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Findlay v. Copeland Lumber Co.

April 26, 1973

FINDLAY, APPELLANT,
v.
COPELAND LUMBER COMPANY ET AL, RESPONDENTS



Appeal from Circuit Court, Multnomah County. Alfred T. Sulmonetti, Judge.

George M. Joseph, Portland, argued the cause for appellant. On the briefs were Bemis, Breathouwer & Joseph and Pat McMahon.

Ridgway K. Foley, Jr., Portland, argued the cause for respondents. On the brief were Souther, Spaulding, Kinsey, Williamson & Schwabe and James B. O'Hanlon.

McAllister, Justice. O'Connell, Chief Justice, and Denecke, Holman, Howell and Bryson, Justices.

Mcallister

This is a products liability case in which plaintiff, who was injured in a fall, claimed that his fall was caused by the collapse of an aluminum ladder on which he was standing. Defendant R.D. Werner Co. ("Werner") manufactured the ladder and defendant Copeland Lumber Company ("Copeland") sold it to plaintiff. A third defendant, General Aluminum Products Co., is no longer involved in the action. Plaintiff

produced evidence that the ladder collapsed because a rivet hole had been drilled off-center, substantially reducing the ladder's load-bearing capacity,*fn1 while defendants' evidence tended to prove that the misaligned rivet hole was not the cause of the ladder's collapse. The case was submitted to the jury on the theory of strict liability on the part of both defendants, and, as to defendant Werner, on the alternative theory of negligence. The jury returned a verdict for both defendants, and plaintiff appeals. We reverse.

The trial court instructed the jury as follows:

"Now, as to plaintiff's first cause of action against the defendants [the strict liability count] the defendants allege that the plaintiff, Mr. Findlay, was himself negligent in that he:

"1) Placed said ladder on uneven ground;

"2) Failed to test the ladder as to its stability and balance before using it;

"3) Used the ladder so as to cause an ...


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