McNeal v. Hi-Lo Powered Scaffolding, Inc.

• Decision Date: 15 January 1988
• Docket Number: HI-LO,No. 87-7036,87-7036
• Citation: 836 F.2d 637,266 U.S.App.D.C. 473
• Parties: , Prod.Liab.Rep.(CCH)P 11,663 Carl McNEAL, Appellant, v.POWERED SCAFFOLDING, INC., an Ohio corporation, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 637

836 F.2d 637

266 U.S.App.D.C. 473, Prod.Liab.Rep.(CCH)P 11,663

Carl McNEAL, Appellant, v. HI-LO POWERED SCAFFOLDING, INC., an Ohio corporation, et al.

No. 87-7036.

United States Court of Appeals District of Columbia Circuit.

Argued Nov. 12, 1987.

Decided Jan. 15, 1988.

Appeal from the United States District Court for the District of Columbia (D.C. Civil No. 84-02561).

Milton Heller, with whom J. Philip Kessel, Barbara Moir Condos and Michael A. Abelson, Washington, D.C., were on the brief, for appellant.

Read K. McCaffrey, with whom Keith A. Rosenberg and Christopher S. Lambert, Washington, D.C., were on the brief, for appellee.

Before EDWARDS, SILBERMAN and BUCKLEY, Circuit Judges.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

Carl McNeal, a window washer, was seriously injured when he fell from a scaffold that had been suspended by two wire cables from the roof of a building in Washington, D.C. The cable holding the left side of the scaffold was secured by U-clips, wire rope clips manufactured by The Crosby Group, Inc. ("Crosby"). Just after McNeal boarded the scaffold, the left cable slipped through the U-clips, causing the scaffold to fall out from under him and his co-worker.

McNeal brought this diversity action against Crosby and several other defendants. The gravamen of his complaint against Crosby, which sounded in negligence, breach of warranty and strict liability, was that Crosby had failed to warn of the serious dangers presented by the improper application of U-clips. After a twelve-day trial, a jury returned a verdict for McNeal and against Crosby in the amount of $4.5 million. ¹ Nearly four months later, the trial court granted Crosby's motion for judgment notwithstanding the verdict ("judgment n.o.v."), and conditionally granted Crosby's motion for a new trial if this court reversed the judgment n.o.v. McNeal v. Hi-Lo Powered Scaffolding, Inc., No. 84-2561 (D.D.C. Jan. 28, 1987) ("Order"), reprinted in Record Excerpts ("R.E.") C-1. ²

Having reviewed all the evidence in the light most favorable to McNeal, we conclude that he adduced sufficient evidence for a reasonable juror to conclude that Crosby had a duty to warn of the dangers of improper application, that Crosby failed to provide an adequate warning, and that this breach of duty proximately caused McNeal's injuries. Therefore, the judgment n.o.v. is reversed. Because the trial court abused its discretion in conditionally ordering a new trial on the ground that the verdict was against the weight of the evidence, we vacate that order and direct the trial court to reinstate the jury's verdict.

I. BACKGROUND

On March 23, 1984, McNeal and his co-worker, Leo Henson, were scheduled to wash the windows of a building located at 1333 H Street, N.W., in downtown Washington, D.C. McNeal and Henson were employees of American Window & Building Cleaning Contractors, Inc. ("American Window"), and each had over twenty years' experience as a window washer. They intended to use a scaffold suspended by two wire cables from the roof of the building. The cable holding the left side of the scaffold was attached to an outrigger, a semi-permanent fixture on the roof, and the right side was attached to a cornice hook, a transportable device mounted on the roof. Each cable had an eye-splice--a loop formed by turning back the end of the cable and clamping it to the remaining portion with a wire rope clip--which was connected to these roof-top devices.

The eye-splice on the left cable was assembled with U-clips. A U-clip is a wire rope clip which has four components: a smooth, rounded piece of metal in the shape of a U ("U portion"), a corrugated piece of metal ("saddle") that presses down on the U portion, and two pairs of nuts and bolts. As the nuts are tightened, force is directed against the two pieces of wire cable held between the saddle and the U portion. The saddle has a configuration of grooves that creates interlock between it and the cable. By contrast, the U portion has a smooth interior which provides no interlock.

When a U-clip is properly applied, the saddle is placed on the "live," load-bearing portion of the cable that runs to the scaffold, and the U portion is placed on the much shorter, "dead" end of the cable. Thus, a U-clip is "backwards"--or improperly applied--when the saddle is placed on the dead end rather than on the live end. Crosby sells U-clips by the box, with each box containing 100 U-clips. Normally, one application card containing directions and warnings about U-clips is enclosed in each box.

The eye-splice on the right side of the scaffold was assembled with fist clips, another type of wire rope clip manufactured by Crosby. Unlike U-clips, fist clips have no smooth portion; they have two saddles and two pairs of nuts and bolts. As a result, they cannot be put on backwards. For this reason, fist clips are sometimes referred to as safety clips or twin base clips. Each fist clip is sold individually and comes with its own instruction card.

American Window purchased most of its scaffolding equipment from AA Ladder & Supply Corp. ("AA Ladder") from the early 1970s until 1982. During that time, AA Ladder had a policy of never selling or applying U-clips. Unless otherwise requested, it assembled eye-splices by means of a nico press sleeve. ³ If a customer asked for wire rope clips, AA Ladder sold or assembled fist clips, not U-clips. In 1982, American Window started purchasing some of its rigging equipment from Approved Equipment, Inc. ("Approved Equipment"), which had been opened that year by Richard Parkerson, a former employee at AA Ladder. Until 1984, Parkerson followed AA Ladder's policy on the use of wire rope clips. An exception was made in early 1984 after American Window placed an order for cables and wire rope clip assemblies.

At the time American Window placed this order, Approved Equipment was running low on fist clips. Parkerson telephoned Crosby's warehouse to inquire about replenishing his stock. A Crosby official told Parkerson that fist clips would be unavailable for several weeks, and suggested that he use U-clips instead. Parkerson agreed, and Crosby shipped him a box of 100 U-clips. Parkerson testified that this box did not contain an application card, nor did it contain instructions or warnings of any other kind.

Parkerson and his son attached three U-clips to the wire cable that would eventually support the left side of the fated scaffold. Parkerson testified at trial that he had never used U-clips prior to this time, and that when he and his son made the assemblies for American Window, neither of them knew that "there was a right way and a wrong way to apply the U-clips." Transcript ("Tr.") at 979. Parkerson also testified that he checked the tightness of the U-clips with a ratchet wrench. On March 8, 1984, American Window purchased the U-clip assemblies from Approved Equipment.

Late in the afternoon on March 21, 1984, McNeal and Henson rigged a scaffold to the building where the accident occurred. One of the U-clip assemblies purchased from Approved Equipment supported the left side of the scaffold, and a fist clip assembly supported the right side. Neither McNeal nor Henson made any adjustment to the U-clips or the fist clips. The next day Henson and Earl Lewis, another window washer at American Window, used the scaffold to make five or six trips, or "drops," down the side of the building. Lewis later testified that he had never seen U-clips before that day, and that he was familiar only with fist clips. Because he was concerned about the U-clips, he tightened them with pliers before three or four of the drops.

On the morning of March 23, 1984, Henson was the first to board the scaffold, where he waited for about five minutes before McNeal joined him. McNeal began his descent on the U-clip side of the scaffold by facing the building and lowering himself down the wire cable. He eventually placed his feet on the stirrup that was connected to the left side of the scaffold before stepping down onto the platform. Seconds later McNeal heard a noise, looked up, and saw the left cable unwinding around the outrigger. The scaffold then slid out from under McNeal and Henson, causing their fall. McNeal was seriously injured and Henson was killed. Because the fist clips held, the scaffold was left hanging vertically from the right cable. ⁴

At trial, McNeal testified that he did not check the tightness of the U-clips or the fist clips before he began his descent. He noted, however, that the standard "policy" among window washers was for the first person to board the scaffold to check the tightness of the wire rope clips. Tr. at 774. He further testified that he knew how to use fist clips, but had no experience whatsoever with U-clips. McNeal also stated that he had never seen an application card pertaining to U-clips, that he had never received instructions about their proper use, and that he had never been warned about the danger posed by backwards application.

II. ANALYSIS

A. The Standard of Review

In reviewing the trial court's decision to grant Crosby's motion for judgment n.o.v., this court asks

the same question that the district court asked initially in considering the motion. Because a motion for judgment n.o.v. intrudes upon the jury's domain, that question is very narrow. The jury's verdict must stand unless "the evidence, together with all inferences that can reasonably be drawn therefrom is so one-sided that reasonable men could not disagree on the verdict."

Carter v. Duncan-Huggins, Ltd., 727 F.2d 1225, 1227 (D.C.Cir.1984). We are required "to consider all the evidence and to do so in the light most favorable to the successful party below. Conflicts in the evidence must be resolved in favor of the prevailing party." Grogan v. General Maintenance Serv. Co., 763 F.2d 444, 447 (D.C.Cir.1985) (citation omitted). Because we ask the ...