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Gillespie v. R.d. Werner Co.





APPEAL from the Circuit Court of Madison County; the Hon. VICTOR J. MOSELE, Judge, presiding.


Rehearing denied December 16, 1976.

Plaintiff, Billie Gillespie, brought an action for personal injuries he sustained during a fall from a ladder manufactured by defendant R.D. Werner Co., Inc., and allegedly leased from co-defendant Alton Trailer & Equipment Rental Co. The case proceeded to trial under alternative theories of strict liability in tort, breach of implied warranty of merchantability, and negligence. At the close of plaintiff's case in chief the trial court granted a motion for a directed verdict on the negligence count. At the close of all the evidence defendants moved for a directed verdict on the remaining two counts, but the motion was denied. The jury returned a verdict in favor of plaintiff as to defendant Werner but against plaintiff as to defendant Alton Rental and assessed damages at $72,500. Defendant Werner then filed a post-trial motion for judgment notwithstanding the verdict or a new trial. The motion was denied and judgment was entered on the verdict. Werner has appealed.

In this appeal Werner makes two contentions: (1) that the evidence was insufficient to establish a prima facie case and, therefore, the trial court erred in refusing to direct a verdict or enter judgment n.o.v.; and (2) that the trial court erred in refusing to grant a new trial following a comment made at the trial about the cancellation of Alton Rental's insurance after the injury to plaintiff. Our disposition of this case makes it necessary to discuss only the first of these contentions.

The facts giving rise to the instant litigation are as follows. On July 19, 1972, plaintiff was working as an electrician, installing wiring at McKinley School in St. Louis, Missouri. James R. Ford, an electrician's helper, was the only other person present at the work site. The job required the men to install wiring in a ceiling above a false or "drop" ceiling. Plaintiff and Ford had set up a ladder to be used in doing the work. The ladder was a Werner "Saf-T-Master Mark 3, Model 388," aluminum, five-way combination ladder and had been set up by plaintiff and Ford for use as a stepladder. When used as a stepladder, it was eight feet high.

Plaintiff and Ford observed the ladder as they were setting it up. Neither man saw anything wrong with the ladder. Ford had also used the ladder on that day, prior to plaintiff's use which resulted in the fall.

The floor on which the ladder stood was vinyl-covered concrete and was level. Each siderail, or leg, of the ladder had a nonskid, vinyl-plastic foot or pad on its bottom. Plaintiff climbed the stepladder, through an opening in the drop ceiling, and stood on the first or second step from the top of the ladder. The ladder was level and stable.

Plaintiff testified that at the time of the fall, he was reaching overhead with both arms to install a locknut on a clamp connector in a box previously attached to the ceiling. "[T]he next thing [he] knew, [he] was on the floor." Plaintiff testified that the ladder had fallen to his left and he had fallen to his right. As he was falling his left elbow caught on the drop ceiling, causing him to land on the floor on his right elbow instead of his feet. Plaintiff testified that he did not strike the ladder as he fell.

Ford testified that at the time of the fall he was standing near the foot of the ladder in order to be able to hand plaintiff tools and materials. As plaintiff stood on the ladder, Ford could not see what plaintiff was doing, because the drop ceiling blocked his view. The "ladder started movin', then shot right out from under" plaintiff to the left. Plaintiff fell to the right and "came down through all the drop ceiling." After the accident Ford observed that the bottom portion of the left front siderail of the ladder was bent or turned in and twisted.

The ladder itself and several pictures of the ladder were admitted into evidence at trial. Three expert witnesses testified at trial concerning the question whether the bending or buckling in the leg of the ladder had resulted from a structural defect. Harry Duffey, an associate professor of engineering testifying in behalf of plaintiff, expressed his opinion "that the left front rail buckled and that for this to buckle there had to be prior damage and that the damage would be either classified as prior structural damage or structural defect." When asked on cross-examination whether the observable damage to the ladder could have been caused by a human body falling on that portion of the ladder, Mr. Duffey responded, "If he can properly get a part of his body there, I guess it could possibly happen."

Lawrence Kocina, chief engineer for Werner, and Fred Deppe, a metallurgist, testified as defendant's expert witnesses. In their opinions the ladder, as manufactured, exceeded all applicable safety standards as to size, design, and strength. In Deppe's opinion the bending or buckling in the siderail had been caused by an "impact loading from some object which had fallen upon it." Deppe agreed that the object could have been human, as well as nonhuman. In Kocina's opinion the bend or buckle had to have occurred when not all four feet were on the floor, and it could not have been caused by a static force but only by an impact force.

The most significant aspect of plaintiff's evidence of a prior structural defect in the ladder came from the testimony of Kocina, who was initially called to testify in plaintiff's case-in-chief under section 60 of the Civil Practice Act (Ill. Rev. Stat., ch. 110, par. 60), and who then again testified in defendant Werner's case-in-chief. Kocina stated that the ladder which had been used by plaintiff had been manufactured by Werner in 1971. He identified the various parts of the ladder and explained the reasons for the particular design of the ladder. In particular, Kocina pointed out that each of the two siderails, or legs, of the step portion of the ladder (front siderails) consisted of a "web," or central portion, with a "flange," or lateral portion on either side. Each step was attached to the siderails by rivets. Each step was approximately 12 inches above or below the next step. The two uppermost steps of the front or step side of the ladder were the same width, thus making the siderails parallel between those two steps. However, at the second uppermost step the siderails were bent outward during manufacture at an angle of "four degrees and eleven minutes" to produce a flaring effect and give the ladder greater stability. Each step below the second uppermost step increased successively in width 1 3/4 inches per step.

Kocina stated that prior to 1972 Werner experienced a manufacturing problem in constructing this type of ladder. The problem was that a slight crack would "occasionally" appear in a flange in the area where the siderail was bent outward to produce the flaring effect. The crack occurred in the flange at the point where the bend was the greatest, that is, where the material was stretched the most. Kocina stated that in 1973, two years after the ladder in question was manufactured, the width of the flange was increased, and he thought this had corrected the problem.

• 1 In a product liability case brought against a manufacturer the plaintiff has the burden of proving: (1) that an injury was proximately caused by a condition or defect in the product; (2) that the condition or defect was an unreasonably dangerous one; and (3) that the condition or defect existed at the time the product left the manufacturer's control. (Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182; Schmidt v. Archer Iron Works, Inc., 44 Ill.2d 401, 256 N.E.2d 6, 51 A.L.R.3d 1339.) The elements of proof required are the same whether the theory is one of strict liability or one of implied warranty. Bollmeier v. Ford Motor ...

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