northern
District of Georgia, sitting by designation.
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20-14078 Opinion of the Court 3
first installed it before the 2015 hunting season. He hunted from
the stand about two dozen times from September 2015 to late De-
cember 2015, after which he took the stand down, accounted for
all its parts, and stored it in his barn.
In late September or early October 2016, Mr. Crews re-
trieved the stand from his barn and installed it by “put[ting] the
brace that goes from the ladder to the tree, ratchet[ing] it,” and
then “go[ing] up to the tree to do the top ratchet to secure it.” He
said the only straps he used to install the stand were the strap se-
curing a support bar to the tree and the top ratchet strap securing
the top of the stand to the tree. This means he used only two of
the five straps he should have used to secure the stand to the tree.
He left the stand attached to the tree for use throughout the hunt-
ing season.
In October 2016, Mr. Crews and his 14-year-old son returned
to the stand to hunt. They climbed onto the seated platform. The
stand collapsed, sending them to the ground. While Mr. Crews’s
son was largely uninjured, Mr. Crews landed in a seated position
and severely injured his back. Mr. Crews sued Tahsin, asserting
manufacturing defect, failure to warn, and breach of warranty. He
alleged the stand collapsed because the legs broke or bent, causing
the ratchet strap at the top of the stand to break. The district court
granted summary judgment for Tahsin on all claims, finding Mr.
Crews had presented no evidence raising a genuine issue of mate-
rial fact as to the existence of a defect or proximate cause. Mr.
Crews appealed.
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4 Opinion of the Court 20-14078
II. STANDARD OF REVIEW
We review a grant of summary judgment de novo. Burton
v. Tampa Hous. Auth.,
271 F.3d 1274, 1276 (11th Cir. 2001). A dis-
trict court may grant summary judgment when “there is no genu-
ine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a).
III. DISCUSSION
A. MANUFACTURING DEFECT
To establish a manufacturing defect under Georgia law, a
plaintiff must prove: (1) the defendant manufactured the product;
(2) the product, when sold, was not merchantable and reasonably
suited to the use intended; and (3) the product’s defective condition
proximately caused the plaintiff’s injury. Brazil v. Janssen Rsch. &
Dev. LLC,
196 F. Supp. 3d 1351, 1357 (N.D. Ga. 2016). Only the
last two elements—defect and causation—are in dispute. The
Court addresses each.
Under Georgia law, “[c]ircumstantial evidence may be used
to establish the existence of a manufacturing defect at the time the
product left the manufacturer, even where the product is con-
sumed or destroyed in the use that resulted in the plaintiff’s injury.”
Skil Corp. v. Lugsdin,
309 S.E.2d 921, 924 (Ga. Ct. App. 1983). The
district court explained that, although a defect can sometimes be
inferred from circumstantial evidence, such cases tend to be those
where the product failure destroys evidence so that it is impossible
to determine whether the product had a manufacturing defect. It
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thus found the inference of a defect to be unavailing in this case.
We agree. The stand was not destroyed, so both parties had ample
opportunity to examine and test it. And the existence of a manu-
facturing defect is not the only plausible explanation for why the
stand collapsed—Tahsin’s theory that deterioration and corrosion
caused by long-term outdoor exposure led the stand to collapse or
that Mr. Crews did not properly attach the stand to the tree are
other plausible explanations. See In re Mentor Corp. ObTape
Transobturator Sling Prods. Liab. Litig.,
711 F. Supp. 2d 1348, 1377
n.12 (M.D. Ga. 2010) (“Where the existence of a manufacturing de-
fect is not the only plausible explanation for a product’s failure, the
product’s failure, standing alone, is not sufficient to establish a
manufacturing defect.”).
Given this conclusion, Plaintiff offered three pieces of direct
evidence to show a manufacturing defect: (1) the metal in the tree-
stand’s legs was thinner than called for by the manufacturer’s spec-
ifications, (2) a metal sleeve designed to add strength to a joint in
the stand’s legs did not cover the entire area needing reinforcement
as called for by the manufacturer’s specifications, and (3) the
ratchet strap that connected the top of the stand to the tree was not
as strong as it were supposed to be.
The district court found none of this evidence created a gen-
uine issue of material fact as to a defect in the stand. We agree on
the first two but disagree as to the third.
As to the first allegation, Mr. Crews measured the thickness
of the metal in the ladder legs and set forth those measurements in
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6 Opinion of the Court 20-14078
his affidavit. The district court held Mr. Crews could not opine as
to whether the metal thickness complies with the manufacturer’s
specifications because he is not an expert. Mr. Crews contends the
district court erred because at no point did he offer an opinion
about how his measurements compared to the manufacturer’s
specifications. In his mind, all he did was provide measurements.
While that may be, his measurements mean nothing without some
way of comparing them to the manufacturer’s specifications. Mr.
Crews says the measurements do not meet the manufacturer’s
specifications set forth in engineering drawings that he authenti-
cated through a deposition of Tahsin’s 30(b)(6) representative,
Alyssa Debiak. But, as the district court explained, Ms. Debiak is
not an engineer, and she testified she only had a “pedestrian under-
standing” of the drawings. Indeed, she did not explain how to read
the drawings, how the numbers and diagrams correspond to Mr.
Crews’s stand, or what the specifications for the model’s metal legs
were. All we have are Mr. Crews’s measurements, unexplained
engineering drawings, and his argument about how they compare.
That does not create a genuine issue of fact. George Saunders,
Tahsin’s mechanical engineering expert, said he measured some of
the stand, and his measurements were consistent with the specifi-
cations. Mr. Crews faults Mr. Saunders for not measuring every-
thing. But even if we disregard Mr. Saunders’s measurements, that
does not mean the metal thickness in the stand did not meet the
specifications—it just means there is no evidence one way or the
other. So there is still no evidence that creates a genuine issue.
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In support of his argument about the second alleged defect,
Mr. Crews identified testimony from Mr. Saunders, explaining that
both legs of the stand consist of two separate sections, with a
crimped end of one section sliding into the end of the other section.
The manufacturer’s specifications called for a metal sleeve on each
leg to cover the crimped area to reinforce the joint. Mr. Crews
argues that this established that the stand should have been manu-
factured for the sleeve to cover the crimped area completely.
Mr. Crews argued at summary judgment that a post-collapse
photograph of one leg shows the sleeve did not do that. He claims
that photograph precludes summary judgment. The photograph
shows deformation, specifically a rip and bending of the metal
caused during the accident. But it does not clearly show any crimp-
ing. No witnesses provided testimony that the photograph shows
the crimped area or that the sleeve does not cover the entire area
it was supposed to cover. Perhaps Mr. Crews suggests the con-
caved nature of the side opposite the most extensive deformation
is crimped. But the record contains no evidence to support that
contention. Mr. Crews’s naked assertion that the sleeve does not
adequately cover the crimped area cannot create a genuine dispute
of material fact as to this alleged defect. We thus affirm the district
court’s finding that Mr. Crew’s speculation cannot allow a jury to
find the stand was defective in this way.
The ratchet strap, however, is a different story. During dis-
covery, Mr. Saunders used a digital microscope to examine the sin-
gle ratchet strap Mr. Crews used to secure the top of the stand to
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8 Opinion of the Court 20-14078
the tree. That inspection showed “a brittle mode of separation
dominated the observed fibers.” He determined the strap was
“99.9 percent degraded” from its intended strength. Mr. Saunders
concluded that “[t]he root cause” of the collapse “was the separa-
tion of the significantly degraded ratchet strap.” He explained that,
when Mr. Crews and his son reached the top of the stand, the strap
broke, allowing the stand to pull away from the tree and placing
too much weight on the legs of the stand. That caused the legs to
buckle and Mr. Crews and his son to fall. From Mr. Saunders’s
analysis and Mr. Crew’s own testimony that he bought the tree-
stand new in 2015, Mr. Crews argued at summary judgment that
the microscopic fibers in the strap were brittle when manufactured.
Mr. Saunders gave a conflicting opinion. He explained that
brittle separation of fibers generally only happens after changes to
the polymer from long-term exposure to the environment. He ex-
plained that the degradation of the strap he observed could have
only occurred from the stand having been left outside for years, not
for months or weeks. Given this, Mr. Saunders said it was “highly
improbable” that Mr. Crews bought the stand in 2015, as the stand
was at least six years old at the time of the incident. Mr. Saunders
understood his analysis of the stand’s condition was in direct oppo-
sition to Mr. Crew’s testimony that he bought the stand in 2015,
used it for several months, and then stored it in a barn until the
2016 hunting season. He still explained that the condition of the
strap (as well as some corrosion to the metal portions of the stand)
“is not consistent with the limited exposure to the environment to
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20-14078 Opinion of the Court 9
which Mr. Crews testified.” Tahsin’s safety expert, Lorne Smith,
similarly found the stand had been left out in the elements for
years, which caused the strap to be so deteriorated it was no longer
usable. Mr. Smith added “[t]here is no way” Mr. Crews bought the
stand in 2015.
The district court credited Tahsin’s evidence and disre-
garded Mr. Crews’s testimony when it held that Mr. Crews did not
present “any evidence that the strap’s brittleness was a manufac-
turing defect as opposed to a consequence of his long-term outdoor
use of the strap.” This was an exercise in weighing the evidence,
an activity improper at summary judgment. See Anderson v. Lib-
erty Lobby, Inc.,
477 U.S. 242 (1986) (“[A]t the summary judgment
stage the judge’s function is not himself [or herself] to weigh the
evidence and determine the truth of the matter but to determine
whether there is a genuine issue for trial.”). The district court’s
reading of the evidence was reasonable, and perhaps it was correct,
but such a conclusion would be appropriate only after presentation
of the evidence to a jury. At summary judgment, the only question
is whether there is enough evidence on which “a reasonable jury
could return a verdict for the nonmoving party,” FindWhat Inv’r
Grp. v. FindWhat.com,
658 F.3d 1282, 1307 (11th Cir. 2011), and
“[t]he evidence of the non-movant is to be believed,” Anderson,
477 U.S. at 255. Crew’s testimony, if believed, would allow a jury
to conclude the brittleness of the strap resulted from a manufactur-
ing defect rather than from his neglect of the stand in allowing it to
be exposed to the elements for some number of years.
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10 Opinion of the Court 20-14078
As for causation, the district court acknowledged the factual
dispute about the purchase date but found the dispute was not ma-
terial to the issue of proximate cause. It concluded Tahsin had
shown other misuses of the stand that could have caused the stand
to collapse, such as Mr. Crews’s failure to wear the safety harness
and his failure to properly install the stand. It is true that under
Georgia law a plaintiff’s misuse of a product can break the chain of
causation. Chi. Hardware & Fixture Co. v. Letterman,
510 S.E.2d
875, 878 (Ga. Ct. App. 1999); see also Woods v. A.R.E. Accessories,
LLC,
815 S.E.2d 205, 210 (Ga. Ct. App. 2018) (“[A] product that
causes harm as a result of unforeseeable misuse is not defective.”).
But a manufacturer remains liable for a defect which under fore-
seeable conditions is likely to cause injury. Woods, 815 S.E.2d at
210 (considering “reasonably foreseeable product use or misuse” is
appropriate in deciding whether a manufacturer is liable for a de-
fective product).
Tahsin provided two full body safety harnesses with the
tree-stand. Tahsin’s written warnings and instructions stressed the
importance of remaining connected to the tree with a full body
safety harness, noting “[o]nce you reach the top, IMMEDIATELY
ATTACH YOUR SAFETY HARNESS TO THE TREE” and
“ALWAYS wear a Full Body Safety Harness after leaving the
ground.” Tahsin warned that failure to wear the harness may re-
sult in serious injury or death. The harness prevents a hunter from
falling to the ground and becoming injured if the hunter becomes
unstable or the stand becomes unsecure. On the other hand,
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Tahsin also warned that prolonged suspension in a harness may be
fatal. Mr. Crews admitted he did not wear a safety harness at the
time of the accident. He explained that he has “read the downsides
of hanging from a tree [for] very long” and thus personally believed
the risks of wearing such a harness outweighed the potential bene-
fits. Mr. Crews also offered evidence that, at least as of 2009, 82%
of hunters did not wear safety harnesses. Even if that percentage
had decreased by 2015, proximate cause is generally left to a jury
unless it is plain and undisputed. See S. Bell Tel. & Tel. Co. v.
Dolce,
342 S.E.2d 497, 498 (Ga. Ct. App. 1986). If the stand was
defective, there is a genuine issue as to whether Tahsin could fore-
see that a hunter would not wear the safety harness. It does not
appear the district court considered this before granting summary
judgment.
As to improper installation, Tahsin’s experts testified that
tests of similar, unstrapped tree-stands showed they collapsed only
at weights greater than the combined weight of Mr. Crews and his
son. So Mr. Crews’s testimony about the purchase date raises a
genuine issue of material fact about whether his failure to use the
required straps during installation caused the collapse and thus his
injuries.
But given how this case has been litigated and what remains
for the district court on remand, Mr. Crews’s arguments seem to
counteract each other. Mr. Crews has maintained that the other
straps were only needed for installation, that “none of the straps
were weight bearing” according to Tahsin’s expert, and that failure
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12 Opinion of the Court 20-14078
to use all the straps should not have affected the tree-stand’s ability
to hold the combined weight of him and his son. He bases this
argument on the fact Tahsin’s expert said the ladder could with-
stand more than 300 pounds of weight with no straps attached, and
he and his son weighed 260 pounds combined. So, he contends,
“[s]ince the lack of straps does not cause a ladder stand to collapse
at a weight of 260 pounds, the fact that more straps were not used
by Mr. Crews is not the sole proximate cause of the collapse of the
ladder and injury to Mr. Crews.” In other words, Mr. Crews
acknowledges that, even if the straps he did use were defective, fail-
ure to use all of them would not have been the sole cause of the
tree-stand’s collapse.
This might seem a dangerous concession on Mr. Crews’s
part given our above analysis of his other theories of a manufactur-
ing defect and conclusion he has only raised a material issue of fact
regarding a defect in the ratchet strap. But Tahsin has argued the
degraded strap “caused the collapse.” The logical inconsistency of
Mr. Crews’s argument, thus, does not require summary judgment.
There is a genuine issue of material fact given the contradictions in
Tahsin’s expert reports, as identified above. We merely pause to
acknowledge that does not align with Mr. Crews’s current theory
of the case.
B. FAILURE TO WARN
The district court granted summary judgment to Tahsin on
the failure-to-warn claim in part because Mr. Crews could not
show proximate causation. Having found the district court erred
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20-14078 Opinion of the Court 13
in its analysis of causation, we conclude it erred in granting sum-
mary judgment to Tahsin on the failure-to-warn claim on that ba-
sis.
IV. BREACH OF WARRANTY
The district court granted summary judgment to Tahsin on
the breach-of-warranty claim. The district court explained that
Crew’s breach-of-warranty claim, “[t]o the extent that” it was “al-
lege[d],” failed both because Crews could not establish proximate
causation and because Crews failed to explain what warranty was
breached. “To obtain reversal of a district court judgment that is
based on multiple, independent grounds, an appellant must con-
vince us that every stated ground for the judgment against him is
incorrect.” Sapuppo v. Allstate Floridian Ins. Co.,
739 F.3d 678, 680
(11th Cir. 2014). To convince us, “an appellant’s brief must include
an argument containing ‘appellant’s contentions and the reasons
for them, with citations to the authorities and parts of the record
on which the appellant relies.’” Singh v. Att’y Gen.,
561 F.3d 1275,
1278 (11th Cir. 2009) (quoting Fed. R. App. P. 28(a)). And “[w]e
have long held that an appellant [forfeits] a claim when he . . . raises
it in a perfunctory manner without supporting arguments and au-
thority.” Sapuppo, 739 F.3d at 681. Even if Crews had convinced
us both that there is a genuine issue of fact as to proximate causa-
tion and that the genuine issue carries over to his breach-of-war-
ranty claim, Crews forfeited his breach-of-warranty claim by not
offering any legal authority to support it because the district court
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14 Opinion of the Court 20-14078
relied on a basis independent of proximate causation. We there-
fore affirm on this claim.
V. CONCLUSION
We AFFIRM the district court’s grant of summary judgment
for Tahsin on the breach-of-warranty claim, VACATE the district
court’s grant of summary judgment for Tahsin on the manufactur-
ing defect and failure-to-warn claims, and REMAND for further
proceedings.
