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Probus v. K-Mart Inc.

decided: June 30, 1986.


Appeal from the United States District Court for the Southern District of Indiana, New Albany Division. No. 84 C 137-Sarah Evans Barker, Judge.

Author: Eschbach

Before WOOD, COFFEY, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

ESCHBACH, Senior Circuit Judge.

The question we are required to decide in this appeal from a judgment for the defendants in a products liability suit governed by Indiana law are (1) whether the trial court erred in excluding the plaintiff's evidence of subsequent remedial measures under Fed. R. Evid. 407 and (2) whether certain comments made by defendants' counsel in closing arguments warrant the grant of a new trial. For the reasons stated below, we will affirm.


On June 4, 1982, the plaintiff, Robert Probus, injured his back when he fell from a ladder manufactured by defendant Keller Industries and sold by defendant K-Mart, Inc. In his complaint, filed May 7, 1984, the plaintiff alleged that he had been using the ladder in the course of repairing his barn. Paragraph 6 of the complaint alleged that:

The plaintiff set the ladder in a safe position and extended it to approximately 15 feet then ascended to the fourth rung from the top and began work on the barn. [He] was thrown from the ladder when the plastic tip broke causing the entire ladder to tip and fall towards the building whereupon the right hand side of the ladder kicked out sending the plaintiff to the ground as a result of which he sustained personal injuries and damages.

In Count I, the plaintiff alleged that both defendants were "negligent in the design, manufacture, inspection testing and sale of said plastic-tipped aluminum ladders." In counts II and III, he alleged that K-Mart had breached implied warranties of fitness and mechantability, respectively. In Count IV, he alleged that the ladder manufactured by ยง Keller Industries was negligently designed, unreasonably dangerous, and in a defective condition. Count V reiterated the allegations of Count IV with regard to K-Mart.*fn1 The jury, on October 24, 1985, returned a verdict in the defendants' favor on liability. No post-trial motions were filed.*fn2 This appeal followed.


A. Evidence of Subsequent Remedial Measures

At trial the plaintiff's expert witness, Dr. Dean Harper, a professor of chemical engineering at the University of Louisville, testified that the cause of Probus's fall was a failure of the plastic end cap on the left side of the metal extension ladder. Dr. Harper testified further that the cap had begun to crack prior to the plaintiff's use of the ladder on the day of his fall. He stated that part of the plastic had chipped away owing to the impact of the upper and lower halves of the ladder sliding together in the normal course of retracting the ladder. According to Dr. Harper's testimony, the plastic used in the cap was not flexible enough, in its thus weakened state, to withstand the stress arising out of routine usage. He pointed out that the material was not resistant to common solvents such as those found in paint. Dr. Harper concluded that the material used in the cap was inappropriate for its intended function.

The defendants introduced the testimony of two expert witnesses, Dr. Lawrence J. Broutman, a professor of materials engineering at Illinois Institute of Technology and owner of a private consulting design firm specializing in plastics, and Jon Ver Halen, an expert in the field of industrial engineering. Dr. Broutman testified that the plastic cap was flexible and resistant to impact. He also noted that his examination of the cap disclosed no solvent damage. Dr. Broutman testified further that in his opinion the cap had fractured sometime after the date of Probus's fall and that the fracture was caused by a type of impact not arising out of normal usage. He concluded that the plastic used in the cap was appropriate for its application.

Ver Halen testified that the fracture of the end cap could not have occurred as a result of the use the plaintiff alleged he was making of the ladder at the time of his fall. He also testified that the fracture would not have caused the plaintiff to fall from the ladder even had it occurred while the plaintiff was using it to repair the barn. Ver Halen stated that the fracture would have caused at most an eighth of an inch of movement, and that such a movement would have been imperceptible to a person using the ladder.

In rebuttal, the plaintiff made an offer of proof that the defendants, subsequent to the plaintiff's fall, had changed the material used in the ladder end caps. In particular, the plaintiff claimed that the defendants had strengthened the cap with glass fiber reinforcement. On the basis of Fed. R. Evid. 407, the district court excluded evidence of subsequent remedial measure on the ground that it was offered to prove liability. The plaintiff claims that the evidence was properly admissible for the purpose of impeaching the testimony of the ...

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