Appeal from the United States District Court for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge. (CA-94-375)
Before RUSSELL, WIDENER, and HALL, Circuit Judges.
Vacated and remanded by published opinion. Judge Widener wrote the opinion, in which Judge Russell and Judge Hall joined.
Plaintiff-appellant David Cole appeals the grant of summary judgment against him in his suit alleging products liability and breach of warranty against defendant-appellee Keller Industries, Inc. We vacate and remand.
In June, 1991, David Cole, an apartment maintenance man, was injured while using a ladder manufactured by Keller Industries. Cole alleges that as he descended to the third step of the ladder, a rivet broke, which had fastened the left rear of the step to the ladder's side rail, causing him to fall.
The ladder was made of aluminum, and both the side rails of the ladder and the steps were made of channels, with the open sides of the channels facing in on the side rails, and the open side of the channels facing down on the steps. The ends of the steps fit just inside the channels of the side rails, and the vertical sides of the step channels were secured to the short sides of the side rail channels by rivets. There were two rivets in the front, that is the side facing out, and one rivet in the rear, that is the side facing in. The six rivets secured each step, four in the front and two in the rear.
The plaintiff had two experts examine the ladder, and the defendant had two experts examine the ladder. At this point, it is well to consider their reports and factual findings.
First, and of considerable significance, is the fact that all four of the experts agreed that the rivet failed which held in place the left rear of the step involved. None of the other five rivets in that step failed. There is no doubt of the failure. The experts are not agreed as to when the failure occurred, the effect of the failure, or the cause of the failure, but the fact of the failure is acknowledged by all.
Plaintiff's expert, Taber, concluded that the left front rivets were loose in their holes, which caused an undue strain on the left rear rivet, which caused the failure. Plaintiff's expert, Foster, was of opinion that the ladder was defectively manufactured in that the cracking of the failed rivet started upon the setting of the rivet, and he concluded that the ladder was defectively designed because the holes in the side rail and the step were too large for the rivet. He also concluded that the rivets were too hard, which was a design defect. Both of plaintiff's experts were of opinion the failing of the rivet caused or contributed to plaintiff's fall.
The defendant's experts came to different conclusions. The Ver Halens were of opinion that the failed rivet had been broken before the plaintiff's use complained of here. They concluded that, since the plaintiff had used the ladder more than 20 times and the rivet had been broken for a considerable period of time, the plaintiff's fall was not due to a failure of the rivet on the day in question and that the ladder was not defective as designed and manufactured. They found the failed rivet was the result of excessive forces beyond normal product use.
Defendant's expert, Lytton also concluded that the rivet fracture did not occur at the moment of loss of balance by the plaintiff but had occurred some time during earlier use and that the ladder was subsequently used with the broken rivet without incident many times. He concluded that the ladder had no design or ...