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The Pennsylvania Superior Court has reinstated a products liability suit brought by a man who fell 35 feet from a tree while wearing a safety harness backward.

The lawsuit, captioned Zimmerman v. Andrew, was dismissed at the summary judgment phase after the Elk County judge presiding over the case determined that ”it would be a waste of time” to take the case to jury, given the plaintiff’s clear misuses of the product. But, on June 1, a unanimous three-judge panel determined that decision was an error and remanded the case back to the trial court for further proceedings.

The panel, led by Judge Mary Jane Bowes, said that, despite the plaintiff’s alleged misuse of the harness, the trial court overlooked evidence that indicated the instructions were unclear and could show there were other factors that lead to the plaintiff’s fall.

“We conclude that Mr. Zimmerman tendered sufficient evidence that, if accepted by the fact finder, would establish that the harness was defective, that FallTech was negligent in the product’s design and instructions, and that these deficiencies were a proximate cause of Mr. Zimmerman’s injuries,” Bowes said. “Therefore, it was [an] error for the trial court to rule, on the record before it, that Mr. Zimmerman’s misuse of the harness ‘solely caused the accident while the design defect did not contribute to it.’”

According to Bowes, the plaintiff James Zimmerman went to his friend’s house to cut down a dead tree, and he used a harness that his friend owned, but had never used before. The harness, which was created by FallTech, included a paper instruction manual, as well as a warning label on the harness itself.

Bowes said Zimmerman saw the warning label, but did not completely read it. Instead he relied on “limited personal experience using a harness in construction work and seeing them used on television programs featuring people cutting trees,” she said.

Bowes noted that Zimmerman put the harness on backward, and, after climbing the tree, he used safety rings on the sides of the harness to bear his weight, rather than anchoring himself to a point above his head, which the instructions had called for.

According to Bowes, the harness failed when Zimmerman tried to change positions and put all of his weight on the harness. After falling 35 feet to the ground, he suffered a collapsed lung and several broken bones, which eventually led doctors to amputate his right leg below the knee.

Zimmerman sued, alleging strict liability, negligence and breach of warranty, but FallTech moved for summary judgment on all the claims, arguing the harness was meant for use on construction projects by trained workers and that Zimmerman’s use constituted an unintended and unforeseeable misuse of the product.

The trial court granted FallTech’s motion, saying there was “absolutely nothing” that would make the manufacturer think someone would use the harness the way Zimmerman did, and that, if a jury followed the court’s instructions on the law, they would have to find in FallTech’s favor.

On appeal, Zimmerman contended that the instructions manual did not show the side rings at issue, and argued that those rings are identical to the one ring on the back of the harness that he was supposed to use. He further contended that the warnings saying the side rings were not meant to be used as a “fall arrest” did not define that term, or say that the rings were not load bearing. Zimmerman also pointed to his engineering expert’s opinion, which said the instructions were deficient.

Bowes determined that, based on Pennsylvania law, Zimmerman provided enough evidence to bring the case to a jury.

Zimmerman’s attorney Joshua Licata of Friday & Cox said, “We’re happy for our plaintiff, Jim Zimmerman, whose right to a jury trial has been confirmed by the Superior Court.”

Katherine Wrenshall of Burke Cromer Cremonese, who represented FallTech, did not return a call for comment.