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ARTICLE ID 29413

$________ - PRODUCTS LIABILITY - FAILURE TO WARN - ABSENCE OF ADVISEMENTS ON FORK-LIFT REGARDING HAZARDS OF USING IN FLAMMABLE AREA - SEVERE BURN INJURIES.

Essex County, New Jersey

This was a products liability/failure to warn action in which the plaintiff, an employee of a company manufacturing aerosol products, contended that the defendant fork-lift manufacturer failed to provide any warnings advising against using the machine in areas containing flammable materials. The plaintiff contended that as a result, an explosion occurred when his fork-lift was started in the area of a gas leak, causing him to suffer third degree burns over 65% of his body, including severe facial burns.

The plaintiff contended that on the night of the accident, he was operating the machine near above ground tanks situated outside the plant, from which highly flammable gas used in aerosol products would be pumped into the plant. It was undisputed that these tanks were leaking the odorless gas at the time of the accident. The plaintiff maintained that when the fork-lift stalled near one of the tanks, he turned the ignition key, and that the resultant spark contacted the gas, causing an explosion.

The plaintiff presented an expert chemical engineer who related that the area near the tanks was extremely flammable and would constitute a "Class one, division one" area, referring to the most hazardous type region under applicable fire prevention codes. The evidence revealed that other manufacturers made fork- lifts which were classified as explosion due to designs minimizing the chance of a spark from the vehicle contacting any gas in the ambient air. The plaintiff contended that the use of the defendant’s fork-lift in this area was hazardous since it was not so designed, and the plaintiff’s expert contended that the defendant manufacturer should have placed warnings on the fork- lift itself advising workers to avoid using the fork-lift in a flammable area.

The evidence disclosed that the manual forwarded with the fork- lift contained three advisements to utilize the appropriate vehicle in an area classified as hazardous. The plaintiff contended that these advisements were not likely to be seen by workers and that the defendant should have placed appropriate warnings on the vehicle itself. The defendant contended that warnings on the vehicle were not required and established that no industry standard provides for such placement. The defendant’s human factors expert maintained that the fork-lift contained numerous warnings regarding such matters as the method of avoiding tipping the fork-lift and other operational advisements, and maintained that placing additional warnings would create an "overload" of warnings, thereby minimizing the chances of a user following any advisements. The defendant contended that the instructions in the manual were sufficient and that the manufacturer could validly depend upon the employer to provide proper instructions as to the suitability of the fork-lift for use in any particular area. The defendant also contended it was obvious that warnings would not have prevented the accident because the plaintiff was advised by his foreman to utilize the fork-lift in the hazardous area and would comply out of fear of losing his job.

The plaintiff maintained that in failing to place warnings on the vehicle, the defendant did not provide the plaintiff with an option of avoiding the potentially hazardous duty. The defendant countered that since the plaintiff had observed automobiles and other vehicles traveling through this area on occasion, it was clear that he would not have believed the use of the fork-lift was hazardous even if warnings were placed on the vehicle, and contended, therefrom, that there was an absence of proximate cause. The plaintiff countered that he was aware that the area was highly flammable because the pressurized gas was pumped through pipes containing numerous connections which were replaced on occasion, and maintained that if he had been aware that the fork-lift was not appropriate for use in this area, he would not have used it there. The defendant also denied that the area was a "Class one, division one" area and pointed to the fire marshal’s testimony in which he indicated that he did not so classify the area after inspecting it following the accident. The plaintiff countered that the fire marshal had not taken into account that material was transported from the tanks to the plant and not merely stored in the tanks, and contended that since material was transported through the pipes under pressure, the area would, in actuality, be so classified.

The plaintiff contended that he suffered third degree burns over 65% of his body, including the face, ears, neck, shoulders, back legs and hands. The plaintiff’s plastic surgeon testified that the burns constituted the most catastrophic burn injuries he has ever encountered. The physician related that the plaintiff required 17 operative procedures including skin grafts and muscle and tendon releases. The plaintiff was hospitalized for approximately four months and required extremely painful debridements everyday during the initial 3 1/2 months of hospitalization. The evidence disclosed that the plaintiff also required a Jobst suit, which he wore for approximately two years. The plaintiff maintained that the recuperation period was excruciating. The plaintiff’s plastic surgeon contended that the plaintiff will permanently suffer severe scarring and the plaintiff related that when he is in public, he often wears a bandanna to cover his face due to embarrassment.

The plaintiff, who is single, contended that the scarring has prevented him from dating and maintained that he suffered a severe psychiatric reaction of depression. His treating psychiatrist related that the plaintiff attempted suicide on two occasions. The physician related that the plaintiff had expressed suicidal ideation on many other occasions and indicated that the risk of suicide appeared to diminish significantly as of his last session approximately six months before trial. The plaintiff testified that he was not progressing as well as he hoped in therapy and that he had, therefore, ceased psychiatric treatment.

The psychiatrist contended that further therapy is indicated and maintained that irrespective of such therapy, the plaintiff will permanently suffer severe depression.

The evidence disclosed that the plaintiff has regained most of the movement of his limbs through the tendon and muscle release procedures and therapy. The plaintiff’s vocational expert contended that as a result of the severe scarring and depression, the plaintiff will be permanently unemployable. The plaintiff was earning $________/hour at the time of the accident and indicated that he generally worked ten hours overtime per week. The jury found for the plaintiff and awarded $________. The plaintiff had also named the distributor as a defendant, contending that the distributor should have provided appropriate instructions to the employer when it purchased the fork-lift. This defendant argued that the plaintiff’s chemical engineer could not testify as to the proper practice of the fork-lift distributor and that in the absence of such expert testimony, the distributor was entitled to a dismissal. The Court accepted this argument and dismissed this aspect of the case. Plaintiff’s liability expert: Burton Davidson, Chairman of the Dept. of Chemistry at Rutgers Univ., New Brunswick. Plaintiff’s treating psychiatrist: J. Wagle from Teaneck, N.J. Plaintiff’s vocational expert: Bernard Albert from Jenkintown, Pa. Defendant’s human factors expert: Jerry Purswell from Norman, Oklahoma. Arriaga vs. Yale Handling Materials Corp., et al. Docket no. W-________-86; Judge Carol A. Ferentz. Attorney for plaintiff: Richard J. Weiner of Saddle River, N.J.; Attorney for defendant manufacturer: William C. Carey of Morristown, N.J.; Attorney for defendant distributor (dismissal granted): Kevin Wolf of Livingston, N.J.

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