Eagleburger v. Emerson Elec. Co., 16042

• Decision Date: 29 June 1990
• Docket Number: No. 16042,16042
• Citation: 794 S.W.2d 210
• Parties: Diane EAGLEBURGER, et al., Respondents, v. EMERSON ELECTRIC CO., Appellant.
• Court: Missouri Court of Appeals

Page 210

794 S.W.2d 210

Diane EAGLEBURGER, et al., Respondents, v. EMERSON ELECTRIC CO., Appellant.

No. 16042.

Missouri Court of Appeals,

Southern District,

En Banc.

June 29, 1990.

Motion for Rehearing and Transfer to

Supreme Court Denied

Aug. 6, 1990.

Application to Transfer Denied Sept. 11, 1990.

Raymond E. Whiteaker, Brad J. Fisher, Lee Ann Miller, Woolsey, Fisher, Whiteaker & McDonald, Springfield, for appellant.

Thomas Strong, Jeffrey W. Bates, Strong & Associates, P.C., and John Wooddell, Bruer & Wooddell, P.C., Springfield, for respondents.

CROW, Judge.

Defendant Emerson Electric Co. ("Emerson") appeals from a $1,060,650 judgment against it in an action for the alleged wrongful death of Gene Eagleburger. ¹ Plaintiffs are: Diane Eagleburger (Gene's widow); John Henry Eagleburger, Tracy Diane Eagleburger and Gene Henry Eagleburger, Jr. (Gene's children); and Evelyn Eagleburger (Gene's mother).

Gene, a roofer by trade, was electrocuted August 16, 1985, while replacing the roof on a church in Springfield. Plaintiffs based their claim against Emerson on the theory that Gene's death was caused by a defective product sold by Emerson. Emerson refers to the product as a "track platform hoist"; plaintiffs call it a "ladder." It was manufactured by Louisville Ladder Company ("Louisville"), a division of Emerson.

The product, assigned "code number" LH444 by Louisville, consists of three components: an aluminum track, a platform-and-pulley assembly, and a gasoline-operated "power unit."

The track comes in four sections: a 16-foot base section, a second 16-foot section that can be bolted to the base section, an 8-foot section that can be bolted to either of the other two sections, and a 4-foot section that can be bolted to either of the other three sections. A customer may purchase any or all of the track sections. Bolting all four together produces a 44-foot track.

The platform rolls up and down the track, and is designed to carry a maximum load of 400 pounds. The platform is raised by a cable through the pulley at the top of the track. Power is supplied by the power unit.

At the time of Gene's death the track was assembled in a 40-foot length (the two 16-foot sections and the 8-foot section). Those three sections, disassembled, are shown in the photograph at the end of this opinion.

The events that culminated in Gene's death began in May, 1985, when Gene Brown, a roofing contractor, was awarded a contract to replace the roof on the church. A month later Brown bought the track platform hoist described above.

Gene and his younger brother, Danny Eldon Eagleburger, were partners in their own roofing business. Brown subcontracted the church job to them. Because of the height of the roof, the Eagleburgers borrowed the track platform hoist from Brown. They commenced work around August 1, 1985. The crew consisted of Gene, Danny, their brother Jack, and Gene's son John.

They started on the south side of the church where the roof was 31 feet above the ground. They assembled the track in a 36-foot length and used the hoist to lift the new shingles from the ground to the roof and to lower the old shingles from the roof to the ground. According to Danny they raised the track by having one man hold the base while two others lifted the far end and "walked it up." Danny recounted that in addition to using the device as a hoist they climbed the track "just like a ladder."

By August 16, 1985, they had completed everything except the west side where the roof was 35 to 36 feet above the ground. Gene Brown, who visited the site between 8:30 and 9:00 that morning, observed "some electric wires that looked like naked wires" above the curb some 15 feet from the church. He estimated the wires were 25 feet off the ground.

Brown testified he pointed out the wires to Gene. According to Brown, Gene "said not to worry, he wouldn't be no where near those wires."

To enable the track to reach the roof the crew removed the 4-foot section and added the 8-foot section, making the track 40 feet long. Gene walked along the curb looking up at the wires and a nearby tree. John Eagleburger recalled Gene saying there was a "V-shape" in the tree and "the ladder would go up through that."

A priest at the church told Gene the priest could shut off the electricity. Danny overheard the remark and announced this would do no good because the wires were "still going to be hot running into the church."

Jack positioned himself at the base of the track to hold it. Gene and John went to the far end and began walking the track up. John testified he never felt "any kind of a wobble, or a shakiness" as if the track was getting off balance.

When John and Gene were some 14 feet from the base of the track John felt electricity "like it was turning my body inside out." Danny, who was on the roof, heard some "loud pops" and saw a "flash of light." Danny could not see the top of the track but he did see the flash going from the wire "into the top of the tree."

Gene and Jack were both killed.

A captain of the Springfield Fire Department who investigated the incident testified that when he arrived "there was a ladder that was up in a tree," the top of the "ladder" being situated "just below the wires." The other end was on the ground.

Danny Eagleburger confirmed at trial that after the electrocution the top of the track was "stuck up in the tree."

An engineer for the electric utility testified that the "voltage potential" of the line by the church is 7,620 volts.

Plaintiffs commenced this action March 14, 1986, by suing the City of Springfield (owner and operator of the electric utility). On May 27, 1987, plaintiffs filed an amended petition adding Emerson and Reimann & Georger, Inc. ² ("R & G") as defendants.

As to Emerson, plaintiffs alleged the track platform hoist was defective and dangerous when put to a use reasonably anticipated in that (a) the track was designed and manufactured to be raised to heights up to 44 feet as one single unit, making the track heavy and unwieldy, (b) the device was designed and manufactured to be used in lengths greater than the National Electric Safety Code standard heights for uninsulated, high voltage electrical conductors, (c) the track was designed and manufactured out of highly conductive aluminum, (d) the track was designed and manufactured without insulating materials or links to protect against foreseeable conduction of electric currents, and (e) the device failed to adequately warn users of the risk involved when it was used in proximity to electrical power lines.

John M. Monohan, III, Louisville's vice president for administration and engineering, testified that around 1959 or 1960, R & G conceived the idea of making a loader to fit a standard Louisville ladder and using a motor to raise the loader up the ladder. At first, R & G purchased Louisville ladders from dealers or distributors, added the hoist assembly and power unit, and marketed the finished product. The initial load capacity was 200 pounds.

Louisville began supplying ladders directly to R & G in the lengths the latter specified. R & G eventually developed a loader with a 400 pound capacity that required a stronger ladder with a deeper rail and offset rungs. Louisville developed a ladder with those characteristics.

In 1965 Louisville began marketing its own ladder-and-loader units. At that time the ladder did not exceed 28 feet in length. In 1969 Louisville began making a "forty-four foot unit."

In March, 1979, according to Monohan, R & G and Louisville made a "joint decision" to call the ladder a "track." Up until then it had been called a ladder.

Two years earlier a "task force" had been created in the ladder industry to write "design standards" for the American National Standards Institute, Inc. ("ANSI"). Louisville's former president and one of its engineers were on the drafting committee. The standards, published in 1980, contained a section limiting the length of ladders.

George Greene, Jr., a consulting engineer who testified for plaintiffs, explained that the ANSI standards defined a sectional ladder as "a non self-supporting portable ladder, non adjustable in length, consisting of two or more sections, and so constructed that the sections may be combined to function as a single ladder." The ANSI standards, said Greene, limited the length of a single heavy duty or extra heavy duty ladder to 30 feet.

Louisville's Monohan conceded that in December, 1979, some eight or nine months after the decision to change the name "ladder" to "track," Louisville's engineering staff, in a written study of the product, referred to it as a "ladder." In October, 1983, a design drawing of the 400-pound capacity model prepared by Louisville's engineers referred to it as a "ladder." Until March, 1984, a label attached to the track near the "safety shoe" called the track a "ladder" and referred to people climbing it. Until July, 1987, every track produced by Louisville bore another label that called the track a "ladder." Louisville's "price sheets" for 1974, 1978, 1983 and 1985 called the track a "ladder." A "bill of materials" produced by Louisville's computer in January, 1988, referred to the device as a "hoist ladder."

Monohan admitted that a user may think of the track as a ladder, that it looks like a ladder, that it can be handled and maneuvered like a ladder, and that it is built on Louisville's aluminum ladder assembly line. Monohan agreed it is reasonably foreseeable to Louisville that the track will be used like a ladder, and that nothing on the track warns a user not to climb it. Monohan acknowledged that but for the fact that the track "wasn't supposed to be climbed," it fits the ANSI definition of a sectional ladder.

The first of Emerson's nine points relied on has three components. Component "A" avers the trial court erred in receiving in evidence Plaintiffs' Exhibits 54 and 54-A.

Emerson misstates the record insofar as Exhibit 54...