Elk Corp. of Arkansas v. Jackson

• Decision Date: 16 March 1987
• Docket Number: No. 86-122,86-122
• Parties: , Prod.Liab.Rep. (CCH) P 11,409 ELK CORP. OF ARKANSAS, Appellant, v. Norman Claude JACKSON and Eva Jackson, Appellees.
• Court: Arkansas Supreme Court

Page 829

725 S.W.2d 829

291 Ark. 448, Prod.Liab.Rep. (CCH) P 11,409

ELK CORP. OF ARKANSAS, Appellant, v. Norman Claude JACKSON and Eva Jackson, Appellees.

No. 86-122.

Supreme Court of Arkansas.

March 16, 1987.

Griffin, Rainwater & Draper by Richard E. Griffin, Crossett, for appellant.

Bill R. Holloway, H.L. Merideth, Jr. and Robert G. Bridewell, Greenville, Miss., for appellees.

HOLT, Chief Justice.

Norman Claude Jackson suffered extensive paralysis when the tractor-trailer rig he was driving overturned, throwing him out of the cab. He and his wife, appellees, brought suit against Elk Corporation of Arkansas (Elk), appellant, alleging Elk, in manufacturing and packaging bundles of rolled felt roofing, had produced a defective product and had loaded the roofing on his trailer in a negligent manner, causing the accident. The trial court instructed the jury on separate theories of strict liability as to the defective product, and negligence in regard to the loading of the trailer. In answer to special interrogatories, the jury found Elk 90% at fault. After reducing the verdict by the 10% Jackson was found at fault, the jury awards were $1,575,000 for Jackson and $540,000 for his wife for loss of consortium. We hold it was error to instruct the jury on the strict product liability action, as negligence was the only appropriate legal theory of recovery, and reverse.

At the time of the accident, Jackson was a professional truck driver for Builders Transport, Inc., a common carrier. Elk employees loaded 740 rolls of felt roofing, manufactured by Elk, on a flatbed trailer to be hauled by Jackson. Each roll was 40 inches in length, 10 inches in diameter, and weighed 60 pounds. Bundles of 20 rolls of roofing were bound together by a single band, placed in a vertical standing position on wooden pallets, and loaded on the trailer with a forklift. Twenty-three bundles were placed directly on the trailer and fourteen bundles were "double stacked" on top of the first layer of bundles. No safety devices were used by Elk or by Jackson to secure the load.

Several witnesses, including experienced drivers, testified that bundles of rolled felt roofing, double stacked and with a single metal band around them, comprise a dangerous load absent safety devices, such as sideboards, to prevent shifting of the load. Witnesses agreed that bundles of roofing have a tendency to shift as the bands holding the rolls of roofing together loosen and slide down.

On the day of the accident, Jackson left the Hamburg terminal with a trailer and drove it to Camden, Arkansas where he dropped a load, then proceeded to Elk's plant at Stephens, Arkansas. When he arrived, he contacted his dispatcher for orders relating to pulling the load of roofing which was sitting on a trailer at Elk's dock.

Jackson testified that he tarped and strapped the load and drove approximately 70 miles when he noticed a bulge under the left side of the tarp indicating the load had shifted. As a result, he slowed down and pulled onto the shoulder of the highway. Testimony is in dispute between Jackson, eyewitnesses and experts whether, at that point, the load shifted further, flipping the entire tractor-trailer, or whether the trailer's wheels hit a washed out area of the sloping shoulder, causing the rig to overturn, throwing Jackson out of the cab and causing the injuries which are the subject of this lawsuit.

I. STRICT LIABILITY

Among the issues raised by Elk on appeal is that the trial court erroneously instructed the jury on strict product liability. We agree that it was error.

The trial court instructed the jury that the Jacksons assert two separate grounds for recovery of damages:

"First, that defective packages of roll roofing material were manufactured, assembled and packaged by Elk Corporation on the trailer to be pulled by Norman Claude Jackson, Jr.'s truck and, second, that there was negligence on the part of Elk Corporation."

In furtherance of the first theory, the jury was apprised of the elements of strict liability for defective products as found in Ark.Stat.Ann. § 85-2-318.2 (Supp.1985) and E.I. DuPont De Nemours and Co. v. Dillaha, 280 Ark. 477, 659 S.W.2d 756 (1983). The court instructed:

With respect to the manufacture, assembly, packaging and loading of a defective product, Norman Claude Jackson, Jr. and Eva Jackson claim damages from Elk Corporation and have the burden of proving each of four essential propositions:

First: That they have sustained damages;

Second: That Elk Corporation was engaged in the business of manufacturing, assembling, packaging and loading roll roofing material on a trailer to be pulled by Norman Claude Jackson, Jr. in this case;

Third: That the packages of roll roofing was supplied by Elk Corporation in a defective condition, which rendered it unreasonably dangerous; and

Fourth: That the defective condition was a proximate cause of Norman Claude Jackson and Eva Jackson's damages.

Definitions of terminology used in strict product liability actions are found in Ark.Stat.Ann. § 34-2802 (Supp.1985). Products are "any tangible object or goods produced." § 34-2802(b). " 'Defective condition' means a condition of a product that renders it unsafe for reasonably foreseeable use and consumption." § 34-2802(d). Section 34-2802(g) provides that a product is "unreasonably dangerous" if it:

is dangerous to an extent beyond that which would be contemplated by the ordinary and reasonable buyer, consumer or user who acquires or uses such product, assuming the ordinary knowledge of the community, or of similar buyers, users or consumers, as to its characteristics, propensities, risks, dangers and proper and improper uses, as well as any special knowledge, training or experience possessed by the particular buyer, user or consumer or which he or she was required to possess....

The jury was also instructed that "fault" means negligence and supplying a product in a defective condition. In addition, Jackson was given the benefit of a presumption we have established in product liability cases when the court further instructed the jury that "if you find that in the normal course of events no injury would have occurred in the absence of some defect, then you are permitted but not required to infer that a defect existed." See Petrus Chrysler-Plymouth v. Davis, 283 Ark. 172, 671 S.W.2d 749 (1984).

In 1973, the Arkansas Legislature adopted strict product liability as a theory of recovery by the passage of § 85-2-318.2. Although we have had several occasions to determine its applicability, none of our cases support Jackson's contentions. We have held that a residential developer cannot be held strictly liable for building a dangerous street because a street is not a product, Milam v. Midland Corp., 282 Ark. 15, 665 S.W.2d 284 (1984); that where the carpet in a house emitted strong fumes of formaldehyde, the house was a product and strict liability applied, Blagg v. Fred Hunt Co., 272 Ark. 185, 612 S.W.2d 321 (1981); that strict liability did not apply when a defective irrigation pump was "merely useless" rather than "something beyond that contemplated by the ordinary and reasonable buyer, taking into account any special knowledge of the buyer concerning the characteristics, propensities, risks, dangers, and proper and improper uses of the product," Berkely Pump Co. v. Reed-Joseph Land Co., 279 Ark. 384, 653 S.W.2d 128 (1983); and that the carton containing soft drinks was part of the product so that the manufacturer could be held strictly liable when a soft drink fell through the carton and injured the plaintiff, Stalter v. Coca-Cola Bottling Co. of Ark., 282 Ark. 443, 669 S.W.2d 460 (1984).

Obviously, Elk's roofing is a "product" as defined by statute. To support a claim of strict product liability, however, Jackson had to show that the packaging of the rolled roofing was supplied by Elk in a defective condition as defined in § 34-2802(d). The record is devoid of evidence in this regard. Jackson's witnesses did not mention any defect in the product, but rather all testified that the way in which the product was loaded made it unreasonably dangerous.

A typical example of the evidence on this issue is the questioning of Karl Franz, an engineer, by Jackson's attorney:

Q You've been asked some questions about hauling roll roofing double stacked, and you used the words "inherently unstable" in your direct testimony. Can you clarify what you mean by "inherently unstable?"

A A roll of tar paper doesn't have a lot of strength in itself.

Q Does that mean it's soft?

A It's a little mushy; it's a little soft.... And if there's a load applied on it, it'll tend to deform, whereas something that is structurally sound, where the loads that are applied on it, they won't deform.

Q ... [D]id you say that a load of roll roofing double stacked, that is, where there's a pallet on top of a pallet of roll roofing or bundles of roll roofing that it was inherently unstable?

A Yes.

Q I want to ask your opinion, based upon reasonable probability, and further ask you to assume that you have on a forty-four foot trailer similar to that that was referred to as an eighteen-wheeler and you have rolls of roofing twenty per pallet, and you've got twenty-three pallets on the first deck and fourteen pallets on the second stack, on the second stack, I want to know your opinion based on reasonable probability as to whether or not that load is unreasonably dangerous?....

A I feel like that configuration of loading with that particular cargo is unsafe. (emphasis added)

In short, it was not a defective, and therefore unreasonably dangerous product which was shown to be the cause of the accident. If Elk was at fault, then it was because Elk negligently loaded Jackson's trailer, not because the rolls of roofing were defective. The mere fact that under certain circumstances an accident may occur in connection with the use of a product does not make the product...