Ladder Cases – Hidden Danger, Tough Defendants, and a Little Good News

With the high number of ladder related injuries every year, a lawyer needs to be able to advise a victim about their chances of success in a products liability case. While there is a high frequency and severity of injuries suffered by ladder users, there is not much literature available about ladder injury cases. Nevertheless there are questions which need exploring to ensure a satisfactory outcome.

Lawyers handling ladder cases must do a liability analysis which goes beyond the terms of the applicable ANSI standards. Failure to do so risks relying upon rules written by and for the ladder industry.

I. Introduction

Statistics published by the U.S. Consumer Products Safety Commission show that nearly 165,000 Americans are treated for ladder-related injuries every year.

Two Ladder Scenarios

On a beautiful autumn day, a relaxed and happy homeowner might be willing to go outside and clean dead leaves out of his gutters. He might even enjoy it.

At a local factory, an electrician might not mind taking the company’s fiberglass extension ladder into the warehouse, getting a co-worker to assist by holding the ladder base, and replacing a balky light fixture high above the concrete floor.

Both of these seemingly simple endeavors ended in tragedy. The base of the homeowner’s ladder slipped away from the house. He fell head first to the driveway and suffered a severe and permanent brain injury.

The electrician was 20 feet in the air when he heard a cracking sound, and both rails of the ladder collapsed under him. He suffered a crippling leg and ankle injury. Why would these intelligent, able, well-intentioned people end up with tragic, life-altering injuries? Do these and other ladder cases have anything in common, or is every case unique? How can a lawyer begin to understand a ladder injury case, and advise the victim’s family about their chances of succeeding in a products liability case?

There is not much literature available about plaintiff’s ladder cases, but the frequency and severity of injuries suffered by ladder users suggest that these are questions worth exploring.

II. Ladders and the Hidden Cost of Using Them

Thinking about ladder-related injuries must start with the obvious: ladders are specifically made to put people high above the ground. Basic household tasks such as washing windows, changing a light bulb, and putting up a child’s swing cannot be done without climbing. Every new building that goes up and every home improvement project undertaken involves hours and hours of exposure to the risk of falling.

Beyond the basic fact that people use ladders to do dangerous tasks, there are many subtle factors which make ladders dangerous. One of them is that ladders are far more dangerous than they look. As stated in the opening line of advertising literature from one major ladder manufacturer, “While ladders may look innocuous, injury statics reveal … [otherwise]”.

Statistics published by the U.S. Consumer Products Safety Commission show that nearly 165,000 Americans are treated for ladder-related injuries every year. Canada’s leading safety agency, the Industrial Accident Prevention Association, bluntly warns that ladders frequently cause death and permanent disability. Spinal cord injuries, traumatic brain injuries, and electrocutions are among the known risks.

It is one thing for a roofer or a construction worker to be on a ladder. Such people are trained in selecting, setting, and climbing ladders. They use ladders every day, and are taught to tie ladders off for safety and to use a lanyard to limit the distance they can fall. They may also have an assistant standing at the base of the ladder to steady and secure it.

Homeowners and other infrequent ladder users do not have such advantages, do not understand what makes ladders stand up, and do not take steps to protect themselves from falling. Inexperienced users may see the warning sticker on the side of a ladder describing the proper angle at which a ladder should be set up, but they probably do not appreciate the fact that the pitch of a sloping driveway is a more significant factor in determining the proper angle for setting the ladder than the more obvious angle – that between the ladder and the wall of the house.

They may not know how to assess or ameliorate the danger of putting a ladder on a wet surface, using it in soft soil, or reaching too far above or to the side of it. Inexperienced ladder users are also unlikely to check a ladder for bends, cracks, and other damage that may dramatically weaken it. While these issues may appear obvious in hindsight, the many risks associated with ladder use are not matters of “common sense” and are not known to the average person.

Another factor which contributes to injuries on ladders is the way that they are marketed and sold. By agreement in the ladder industry, ladders are sold as Type IA, Type I, Type II, or Type III ladders. Type IA are called “extra heavy-duty” ladders, and are rated for supporting loads of up to 300 pounds. Type I ladders, referred to as “industrial,” are rated for loads of up to 250 pounds. Type II ladders are referred to as “commercial” or “handyman” ladders, and are suggested for loads of up to 225 pounds. Finally, Type III ladders are sold as “homeowner” or “consumer” ladders, and are rated for carrying 200 pounds. Understandably, Type III ladders are the least expensive and the lightest in weight. That, together with the “consumer” or “homeowner” label, makes Type III ladders the most attractive to infrequent ladder users.

While the classification system and the marketing plan are logical and good for business, they set up the questionable and dangerous circumstance that the flimsiest – and most dangerous – ladders are hawked to the least experienced users.

The flimsiest ladders are the most dangerous because ladders are dynamic structures – they move while they are being used. As the climber goes up or down a ladder, his body weight is transferred from one foot to the other, and from one ladder rail to the other. The ladder rails twist and bend with the changing weight distribution, and the twisting and bending of the ladder rails affects the way the ladder feet contact the ground. This, in turn, affects the ladder’s stability. Since a Type III ladder bends and twists more than a Type I, it is less stable.

Type III ladders are lightweight and inexpensive because they are made with as little material as possible. In addition to minimization of the volume and weight of the raw materials in a Type III ladder, there are other design features that make these more dangerous than heavier ladders.

These include the small size of the feet, how the feet attach to the rails, how the feet distribute force to the ground, the telescoping hardware used on extension ladders the hinges and spreaders of stepladders, and all of the different locking mechanisms associated with them. Because this hardware is designed to be sold cheaply on Type III ladders, it is made cheaply.

Cheap hardware does not work smoothly, it wears out quickly and it does not perform reliably.

With this approach to designing and marketing ladders, the ladder industry sells huge volumes of its most dangerous products to its most inexperienced customers. Homeowners and other infrequent ladder users who buy the cheapest Type III ladders are literally and unwittingly buying trouble.

III. Ladder Litigation

Consider this 30(b)6 deposition testimony of a major ladder manufacturer:

Q: How many times have you testified in connection with personal injury claims against your employer, either in deposition or in trial?
A: If I consider both deposition and trial together, maybe 50.

Q: Are you aware of anyone else at the company who testifies in either deposition or trial in connection with personal injury cases?
A: Yes, Ray Collier.

Q: What is his job?
A: I believe he’s a senior engineer as well.

Q: Describe for me the difference between those cases in which Mr. Collier is the designated spokesperson and the cases in which you are.
A: I don’t think there really is a difference. He would testify to cases similar to the one I have, similar products. His testimony would involve the whole product line as well as mine.

In just a few lines, you can begin to see the problems. This company has two senior engineers who spend all of their time defending the company’s products. These people are, for all practical purposes, professional witnesses.

Now look at this testimony from the same deposition:

Q: Do you agree that in the 1994 ANSI standard applicable to aluminum extension ladders, there is no requirement that the size of the slip resistant surface of the foot be modified according to rail size?
A: Let me answer it this way. Extension ladders just because of the design of them and the fact that you need some kind of slip resistance at the bottom, they don’t spell it out for extension ladders that it has to be that way, that it has to be at least a projected area; but because of the requirement saying that you have to have a slip resistant material at the bottom end and the safety shoe, a spur, a spike, a conformable shoe with flat or radius tread feet, all of that inherently means that it almost has to be the area of the rail because all those designs are going to require that. I mean it’s not spelled out that it has to be that way; but if you’re going to put a radius foot on there, that is going to be radiused the whole dimension of the rail, the area of that pad is going to be greater than the projected area of the rail. It’s – it’s not called out, but it’s implied in that. It’s almost inherently – it’s inherent in that design that is has to be, okay. You get into the other designs and they all spell out that requirement, the combination ladders or – same kind of deal that they have to have slip resistant material not less than the dimensions of the projected area of the rail. I mean it’s – it ends up being something that is just inherent in the designs of them that they are, okay.

Either this man is very inarticulate or he is extremely good at obfuscation.

Considering his substantial testimonial experience and his full time employment as an engineer defending product liability cases for a major ladder manufacturer, it is a safe assumption that his long, dense, incomprehensible non-answer was carefully constructed to avoid the plaintiff’s question.

Still, the patient plaintiff gains by this exchange. The question and answer can be usefully interpreted as:

Q: Tell me something about yourself as a witness.
A: I will run you around the barn for as long as you let me get away with it.

Two significant problems for lawyers who bring ladder defect cases are summed up in the testimony outlined above. First, defendants are experts in both building ladders and in defending product liability lawsuits. Second, they are tough. They fight every step of the way.

A third problem confronting plaintiffs in ladder cases is the risk of getting caught up in a misleading liability analysis. Specifically, the ladder makers are the authors of the industry standards. Published by the American National Standards Institute (ANSI) and adopted widely by government and other authorities, the ANSI standards look useful and valuable, but they really are not.

The deposition testimony above was taken during the case brought by the homeowner who fell while cleaning his gutters. The foot of his Type III ladder had slipped away from the house, causing the ladder and him to fall. The ladder passed the applicable ANSI foot slip test, so what could the defect be? As it turned out, the defect in this case was that the Type III feet were perfect in theory and in the factory, but not in real life. As soon as the ladder was put to use, it began to wear out. The wear significantly altered the function of the ladder feet, and rendered the ladder unstable.

This ladder met the applicable ANSI standard only because the standard is a “design” standard – it is only applicable to a ladder in new condition. There is nothing in the standard that requires the anti-slip performance of the ladder to hold up over time. In this way, the standard helps the manufacturer, but it does absolutely nothing for the homeowner.

In fact, much ANSI ladder testing is done in a laboratory setting on a static ladder. As pointed out above, ladders in the field are subject to dynamic forces. To really understand ladder performance, it is necessary to go beyond the ANSI standards and consider the how the ladder performs in real life under a changing load.

The second case described above involved the failure of both rails of a Type I fiberglass ladder. The figure below represents a cross-section of the ladder – what you would see if you were looking at it from one end. The rungs are represented by the dotted line, and the rails, being bracketshaped, each have two corners.

Tests by the defense expert demonstrated that the rails of the ladder in question, both above and below the failure points, passed every test set forth in the applicable ANSI code.

Our analysis determined that the failure in the rails occurred due to poor quality control in the manufacture of the corners of the rails.

The deposition of the defense expert was short, because he had to admit that the ANSI standard only addresses the flat segments of the rail. It is silent as to the quality or strength of the corners. This is particularly shocking since it is the corners of the rail which give it strength.

The flat parts of the rail may be terrifically strong, but if they aren’t firmly held together at the corners, the ladder will not stand up. The failure of the ANSI standard to address the corners of fiberglass rail render the phrase “meets ANSI standards” meaningless.

Lawyers handling ladder cases must do a liability analysis which goes beyond the terms of the applicable ANSI standards. Failure to do so risks relying upon rules written by and for the ladder industry.

IV. A Little Good News

The good news is that the worst of the cheap ladders are disappearing from the market. When the homeowner described above bought his Type III ladder in 1996, it cost $20.00. That price is simply too cheap, and the ladder was too flimsy to be safe.

Today, a similar ladder can be purchased at Wal-Mart or Home Depot for about $45.00. That price is still low enough to be affordable, but the ladder now has feet which are much better in design, and which eliminate the wear problem that left my client with a tragic head injury. It is impossible to say whether litigation led to redesign of the foot of this ladder, but litigation certainly brought the problem to light.

The fact that the cheapest and most dangerous of the Type III ladders are off the market is definitely a good thing for homeowners and other inexperienced ladder users.

V. Conclusion

Ladders are dangerous under the best of circumstances, and ladder companies are tough adversaries.

Nonetheless, thoughtful investigation on behalf of seriously injured people can reveal flaws in ladder manufacturing and ladder design. In addition to helping individual clients, ladder cases may help the general public by encouraging product improvements. When cases develop in that way, the tort system is truly doing its job of making the world a safer place.