Elliot v. Sears, Roebuck and Co., 14764

• Decision Date: 31 May 1994
• Docket Number: No. 14764,14764
• Citation: 642 A.2d 709,229 Conn. 500
• Court: Connecticut Supreme Court
• Parties: , Prod.Liab.Rep. (CCH) P 14,011 Steven ELLIOT et al. v. SEARS, ROEBUCK and COMPANY.

Page 709

642 A.2d 709

229 Conn. 500, Prod.Liab.Rep. (CCH) P 14,011

Steven ELLIOT et al. v. SEARS, ROEBUCK and COMPANY.

No. 14764.

Supreme Court of Connecticut.

Argued Jan. 13, 1994.

Decided May 31, 1994.

Philip T. Newbury, Jr., Hartford, for appellant (defendant).

John J. Nazzaro, with whom, on the brief, was Robert I. Reardon, Jr., New London, for appellees (plaintiffs).

Before BORDEN, BERDON, NORCOTT, KATZ and PALMER, JJ.

BERDON, Associate Justice.

In this product liability claim brought pursuant to the Product Liability Act (act); General Statutes § 52-572m et seq.; the dispositive issue is whether the defendant product seller was entitled to a jury instruction on the defense of alteration or modification predicated on misuse under General Statutes § 52-572p, in addition to an instruction on misuse under the common law.

The plaintiff Steven Elliot ¹ brought this action for damages as a result of injuries he received in a fall from a ladder sold by the defendant, Sears, Roebuck and Company. The jury, in finding the issue of liability in favor of the plaintiff, also found that the damages sustained by the plaintiff totaled $136,050, and that those damages were to be reduced by 25 percent as a result of the plaintiff's comparative responsibility. The trial court accordingly reduced the plaintiff's award, and rendered judgment for the plaintiff in the amount of $102,037.50. After the trial court denied the defendant's motion to set aside the verdict, ² the defendant appealed to the Appellate Court. The Appellate Court affirmed the trial court's judgment; Elliot v. Sears, Roebuck & Co., 30 Conn.App. 664, 621 A.2d 1371 (1993); and we granted the defendant's petition for certification. ³ Although we affirm the judgment of the Appellate Court, we base our decision on an analysis of the statutory language not relied upon by that court.

The jury could reasonably have found the following facts. In April, 1987, the plaintiff and his wife, with the assistance of a contractor, were adding a full second floor to their A-frame house in Waterford. As a means of access to the new floor under construction, they borrowed a sixteen foot aluminum extension ladder, constructed with rounded rungs, belonging to the plaintiff's father-in-law. The ladder had been purchased from the defendant in 1985.

The plaintiff set up the ladder in the following manner. The base of the ladder was secured against a board that was nailed into the floor framing. The "fly" of the ladder, the moving part which extends its length, was extended one or two feet and tied to a two-by-four affixed to a partition on the second floor. The plaintiff set up the ladder in this manner so that it would not move or slip during use. The ladder was set at approximately a sixty degree angle, so that it would function as a staircase. At the top of the fly of the ladder, there was a sharp metal edge that was exposed when the ladder was extended. The plaintiff had not noticed this exposed edge prior to his injury.

The plaintiff often descended the ladder with his back to the rungs. A label on the ladder warned users "always [to] face ladder when climbing, working or descending." The label also contained the warning that users should always maintain a firm grip on the ladder. The plaintiff had not read any of the labels on the ladder prior to his accident.

On April 17, 1987, the plaintiff was visited by a friend. They each climbed the ladder to the second floor so the plaintiff could show him the progress made on the addition. After fifteen to twenty minutes, the telephone, which was located in the kitchen on the first floor, rang. In order to answer the telephone, the plaintiff descended the ladder, with his back to it, and about half way down he lost his balance and slipped. ⁴ As he fell, he reached out with his left hand to grab something to steady himself. He was wearing his wedding ring on his left hand ring finger. As he attempted to break his fall, the ring snagged on the exposed sharp metal edge at the top of the extension ladder. This caused the plaintiff to suffer a degloving injury to the finger, leaving him with an exposed bone and tendon without any skin or soft tissue. His finger was eventually amputated.

Eric Jordan, an associate professor of mechanical engineering at the University of Connecticut, testified as an expert witness for the plaintiff. Jordan testified that it is generally recognized that metal ladders should include end caps and end closures or equivalent protection against sharp edges and snagging. He testified that although the ladder did include end caps, there was an exposed sharp upper edge of the ladder that was not capped. In his opinion, this presented a significant hazard of snagging, and therefore the end caps included with the ladder did not "fulfill the intended purpose of the end cap with regards to preventing snagging and sharp edge injury." In Jordan's opinion, the ladder was unreasonably dangerous due to the defectively designed end caps. Jordan also testified that the top of the ladder could have been fully capped without impairing the function of the ladder and without incurring a significant cost. Finally, he testified that although it is a misuse of the ladder to descend with one's back to the ladder, it is a common and foreseeable misuse that could reasonably be anticipated by the seller.

In adopting the act, the legislature intended to incorporate in a single cause of action an exclusive remedy for all claims falling within its scope. Winslow v. Lewis- Shepard, Inc., 212 Conn. 462, 471, 562 A.2d 517 (1989). In doing so, "the legislature was merely recasting an existing cause of action and was not creating a wholly new right for claimants harmed by a product. The intent of the legislature was to eliminate the complex pleading provided at common law.... 22 S.Proc., Pt. 14, 1979 Sess., pp. 4637-38; 22 H.R.Proc., Pt. 20, 1979 Sess., pp. 7021-22." Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 292, 627 A.2d 1288 (1993). The act, however, is no model of clarity; an example is its ambiguous treatment of the defense of misuse that has resulted in this appeal.

One point of confusion regarding the act, as demonstrated by the briefs of the parties before us and by members of the bar, ⁵ is the belief that it was patterned after the Model Uniform Product Liability Act (model act), 44 Fed.Reg. 62714-50 (1979), recommended by the United States Department of Commerce on October 31, 1979. As we have previously stated, however, the act is based on the Draft Uniform Product Liability Law (draft act), published by the Department of Commerce on January 12, 1979 in 44 Fed.Reg. 2996 et seq. for public comment. See Freeman v. Alamo Management Co., 221 Conn. 674, 681 n. 7, 607 A.2d 370 (1992); Winslow v. Lewis-Shephard, Inc., supra, 212 Conn. at 469, 562 A.2d 517. This origin of our act is indicated by the date of its adoption, ⁶ its language, ⁷ and its legislative history. ⁸ There are substantial differences between the model act and the draft act. This is particularly so in regard to § 112 of the model act, upon which the defendant relies, as indicated below in this opinion.

The defendant, in addition to denying liability, raised two special defenses that are relevant to this appeal. In the first special defense, upon which the trial court instructed the jury, it alleged misuse of the product under the common law. The defendant based this claim on its allegations that the plaintiff descended the ladder as though it were a staircase, facing away from the ladder, and failed to read and follow the instructions and warnings concerning the use of the ladder. In the second special defense, predicated upon General Statutes § 52-572p, the defendant alleged that the "ladder was altered or modified by the plaintiffs or a third-party from the condition in which it was sold." The trial court refused to instruct the jury on the second special defense, ⁹ but did instruct on the first. The defendant claims that, although the trial court satisfactorily instructed the jury on the common law defense of misuse, it was also entitled to an instruction on the second special defense predicated on statutory alteration modification by misuse under § 52-572p. Section 52-572p provides in pertinent part: "(a) A product seller shall not be liable for harm that would not have occurred but for the fact that his product was altered or modified by a third party unless: (1) The alteration or modification was in accordance with the instructions or specifications of the product seller; (2) the alteration or modification was made with the consent of the product seller; or (3) the alteration or modification was the result of conduct that reasonably should have been anticipated by the product seller. (b) For the purposes of this section, alteration or modification includes changes in the design, formula, function or use of the product from that originally designed, tested or intended by the product seller." (Emphasis added.)

The defendant argues that the defense of misuse under the common law and the defense of alteration/modification by "changes in the ... use of the product" under § 52-572p are separate and distinct defenses. The distinction drawn by the defendant is as follows: common law misuse is the failure to use a product in the manner intended by or reasonably foreseeable to the seller, while alteration/modification by misuse under § 52-572p "changes some essential characteristic of the product so that the user no longer views the product as it was intended by the manufacturer. It makes the user behave differently than he or she would have behaved if the product was not altered." This is certainly a fine line distinction and would appear, in this case, to be a distinction without a difference.

We agree with the defendant that misuse under the common law "occurs when a product is not used 'in a manner which should have been foreseen by the...