Sullivan v. Werner Co.

• Citation: 253 A.3d 730
• Decision Date: 15 April 2021
• Docket Number: No. 3086 EDA 2019,3086 EDA 2019
• Court: Superior Court of Pennsylvania
• Parties: Michael and Melissa SULLIVAN, H/W v. WERNER COMPANY and Lowe's Companies, Inc., and Middletown Township Lowe's Store #1572 Appeal of: Werner Company and Lowe's Companies, Inc.

253 A.3d 730

Michael and Melissa SULLIVAN, H/W
v.
WERNER COMPANY and Lowe's Companies, Inc., and Middletown Township Lowe's Store #1572

Appeal of: Werner Company and Lowe's Companies, Inc.,

No. 3086 EDA 2019

Superior Court of Pennsylvania.

Argued February 10, 2021
Filed April 15, 2021
Reargument Denied June 23, 2021

Michael S. Ryan, Philadelphia, for appellees.

Michael J. Dunn, Philadelphia, for appellant.

BEFORE: STABILE, J., KING, J., and PELLEGRINI, J.^*

OPINION BY PELLEGRINI, J.:

Michael Sullivan (Sullivan) and Melissa Sullivan, his wife, brought this strict products liability action after he fell through a scaffold made by Werner Company (Werner) and sold by Lowe's Companies, Inc. (Lowe's) (collectively, Manufacturer). A jury determined that a design defect caused the accident and awarded Sullivan $2.5 million in damages. On appeal, Manufacturer raises three challenges. First, Manufacturer alleges that the trial court erred in precluding industry standards evidence. Second, Manufacturer asserts that it should have been allowed to argue that Sullivan's negligence was the sole cause of the accident. Third, Manufacturer challenges Sullivan's mechanical engineering expert, arguing that both his opinion testimony and videotaped testing lacked a proper factual foundation. We affirm.

I.

A.

The scaffold that was alleged defective is the Werner SRS-72, a six-foot tall steel rolling scaffold. It has two end frames, two side rails, a steel-encased plywood platform, and four locking caster wheels. To assemble the frame, the user attaches the

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side rails to the end frames. Once attached, the side rails and end frames create a frame for the platform to rest in. The user seats the platform in the frame by placing it on horizontal flanges on the side rails. When fully seated, the platform should be flush with the top of the side rails.

The user then secures the platform to the frame with two deck pins - one on each side diagonal from the other. With an inverted L-shape design, the deck pins cover the platform. To secure the platform, the user pushes the spring-loaded deck pins up and rotates them so that their upper parts cover the platform. When fully rotated, the deck pins protect the platform against upward force. Finally, with the platform secured, the user attaches the wheels to the end frames. When the wheels are unlocked, the user can roll the scaffold to his work area. After locking the wheels, the user climbs the rungs on the end frames to get on the platform and work.

The accident happened on June 26, 2015. On that day, Sullivan was working as a union carpenter at a Bucks County elementary school being renovated. Along with his apprentice Michael Bentzley (Bentzley), Sullivan's job that day was to install an exterior sheathing called DensGlass to the outdoor walls. Sullivan went to the work site's container box and retrieved a brand-new Werner SRS-72 scaffold that his foreman bought at a Lowe's store. As a carpenter with 17 years’ experience, Sullivan had assembled "hundreds" of scaffolds. Sullivan took the scaffold out of the box, read the instructions and assembled the scaffold with help from Bentzley. After setting the scaffold at its tallest height of six feet, Sullivan placed the platform within the side rails and rotated the deck pins to secure the platform. Sullivan and Bentzley then rolled the scaffold through the school, down a ramp and over outdoor asphalt to the wall where they would be working.

At the wall, Sullivan did not need the scaffold to install the bottom two rows of DensGlass pieces, which were eight-by-four feet and about 40 pounds per piece. Sullivan, however, needed the scaffold to install the top row. After placing the scaffold six inches from the wall, he climbed the rungs to get on the platform and take measurements because the DensGlass pieces were too big for the top row. Sullivan then relayed the measurements to Bentzley at a nearby cutting station. Bentzley would cut the pieces based on the measurements, walk the pieces to the scaffold, rest them on the platform, and then slide them up to Sullivan. Sullivan then lifted up the pieces and installed them to the wall with a screw gun.

Sullivan installed the first two pieces with no problems. Each time, he installed the piece, climbed off the platform, unlocked the wheels, rolled the scaffold about eight feet to the next section, relocked the wheels and then climbed back up on the platform. While installing the third piece, Sullivan fell through the scaffold and crashed to the ground, landing on his backside. At trial, Sullivan testified the platform collapsed beneath him like a "trapdoor." Bentzley heard the crash and rushed over to find a dazed Sullivan laying under the scaffold. The foreman also came and saw the same thing. Sullivan told him that he "fell through the scaffold, that the scaffold plank gave way."

Despite the accident, Sullivan got up after a few minutes and continued working on the scaffold. Later that night, however, he went to the hospital. X-rays revealed that he injured his lumbar vertebrae and fractured his sacrum. Having suffered permanent injuries requiring continual medical treatment, Sullivan has been unable to

253 A.3d 736

return to work as a carpenter since the accident.

B.

Sullivan, together with his wife, filed this action in the Court of Common Pleas of Philadelphia County (trial court) against Manufacturer.¹ Sullivan asserted claims for negligence (later withdrawn at trial) and strict products liability under RESTATEMENT ( SECOND ) OF TORTS , § 402A, asserting that the Werner SRS-72 scaffold was defective because of a design defect and failure-to-warn.²

For the design defect, Sullivan alleged that it was foreseeable that the platform could collapse during normal use of the scaffold. Under his theory, a user would inadvertently rotate the deck pins off the platform by kicking them while working or when the user moved tools or materials near the pins. With the deck pins rotated off, the platform would become unseated when the user climbed the rungs or moved the scaffold. The platform would stay unseated because of a weld protrusion in one of the platform's steel corners. The user would then be unaware that the platform was misaligned, leading to a collapse once the user stepped back on the unsecured platform.

As for failure-to-warn, the side rails contained a sticker instructing the user to "[e]nsure deck pin is completely rotated and platform is seated within side rails before each use." Besides being obscured by the deck pins and not warning of the consequences for failing to follow, the instruction was alleged defective because it did not clarify that "each use" included checking the pins and platform each time the user climbed off the platform.

To support his claims, Sullivan obtained the opinion of Russell Rasnic (Rasnic), an

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expert in mechanical engineering. In his report, Rasnic stated that the Werner SRS-72 scaffold was defective because the deck pins could become inadvertently rotated off the platform, which could then lead to the platform becoming unseated from the side rails. In finding the scaffold defective, Rasnic reviewed several similar scaffolds and concluded that there are safer alternative designs to protect against a platform collapsing during normal use. In particular, other manufacturers included four deck pins instead of two to secure the platform. Additionally, other manufacturers included positive alignment devices to their deck pins to ensure that they could not be rotated off the platform. Having found the scaffold defective, Rasnic further concluded that the scaffold's defectiveness caused the accident.

As part of his analysis, Rasnic filmed himself testing an exemplar Werner SRS-72 scaffold. The videotaped testing shows Rasnic making the platform collapse twice. He does this by first setting the welded corner of the platform on top of the side rail. With the deck pins still on, Rasnic gets on the platform while hanging onto the ceiling. After kicking out a deck pin, he steps on the platform and causes it to immediately collapse. He does this a second time but has to apply lateral force several times before the platform collapses.

Manufacturer countered with its own engineering expert, Erick H. Knox, Ph.D. (Knox). He disagreed that it was foreseeable a user would unknowingly rotate the deck pins off the platform while using the scaffold. Further, he rebutted Rasnic's claims about safer alternative designs by observing that the inverted L-shaped design of the deck pins was the most prevalent in the industry. He also noted that the Werner SRS-72 scaffold complied with the safety standards of the American National Standards Institute (ANSI) and Occupational Safety and Health Administration (OSHA). In his view, the alternative designs detailed by Rasnic were unnecessary to ensure a user's safety.

Additionally, Knox concluded that a properly seated platform will remain so during normal use with the deck pins engaged. Through his own testing, he determined that a properly seated platform will not become misaligned even with...