Montgomery Elevator Co. v. McCullough Ex Rel. McCullough
676 S.W.2d 776
Ky.
1984
Check Treatment

*1 MONTGOMERY ELEVATOR

COMPANY, Appellant,

v. McCULLOUGH,

Kevin T. Minor his Friend,

Parent and Next M. James

MсCULLOUGH, Jr. and Federated De partment De Stores Shillito’s d/b/a Stores,

partment Appellees. McCULLOUGH, Minor, by

Kevin T. friend,

his Parent and next M. James

McCULLOUGH, Jr., Appellant,

MONTGOMERY ELEVATOR COMPANY Federated Stores Stores, Ap Shillito’s

d/b/a

pellees.

Supreme Kentucky. 5,

July 1984.

Rehearing Denied Oct.

sustained Elevator’s were trial errors the instruc- that there of certain evi- tions and the admission regarding prior accidents. dence Cetrulo, Covington, appel- Robert C. Appeals remanded the case for lant/Montgomery Elevator. new trial. Cincinnati, Ohio, Gelwicks, Joseph W. *3 Montgomery and McCul- Both Elevator Department appellee/Federated Stores. lough appealed from the decision have Holbrook, Cincinnati, Ohio, for Lanny R. Montgomery Appeals. Eleva- the Court of McCullough. T. appellee/Kevin Appeals erred be- tor claims the Court of it entitled to a directed verdict. cause was LEIBSON, Justice. Appeals McCullough claims the Court products liability This is a case. On Feb- Montgomery’s erred because sustained 24, 1979, McCullough, ruary T. Kevin regarding instructions and evi- position riding esca- ten-year-old boy, was the down prior accidents. dence of at lator in the Shillito’s Store granted have both sides’ motions for We Shopping the Florence Mall Center Flor- discretionary reviеw. We affirm the deci- ence, Kentucky, when the tennis shoe on Appeals that Mont- sion of the Court right caught up and crushed his foot was not entitled to a di- gomery Elevator was and the space into the the treads between rected We reverse the decision verdict. He suffered a side skirt of the escalator. Appeals that there was the Court crushing, cutting injury resulted in which trial court’s instructions error in either the amputation big right his of the toe on introduction of evidence concern- or foot. just- as to ing prior accidents so substantial question purchased The escalator ify a trial. new Stores, by Federated Shillito’s, operates from Mont- McCullough’s owns this case is The heart of gomery It was built Elevator Co. question the escalator claim accepted by Federated and installed manufactured defectively designed when February Thereafter the escalator claim that it is Montgomery Elevator’s by maintained Federated. sent to the not because of letters liable Shillito’s, the escalator purchaser, claim was filed after Originally the child’s purchaser advising the had been installed against Montgomery Federated and both propensity catching escalator’s of the part of the Elevator. Before trial escalator up shoes “between the tennis against Federated was settled (the panel” steps and the escalator skirt $30,000. against McCullough’s claim Mont- sug- phenomena), letters “tennis shoes” Elevator, gomery on defective based to decrease the gesting remedial measures jury to a of the was submitted Montgomery likelihood of such instances. $51,511.75. an inter- which awarded Under “a kit of Elevator offered tо sell Shillito’s appor- rogatory permitted jury your angles applied stiffener that can be responsibility Federated and tion between escalator present Montgomery standard Elevator, each found such acci- against skirts” as a deterrent en- responsible. The trial court to be 50% pro- purchase and failed to dents. Shillito’s Montgomery Eleva- against judgment tered remedial measures. the recommended vide $25,755.87. tor for that an esca- McCullough’s evidence was to the appealed Montgomery Elevator against the design, guarding lаtor of safer claiming it was entitled to Appeals Court shoes” giving rise to “tennis claiming trial defect also verdict and a directed at the being manufactured phenomena was Appeals decided The Court of errors. plant side in the same same time and claim that Montgomery Elevator’s against verdict, type to Shillito’s. side sold but with entitled to a directed it was Montgomery Elevator claims that purchaser were offered to the and that the provided adequate warning its letters purchaser’s remedy failure to the defect purchaser рotential danger of the superseding was a how to deal and that such such circumstances the who against bars a claim the manufacturer product, knowing uses the public injured using member of the while measures, failing to take remedial regardless Shillito’s escalator of whether culpable. also is whether the was defective when sold. The purchaser’s failure to act cuts off the man- question is: What is the effect of such responsibility. ufacturer’s letters from the manufacturer pur directing The landmark inquiry cases our chaser when the claim is on behalf of a Kellerman, are House v. Ky., 519 S.W.2d party sharing third not in their transac cause, analyzing intervening they complete defense, tions? Are and Nichols v. Union Underwear question of intervening superseding Inc., Ky., (1980),analyzing *4 jury consider, cause for the to or no de liability design for products defective in a fense whatsoever? liability ease. The answer is that such letters are not a Kellerman, passenger House v. a defense the circumstances of this case grabbed steering sliding wheel of a car. person where the injured is a member of House v. Kellerman states: рublic, bystander or a user without with, begin literally “To speaking there notice dangerous propensities of the of the can only never be one ‘cause’ of product. This disposes answer of Mont- Every result. cause is a collection of gomery Elevator’s claim to a directed ver- factors, many some identifiable and oth- dict and to its further claim to an instruc- not, ers by prior all determined events. type tion of the discussed in Bohnert The only law seeks out the collective Equipment Kendall, Ky., Co. v. 569 or lays respon- cause causes for it (1978). S.W.2d 161 sibility pеrson on some persons.” or 519 There is no area of tort that has law S.W.2d at 382. generated more ques confusion than the The trial court had jury instructed the on superseding tion of intervening or cause. intervening cause as a defense. Overrul- question, The complicated enough neg in a ing previous contrary, cases to the we held action, ligence is further po confused that: tential differences that exist where undisputed “The of whether an products claim is based on liability. act or circumstance was or was not a presenting Cases seemingly diverse results superseding legal cause is issue on somewhat similar patterns fact are resolve, court to ques- and not a factual Atcher, Ky., Ford Motor v.Co. 310 S.W.2d jury.” tion for the (1957), 510 Post v. American Cleaning Equip. Corp., Ky., (1969), 437 S.W.2d 516 (1) “Only an act when which is claimed Kendall, Equipment Bohnert ‍‌​‌​​‌‌‌​‌‌​‌​​‌​‌​​​‌‌‌​​‌‌‌​‌‌‌‌‌​​‌​‌‌​​​‌‌​‌‍Ky., Co. v. place supersed- to have taken would be Sturm, 569 S.W.2d 161 Ruger law, (2) ing cause as a matter of Inc. v. Bloyd, there is an issue of fact as to whether (1979). suggest While we do not that these happened, should there be an instruction fully reconciled, cases can be in this mentioning and that instruction should hopе clarify simplify subject we to tell the in substance that unless it intervening of applies cause as it believes from the evidence that it did not present pattern—a products liability fact defendant, happen it shall find for the against a manufacturer on ini based ...” 519 S.W.2d at 383. tial defective where the manufacturer claims that adopts no Kellerman House suggestions (Second) tice of the defect and principles remedial of Restatement of §§ Prosser, Torts, (1965) 440-453 and of chasers will continue ma- to use §§ Torts, Ed., 1971) (4th Law 44-45 chinery safety without alterations. Ford of determining legally what facts are suffi- negligence v. Atcher Motor Co. law. cient to constitute It is not available to the manufac- insulate They “extraordinary are facts of rath- such liability turer in a case. products normal,” “highly extraordinary,” er than or fundamental shift nature, character, as to unforeseeable liability negligence from a to original liability law standard wrongdoer relieve the to § Kellerman, theory expressed ultimate new in 402A of the victim. House v. 452(1) (Second) supra, 519 S.W.2d at 382. Section Restatement Torts occurred § (Second) Torts, pro- the Restatement Kentucky in 1966 when 402A was person that “the vides failure of a third adopted Transport Dealers v. Bat Co. prevent harm threatened act to another Distributing Co., Ky., 402 tery S.W.2d negligent the actor’s conduct is not (1966). The shift is from the conduct of harm,” superseding cause such actor, negli problem exceptions. rare cases, prod gence condition of the liability” in “special uct. This is the Ky.App., Peterson v. 571 S.W.2d Bailey, persons engaged 402A of in the business point. It holds illustrates the manufacturing selling products appropriate that the failure to actiоns take liability the standard for such stop spread of such of a fire was not “in product is a defective condition unrea “utterly foolhardy, extraordinary” na- sonably dangerous to user or consumer liability ture as to limit the of the defend- *5 key The four are “defective ant who caused the ...” words fire. dangerous.” unreasonably condition For Atcher, supra, In Ford Motor v.Co. years struggled the next fifteen we with boy had mother’s small fallen from his Then, meaning just the of these words. open. automobile when came a rear door Kellerman, supra, v. is the land House negligent the child’s mother failure of causation, the subject mark case on of repair exposed her defective door latch Inc., Nichols v. Union Underwear Co. of opening child to the risk the door while (1980), Ky., 602 S.W.2d 429 is the landmark operation. the car was in The mother’s prod case on the definition a defective of negligence intervening was an found to be uct. Perhaps negligence consti- such “utterly foolhardy, tutes an act of such Nichols, simple In we arrived at extraordinary” nature as to limit the liabili- standard for the trier of fact to use to ty еxplana- the car company. of better § words in The manufac apply the 402A. happened tion is that the 1949 accident qualities presumed turer is the to know a case and Ford Motor Co. v. Atcher characteristics, condi and the actual thirty years the predates almost old. It tion, product time he sells of his at the liability modern era of the of law product question is the and the whether came with of the Restate- 402A a risk” an accident of the creates “such of (Second) and which ment Torts question the “that nature of one in general product the focus the shifts from users to engaged in ordinarily prudent company § 402A, “an itself. Under Comment i of product of such a “would the manufacture” is a unreasonably defect” which put it on the market.” Nichols v. not have injuries, plaintiff’s cause of proximate Co., Inc., supra, 602 Underwear Union being imposed, even liability result in will such as fea at 433. Considerations S.W.2d purchaser deliberate nonaction patency making safer sibility product un- to use the who continues instructions, danger, warnings in- that have changed. One the risks repair, mis subsequent maintenance and courts overwhelming majority duced use, products’ inherently unsafe upon the makers of impose liability strict characteristics, bearing pur- they have a danger that while products is the defective on the product expected as to whether the er could be to do the circum- was manufactured “in a defective condition stances. unreasonably dangerous,” are all factors Cleaning Equipment Post v. Am. bearing principal question on the rather Corp., supra, product we held that the separate legal questions. partic- than In a unsafe there was failure to case, ular any question as with of substan- provide warning to the ultimate cause, tial factor or they may by way example: user. We said be decisive. “(I)t may sign that a be doubted warn- instance, For in Jones v. Hutchinson Grass,’ ing, ‘Keep Off could be Inc.,

Mfg. Ky., (1973), 502 S.W.2d 66 we apprise deemed sufficient to a reasonable decided that the from product person grass that the was infested with apparent was so that as a matter of law it deadly snakes.” 437 S.W.2d at 520. liability unreasonable to fix on the held warnings We that additional about manufacturer for the cаused (an product cleaner) industrial vacuum con- circumstances in which it was used. tained the instruction booklet delivered Ulrich Kasco Abrasives purchaser, to the plaintiff’s who was the S.W.2d 197 we decided that subse- employer, did not affect the manufactur- quent keep failure product in safe liability user, er’s to the ultimate the em- working maintenance) (faulty order ployee.1 the sole disintegration cause of the of a Subsequent warning, problem in the grinding original design wheel and that present case, is different ‍‌​‌​​‌‌‌​‌‌​‌​​‌​‌​​​‌‌‌​​‌‌‌​‌‌‌‌‌​​‌​‌‌​​​‌‌​‌‍from the condi- contributing was not a factоr. In Hercules tion of the at the time of manufac- Hicks, Ky., Powder v.Co. appropriate ture. Even where it be dynamite we decided was so inher- warning decide that because of the ently unsafe that it is unreasonable to accompanied it was not in a blame the manufacturer for failure to warn unreasonably danger- defective condition when exploded during handling. careless ous, entirely it is an different matter when These are all cases where this court has subsequent law, decided that as a matter of because of to the sale аnd the manufacturer seeks to particular circumstances, the facts did *6 liability product already terminate for a original not establish manufacture of a marketed in an unsafe condi- product in a “defective condition unreason- warning. brings tion without This us to ably dangerous.” Kendall, Equipment Bohnert v. Co. general,

In the character of warn principal the case ings that accompany product the at the cited on behalf Elevator. But, time of sale are an evidentiary perspective, considera proper Bohnert does in deciding tion whether product support Montgomery posi- the is un not Elevator’s reasonably unsafe. employer, Post v. Am. sold Kendall’s Cleaning tion. Bohnert Equipment Co., Corp., Ky., 437 Reynolds S.W.2d 516 Metal an overhead crane. (1968). Sturm, Co., But in Ruger subsequently claimed that Inc. v. Bohnert Bloyd, Ky., 586 S.W.2d 19 purchaser, Reynolds we held warned the Metals dangerous that Co., the features attributed to that the overhead crane which it had replica which was a Reynolds breaking of an 1873 sold to revolver, model hanger falling Colt were inherent in mak at the loose rods and be- ing a reasonable facsimile and that cause of certain characteristics in the de- warning purchaser, coupled sign product Reynolds’ with an of the and that su- extraordinary, pervisor agreed charge unforeseeable use to take and assume purchaser, responsibility taking necessary steps was as much as the manufactur- cause, Cleaning Equipment vening question adequate Post v. Am. Co. decid- so the warn- years ing intervening ed in six before House v. Kellerman as an cause was then viewed as 1974, defining separate question jury. the status of the law on inter- for thе problem.

correct Reynolds agree denied such “We that the manufacturer has a claims. duty to warn the ultimate user of dangers (other product in its than those The essence of Bohnert was an errone- open obvious). that are duty This is ous trial court making pur- instruction non-delegable_ If the injury was the chaser’s remedy failure to a defect an in- breach, result of the manufacturer’s tervening important point The liability for the will lie with the is Bohnert the trial court was re- manufacturer.” Id. 614 P.2d at 691. giving versed for such an instruction. The added). (Emphasis proposed new instructiоn by our Court as quote expresses This the rationale under- attempt an alternative was an to frame the lying our decision in Cleaning Post v. Am. intervening cause factual issue in the event Co., Equipment supra. should believe Bohnert’s Reynolds had responsibility assumed analysis, gener the final as a repair. So much of the Bohnert purchaser’s al rule the remedy failure to subject is interpretation, to broader inis product defect in the is no defense for the underlying conflict with this principle and manufacturer where the claim is based on is overruled. the defeсtive condition of the at the time of manufacture and is made on question

The sole in a lia behalf of an ultimate bystander user or bility case is whether the is defec who has not adequately been warned of the tive as defined in Nichols v. Union Under danger. The manufacturer has a non-dele- wear, supra. Adequate warnings and de gable duty provide product reasonably scriptive literature evidentiary are consid uses, safe for its duty foreseeable not defects, patent erations. Like abrogated by warning to the immediate warning may liability terminate as to those purchaser. purchaser who has notice get warning. who But it has no effect condition ‍‌​‌​​‌‌‌​‌‌​‌​​‌​‌​​​‌‌‌​​‌‌‌​‌‌‌‌‌​​‌​‌‌​​​‌‌​‌‍be concur get on those who do not ex rently liable to the ultimate user for failure cept in extraordinary circumstances as provide adequate warning, for failure to claimed in the case. Bohnert basis, remedy the defect or on some other present Bohnert, both the case and purchaser’s but the failure to act not an why you go didn’t and fix except extraordinary cause just defect instead telling pur- circumstancеs. Nichols v. Union Under chaser about it? In Bohnert the manufac- Inc., law, supra, wear Co. and cases turer claimed the only not had Sturm, such as Ruger & Inc. v. knowledge of the defect but assumed re- Bloyd, supra, exception. are Bohnert sponsibility fix it. That is not true here Kendall, Equipment supra, Co. v. where *7 important and it is an distinction. Post purchas the manufacturer claimed that Co., v. Am. Cleaning Equipment supra, er was notified of the defect and assumed we held to the with responsibility correcting is limited to nothing more was no defense to an those facts.2 to an party. аpplies innocent third Post There are a number of lesser issues in- here. appeal. volved in this quote approval following We Corp., from Minert v. Harsco 26 Wash. Montgomery Elevator claims 867, App. (Wash.1980): jury 614 P.2d 686 that the trial court’s instructions were (9th Cir.1977); leading holding 2. Other cases that the manufac- 1129 Brantly Berkebile v. Heli- 83, non-delegable duty adequately (Pa.1975); turer has a to 462 Pa. 337 A.2d 893 copter Corp., Moore, product’s danger- (Okla.1982); warn ultimate user of the 648 P.2d 21 and McKee v. Fisheries, propensities Co., ous include Pan-Alaska Caterpillar 697 F.2d 141 Miller v. Tractor (6th Cir.1983). 565 ‍‌​‌​​‌‌‌​‌‌​‌​​‌​‌​​​‌‌‌​​‌‌‌​‌‌‌‌‌​​‌​‌‌​​​‌‌​‌‍F.2d Design Inc. v. Marine Cоnstr. &

783 in form erroneous used to Thompson, submit Harris v. 497 422, jury of apportionment general be- S.W.2d we cite the Montgomery Elevator and Federated rule that “evidence of the occurrence or tween oper- which inju Stores owned and nonoccurrence of other accidents or jury ated substantially Shillito’s. The found ries Federated under similar circum appor- also Stores at fault and admissible when relevant to stances is ... tioned liability danger 50/50 between or of a Federated existence causative role condition, Montgomery pаrty’s Elevator. Since the ous or a notice of such a fault, at Although, strictly speaking, found Federated a failure to direct condition.” a liability, error, presumed verdict as to its harm- to was manufacturer know all of apportionment less error. CR 61.01. the inherent characteristics its (Nich instruction including dangerous and as such need its propensities not conform the in provided Underwear, supra), to form Pal- ols v. the first Union more, Juries, Harris, Kentucky expressed Instructions in element “the exist § 20.02 appropriate. to be ence or causative role оf a condi tion,” generally accepted a as foundation Montgomery complains Elevator also relevancy for such in evidence permitting that the trial erred in court liability eases. large introduction of a concerning evidence number of other occurrences on escalators requirement of “substantial throughout United States. The evi- similarity” between the earlier accidents dence to Montgomery Elevator ob- and the one at issue is matter of rele a jects was on a list plaintiff delivered to vance to be decided the discretion of the response following interrogatory: judge and will trial not be reversed unless your “6. knowledge per- To identify all there has been an of discretion. abuse sons previously injured by the escalator § 401; Federal Rules of Louisell Evidence subject is the this lawsuit Mueller, Evidence, Federal similar escalator which a or toe foot (1978). The the list information on caught wedged in the escalator.” both relevant and admissible. computer The list printout was a “For present case, plaintiff In the called Caught Accident Code 01 Escala- Between Montgom as a witness Vice-President Step tor exceptions With Skirt.” few ery charge manage of “risk Elevator description Caught accident was “Foot ment,” questioned extensively him re Step Between and Skirt.” garding the list of accidents which had In products liability response defect design plaintiff been furnished to case, such interrogatory, evidence of similar fail ex previously stated ures under similar tracting conditions is relevant much of the information as to complaint Such admissible. evidence “would is now made without ob presencе tend to make the It was Elevator who jection. se, probable list, per defect more or less would introduced actually than it be jury, without the evidence.” “Exhibit P”. Rhodes exhibit before as its Corp., F.Supp. light Michelin Tire 62 In fact that the incidents on the (E.D.Ky.1982). products liability response request In a case list were furnished *8 “such evidence be show “any admissible to for a list of on similar escalator danger (of product) caught cause and the foot or toe was Friedman, escalator,” of wedged the accident.” Frumer in the that it and § 12.01(2) Liability, (Matthew Montgomery place Products Elevator that did fact Bender, exhibit, Supplement), 1960 & see the list as an as before cases on suming cited therein. there were accidents the list of disparity in the they

such should have been der what there is record to show that this excluded, preserved. happened the error is not If accident would not had have error, designed according there was an it was both waived escalator been Cana- This harmless the circumstances. dian standards. leads me into another From I observation. what understand appeal Montgomеry On the Elevator record, shoes, from the soft-sided such as Co., 83-SC-428-DG, Appeals the Court of shoes, can be forced under the tennis skirt appeal on is affirmed. On the behalf of leading of to accidents the escalator such minor, McCullough, Kevin T. 83-SC-442- Appeals The happened here. is DG, Appeals the Court is reversed and condemning exactly right in the wholesale judgment of the trial court affirmed. incidents, stating introduction of other the introduction of the material should STEPHENS, AKER, C.J., and GANT and have limited to similar incidents. been LEIBSON, JJ., concur. way, here are without numbers meаn- ing there is some evidence of unless STEPHENSON, VANCE WINTER- using this equipment. numbers Before a SHEIMER, JJ., dissent. prima being case of facie dangerous made, can be there should be STEPHENSON, J., dissenting opin- filed comparison some of these numbers. The WINTERSHEIMER, J., joins. ion in which ap- number of incidents in evidence was STEPHENSON, Justice, dissenting. proximately Elevator complains many of them involved I lengthy do not understand the discus- equipment manufactured other concerns “intervening majority sion of cause” type injuries. a multitude of other opinion. Section 402A of the Restatement Anyway it is considered the number of very simple language Torts contains meaningless incidents is unless there is explicit. Commentary is likewise I do showing people some many how used the “intervening anywhere not read cause” many escalators and how escalators were 402A. used. disturbing aspect The most of majori- I going this court is too far in believe ty opinion assumption is the blithe that the people against protecting themselves. condition, is in escalator a defective unrea- use, danger- equipment is not normal sonably dangerous to the user or consum- piece equipment ous at all. majority er. The statement in the that an seldom, ever, moving parts can be ren- design, guarding against escalator of safer proof against completely dered someone the defect giving rise to the “tennis shoe” using thereby fashion an abnormal phenomenon, being manufactured at causing injury. type the same time sold to as the Shillito’s factually majority is not The states that Nichols Un correct. landmark case on the defini derwear is a It is interesting that the so-called safe Nichols, product. tion of a defective design being according manufactured course, is the t-shirt case specifications government to Canadian authority anything for a lawsuit on based whereas Shillito’s escalator was manu- provided^ individual wears uses an. according factured to United States course, something that the individual does specifications. It mis- government is a injury to to cause himself. say statement to that the Canadian against argument majority Both and the guarded the defect. Nichols effectively meaning there with the here have amended the is that were fewer incidents Commentary design, thеre 402A and the not that were no Canadian in a states that a is not defective incidents. That statement makes me won- *9 condition when it is safe for han- normal

dling consumption. and ASSOCIATION, AMERICAN TRUCKING INC.; Kentucky Transport Motor Asso- We have new standard that ciation, Inc.; A. Arnold & Son Transfer unreasonably dangerous defective and Co., Inc.; Storage Moving “Al” Naish injure user can somehow himself Co.; Inc.; Storage Trucking, Atlas product. use of the Inc.; Bestway Express, Edgar Vissing, Even more boggling approval mind is the Farm; Pleasant Grove John d/b/a “ordinarily prudent company” stan- Co., Inc.; Trucking Franconia Marvin dard. I imagine anything cannot mоre stu- Trucking Inc.; Company, Tanner pefying to a wrestling than the task of Square Company, Respondents/Ap- D “ordinarily prudent company” the- pellants, ory. v. It occurs to me that under the standard Kentucky, COMMONWEALTH set out in ‍‌​‌​​‌‌‌​‌‌​‌​​‌​‌​​​‌‌‌​​‌‌‌​‌‌‌‌‌​​‌​‌‌​​​‌‌​‌‍majority opinion, every auto- CABINET; TRANSPORTATION James mobile accident could be tried under Runke, Secretary Kentucky R. Trans- § 402A, because defect which portation Cabinet; Department of Ve- rendered the automobile dan- Regulation, Kentucky Transporta- hicle gerous. Certainly we have more of these Cabinet; Helson, Timothy tion D. than escalator Applying accidents. this Commissioner of Vehicle standard to automobiles would simplify Regulation, Kentucky Transportation many lawsuits might lead to a cessa- Cabinet, Movants/Appellees. tion in their manufacture which would save many lives. ASSOCIATION, AMERICAN TRUCKING INC.; Kentucky

I Inc.; opinion am of Transport, Motor Montgomery Eleva- tor was entitled to Storage A. a directed verdict in that Arnold & Son Transfer & Co., Inc.; there showing is no Moving “Al” design defect, of a Naish Stor age Co.; Inc.; unreasonably dangerous Trucking, Bestway Atlas to the user. This Inc.; Express, and Nichols Edgar Vissing, effectively have re- d/b/a Farm; moved thе word Pleasant “unreasonably” from Grove John Franconia Trucking Inc.; 402A. The Marvin Tanner recognizes Restatement Inc.; Trucking Company, element of Square every product D piece Company, Respondents/Appellants, equipment. operative word is “un- reasonably.”

Accordingly I dissent. Kentucky, COMMONWEALTH CABINET;

TRANSPORTATION James Runke, Secretary Kentucky R. Trans WINTERSHEIMER, J., joins this dis- portation Cabinet; Department of Ve sent. Regulation, Kentucky Transporta hicle Cabinet; Timothy Helson, tion D. Commissioner of Vehicle Regulation, Kentucky Transportation Cabinet, Movants/Appellees. Supreme Kentucky. Sept.