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Ensley v. Costco Wholesale Corp.

Court of Appeals of Washington, Division 1

December 26, 2017

TAMMY ENSLEY and RAYMOND ENSLEY, Respondents,
v.
COSTCO WHOLESALE CORPORATION, a Washington corporation, NEWELL RUBBERMAID, INC., a Delaware corporation, Defendants, and TRICAM INDUSTRIES, INC., a Minnesota corporation, Appellant.

          Becker, J.

         In this product liability action, a jury found that a construction defect in plaintiff's stepladder caused her to fall and sustain injury. Testimony by an expert in injury biomechanics was properly admitted to show that a weakness in the stepladder's leg caused it to collapse unexpectedly. Evidence that the stepladder's design conformed to safety standards did not negate evidence that this particular stepladder was defective in construction. Finding no error in the trial court's rulings, we affirm the verdict for the plaintiffs.

         Tammy and Raymond Ensley, respondents, were working on a project in their garage on February 27, 2012. Tammy was standing on the second step of a stepladder that she had purchased less than a year earlier. She was holding plastic sheeting while Raymond stapled the sheeting to the wall. Tammy suddenly fell to the ground and was injured. Tammy testified that the fall was "instantaneous. I face-planted." She did not know exactly what caused her to fall. According to Tammy and Raymond, the stepladder was positioned on the flat concrete surface of the garage floor before the fall and Tammy was not wobbling or otherwise unstable. The ladder was found with one of the front legs bent inward as shown in the photograph below.

         (IMAGE OMITTED)

         The Ensleys brought this suit against several defendants under Washington's product liability act, chapter 7.72 RCW. The trial began in August 2016. The only remaining defendant at the end of the case was appellant Tricam Industries, Inc.

         The stepladder was a Rubbermaid TR-3HB model. Tricam designed it and contracted for its manufacture. The legs were made from a single continuous metal tube. Three steps were riveted to the two front legs of the ladder.

         The Ensleys relied on expert testimony that the ladder was defective both in design and construction. Tricam's trial theory was that the stepladder's leg could not have snapped or bent under normal use because it met all design standards. Tricam contends the expert opinion to the contrary should have been excluded as speculative.

         The expert witness who testified in support of the Ensleys' claim was mechanical engineer Wilson Hayes, a specialist in injury biomechanics. Hayes explained his methodology for analyzing the accident. He began by asking the question whether the stepladder broke and caused Tammy to fall, or whether Tammy fell and caused the stepladder to break. He examined four possible scenarios. Based on Tammy's location after the fall, the location of the stepladder after the fall, and the nature of Tammy's injuries, Hayes ruled out three scenarios that involved Tammy losing her balance and knocking the ladder over as she fell. Hayes concluded that the only plausible scenario was one in which one leg of the stepladder broke first and Tammy, in reaction to that event, fell forward with her feet caught between the platform and the second leg.

         Hayes presented his opinion that the stepladder broke because it was defectively designed and manufactured. He observed that the leg broke where a hole had been punched so that a rivet could be inserted to attach a step. Punching holes in the tubular railings was "a design flaw at the outset, " he said, because the holes concentrated the stresses at the point of insertion. In his opinion, these stresses could be mitigated if the manufacturing process included a requirement for grinding down and smoothing the holes punched in the railing, a process known as deburring. Tricam's manufacturing process did not require deburring.

         Hayes testified that "when you look at something that's as rough as the inside of that hole, it doesn't look like very good manufacturing practices." Later, the court (reading a juror's question) asked Hayes, "Does it increase a chance for cracks to occur if the hole was not deburred?" Hayes responded, "The short answer to that is yes." Hayes said his conclusion that this particular ladder broke and caused the fall was not affected by the design standards and tests showing that TR-3HB stepladders were generally capable of bearing considerable weight without failure.

         Hayes testified that in the final step of his inquiry, he determined there were feasible and cost-effective design alterations already in use in products marketed by Tricam that would have eliminated the defect that caused Tammy's fall.

         Tricam countered with testimony by mechanical engineer Mack Quan that the steel rails made the stepladder "inherently strong." Quan rejected Hayes' opinion that the leg of the ladder bent under Tammy's weight while it was in a stable position with all of its feet on the ground. In his opinion, that scenario for the fall was "physically impossible." Instead, the ladder must have already tipped before the toe bent inward. Quan discussed extensive testing that had been done on other stepladders of the same model. According to Quan, the tests demonstrated that this model of stepladder met national design standards and was capable of bearing loads exceeding Tammy's weight without failing, even after the railings were intentionally punched with holes that were not smoothed down. Quan had also tested the unbroken leg of the Ensleys' stepladder and said that the ladder "had all the qualities it needs to be a safe type 3 stepstool." Quan conceded in cross-examination, however, that the rivet hole where the other leg broke would not be identical to the rivet holes punched out on the unbroken leg. "They're never going to be identical."

         At several points in the proceedings, Tricam asked the court to rule that Hayes' testimony was too speculative to support a finding of a construction defect. The trial judge rejected this argument before, during, and after the trial. When denying Tricam's motion for a directed verdict, the judge commented that it was unusual to see two experts "so diametrically opposed, and yet so qualified."

         The court gave the pattern jury instructions on construction and design defects, 6 Washington Practice: Washington Pattern Jury Instructions: Civil 110.01 and 110.02 (6th ed. 2012). The jury returned a verdict finding that the stepladder "was not reasonably safe in construction at the time the product left the Defendant's control." The jury did not find that the ...


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