# Montgomery Elevator Co. v. McCullough Ex Rel. McCullough > Kentucky Supreme Court · July 5, 1984 · 676 S.W.2d 776 URL: https://www.frixlaw.com/law-library/cases/9638153 ## Case - **Full name:** MONTGOMERY ELEVATOR COMPANY, Appellant, v. Kevin T. McCULLOUGH, a Minor by His Parent and Next Friend, M. James McCULLOUGH, Jr. and Federated Department Stores D/B/A Shillito’s Department Stores, Appellees; Kevin T. McCULLOUGH, a Minor, by His Parent and Next Friend, M. James McCULLOUGH, Jr., Appellant, v. MONTGOMERY ELEVATOR COMPANY and Federated Department Stores D/B/A Shillito’s Department Stores, Appellees - **Court:** Kentucky Supreme Court - **Decided:** July 5, 1984 - **Citations:** 676 S.W.2d 776; 45 A.L.R. 4th 761; 1984 Ky. LEXIS 267 - **Precedential status:** Published - **Opinion:** Dissent by Stephenson - **Judges:** Stephens, Aker, Gant, Leibson, Stephenson, Vance, Winter-Sheimer - **Cited by:** 101 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9638153 ## How later opinions describe it (automated extraction) - stating that a "manufacturer is presumed to know the qualities and characteristics, and the action condition, of his product at the time he sells it” - describing failure-to-warn case under Kentucky law without mentioning the necessity of expert testimony ## Opinion text STEPHENSON, Justice, dissenting. I do not understand the lengthy discussion of “intervening cause” in the majority opinion. Section 402A of the Restatement of Torts contains very simple language and the Commentary is likewise explicit. I do not read “intervening cause” anywhere in 402A. The most disturbing aspect of the majority opinion is the blithe assumption that the escalator is in a defective condition, unreasonably dangerous to the user or consumer. The statement in the majority that an escalator of safer design, guarding against the defect giving rise to the “tennis shoe” phenomenon, was being manufactured at the same time as the type sold to Shillito’s is not factually correct. It is interesting that the so-called safe design was being manufactured according to Canadian government specifications whereas the Shillito’s escalator was manufactured according to United States government specifications. It is a misstatement to say that the Canadian design guarded against the defect. The argument is that there were fewer incidents with the Canadian design, not that there were no incidents. That statement makes me wonder what there is in the record to show this accident would not have happened had the escalator been designed according to Canadian standards. This leads me into another observation. From what I understand from the record, soft-sided shoes, such as tennis shoes, can be forced under the skirt of the escalator leading to accidents such as happened here. The Court of Appeals is exactly right in condemning the wholesale introduction of other incidents, stating that the introduction of the material should have been limited to similar incidents. In a way, the numbers here are without meaning unless there is some evidence of the numbers using this equipment. Before a prima facie case of being unreasonably dangerous can be made, there should be some comparison of these numbers. The number of incidents in evidence was approximately 500. Montgomery Elevator complains that many of them involved equipment manufactured by other concerns and a multitude of other type injuries. Anyway it is considered the number of incidents is meaningless unless there is some showing how many people used the escalators and how many escalators were used. I believe this court is going too far in protecting people against themselves. In normal use, the equipment is not dangerous at all. A piece of equipment with moving parts can seldom, if ever, be rendered completely proof against someone using it in an abnormal fashion thereby causing injury. The majority states that Nichols v. Underwear is a landmark case on the definition of a defective product. Nichols, of course, is the dangerous t-shirt case and is authority for a lawsuit based on anything an. individual wears or uses provided^ of course, that the individual does something to the product to cause injury to himself. Both Nichols and the majority opinion here have effectively amended the meaning of § 402A and the Commentary which states that a product is not in a defective *785 condition when it is safe for normal handling and consumption. We have a new standard that the product is defective and unreasonably dangerous if the user can somehow injure himself by use of the product. Even more mind boggling is the approval of the “ordinarily prudent company” standard. I cannot imagine anything more stupefying to a jury than the task of wrestling with the “ordinarily prudent company” theory. It occurs to me that under the standard set out in the majority opinion, every automobile accident could be tried under § 402A, because of a design defect which rendered the automobile unreasonably dangerous. Certainly we have more of these than escalator accidents. Applying this standard to automobiles would simplify many lawsuits and might lead to a cessation in their manufacture which would save many lives. I am of the opinion Montgomery Elevator was entitled to a directed verdict in that there is no showing of a design defect, unreasonably dangerous to the user. This opinion and Nichols have effectively removed the word “unreasonably” from § 402A. The Restatement recognizes an element of danger in every product or piece of equipment. The operative word is “unreasonably.” Accordingly I dissent. WINTERSHEIMER, J., joins this dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9638153. Public record. Not legal advice.