Quinn v. Southwest Wood Products, Inc.

• Citation: 597 F.2d 1018
• Decision Date: 02 July 1979
• Docket Number: No. 77-1701,77-1701
• Parties: Jimmy QUINN, Plaintiff-Appellee, v. SOUTHWEST WOOD PRODUCTS, INC. and Western Auto Supply Company, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1018

597 F.2d 1018

Jimmy QUINN, Plaintiff-Appellee, v. SOUTHWEST WOOD PRODUCTS, INC. and Western Auto Supply

Company, Defendants-Appellants.

No. 77-1701.

United States Court of Appeals, Fifth Circuit.

July 2, 1979.

Lancaster Smith, Harvey L. Davis, Dallas, Tex., for Western Auto supply co.

John M. O'Quinn, Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before JONES, CLARK and GEE, Circuit Judges.

GEE, Circuit Judge.

In this case a wooden ladder complying with or exceeding in its design all relevant OSHA and industry standards has been found by a jury to be nevertheless unreasonably dangerous to the user because its design was defective. ¹ The evidence supporting this finding is sketchy and meager. We conclude that although it is sufficient to permit a guess or suspicion that the ladder failed through faulty design, it is not substantial. Our decision in Simien v. S. S. Kresge Co., 566 F.2d 551 (5th Cir. 1978), ² therefore requires us to reverse if the question of evidentiary sufficiency has been preserved for our review. Since we also conclude that it has been though somewhat inartfully we do so.

The Evidence

In reviewing the sufficiency of evidence to support a jury verdict, we must consider it all, drawing all reasonable inferences in favor of the prevailing party. In this case, that party is Mr. Quinn. The dispositive issue is whether this stepladder was so defective when it left the manufacturer's hands that it created an unreasonable risk of harm when properly employed in ordinary service for its intended purpose. The claimed defect is one of design alone, that the right rear one of its four legs was so weakened by the manner in which the upper of two lateral braces was let into it as to give way under Mr. Quinn's weight. The testimony of three witnesses is relevant.

Mr. Quinn was the only witness who testified about the actual occasion of his fall, and he remembered very little about it. He did recall, and it is not disputed, that he bought the ladder from the retailer-defendant a short time before his injury and had used it only a few times. It was therefore all but new, and the defendants are and do not deny that they are responsible for its then condition. In July of 1970, he erected the ladder and climbed it to paint a building wall, carrying only a partly filled can of paint and a brush. Some short time later he heard a "crack," and the next thing he knew, he and the ladder were on the ground together, and his right arm was severely broken. He testified at one time that it was the right front leg which broke, at others that it was the right rear one, at still another that he does not remember whether any part of the ladder was broken after the fall, and finally that he remembers seeing a crack in a rear leg at that time. This is about all.

The list of what he might have been expected to recall but did not is long. He specifically testified that he could not remember: what part of the building he was painting, whether the front or the back of the ladder faced the working surface, what step of the ladder he was standing on, whether it was a high one or a low one, whether he was moving or standing still, whether he had both feet on the same step, how much he weighed or how tall he was, whether he was facing the ladder or the surface being painted, and many more significant details of the incident. In fine, though he was reasonably responsive on direct, he met cross-examination with a litany of "I don't knows."

Noting that Mr. Quinn was not well educated and was a manual laborer unversed in such contexts as the courthouse, we indulge in his favor the general inference that his meager and selective recall was the result of the accident's shock and the passage of time. Even so, its vague and conflicting nature, sometimes on such critical matters as where the ladder failed, do not inspire much confidence in it. More, his inability to recall any details of the occasion whatever renders it untestable by cross-examination, as a practical matter. About all we know from him is that while he was somewhere on the ladder he heard a cracking noise and fell. We also select from his conflicting testimony on the subject that most favorable to his case: that after the accident he saw some sort of a crack in the right rear leg of the ladder. As is apparent from the testimony of his expert, Dr. Muster, and from his own photographic exhibits, this must have been a very small one indeed.

Dr. Muster, the expert presented by Mr. Quinn, is a professor of mechanical engineering and the holder of numerous degrees, including a Ph.D. in Mechanics. He testified that he received the ladder from plaintiff's counsel about three years after the accident, in a condition indicating that it had seen hard service weathered and paint spattered, with a "splint" nailed over the locus of the crack in question. ³ He ran no weight-bearing tests on the ladder but merely removed the splint and observed and photographed the ladder. In order to "enlarge" the crack in question so that he could make what he thought a suitable series of photographs of it, he laid the ladder on its side and removed the lower brace between its rear legs. ⁴ He then loaded weights onto the extreme end of the ladder leg to widen the crack and photographed it. These weights came to around 25 pounds. Somewhere in this process, a temporary support slipped, and the leg broke completely off the ladder under the transverse pressure of the weights loaded on its end. This, of course, rendered any vertical weight-bearing tests on the ladder impossible, by him or by anyone else, and none were ever run on the actual ladder.

Dr. Muster was clear that a crack was present when he received the ladder but that the ladder leg was not broken off. His exhibits indicate a hairline check or crack of about one inch in length, running up the center of the right rear leg and disappearing under a washer of about one-inch diameter that secures the end of a steel rod reinforcing the ladder's upper brace along its length. When he broke the ladder, he saw from weathering patterns that some of the crack was old and some was new, but he did not testify to their respective dimensions.

His further testimony identified the area where he found the original crack and where he broke the ladder as its weakest point of design. This resulted, he testified, from the cutting of a mortise in the inner surface of each of the ladder's rear legs to receive the ends of the upper cross-brace. These spots were further weakened, in his opinion, by the drilling of a hole through the center of each mortise to admit the end of the steel reinforcing rod mentioned above, which was secured at each end by a washer and retaining nut on the outside face of each rear leg.

It was his evidence that the ladder is so designed that when it fails, as any structure must if sufficiently loaded, it is at these mortises that the failure will occur. He was also very clear that he had no idea at all what weight the ladder in question would bear without breaking, whether 100 or 1,500 pounds. All he knew was that at some load it would fail and that the failure would be at the spot identified. In response to several hypothetical questions, he opined that if the ladder failed at the point in question under the circumstances that Mr. Quinn described, it was defective. Some of these questions assumed facts not in evidence such as that Mr. Quinn was on one of the two or three top steps on the ladder's five, or that at the time of the break Mr. Quinn "felt a twisting effect on the ladder" but were allowed anyhow, over objection on this ground.

We indulge in Dr. Muster's favor the inference that he broke the ladder accidentally and without intending to do so and that a crack of some nature larger than that apparent to the naked eye was present when he received the ladder. In addition, we accept his testimony that the point of failure of this ladder is its weakest design point. Further, we accept his measurement of the mortise's depth at 3/16 inch, of which more later. ⁵

Mr. Zetterland was the expert presented by the defendants. He was a graduate engineer who had, in the course of his lengthy practice, designed aircraft structures of wood and investigated a number of ladder accidents.

His testimony commenced with identifying and the introduction in evidence of the various industry and governmental standards for ladder safety and design. He then testified to receiving the broken ladder after Dr. Muster's procedures and to tests run by him on prototypes, the original being unavailable for these because broken. ⁶ Before the jury, he placed bathroom scales under the rear legs of one prototype and caused a man weighing more than Mr. Quinn had believed he weighed to climb to the fourth step, next to the top one. Each scale then registered about 40 pounds. Next he testified that it would be impossible for the weight of a man to break a ladder designed like these if the wood in it was sound. Next he referred to the various standards in evidence, including the OSHA standards, testifying that they specify that the brace in question, its mortises and its steel reinforcing rod, be designed as they were in the ladder from which Mr. Quinn fell. Further, he testified, the accident ladder complies with or exceeds all their requirements. He then described a load test performed to destruction by him on another identical prototype ladder, which resisted to 1,600 pounds of pressure. ⁷ The ladders in question were almost twice as strong as code requirements, he stated. He gave it as his opinion that the ladder in question could not have failed from any such static load as Mr. Quinn presented and must have failed from a dynamic load, a blow. He gave his measurements of the critical portions of the accident ladder: the rear leg being 7/16 inch wider than code requirements...