Spino v. John S. Tilley Ladder Co.

Decision Date09 February 1996
Citation671 A.2d 726,448 Pa.Super. 327
CourtPennsylvania Superior Court
Parties, Prod.Liab.Rep. (CCH) P 14,542 Francis SPINO and Louise Spino, Appellants, v. JOHN S. TILLEY LADDER COMPANY, and M.A. Buten & Son, Inc., Appellees.

Francis X. Nolan, Philadelphia, for appellants.

Barbara S. Magen, Philadelphia, for appellees.

Before McEWEN, JOHNSON, and BROSKY, JJ.

McEWEN, Judge:

Appellants, Francis and Louise Spino, have taken this appeal from the verdict entered in favor of appellees, the John S. Tilley Ladder Company (hereinafter "Tilley") and M.A. Buten & Sons, Inc. (hereinafter "Buten"), following a jury trial in this action seeking compensation for injuries sustained by Louise Spino when she fell from a household ladder manufactured by Tilley and sold to her husband by Buten. Appellants have framed their arguments in support of their request for a new trial, as follows:

In this 402A case involving defective design of a product, did the trial court err by creating an immunity for the defendant by permitting the defendant to introduce negligence principles that since defendant did not have prior knowledge of the product's dangerous propensities, the product could not be defective?

Did the trial court err in refusing to permit plaintiff's expert to opine that safety devices (anti-split devices) used by defendant Tilley on its other ladders to prevent splits would have prevented the split in this case, and where the defendant's experts did opine that the anti-split device was unnecessary?

Did the trial court err by permitting defendant Tilley to introduce expert testimony that was entirely speculative, without factual basis, admittedly not causally related to the split, was irrelevant, and insufficient for defendant to meet its burden of proof on foreseeability where one expert admitted that their proof was contradictory and the other admitted that he really did not know what happened to the ladder, and where conclusions were permitted without factual or scientific basis that some unidentified "external force" was responsible for creating the split, and where these errors were compounded by not correcting the verdict slip to identify for the jury exactly what "defect" was at issue, i.e. the allegedly pre-existing split or a number of maintenance items having nothing to do with the split, and where Tilley completely ignored its burden of proof on foreseeability as to any alleged misuse or abuse?

Did the trial court err when it refused to permit plaintiff to call defense expert, Dr. Toland, who examined plaintiff and did not testify, where plaintiff was not permitted to testify that he examined her for the defendant, and where the trial court then refused to give an adverse inference charge?

Did the trial court err by permitting Tilley to cross-examine plaintiff's expert on how much he earned on matters not connected with the present case?

Did Tilley create prejudicial error in this 402A case by referring to a "medical malpractice crisis in litigation" for the purpose of appealing to the prejudices and passions of the jury?

The learned Judge John W. Herron has provided, in his able opinion issued in connection with the denial of post-verdict motions, the following summary of the evidence produced at trial:

Louise Spino and her husband, Francis, together purchased a Type 3 ordinary household wood ladder in 1983 at a local retail paint store. The ladder was manufactured by defendant John S. Tilley Ladder Company and, according to expert testimony, was designed to accommodate ordinary household usage (as opposed to heavier and more rigorous commercial and construction usages for which defendant Ladder Company's Types 1 and 2 ladders were designed). Plaintiffs never challenged the fact that the ladder in issue was intended for usage restricted to a 200 pound weight bearing load or that Mr Spino weighed 220 pounds at the time of purchase.

On the day following purchase, Mr. Spino used the ladder for a household painting project that included the Spinos' bedroom, dining room and living room. Mr. Spino testified that he only used the ladder for painting projects. Mrs. Spino used it two or three times per year to wash windows or hang curtains. When not in use, the ladder was stored at the foot of the stairs in plaintiffs' basement.

At the time of trial, this ladder showed evidence of labels but no one was able to decipher at that time what was written on the labels because one was covered with paint and another was partially worn away. The Spinos acknowledged, however, that at some point they had looked at the labels but never read them. Mr. Robert Howland, President of defendant Company, testified (via videotaped deposition) that there were labels on the Company's Type 3 household ladder as manufactured and sold which warned against standing on or above the second step down from the top and against use in a damaged condition.

In November 1986, the ladder was brought up from the basement by Mr. Spino. While he was away from the home at work, Mrs. Spino set the ladder up in her kitchen, placed a bucket of water on the ladder shelf, and climbed the ladder. Her intention was to clean the kitchen ceiling and, according to her trial testimony, as she reached her arm up toward the ceiling, she heard a cracking sound, the ladder shook, and the next thing she recalls was that she was on the floor. Mrs. Spino was taken by rescue squad to a local hospital where emergency room records note that she "lost her balance and fell four feet...." Later in the week, while still hospitalized, she told her husband that she did not know how the accident happened.

Mr. Spino testified that when he returned home from visiting his wife at the hospital on the evening of the accident, the ladder already had been removed from the kitchen and placed at the foot of the stairs in the basement by the Spinos' son who lived nearby. Subsequently, in anticipation of the return of his wife from the hospital some weeks later, Mr. Spino decided to repaint the bedroom. Mr. Spino testified that, upon setting the ladder in place, he noticed a split in the rear left leg and thereafter made no attempt to use it. Mrs. Spino testified that she was unaware of any further use of the ladder following her accident.

Conflicting expert testimony was presented at trial by the parties. It was plaintiffs' contention that the split in the ladder leg occurred at the time of the accident and, further, that the ladder's design was defective in its failure to include an anti-split plate device of the same type found on defendant's commercial and construction ladders (Types 1 and 2). In the opinion of plaintiffs' expert, the lack of the anti-split device in the design of defendant's Type 3 household ladder rendered the ladder not safe for its intended use.

In contrast, defendant's expert witness, Professor George H. Kyanka, testified at length to his opinion that there was no design defect in the product and, further, that, based on his examination of the ladder in issue, the ladder showed evidence of wear on the second step down from the top and, also, that the crack in the ladder leg had occurred at some time prior to the accident. Indeed, it was the defendant's contention that the accident occurred as a result of use of the ladder in an existing weakened and wobbly condition which was dangerous and contrary to the manufacturer's warning labels.

The jury, in response to special interrogatories, found that the ladder was not defective and this appeal followed.

I. Introduction of Evidence of the Absence of Prior Accidents.

A plaintiff must prove two elements in order to establish a cause of action in products liability: One, that the product was defective and two, that "the defect in the product was a substantial factor in causing the injury. Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975)." DiFrancesco v. Excam Inc., 434 Pa.Super. 173, 177-78, 642 A.2d 529, 531 (1994), allo. granted, 540 Pa. 599, 655 A.2d 988 (1995). Accord Dietrich v. J.I. Case Co., 390 Pa.Super. 475, 481-82, 568 A.2d 1272, 1275 (1990), allo. denied, 528 Pa. 610, 596 A.2d 157 (1991). Additionally, the plaintiff must prove that the defect in the product existed at the time the product left the defendant's control. Roselli v. General Elec. Co., 410 Pa.Super. 223, 228-30, 599 A.2d 685, 688 (1991). The issue for resolution by the jury in a strict products liability case where the plaintiff alleges that the product is unreasonably dangerous as a result of a design defect is whether the product should have been designed more safely by the manufacturer. Dambacher by Dambacher v. Mallis, 336 Pa.Super. 22, 56-58, 485 A.2d 408, 426 (1984).

Appellants contended that the Type 3 household ladder manufactured by appellee, which had a duty rating of 200 pounds, was defective as a result of the absence of an anti-split device similar to the ones which appellee places on its Type 1 and Type 2 industrial and commercial grade ladders, and that the absence of the device caused Mrs. Spino's fall.

Appellee Tilley maintained that the ladder had been properly designed for its intended household use for loads of less than 200 pounds, and that the absence of the anti-split device was not a defect and had not contributed in any way to Mrs. Spino's accident. Appellee sought to prove at trial that the 18-inch split in the upper portion of the rear leg had existed before the use of the ladder by Mrs. Spino and had been caused not by any weight applied to the steps of the ladder, but by an unusual event which resulted in the application of a twisting force to the rear legs of the ladder. To support these contentions, appellee presented the expert testimony of Dr. Kyanka, who testified, inter alia:

[T]here is a split in the left rear rail near the top, running down below the level of the second step down. There is a portion of what is the third step down from the...

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