Calvanese v. W. W. Babcock Co., Inc.

• Decision Date: 21 November 1980
• Citation: 10 Mass.App.Ct. 726,412 N.E.2d 895
• Parties: Joseph CALVANESE v. W. W. BABCOCK COMPANY, INC.
• Court: Appeals Court of Massachusetts

Page 895

412 N.E.2d 895

10 Mass.App.Ct. 726

Joseph CALVANESE v. W. W. BABCOCK COMPANY, INC.

Appeals Court of Massachusetts, Hampden.

Argued Sept. 8, 1980.

Decided Nov. 21, 1980.

Louis Kerlinsky, Springfield, for plaintiff.

Thomas J. Donoghue, Springfield, for defendant.

Before ARMSTRONG, BROWN and GREANEY, JJ.

GREANEY, Justice.

This is a product liability case, brought on theories of negligence (in manufacture and inspection) and breach of warranty (merchantability) for personal injuries sustained by the plaintiff when he fell from a stepladder manufactured by the defendant, W.W. Babcock Company, Inc. (Babcock). After the plaintiff's opening, the judge, insofar as material here, directed a verdict for the defendant on the warranty claim, and the jury returned a verdict for Babcock on the negligence claim. The plaintiff has appealed. We reverse the judgment on the negligence claim and order a new trial. The judgment on the warranty claim will be affirmed.

The product, an eight-foot wooden mechanic's stepladder, was manufactured by Babcock some time prior to 1963 and sold to Faulkner Hardware Company (Faulkner) on January 15, 1963. Faulkner in turn sold the ladder to the plaintiff's employer, C.F. Church Manufacturing Company (Church), on February 13, 1963. It had been inspected for obvious defects prior to leaving Babcock's plant and again prior to being placed in Faulkner's inventory; none was found. With proper care and use the ladder would last indefinitely. Church purchased the ladder to replace lamps and to adjust air-handling equipment. A Church employee testified that the ladder appeared sound on the day of the accident and that, to his knowledge, it had not been damaged or subjected to abnormal use while at Church.

The plaintiff, formerly an electrician at Church, testified that on the evening of June 30, 1965, he intended to use the ladder to relocate a light fixture on the second floor. He took the ladder from storage, examined it, and observed that it appeared sound. He opened the ladder on a small second floor balcony adjacent to a stairway, engaged and locked both spreaders, placed the ladder against a railing bordering the balcony, tested the ladder for stability, and started to climb. When he reached the second or third step from the top, there was a sudden "loud cracking and snapping noise and the ladder ... kicked (him) forward down the cement stairs." The plaintiff lost consciousness and was taken to the hospital. The following morning, the ladder was observed upright but tipped against the balcony railing. Its left rear leg was cracked and completely detached from the top step at a point near the leg's junction with a one-quarter inch steel rivet. There also was some damage to the ladder's left spreader and to its paint tray.

The plaintiff's expert attributed the accident to the buckling of a steel rivet which was designed to anchor the leg to the header. In his opinion, the rivet had been defectively installed during the ladder's assembly, ¹ causing a weakness in this member significantly above what would be expected from a properly riveted and attached leg. He theorized that continued use of the product over an approximate two-year period diminished its strength until it was no longer capable of sustaining a normal load. The expert also expressed opinions that Babcock's employees should have discovered the defect and that use or misuse of the ladder would not have caused the rivet to buckle.

The defendant's expert testified that he had examined the accident ladder, that it appeared to have been constructed within acceptable limits and to conform to all existing industry codes, and that under normal loading conditions, such as were described by the plaintiff, ² the ladder would not have failed. Skeptical of the plaintiff's account of his use of the ladder when considered in the light of the damage which resulted, ³ the defendant's expert tested two identical ladders in an effort to duplicate the failure. Two experiments were rejected when they failed to produce similar damage. In the last series of tests, a ladder was placed face down with its paint tray open and one spreader and leg engaged. Application of approximately 200 pounds of weight between the second and third steps from the top caused damage which reproduced "to some degree of accuracy ... the failure (on the accident ladder)." ⁴ The damage depicted a torsional type of failure consistent with what might occur if the ladder's user lost his balance while standing on one of the top steps. ⁵

1. The negligence case. (a) The plaintiff argues that the testimony of the defendant's expert should have been excluded because his tests were conducted under circumstances substantially dissimilar to those prevailing at the time of the accident. We disagree.

It is now common in product liability cases to see circumstantial proof in the form of tests offered (typically through experts) for the purpose of proving or disproving the cause of an accident. See Griffin v. General Motors Corp., --- Mass. ---, --- - --- ^a, 403 N.E.2d 402 (1980); Bechtel v. Paul Clark, Inc., --- Mass.App. ---, --- - --- ^b, 421 N.E.2d 143 (1980). See also 1 Louisell and Mueller, Federal Evidence § 103 (1977); 1 Frumer and Friedman, Products Liability § 12.02(2) (1980). Admission of such evidence requires that the trial judge weigh its probative value against the possibility that it will prejudice the jury (Green v. Richmond, 369 Mass. 47, 59-60, 337 N.E.2d 691 (1975); McCormick, Evidence § 202 at 485-486 (2d ed. 1972))-an analysis which requires consideration of whether the evidence is relevant, the extent to which the test conditions are similar to the circumstances surrounding the accident, and whether the evidence will confuse or mislead the jury. The final determination "must be largely left to the discretion of the trial judge, and that discretion will not be interfered with unless in its exercise he clearly appears to be wrong." Griffin v. General Motors Corp., supra at --- ^c, 403 N.E.2d 402. See Eidt v. Cutter, 127 Mass. 522, 524 (1879); Commonwealth v. Tucker, 189 Mass. 457, 478, 76 N.E. 127 (1905); Guinan v. Famous Players-Lasky Corp., 267 Mass. 501, 521, 167 N.E.2d 235 (1929); Commonwealth v. Makarewicz, 333 Mass. 575, 592, 132 N.E.2d 294 (1956).

The jury were not obliged to accept the plaintiff's version of the accident, and the judge was not required to restrict the defendant to the plaintiff's theory as the sole basis for their analysis of causation. Thus, the defendant was entitled to present evidence that the ladder could not have failed under the normal use described by the plaintiff and that substantially similar damage could be reproduced in an identical ladder by improper loading. This evidence was not designed to show that the accident occurred in the precise manner indicated by the tests but rather to show that the plaintiff's testimony might be inaccurate or untruthful. The evidence was competent for this purpose, and the judge did not abuse his discretion by admitting it. See BECHTEL V. PAUL CLARK, INC., SUPRA AT --- , 421 N.E.2D 143,^D and cases cited.

The determination whether the test conditions were sufficiently similar to make the experiments of any value to the jury also rested in the judge's sound discretion. Commonwealth v. Makarewicz, 333 Mass. at 592-593, 132 N.E.2d 294 (1956). Griffin v. General Motors Corp., --- Mass. at --- ^e, 403 N.E.2d 402 (1980). The test ladders were identical to the one used by the plaintiff, and differences between the test conditions and those said to be present during the accident did not require exclusion of the evidence as a matter of law. See d'Hedouville v. Pioneer Hotel Co., 552 F.2d 886, 890 (9th Cir. 1977). The dissimilarities cited by the plaintiff were thoroughly explored during cross-examination and were all such that the jury could make proper allowance for any effects which might have resulted from them. BECHTEL V. PAUL CLARK, INC., SUPRA AT --- - --- , 421 N.E.2D 143,^F citing Guinan v. Famous Players-Lasky Corp., 267 Mass. at 522, 167 N.E.2d 235. They went to the weight of the evidence rather than its admissibility. ⁶ See Ramseyer v. General Motors Corp., 417 F.2d 859, 864 (8th Cir. 1969); Nanda v. Ford Motor Co., 509 F.2d 213, 222-223 (7th Cir. 1974). See also 1 Louisell and Mueller § 103, at 776-777 ("(I)t is clear that an opponent who claims that the result of an experiment is traceable to dissimilarities will often in fact be obliged to make his (argument) to the jury"). Contrast Andrews v. Barker Bros., 267 Cal.App.2d 530, 538-539, 73 Cal.Rptr. 284 (1968). ⁷

(b) The plaintiff seasonably requested an instruction that "(e)ven if the jury (could not) find the specific cause of the failure of the ladder ... (they) still (could) infer that the ladder broke due to (Babcock's) negligence, from the circumstances of the accident itself, and from the testimony of (the) intermediate handlers." The judge charged solely on the specific theories of negligence raised by the expert testimony and refused to instruct on this theory. The defendant registered a timely objection.

According to Coyne v. John S. Tilley Co., 368 Mass. 230, 331 N.E.2d 541 (1975) (a case involving the sudden and unexplained failure of a ladder), a plaintiff is entitled to a charge of the sort requested if the evidence, "considered in its entirety and in its light most favorable to the plaintiff" (Gelinas v. New England Power Co., 359 Mass. 119, 123, 268 N.E.2d 336 (1971)), would warrant conclusions that (1) the product's failure more probably than not has been caused by some negligent act attributable to the defendant, and (2) the product has not been improperly handled by the plaintiff or intermediate handlers. Coyne v. John S. Tilley Co., supra at 235, 237, 331 N.E.2d 541. The first point serves to establish negligence, and the second point, by eliminating other intermediate events as causes, creates the...