Gabbard v. Stephenson's Orchard, Inc., KCD

• Decision Date: 03 April 1978
• Docket Number: No. KCD,KCD
• Parties: Clyde D. GABBARD, Plaintiff-Appellant, v. STEPHENSON'S ORCHARD, INC., Defendant-Respondent. 28460.
• Court: Missouri Court of Appeals

Page 753

565 S.W.2d 753 Clyde D. GABBARD, Plaintiff-Appellant,
v.
STEPHENSON'S ORCHARD, INC., Defendant-Respondent. No. KCD 28460. Missouri Court of Appeals,Kansas City District. April 3, 1978.
Motion for Rehearing and/or Transfer Denied May 1, 1978.
Application to Transfer Denied June 15, 1978.

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Stephen G. Scholl, Thomas J. Conway, Popham, Popham, Conway, Sweeny & Fremont, P. C., Kansas City, for plaintiff-appellant.

Richard H. Heilbron, Heilbron & Powell, Kansas City, for defendant-respondent.

Before ROBERT R. WELBORN, Special Judge Presiding, SHANGLER, J., and ANDREW J. HIGGINS, Special Judge.

ANDREW JACKSON HIGGINS, Special Judge.

Appeal from judgment for defendant on verdict directed at the close of plaintiff's case in action for damages for personal injuries sustained as a result of the collapse of a ladder. The question is whether, under the law and the evidence, plaintiff was entitled to have his case against defendant submitted to the jury under the theory of strict liability. Reversed and remanded.

Plaintiff's action was against Stephenson, the supplier, and O'Connor Ladder Co., Inc., the manufacturer of the ladder. He alleged: that on September 30, 1971, he was a business invitee on premises owned and operated by Stephenson; that Stephenson furnished him a ladder manufactured by O'Connor; that the ladder was of defective design and construction; and, as a result, the ladder collapsed and plaintiff was injured.

On the morning of September 30, 1971, plaintiff read a newspaper advertisement ¹ inviting the public to pick apples at Stephenson's Orchard. He left home around 10:30 a. m., and went directly to the orchard. At the time of his injury, he was using a three-legged aluminum ladder. He shook the ladder before he mounted it and it seemed firm. He climbed to the third step from the top (the fifth step from the bottom) and was looking and reaching upward for apples, picking with his right hand and putting them in a bucket sitting on the top step, when he felt the ladder going, causing him to fall. He crawled to his car, drove to the main gate where he reported the accident and paid for the apples he had picked, and then drove to the main house at the Orchard, from which he was driven to a hospital.

Prior to the fall, the ladder was sitting on dry, hard ground; none of the steps was loose as he climbed them. When the ladder went out from under him, he thought it went forward or frontwards. It went straight down but he did not land on any part of the ladder, and it was to the side of him after the fall. He observed the ladder part with its steps flat on the ground; he did not recall the location of the third leg. He did not notice any part of it to be bent. Before he mounted the ladder, the third leg was four or five feet away from the two front or step legs. He did not lose his balance until after the ladder started down; he did not jump. He assumed the ladder bent or broke, but did not know because he did not inspect it after it went down; he did not touch the ladder after the accident.

He was not instructed in the use of the ladder and he did not know it was dangerous.

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He had never climbed such a ladder before and did not ask for instructions on its use. He could have asked the gate man for instructions; he had plenty of time to inspect. All he knows is that he was reaching upward and the ladder went out from under him. He did not lean out to the right or left of the ladder.

Stephenson had 31 such ladders which it supplied to its business invitees, all of which were manufactured by O'Connor and acquired by Stephenson between 1964 and 1969. The ladder used by Mr. Gabbard was two or three years old at the time of his accident.

Theodore Clemens had a similar accident August 13, 1970, while picking peaches at Stephenson's. He was halfway up a similar three-legged ladder, reaching upward with one hand, when the ladder collapsed. He went one way; the ladder the other. He also had shaken the ladder before climbing it, and it seemed...