Phillips v. Hardware Wholesalers, Inc., 83-1804

• Decision Date: 15 May 1985
• Docket Number: No. 83-1804,83-1804
• Citation: 762 F.2d 46
• Parties: Dennis PHILLIPS, Plaintiff-Appellee, v. HARDWARE WHOLESALERS, INC., a foreign corporation, and R.D. Werner Company, Inc., a foreign corporation, jointly and severally, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 46

762 F.2d 46

Dennis PHILLIPS, Plaintiff-Appellee, v. HARDWARE WHOLESALERS, INC., a foreign corporation, and R.D.

Werner Company, Inc., a foreign corporation,

jointly and severally, Defendants-Appellants.

No. 83-1804.

United States Court of Appeals, Sixth Circuit.

Argued April 2, 1985.

Decided May 15, 1985.

James R. Kohl, Plunkett, Cooney, Rutt, Watters, Stanczyk and Pedersen, Ernest R. Bazzana, argued, Detroit, Mich., for defendants-appellants.

Richard B. Worsham, Larry A. Smith, argued, Southfield, Mich., for plaintiff-appellee.

Before MARTIN and JONES, Circuit Judges, and HOLSCHUH, District Judge. ^*

BOYCE F. MARTIN, Jr., Circuit Judge.

This is a diversity products liability action in which a jury awarded Dennis Phillips $90,000 for injuries he received when a ladder on which he was standing slipped out from underneath him. The manufacturer and wholesaler of the ladder, R.D. Werner Company and Hardware Wholesalers, Inc., respectively, appeal from the trial court's denial of a directed verdict and judgment notwithstanding the verdict. We affirm.

Phillips was injured when he fell from a ladder while removing a display at his place of employment, the Hartland Lumber Company. The evidence established that Phillips was standing on the sixth rung of the ladder, reaching to the side, when the feet of the ladder slipped on the asphalt tile floor. The extension ladder used by Phillips was fifteen feet long. At the time of the accident, the top of the ladder extended four inches above the bottom of the ceiling beam against which the ladder rested. The ladder was placed against the beam at an angle of 81 1/2?, an angle well within the range acceptable for a ladder of that length.

Phillips' theory at trial was that Werner and Wholesalers breached an implied warranty by manufacturing and marketing a defective ladder. Specifically, Phillips claimed that the feet or "pads" on the bottom of the ladder were defective in that the design and material of the pads were inadequate to prevent the ladder from slipping on certain surfaces.

Phillips sought to prove his theory through the testimony of an expert witness, Frank Kleeman. Kleeman, a chemical and metallurgical engineer, opined that the vinyl plastic pads on the Werner ladder were defective due to inadequate slip resistance. Kleeman testified that the ladder pads, which had a ridged or saw-toothed design, did not provide sufficient contact with hard surfaces to prevent the ladder from slipping. He further testified that on a yielding surface, such as soil, the ridged design of the pad provided a very good grip because of the interlocking effect between the ridges and the soil.

Kleeman also gave testimony regarding alternatives to the pads on the Werner ladder. He stated that pads could be made with silicone carbide or aluminum oxide abrasives, such as are used on stairways. According to Kleeman, the development of such a pad was feasible from an engineering standpoint. He also noted, however, that the abrasives would cause some scratching of a tile surface. A pad that was available at the time of Phillips' accident had a sharp steel edge capable of penetrating ice. Kleeman testified that this pad could prevent slippage but would damage a tile floor. Another pad that was available at the time of the accident was made of soft rubber. This rubber pad was removable, so that the ladder could be equipped with permanent pads that are good for soil surfaces and the rubber pads, which are good for hard surfaces, could be slipped on over the permanent pads. Kleeman stated that this slip-on rubber pad would spread out and thus create more contact area than the Werner pad provided. More contact area would result in less slippage. Kleeman did not state that the rubber pads had any particular disadvantages.

Finally, Kleeman testified that a manufacturer and wholesaler of a ladder the size and quality of the Werner ladder should have foreseen that a consumer would use the ladder on a tile floor. He did not state whether a manufacturer or wholesaler should have foreseen that a ladder so used would slip and cause personal injury.

Werner and Wholesalers moved for a directed verdict at the close of plaintiff's case and moved for judgment notwithstanding the verdict after the jury returned a verdict against them. Defendants argue that the district court erred in denying these motions because: (1) Phillips did not adduce evidence of the reasonableness of the alternative designs; and (2) Phillips did not adduce evidence of the magnitude of the risks posed by the Werner ladder.

The standard for assessing a motion for judgment notwithstanding the verdict was set out in Toth v. Yoder Company, 749 F.2d 1190 (6th Cir.1984):

The issue raised by a motion for a judgment n.o.v. is whether there is sufficient evidence to raise a question of fact for the jury. This determination is one of law to be made by the trial court in the first instance. In determining whether the evidence is sufficient, the trial court may not weigh the evidence, pass on the credibility of witnesses, or substitute its judgment for that of the jury. Rather, the evidence must be viewed in the light most favorable to the party against whom the motion is made, drawing from that evidence all reasonable inferences in his favor. Morelock v. NCR Corp., 586 F.2d 1096, 1104-1105 (6th Cir.1978). If, after thus viewing the evidence, the trial court is of the opinion that it points so strongly in favor of the movant that reasonable minds could not come to a different conclusion, then the motion should be granted. Id. An appellate court, when reviewing the trial court's decision, is bound by the same standard. Morelock v. NCR Corp., supra, 586 F.2d at 1105; Gillham v. Admiral Corp., 523 F.2d [102, 109 (6th Cir.1975) ].

Toth, 749 F.2d at 1194. Of particular significance is the warning in Toth that, "If reasonable minds could honestly disagree as to whether the plaintiff has satisfied his burden of proof or the necessary elements of his cause of action, judgment n.o.v. for the defendant is improper." Id. at 7 (quoting Cormack v. American Underwriters Corp., 94 Mich.App. 379, 288 N.W.2d 634 (1979)) (emphasis added).

With these principles in mind, we turn to the facts of this case. Defendants' claim that Phillips' case should not have gone to the jury is based primarily on the Michigan Supreme Court's decision in Owens v. Allis Chalmers Corp., 414 Mich. 413, 326 N.W.2d 372 (1982). In Owens the plaintiff's husband was killed when the forklift he...