The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge.
MEMORANDUM OPINION AND ORDER
Joe McDaniel resides in Illinois. (R. 106-1, Trail King Statement of
Undisputed Facts ¶ 7.) He began his career as a truck driver in the
early 1970s and started hauling municipal waste in 1992. (Id. ¶ 35,
38.) At the time of the incident, McDaniel was employed by Mr. Bult's,
Inc. as a driver that pulled tipper trailers*fn2 to haul municipal waste
(Id. ¶ 1, 44, 46.)
Trail King is a South Dakota corporation with its principal place of
business in that state. (R.106-1, Trail King Statement of Undisputed
Facts ¶ 8.) Trail King designs and manufactures tipper trailers for
waste hauling. (Id. ¶ 2.)
The Trail King tipper trailer (the "trailer") that was involved in the
incident is a little more than 13 feet high and is approximately 8 1/2
feet wide. (R 106-1, Trail King Statement of Undisputed Facts ¶ 29.)
The trailer is equipped with two ladders that were furnished by Defendant
Werner, Inc. (Id. ¶ 26,) One ladder is affixed to the front bulkhead
of the trailer. (Id.) The other is affixed to the rear of the trailer.
(Id.) The rear ladder is centered between the sides of the trailer. (Id.
¶ 27.) The top of the rear ladder is mounted just below the top of
the trailer. (Id.) The trailer does not have any hand rails on the
tailgate for the drivers to use while climbing on the rear ladder or
affixing a tarp. (R. 107-I, McDaniel Statement of Undisputed Facts
¶ 59.) The trailer also does not have a platform to walk on. Although
a two-inch channel or brace protrudes from the tailgate, it is an
insufficient surface on which to stand. (Id. ¶ 102)
Mr. Bult's requires every trailer to be tarped prior to transporting
waste. (R. 107-1, McDaniel Statement of Undisputed Facts ¶ 42.)
Without a tarp, pieces of waste are able to fly out of the trailers.
(Id. ¶ 66.) The entire open area of the trailers must be covered by
the tarp in order to prevent the loss of any waste. (Id.) Although Mr.
Bult's purchased the manual tarp itself from Third-Party Defendant Wagner
Tarps, (R. 106-1, Trail King Statement of Undisputed Facts ¶ 31),
Trail King equipped the tipper trailers which it sold to Mr. Bult's with
manual tarping systems that utilized U-brackets to hold the tarp in
place, tarp hooks to strap the tarp down, and front and rear ladders.
(R., 107-1, McDaniel Statement of Undisputed Facts ¶ 50.)
C. The manual tarping process
After unrolling the tarp to cover the trailer, the driver partially
descends the rear ladder. (R. 107-1 McDaniel Statement of Undisputed
Facts ¶ 68-71.) The ladder functions as not only a mechanism to
ascend and descend the trailer, but also as a work station. (Id. ¶
135-136.) While standing on the ladder, the driver pulls the tarp down
until he can place the tube into U-brackets. (Id. ¶ 91-93.) The
driver then folds over the corner piece of the tarp to a position where
it can be properly tied to the tarp hook. (Id. ¶ 96.) Next, the
driver completely descends the rear ladder and goes around to each side
of the trailer to attach the tarp to the trailer using bungee cords.
(Id. ¶ 68.)
During the unrolling process, the tarp may become caught on the rail of
the trailer or snagged on the municipal waste inside the trailer. (R.
107-1, McDaniel Statement of Undisputed Facts ¶ 81-83, 85.) These
problems can occur at any point, including just a few feet away from the
end of the trailer. (Id. ¶ 82.) Some drivers will correct problems