TIMOTHY EVERSOLE v. LOUISVILLE LADDER GROUP, A.K.A. LOUISVILLE LADDER CORPORATION
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RENDERED: SEPTEMBER 5, 2003; 10:00 a.m.
ORDERED NOT PUBLISHED BY THE KENTUCKY SUPREME COURT:
AUGUST 18, 2004 (2003-SC-0786-D)
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-001102-MR
TIMOTHY EVERSOLE
APPELLANT
APPEAL FROM BOONE CIRCUIT COURT
HONORABLE JOSEPH F. BAMBERGER, JUDGE
ACTION NO. 97-CI-01187
v.
LOUISVILLE LADDER GROUP,
A.K.A. LOUISVILLE LADDER CORPORATION
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, COMBS, AND KNOPF, JUDGES.
BARBER, JUDGE:
The Appellant, Timothy Eversole, appeals from a
judgment of the Boone Circuit Court, granting a directed verdict
in favor of the Appellee, Louisville Ladder Group a/k/a
Louisville Ladder Corp. (“Louisville Ladder”).
Eversole was an employee of the Kenton County Air
Board, working at the Cincinnati/Northern Kentucky International
Airport.
On November 14, 1996, while installing cable, Eversole
was injured when he fell from a six-foot fiberglass stepladder.
The ladder belonged to CA One Services, one of the airport’s
tenants.
CA One Services operated the Back Nine Bar where
Eversole was installing the cable.
Scott Irvine, a maintenance
technician for CA One Services, had let Eversole use the ladder.
It had been purchased a short time before the accident, and was
kept in a locked storage facility near the Back Nine Bar.
Irvine confirmed that there was no damage to the ladder before
Eversole’s use –- that there was no observable damage, buckling
or bending of any kind.
On November 3, 1997, Eversole filed a complaint in the
Boone Circuit Court against the manufacturer of the ladder
alleging, inter alia, breach of an implied warranty of
merchantability, strict liability, negligent design and
manufacturing.
The case was tried on May 7-8, 2002.
Eversole explains
that “the trial court rejected . . . [his] contention that . . .
[he] could meet his evidentiary burden by establishing that he
properly used a virtually new product and that the product
nevertheless failed.”
Eversole had contended that res ipsa
loquitur applied, and that he should not be required to offer
expert testimony regarding product defect or negligence in
manufacturing.
The trial court disagreed and dismissed
Eversole’s complaint, in its entirety, by judgment entered May
15, 2002:
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The court heard and considered Louisville
Ladder’s motion for a directed verdict pursuant
to CR 50.01 on plaintiff’s remaining claims of
strict liability, negligence, and breach of
warranty. The court also heard and considered
Timothy Eversole’s argument and authorities in
response, specifically considering plaintiff’s
assertion of, and complete reliance on, the
doctrine of res ipsa loquitur as a basis for
Louisville Ladder’s liability. Having determined
that Timothy Eversole failed to create any
submissible jury issue as to Louisville Ladder’s
liability for the accident and that the
defendant’s motion for a directed verdict should
and would be granted for the reasons stated on
the record[.]
On appeal, Eversole argues that the trial court erred
in granting Louisville Ladder’s motion for directed verdict
because he met his burden of proof with respect to a breach of
warranty claim and with respect to both strict liability and
negligence claims under the doctrine of res ipsa loquitur.
“[W]hether a product is defective has different elements under
negligence, under strict liability in tort, and under breach of
warranty.
Although the same evidence may prove one, two or all
three theories, liability as defined under each is different and
each carries different implications.”1
We agree with Louisville Ladder that the trial court
properly granted its motion for directed verdict with respect to
the breach of warranty claim.
On a motion for directed verdict, the
trial judge must draw all fair and reasonable
1
Williams v. Fulmer, Ky., 695 S.W.2d 411, 414 (1985).
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inferences from the evidence in favor of the
party opposing the motion. . . . Once the
issue is squarely presented to the trial
judge, who heard and considered the evidence,
a reviewing court cannot substitute its
judgment for that of the trial judge unless
the trial judge is clearly erroneous.
(Citation omitted.)2
KRS 355.2-318 provides:
A seller's warranty whether express or implied
extends to any natural person who is in the
family or household of his buyer or who is a
guest in his home if it is reasonable to expect
that such person may use, consume or be affected
by the goods and who is injured in person by
breach of the warranty. A seller may not exclude
or limit the operation of this section.
Eversole is not included within the parameters of the
statute.
The necessary element of privity is lacking.3
We also agree with Louisville Ladder that the doctrine
of res ipsa loquitur does not apply to a strict liability claim.
Negligence is not the basis of strict liability.4
An examination of the status, application and effect of
the doctrine in Kentucky is found at 57B Am.Jur.2d Negligence
§2119:
The res ipsa loquitur doctrine has evolved
as a legal precept affording satisfactory
evidence of negligence. (Footnote omitted.)
The doctrine simply recognizes that as a matter
of common knowledge and experience the very
2
3
4
Bierman v. Klapheke, Ky., 967 S.W.2d 16, 18 (1998).
McLain v. Dana Corp., Ky. App., 16 S.W.3d 320 (1999).
Kroger Co. v. Bowman, Ky., 411 S.W.2d 339 (1967).
-4-
nature of an occurrence may justify an
inference of negligence on the part of the
person who controls the instrumentality causing
the injury; the inference is based on
circumstantial evidence and the legal effect of
such evidence depends on the degree of
probability reflected by it. (Footnote
omitted.) But res ipsa loquitur applies only
where the thing shown speaks of negligence of
the defendant and not merely the occurrence of
an accident. (Footnote omitted.) The doctrine
does not apply where the existence of the
negligent acts is not more reasonably probable
and where the proof of occurrence, without
more, leaves the matter resting only to
conjecture. (Footnote omitted.)
It is the duty of the court to determine,
under a test of experience and common
knowledge, whether the accident would not have
happened without negligence, and negligence is
not presumed from the fact of injury or
accident. (Footnote omitted.) The court,
rather than the jury, decides whether the
essential requirements are present for the
invocation of the doctrine. (Footnote
omitted.)
Kentucky has adopted the majority view
that the res ipsa loquitur doctrine creates
merely a permissible inference of negligence.
(Footnote omitted.) While the doctrine will
supply the plaintiff with evidence or proof of
ordinary negligence, . . . [t]he doctrine does
not have the effect of shifting the burden of
proof, as distinguished from the burden of
going forward with the evidence. (Footnote
omitted.)
The jury determines the sufficiency of the
defendant's rebuttal evidence. (Footnote
omitted.) If the defendant submits rebuttal
evidence which is uncontroverted, then
defendant may be entitled to a directed verdict
in his favor. (Footnote Cox v. Wilson, Ky.,
267 S.W.2d 83, 44 ALR2d 830)
-5-
Eversole maintains that the evidence established he had
used “an essentially new ladder whose design and manufacturing
were exclusively under the control of the . . . Louisville
Ladder.”
Further, “He used the product according to its warnings
and instructions in an entirely proper manner.”
Eversole
testified that he heard a loud snap that sounded like a .22, then
felt himself and the ladder moving forward.
When he fell, his
body weight drove his wrist and shoulder into the floor where it
met the wall, then his lower back and right buttocks area rolled
over hitting some part of the ladder.
ladder at trial.
Eversole introduced the
The right rear leg bracing was buckled; there
was also buckling in the bottom front step.
Louisville Ladder contends that this is not a res ipsa
case, because Eversole had “every opportunity” to have the ladder
examined for defects, but elected not to do so; further, that a
fall from a stepladder can and does occur in the absence of a
product defect; and that the only fact established was that an
accident occurred.
Moreover, Louisville Ladder submitted
uncontroverted expert engineering testimony that the ladder was
designed and tested to comply with safety requirements of the
American National Standard A14.5; that the ladder had no
manufacturing defects; that the ladder did not fail under the
load of Eversole’s standing upon it; that it is physically
impossible for the described damage to occur with the ladder
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properly set up with four feet on the ground; and that it was
more likely than not that the bent rear leg was caused when
Eversole fell on the ladder.
Louisville Ladder contends that in
addition to this affirmative evidence, it is entitled to a
presumption that the ladder was not defective, under KRS
411.310(2).5
Louisville Ladder’s position is well-taken.
Accepting
Eversole’s version of the accident as true, he offered no expert
testimony to rebut the opinion of Louisville Ladder’s product
safety engineer.
The trial court’s determination that Eversole
failed to create any submissible jury issue is not clearly
erroneous.
Next, Eversole argues that the trial court erred by
excluding certain items of evidence:
Exhibits 17 and 18, pages
from Louisville Ladder’s website showing designs after the
manufacture date of the ladder Eversole was using, that the court
excluded as irrelevant; and Exhibit 20, a chart listing prior
incidents of ladder failures alleged to be similar in nature to
5
The statute provides:
In any product liability action, it shall be presumed, until
rebutted by a preponderance of the evidence to the contrary,
that the product was not defective if the design, methods of
manufacture, and testing conformed to the generally recognized
and prevailing standards or the state of the art in existence at
the time the design was prepared, and the product was
manufactured.
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the one in this case, that the court excluded for lack of a
proper foundation.
The standard of review of a trial court’s evidentiary
rulings is abuse of discretion.6
In product liability cases,
evidence of subsequent modifications is admissible if the design
or manufacturing change has been examined by the court and found
to be relevant and material.7
Courts will also allow evidence of
other accidents occurring under substantially similar conditions
if relevant to the “existence or causative role of a dangerous
condition, or a party’s notice of such a condition.”8
In both
situations, the trial court is required to make a finding of
relevance, before admitting the evidence.9
We find no abuse of discretion here.
Eversole fails to
demonstrate the relevance of the features on the pictured ladders
or how the lack of such features on the ladder he did use caused
his fall.
Eversole also fails to convince us that the prior
claims occurred under substantially similar conditions.
The list
does not contain enough information about the particular
circumstances of the claims to make such a determination.
6
Goodyear Tire and Rubber Co. v. Thompson, Ky., 11 S.W.3d 575,
577 (2000).
7
Ford Motor Co. v. Fulkerson, Ky., 812 S.W.2d 119, 125 (1991).
8
Montgomery Elevator Co. v. McCullough, Ky., 676 S.W.2d 776, 783
(1984).
9
Id.
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Accordingly, we affirm the Judgment of the Boone
Circuit Court entered May 15, 2002.
ALL CONCUR.
BRIEFS AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF FOR APPELLEE:
Michael O’Hara
Covington, Kentucky
John L. Tate
Margaret Appenfelder
Louisville, Kentucky
ORAL ARGUMENT FOR APPELLEE:
Margaret Appenfelder
Louisville, Kentucky
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