RONDA MADDOX EVANS, ADMINISTRATOR OF THE ESTATE OF JERRY WAYNE EVANS, DECEASED
NACCO MATERIALS HANDLING GROUP, INC.
THE CIRCUIT COURT OF THE CITY OF ROANOKE David B. Carson,
STEPHEN R. MCCULLOUGH, JUSTICE.
widow of Jerry Wayne Evans filed this action against NACCO
Materials Handling Group ("NACCO"), the
manufacturer of a lift truck, on theories of negligent design
and breach of an express or implied warranty. The jury
returned a verdict for the plaintiff on a theory of negligent
design. Following post-trial motions, the trial court
dismissed the case on the basis that the evidence established
contributory negligence as a matter of law. The plaintiff
appeals the dismissal, contending that the question of
contributory negligence should have been decided by the jury.
NACCO raises three assignments of cross-error, arguing among
other things that the plaintiff's evidence fails to
establish a negligent design as a matter of law. We agree
that the plaintiff's evidence failed, as a matter of law,
to establish a design defect and, accordingly, we affirm on
this alternate basis.
Wayne Evans worked at an International Paper plant in
Lynchburg. He operated a post folder gluer, a machine that
turns a sheet of cardboard into a box. To earn more money, he
volunteered to train as a clamp lift truck operator. Evans
completed the classroom portion of the training and started
to train on the machine. Before he could complete the
training, however, Evans decided he did not want that job. He
was never certified to operate the truck.
January 22, 2010, the plant was shorthanded, so a supervisor
asked Evans to use a lift truck to unload bales of paper from
a tractor trailer. This particular plant was operating five
or six days per week, with three shifts each day. Evans was
working the third shift. Unloading the trailer meant driving
the lift truck up a ramp, over a retractable dock plate and
into the trailer, taking the bales of paper out of the
trailer and back into the plant. The loading ramp is the only
place in the plant with an incline.
Evans had completed several trips in and out of the trailer,
his truck became stuck in the 11-inch gap between the dock
plate and the trailer. With the help of a colleague, Lamont
Lacy, Evans affixed a tow chain to his truck and Lacy's
truck. Using Lacy's truck, the pair pulled the
immobilized lift truck out of the gap and off the dock plate.
Evans parked the truck on the ramp, turned it off, and
applied the parking brake. The incline on the ramp was a 12
percent grade. Evans' truck was not carrying a load. The
lift truck came equipped with an alarm that will sound when
the operator gets out of the seat and the park brake is not
applied. Evans stepped down from his truck, and the alarm did
not sound. Evans did not place chocks under the wheels
because they were not available at the plant. He also did not
lower the clamp attachment. Evans placed himself between the
two trucks, presumably to unhook the tow chain.
parked truck initially did not move. Very quickly, however,
Lacy noticed that Evans' truck began to roll backwards,
toward Evans. Lacy screamed to warn Evans, but, due to the
loud ambient noise at the plant, Evans did not hear him.
Evans was crushed and killed when the truck rolled down the
incline and collided with the other truck, pinning Evans
between the two. A post-accident examination revealed that
the truck's parking brake was out of adjustment.
lift truck, its characteristics, and requirements for
training and operation.
lift truck in question, a Hyster S120XMS,  is a specialized
industrial vehicle. It weighs 20, 000 pounds. It resembles a
forklift, but it is equipped with a clamp attachment. The
clamp attachment weighs approximately 2, 800 pounds. The
clamp attachment allows the trucks to grab and move large
bales of paper. The truck was rated to lift a maximum load of
7, 700 pounds. This particular lift truck went into
production in 2001. NACCO sold the truck to Evans'
employer in March 2003.
vehicle is equipped with an "operator adjustable"
parking brake that is located "over-center" with
respect to the operator's seating position. Approximately
60 percent of the vehicles in this class in 2003 were
equipped with such a brake. Other lift trucks also had
operator adjustable brakes, but they were laid out in a hand
ratchet or foot ratchet configuration. The operator of a
vehicle with an operator-adjustable, over-center brake
activates the over-center brake by manually pulling back on a
lever that is located on the dashboard. The amount of tension
on an operator-adjustable, over-center brake can be adjusted
by twisting a knob situated at the top of the lever. The
evidence established that the twisting action required the
operator to deliberately tighten or loosen the brake; the
operator could not inadvertently tighten or loosen the brake.
Rotating the knob in one direction increases the tension on
the brake, and rotating the knob in the opposite direction
decreases the tension. No tools are necessary to increase or
decrease the tension on the brake. When an operator pulls
back on the park brake lever, he can feel whether the brake
is tight or loose. As part of the elaborate development
process, Hyster tested the prototype truck with trained
operators to gain feedback. It did not receive any negative
feedback with respect to the operator-adjustable, over-center
cabin of the truck contained several warnings. A warning in
bright orange, next to the parking brake, stated:
APPLY PARKBRAKE before leaving seat, parkbrake not
ALARM will sound if parkbrake is not applied.
addition, the cabin contained an extensive series of warnings
on a variety of subjects, which told the operator, among
other things, that "FAILURE to follow these instructions
can cause SERIOUS INJURY or DEATH! AUTHORIZED, TRAINED
OPERATOR ONLY!" One of those warnings stated that
"BEFORE DISMOUNTING, neutralize travel control, lower
carriage, set brake. WHEN PARKING, also shut off power, close
LPG fuel valve, block wheels on inclines."
standards, in particular the standard set by the American
National Standards Institute ("ANSI") B56.1-2000,
required the parking brake to be capable of holding the truck
still under a full load on a 15 percent incline. Federal
government regulations incorporated the industry standard by
reference. See 29 C.F.R. § 1910.178(a)(2).
lift truck is not a consumer product. Driving such a truck,
an operator testified, "can be quite a dangerous
job." Federal law requires operators of such lift trucks
to be trained and certified. 29 C.F.R. § 1910.178(1).
The operators at the International Paper plant were trained
through a combination of classroom instruction, hands-on
demonstration with a lift truck, and on the truck with a
mentor. Evans had completed the classroom component, and he
had received some hands-on training under the supervision of
an experienced operator. The operator who trained Evans said
that while he did not specifically recall training Evans on
adjusting the parking brake, it is something he would
normally cover with trainees.
plant's policy did not call for training its operators to
adjust the park brake. Operators nonetheless learned how to
do so by speaking with the mechanics who serviced the trucks.
Operators were not supposed to adjust the brake themselves.
If the parking brake needed adjustment, operators were taught
to tag the lift truck so it could be taken out of service for
maintenance. One operator testified that it was "fairly
common" for an operator on a previous shift to lessen
the tension on the parking brake. He believed operators from
prior shifts were loosening the tension required to apply the
brake in order to lessen the effort needed to apply the brake
and make their jobs easier. Operators were trained to inspect
and test the park brake, but they were not trained to test it
on the ramp. Operators were not permitted to stop on the
loading ramp and park there.
The wrongful death action.
widow, as the administrator of his estate, filed a wrongful
death action against several defendants, including the
manufacturer, alleging breach of express or implied
warranties and also alleging that the lift truck was
negligently designed. At trial, the plaintiff presented the
expert testimony of Frederick Mallett to prove that the
parking brake was negligently designed. Mallet previously
served as an engineer and a manager with
Mitsubishi-Caterpillar Forklift America, which designed lift
trucks that competed with NACCO's trucks.
rejected mechanical failure or overloading as a cause of the
accident. He testified that the truck rolled down the ramp
because the parking brake was not correctly adjusted. In
Mallett's view, the brake was defectively designed
because it was operator adjustable. Mallett testified that a
mechanic should adjust the parking brake, not an operator.
Mallett acknowledged that placing an untrained or uncertified
operator on the truck was a misuse of this product. Mallett
testified that "[t]he design was defective and
unreasonably dangerous in that it failed to eliminate misuse
by the operator." He explained that this
"misuse" was foreseeable. He cited to a 1944
publication from the United States Labor Department's
Division of Labor Standards addressing product safety:
Positive mechanical means of eliminating machine hazards
should be applied wherever possible and to the maximum
possible extent. One commonly encounters the attitude that it
is sufficient to guard a machine so that an operator
faithfully obeying carefully-worked-out rules of safe
operation can escape injury. . . .
This attitude is wrong and is responsible for a heavy portion
of the injuries connected with machine operation. Every
uncontrolled hazard, however remote, will produce its quota
of injuries and even the most careful operator will at times
do the wrong thing or fail to take some necessary precaution.
Furthermore, many machine operators are neither carefully
selected nor adequately trained, and in many establishments
supervision is neither safety-minded nor adequate.
acknowledged that the company he previously worked for, and
for which he oversaw the design of competitor trucks, did not
have a ...