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Evans v. Nacco Materials Handling Group, Inc.

Supreme Court of Virginia

March 22, 2018





         The 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.[1]


         I. The fatal accident.

         Jerry 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.

         On 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.

         After 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.[2] Evans placed himself between the two trucks, presumably to unhook the tow chain.

         The 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.

         II. The lift truck, its characteristics, and requirements for training and operation.

         The lift truck in question, a Hyster S120XMS, [3] 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.

         The 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 park brake.

         The 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 automatically applied.
ALARM will sound if parkbrake is not applied.

         In 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."

         Industry 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).

         The 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.

         The 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.

         III. The wrongful death action.

         Evans' 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.

         Mallett 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.

         Mallett acknowledged that the company he previously worked for, and for which he oversaw the design of competitor trucks, did not have a ...

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