(Thumbs) Up and Away – The Wisconsin Crossbow Lawsuit

A Wisconsin man went hunting last fall hoping to take out Bambi’s mom but instead his thumb became the only casualty of the outing.  Let’s talk specific. In November, Cyril Korte found himself deer hunting with a TenPoint Phantom crossbow he purchased at a Cabela’s Retail Store in 2009.  Unfortunately for Mr. Kote, as he fired the crossbow, he stuck his thumb in the path of the bow string, which is a major no-no.  In so doing, he severed part of his thumb; making matters worse, the missing piece could not be reattached.  Mr. Kote has, of course, filed a lawsuit against Hunter’s Manufacturing Company (d/b/a TenPoint) and Cabela’s Retail.

I’m not particularly familiar with the operation of crossbows, but it would seem to me that keeping your digits out of the path of the bow string is common sense.  I found the 2009 owners manual for the TenPoint Phantom crossbows.  Sure enough, it states, quite clearly:  “Never allow your fore-grip hand’s fingers or thumb to move above the barrel’s flight deck or into the bow string or cables’ release path.  If you do, you will injury yourself severely when you fire your crossbow.”

Plaintiff has made a few interesting claims in his suit.  First, the complaint states that TenPoint should have know of the crossbow’s dangerous propensities and that “injuries to users’ fingers or thumb are the most common injuries associated with the use of Tenpoint’s crossbows and TenPoint was at all relevant times aware of this fact.”   For any product, there is always going to be a “most common” injury regardless of whether it is defectively designed.  The real question is, of course, whether the foreseeable injury could have been reduced or avoided by a reasonable alternative design.  To that end, Plaintiff”s real claim is that the crossbow should have some sort of grip guard to keep people from sticking their thumbs into the path of the bow string.

The second interesting allegation Plaintiff made in his lawsuit is that he relied on expertise of the Cabela’s staff in selecting the crossbow and he was apparently he was told that the TenPoint Phantom was the “best and safest” crossbow on the market.  So what? Was this some sort of express warranty that Plaintiff couldn’t severe his thumb if he didn’t use the cross bow properly?  The “best and safest” of anything, especially weapons, will typically still cause injuries if used improperly.  What if a person goes out and buys the “best and safest” car based on the car salesman’s recommendation, then later proceeds to slam on the gas peddle with his friend standing in front of the car?  Of course an injury will occur, even though the car may have, in fact, been the best and safest car on the market.  The real question is here is whether other crossbows sold in 2009 had a grip guard that could have prevented the injury.

In the end, this case just seems like another classic example of “if there is a way to get injured there is someone out there who will find it.”  That someone will inevitably file a lawsuit thereafter.