The opinion of the court was delivered by: (Judge Kosik)
This matter is before us on the motion of the defense for summary judgment pursuant to Fed.R.Civ.P. 56.
The case resulted from an accident which occurred on or about September 18, 2003 involving the plaintiff and a ladder ("Little Giant Ladder") manufactured by Wing Enterprises.
Since there were no witnesses to the accident, we turned to the plaintiff's deposition taken at the instance of the defense. On the day of the accident, plaintiff was working for a local company. He was power washing a house in preparation for painting. Plaintiff used the power washer after a solvent was applied to the siding. The day was overcast, drizzly and there was occasional sprinkles of rain. At the time, plaintiff had thirty years experience in the use of ladders. He acknowledges having been instructed in the use of ladders, and was told to be familiar with warnings, if any, posted on ladders. He had read the extensive warnings on the Little Giant Ladder he was using and understood them.*fn1 He had used the particular ladder on 110 or more occasions. However, on the day of the accident, it was the first occasion he used the ladder as an extension ladder, meaning it rose some thirteen feet. Photographs show the extended ladder against the home and roof line it was serving.
After completing his washing, plaintiff approached the ladder from the left to descend with the power washer wand in his right hand. He grabbed the ladder with his left hand on the left side of the ladder. He stepped on the first rung, just below the rain gutter, with his right foot. He picked up his left foot to bring it onto the same rung. As his left foot was moving or when it got on the rung, his right foot slipped and his feet went out from under him. He believes the slip resulted from water on the ladder or his shoes which may not have been slippery because they had a sponge sole which adhered well.
When further questioned about his movements on descent, plaintiff stated he was holding the ladder with his left hand, and was reaching around with his right hand. Although he did not hold onto the rail with his right hand immediately, it was "Because I put my hand, my thumb more or less behind the ladder to give me the same affect as holding on to pull myself into place." As he was falling, he "let go of the wand" and "I grabbed towards the ladder at least." He said he could not be sure if he grasped the ladder because "it happened too fast." As he fell, his weight shifted on the left side so that he was "holding on mainly with my left hand." His left hand slid down the side rail and went into a pinch point where the basic ladder and extended portion came together. This resulted in the injury to his fingers.
When pressed in his deposition as to his body configuration in relation to the ladder when putting his right foot on the rung, plaintiff stated: "I was standing off to the left of the ladder to start with and then it was in that motion to bring my right hand around to put my right hand on the ladder and my foot on it at the same time. Have the right foot on and then move the body in motion, put the right hand up." Plaintiff was then requested to demonstrate what occurred on the ladder itself. It must be noted that the ladder itself was not the cause of plaintiff's fall.
Plaintiff's expert was also deposed in discovery. He found no problem with the ladder itself, but the injury was caused by the condition of the pinch point. He acknowledges that plaintiff did not have his both hands on the ladder in attempting to descend, but that his attempt was not an unusual or unexpected way for people to use ladders. Although it was "inappropriate, given the cautionary instructions," it constituted a misuse, but not an unforeseeable or "unusual" misuse.
Plaintiff brings his case based on a design defect in that the ladder had a V-shape on the side which could result in an injury if one falls and grabs the ladder at the pinch point.
Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).
[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is "entitled to judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof. "[T]he standard [for granting summary ...