Smith v. Louisville Ladder Corp.

• Decision Date: 11 January 2001
• Docket Number: No. 99-41038,99-41038
• Citation: 237 F.3d 515
• Parties: (5th Cir. 2001) RODGER NELSON SMITH, JR., Plaintiff-Appellee, v. LOUISVILLE LADDER CORP., Defendant-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

Page 515

237 F.3d 515 (5th Cir. 2001)

RODGER NELSON SMITH, JR., Plaintiff-Appellee, v. LOUISVILLE LADDER CORP., Defendant-Appellant.

No. 99-41038

UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

January 11, 2001

[Copyrighted Material Omitted] Appeal from the United States District Court For the Eastern District of Texas.

Before DAVIS, SMITH and DENNIS Circuit Judges.

DAVIS, Circuit Judge:

This is an appeal from a judgment entered on a jury verdict for the plaintiff, Rodger Nelson Smith ("Smith"), in a products liability action against Louisville Ladder Corp. ("Louisville"). Following a four day trial, the jury found in favor of Smith, and, after taking Smith's 15% contributory negligence into account, awarded Smith $1,487,500. We conclude that the record evidence does not support any of Smith's theories of recovery. We therefore reverse and render judgment for Louisville.

I.

Rodger Smith worked as a technician for Longview Cable Company ("Longview"), which provided cable television service in the Longview, Texas area. At the time of his accident in April 1995, Smith had been employed by Longview for approximately one and one-half years. Longview purchased the extension ladder and hook assembly in use at the time of Smith's accident from Louisville.

On the day of Smith's injury, he was assigned a routine repair job that required him to rest the ladder against a cable strand located some twenty feet off the ground. Smith placed the cable line inside the U-shaped hooks that extended from the top of the ladder and rested the ladder against the cable. The base of the ladder was on the ground approximately five feet from a utility pole to which the overhead cable was attached. Because of its weight, the cable sloped down slightly as it moved from the pole.

Smith climbed the ladder without securing the ladder to the pole or any other stationary object. Smith's plan was to secure himself to the ladder with his safety belt when he reached the top of the ladder and then use a hand line to attach the ladder to the utility pole. After Smith climbed to the top of the ladder, he reached for his safety belt and his weight shifted, causing the ladder to slide to his left down the natural slope of the cable. The ladder slid sideways for some distance with Smith hanging onto the ladder. When the ladder reached a position at or near the low point of the line between the two utility poles to which it was attached one of the hooks came off the line, and the ladder twisted and came to an abrupt halt. Unable to maintain his grip on the ladder, Smith fell to the ground and was seriously injured.

Lateral slides of ladders along cables were well recognized risks in the telecommunications industry, and Smith, himself, had experienced several of these slides during his employment with Longview. However, in the earlier slides Smith had attached his safety belt to the ladder before the slide began and because he did not fall from the ladder he suffered no injury.

Smith's product liability suit against Louisville sought recovery on three theories: defective design, failure to warn, and breach of implied warranty of merchantability. Following trial, the jury found in favor of Smith on all three theories and after taking Smith's 15% contributory negligence into account, awarded Smith $1,487,500. The district court entered judgment on the verdict and denied Smith's post-judgment motions. This appeal followed.¹

II

A. Design Defect

Smith focused most of his time and attention at trial on his theory that the Louisville extension ladder with hook assembly was defective because of the hook's ability to come off the cable during a slide. Smith's expert, Dr. Packman, testified that when the hook disengaged from the cable near the end of Smith's slide, the ladder to which Smith was clinging twisted more violently than it would had the hook remained attached to the cable and he concluded that this additional twist contributed to Smith's fall. Packman introduced the concept of a simple latching device that, when engaged, would close the opening in the hook, encircle the cable and prevent the hook from disengaging from the strand. Under Dr. Packman's concept, the latch remains disengaged until the hook is placed over the cable and the ladder is resting on the cable. The operator, from his position on the ground, would then remotely activate a spring loaded latch by pulling a line running from the latch to the bottom of the ladder. Once the latch was engaged, the hook would no longer be open and in the event of a slide, the hook could not disengage from the cable.

Louisville Ladder argues that Smith did not establish that the hook with Dr. Packman's latch was a "safer alternative design" within the meaning of the Texas statute. To establish a design defect, Section 82.005 of the Texas Civil Practice and Remedies Code requires a claimant "to prove by a preponderance of the evidence that: (l) there was a safer alternative design; and (2) the defect was a producing cause of the personal injury property damage or death for which the claimant seeks recovery." Subsection (b) states:

(b) In this section, "safer alternative design" means a product design other than the one actually used that in reasonable probability:

(l) would have prevented or significantly reduced the risk of the claimant's personal injury, property damage, or death without substantially impairing the product's utility; and

(2) was economically and technologically feasible at the time the product left the control of the manufacturer or seller by the application of existing or reasonably achievable scientific knowledge.

We found only one Texas case discussing the proof necessary to establish a safer alternative design under this statute. In General Motors Corp. v. Sanchez, 997 S.W. 2d 584 (Tex. 1999), the plaintiff's expert testified that his alternative design of the General Motors transmission would prevent internal forces in the transmission from moving the gear selector toward "reverse" rather than "park" when the driver inadvertently leaves the lever in a position between "reverse" and "park." According to plaintiff's expert, his proposed design change would eliminate this spontaneous movement 99% of the time. The court held that this testimony was sufficient to allow the jury to conclude that plaintiff had established a safer alternative design. Id. at 592.

In our case, Smith completely relies on Dr. Packman's evidence and testimony to establish a safer alternate design. Packman testified that his spring loaded latch, by preventing the hook from disengaging from the cable, would make the jolt at the end of the slide less violent, and, therefore, the worker would have a better chance of hanging onto the ladder. He conducted videotaped experiments for the purpose of establishing this fact. In the first experiment, he placed a 200-pound weight on a ladder with hooks like those found on the Louisville Ladder and then precipitated a slide to demonstrate the jerk that would occur when one of the hooks disengaged from the strand. For the second experiment, Dr. Packman videotaped a slide involving hooks that encircled the cable.² This experiment demonstrated a less violent jerk at the end of the slide.

The only conclusion Dr. Packman was able to reach was that his alternative design would result in a less violent jerk on the ladder at the end of the slide. Unlike the expert who testified in General Motors, Dr. Packman was unable to quantify this reduction in force and was unable to say that Smith or another worker could stay on the ladder in a slide where the hook was prevented from disengaging from the cable. The most Dr. Packman could say was that his design alteration would diminish the possibility of the worker's falling off because there was some reduction in the jerk.

Furthermore, Dr. Packman's concept of the latching device to close the open end of the hook around the cable was a preliminary concept. At the time of trial he admitted that he had considered several possible ways a man on the ground (or some distance up the ladder) could operate the latch mechanism but had not settled on any particular method. He agreed that his design was preliminary and that he was not ready to recommend it to a manufacturer. In addition, Packman conceded that a person climbing the ladder would find his proposed mechanism somewhat awkward and that using the mechanism could cause the ladder to get out of balance and slide. He was also questioned about a concern that the line to operate the latch mechanism running the length of the ladder has the potential of being a hazard to the person climbing the ladder. Packman agreed that he never evaluated the risks associated with his proposed alternate design due in part to the fact that it was never completed. Packman also conceded that he did not purport to conduct a risk-benefit analysis of his proposed redesign.

In addition to the Texas Supreme Court's interpretation of the statute in General Motors, we look to decisions of this court considering whether such proof was adequate to satisfy a similar statutory burden imposed by Louisiana. In Lawrence v. General Motors Corp., 73 F. 3d 587, 590 (5th Cir. 1996), we considered whether the evidence was sufficient to satisfy a very similar Louisiana statute,³ and concluded that a declaration by the plaintiff's expert that a proposed alternative design could have prevented the plaintiff's accident was insufficient to establish the statutory requirement. We stated that this expert failed to "elaborate on the actual likelihood of avoiding the probable damage through an alternative design," "address the burdens or adverse utility effects of his proposed changes, or counter the defendant's claim that these alterations would not have been compatible with the product in its current form. Id. at 590. As a result, we held that the evidence was insufficient as a matter of law to support a finding of...