Montgomery Elevator Co. v. McCullough by McCullough

Citation676 S.W.2d 776
Decision Date05 July 1984
Docket NumberNos. 83-SC-428-D,83-SC-442-DG,s. 83-SC-428-D
PartiesMONTGOMERY ELEVATOR COMPANY, Appellant, v. Kevin T. McCULLOUGH, A Minor by his Parent and Next Friend, M. James McCULLOUGH, Jr. and Federated Department Stores d/b/a Shillito's Department Stores, Appellees. Kevin T. McCULLOUGH, a Minor, by his Parent and next friend, M. James McCULLOUGH, Jr., Appellant, v. MONTGOMERY ELEVATOR COMPANY and Federated Department Stores d/b/a Shillito's Department Stores, Appellees.
CourtUnited States State Supreme Court (Kentucky)

Robert C. Cetrulo, Covington, for appellant/Montgomery Elevator.

Joseph W. Gelwicks, Cincinnati, Ohio, for appellee/Federated Department Stores.

Lanny R. Holbrook, Cincinnati, Ohio, for appellee/Kevin T. McCullough.

LEIBSON, Justice.

This is a products liability case. On February 24, 1979, Kevin T. McCullough, a ten-year-old boy, was riding the down escalator in the Shillito's Department Store at the Florence Mall Shopping Center in Florence, Kentucky, when the tennis shoe on his right foot was caught up and crushed into the space between the treads and the side skirt of the escalator. He suffered a crushing, cutting injury which resulted in the amputation of the big toe on his right foot.

The escalator in question was purchased by Federated Department Stores, which owns and operates Shillito's, from Montgomery Elevator Co. It was built in 1976 and installed and accepted by Federated in February 1977. Thereafter the escalator was maintained by Federated.

Originally the child's claim was filed against both Federated and Montgomery Elevator. Before trial that part of the claim against Federated was settled for $30,000. McCullough's claim against Montgomery Elevator, based on defective design of the product, was submitted to a jury which awarded $51,511.75. Under an interrogatory which permitted the jury to apportion responsibility between Federated and Montgomery Elevator, the jury found each to be 50% responsible. The trial court entered judgment against Montgomery Elevator for $25,755.87.

Montgomery Elevator appealed to the Court of Appeals claiming it was entitled to a directed verdict and also claiming trial errors. The Court of Appeals decided against Montgomery Elevator's claim that it was entitled to a directed verdict, but sustained Montgomery Elevator's claim that there were trial errors in the instructions and in the admission of certain evidence regarding prior accidents. The Court of Appeals remanded the case for a new trial.

Both Montgomery Elevator and McCullough have appealed from the decision of the Court of Appeals. Montgomery Elevator claims the Court of Appeals erred because it was entitled to a directed verdict. McCullough claims the Court of Appeals erred because it sustained Montgomery's position regarding instructions and evidence of prior accidents.

We have granted both sides' motions for discretionary review. We affirm the decision of the Court of Appeals that Montgomery Elevator was not entitled to a directed verdict. We reverse the decision of the Court of Appeals that there was any error in either the trial court's instructions or in the introduction of evidence concerning prior accidents so substantial as to justify a new trial.

The heart of this case is McCullough's claim that the escalator in question was defectively designed when manufactured and Montgomery Elevator's claim that it is not liable because of letters sent to the purchaser, Shillito's, after the escalator had been installed advising the purchaser of the escalator's propensity for catching up tennis shoes "between the escalator steps and the escalator skirt panel" (the "tennis shoes" phenomena), letters suggesting remedial measures to decrease the likelihood of such instances. Montgomery Elevator offered to sell Shillito's "a kit of stiffener angles that can be applied to your present Montgomery standard escalator skirts" as a deterrent against such accidents. Shillito's failed to purchase and provide the recommended remedial measures.

McCullough's evidence was that an escalator of safer design, guarding against the defect giving rise to the "tennis shoes" phenomena was being manufactured at the same time and in the same plant side by side with the type sold to Shillito's.

Montgomery Elevator claims that its letters provided adequate warning to the purchaser of the potential danger and how to deal with it, and that such warning bars a claim against the manufacturer by a member of the public injured while using Shillito's escalator regardless of whether the product was defective when sold. The question is: What is the effect of such letters from the manufacturer to the purchaser when the claim is on behalf of a third party not sharing in their transactions? Are they a complete defense, a question of intervening or superseding cause for the jury to consider, or no defense whatsoever?

The answer is that such letters are not a defense in the circumstances of this case where the person injured is a member of the public, a bystander or a user without notice of the dangerous propensities of the product. This answer disposes of Montgomery Elevator's claim to a directed verdict and to its further claim to an instruction of the type discussed in Bohnert Equipment Co. v. Kendall, Ky., 569 S.W.2d 161 (1978).

There is no area of tort law that has generated more confusion than the question of superseding or intervening cause. The question, complicated enough in a negligence action, is further confused by potential differences that may exist where the claim is based on products liability. Cases presenting seemingly diverse results on somewhat similar fact patterns are Ford Motor Co. v. Atcher, Ky., 310 S.W.2d 510 (1957), Post v. American Cleaning Equip. Corp., Ky., 437 S.W.2d 516 (1969), Bohnert Equipment Co. v. Kendall, Ky., 569 S.W.2d 161 (1978), and Sturm, Ruger & Co., Inc. v. Bloyd, Ky., 586 S.W.2d 19 (1979). While we do not suggest that these cases can be fully reconciled, in this opinion we hope to clarify and simplify the subject of intervening cause as it applies to the present fact pattern--a products liability claim against a manufacturer based on initial defective design of the product, where the manufacturer claims that adequate notice of the defect and remedial suggestions were offered to the purchaser and that the purchaser's failure to remedy the defect was a superseding or intervening cause. In such circumstances the purchaser who uses the product, knowing of the danger and failing to take remedial measures, is also culpable. The question is whether the purchaser's failure to act cuts off the manufacturer's responsibility.

The landmark cases directing our inquiry are House v. Kellerman, Ky., 519 S.W.2d 380 (1974), analyzing intervening cause, and Nichols v. Union Underwear Co., Inc., Ky., 602 S.W.2d 429 (1980), analyzing liability for defective design in a products liability case.

In House v. Kellerman, a passenger grabbed the steering wheel of a sliding car. House v. Kellerman states:

"To begin with, literally speaking there can never be only one 'cause' of any result. Every cause is a collection of many factors, some identifiable and others not, all determined by prior events. The law seeks out only the collective cause or causes for which it lays responsibility on some person or persons." 519 S.W.2d at 382.

The trial court had instructed the jury on intervening cause as a defense. Overruling previous cases to the contrary, we held that:

"The question of whether an undisputed act or circumstance was or was not a superseding cause is a legal issue for the court to resolve, and not a factual question for the jury."

....

"Only when (1) an act which is claimed to have taken place would be a superseding cause as a matter of law, and (2) there is an issue of fact as to whether it happened, should there be an instruction mentioning it, and that instruction should tell the jury in substance that unless it believes from the evidence that it did not happen it shall find for the defendant, ..." 519 S.W.2d at 383.

House v. Kellerman adopts the principles of Restatement (Second) of Torts, §§ 440-453 (1965) and of Prosser, Law of Torts, §§ 44-45 (4th Ed., 1971) for determining what facts are legally sufficient to constitute an intervening cause. They are facts of such "extraordinary rather than normal," or "highly extraordinary," nature, unforeseeable in character, as to relieve the original wrongdoer of liability to the ultimate victim. House v. Kellerman, supra, 519 S.W.2d at 382. Section 452(1) of the Restatement (Second) of Torts, provides that "the failure of a third person to act to prevent harm to another threatened by the actor's negligent conduct is not a superseding cause of such harm," with rare exceptions.

Peterson v. Bailey, Ky.App., 571 S.W.2d 630 (1978), illustrates the point. It holds that the failure to take appropriate actions to stop the spread of a fire was not of such "utterly foolhardy, or extraordinary" nature as to limit the liability of the defendant who caused the fire.

In Ford Motor Co. v. Atcher, supra, a small boy had fallen from his mother's automobile when a rear door came open. The negligent failure of the child's mother to repair a defective door latch exposed her child to the risk of the door opening while the car was in operation. The mother's negligence was found to be an intervening cause. Perhaps such negligence constitutes an act of such "utterly foolhardy, or extraordinary" nature as to limit the liability of the car company. A better explanation is that the accident happened in 1949 and Ford Motor Co. v. Atcher is a case almost thirty years old. It predates the modern era of the law of products liability which came with § 402A of the Restatement (Second) of Torts in 1965 and which shifts the focus from users to the product itself. Under Comment i of § 402A, "an unreasonably dangerous defect" which is a...

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