WEST VIRGINIA RECORD

BECKLEY -– Summit Treestands and Cabella Retail Inc. deny they are to blame for a man's mishap in connection with a full-body harness he was using manufactured and sold by the companies.

Instead, Summit Treestands and Cabella Retail claim Clinton Smith may have been responsible for his own injuries because the companies allege Smith may have been under the influence of alcohol while using their product.

Clinton Smith originally filed a lawsuit June 18 in Raleigh Circuit Court against Summit Treestands and Cabella over an alleged injury Smith says he incurred while using a defective hunting harness.

"On or about June 21, 2007, in Raleigh County, West Virginia, Clinton Smith was using defective Summit Treestands harness, which had been distributed and sold by Cabela's to plaintiff, when the equipment malfunctioned and/or failed causing injuries and damages to Clinton Smith for which Cabela's and Summit Treestands are jointly and severally liable," Smith's suit states.

Smith contends he was not guilty of any wrongdoing in the events that led to his injury, but says it occurred solely because of the defective equipment provided to him.

But in their answer, Summit Treestands and Cabella deny their product was defective and say Smith's claim should be barred because he may have experienced an impaired ability to operate the harness due to the influence of alcohol or a controlled substance.

In addition, there are risks associated with the device, but the device would not be effective without those inherent dangers, the defendants claim.

"When the subject product left the control of Defendant, a practical and technically feasible alternative design was not available that would have prevented the harm for which Plaintiffs seek damages without substantially impairing the usefulness or intended purpose of the product," the defendants' answer states. "The risk of harm of which Plaintiff complains was open and obvious and/or a matter of common knowledge, or Plaintiff should have otherwise been aware of the risk."

Smith is seeking unspecified damages, plus pre- and post-judgment interest, attorney's fees, costs and other relief the court deems just.

Summit Treestands and Cabella removed the case to U.S. District Court for the Southern District of West Virginia because they say Smith is seeking more than $75,000 and because a diversity of citizenship exists as Summit Treestands is a Delaware corporation and Cabella Wholesale is a Nebraska company while Smith is a West Virginia resident.

Smith will be represented by Christopher J. Heavens of Heavens Law Office in Charleston and by William D. Thompson Sr. of Charlotte, N.C.

Summit Treestands and Cabella will be represented by Michael Bonasso and Elizabeth L. Taylor of Flaherty, Sensabaugh and Bonasso in Charleston and by Milton S. Karfis of Harvey Kruse in Troy, Mich.

U.S. District Court case number: 5:09-1013