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ARTICLE ID 41298

$________ GROSS - PRODUCTS LIABILITY - FAILURE OF NON-SETTLING FORK-LIFT MANUFACTURER TO PROVIDE AUDIBLE BACK-UP ALARM - SEVERE DEGLOVING INJURY TO HEEL AND SOLE OF FOOT.

Chester County

The plaintiff, a plant supervisor age 57 at the time of the accident, contended that the fork-lift manufactured by the defendant was defective due to the absence of a back-up alarm. An alarm was offered as an option and the plaintiff contended that the defendant should have provided such an alarm as standard equipment. The plaintiff contended that as a result of the alleged defect, he was struck in the foot, sustaining a severe degloving injury to the heel and sole in which he lost most of the soft tissue as well as the skin in this area. The plaintiff had also named, on a negligence theory, a company which purchased the fork-lift, leased it to the employer and maintained the machines while keeping a facility on the employer’s premises.

This aspect settled prior to trial. The defendant, which contended that the fork-lift was properly sold with an alarm as an option, maintained that the end user must make the decision as to the propriety of an alarm for its application, contending that if such an alarm was required at the plant, this defendant should have been so advised by the employer.

The plaintiff related that immediately before the accident, he was speaking on the plant telephone and took one step backwards to walk around an object in front of him when he was struck. The plaintiff’s expert engineer contended that the defendant should have supplied a back-up alarm system as standard equipment and maintained that either a system which provided an intermittent audible alarm or a visual alarm entailing bright strobe type light was necessary. The plaintiff contended that he could not hear the fork-lift because of the noise from nearby machines, and maintained that a loud, high pitched audible alarm would have been sufficient to provide a warning which could be heard above the nearby machinery. The plaintiff further contended that in view of the approximate $________ cost of such a device on the fork- lift which cost more than $________, the defendant should have included it as standard equipment.

The defendant’s expert in-house engineer contended that the end user must make the decision as to whether the fork-lift required the device for its particular application. According to the defendant’s expert, the alarm is of questionable benefit and that that the alarm has disadvantages because workers could become used to the sound and fail to heed it. The defendant further contended that in view of the low cost, it would have provided the device as standard equipment if necessary. The defendant further established that the device for use in doors was not required by any regulation or standards. The defendant’s expert further contended that the fork-lift was safe in the absence of such a device and that there was excellent visibility when an operator was traveling in reverse. The plant employee striking the plaintiff indicated that he had observed the plaintiff continually commencing from 90 feet away. The employee testified that he believed that he had sufficient clearance and that he did not realize that the plaintiff was about to step back into his path. The defendant contended that the plaintiff’s failure to make proper observations and the employee’s actions in traveling so close the plaintiff were the sole proximate causes of the accident. The plaintiff countered that had the back-up alarm system been provided, he would have heard the device traveling towards him and would not have stepped into its path.

The co-defendant had purchased the fork-lift in a lease-back arrangement with the employer and the evidence revealed that this co-defendant also maintained a site on the employer’s premises to provide maintenance to the machines. The jury was not aware that this co-defendant had settled. The defendant manufacturer maintained that the co-defendant, a sophisticated purchaser, was in a particularly good position to ascertain if the back-up alarms were necessary and that if such a device was required, it should have ordered it when purchasing the fork-lift. The plaintiff countered that the co-defendant did not participate in the decision as to the features to purchase and that such decisions were made by the employer. The plaintiff further established that the defendant manufacturer did not provide any information to the end consumer as to the criteria to consider when making such a decision and maintained that if the defendant manufacturer’s position that the end user must make such a determination was accepted, it was clear that such information should have been provided. The defendant maintained that the co- defendant was a sophisticated company and would be aware of the criteria to consider. The plaintiff countered that the defendant sold fork-lifts for use by both sophisticated and unsophisticated entities and contended that in view of the absence of such information, its position that the end user must make the determination as to the necessity of the alarm system should be significantly questioned The plaintiff’s plastic surgeon related that the plaintiff sustained a severe degloving injury to the heel and sole of his foot which entailed the loss of most of the soft tissue as well as the skin in the bottom of the foot. The plaintiff contended that such an injury occurred when his foot was elevated slightly as he was stepping back and was struck. The plaintiff’s plastic surgeon related that several skin graft procedures were required in which skin was grafted from the thigh. The expert related that the procedure was only partially successful because of the skin at the donor site is thinner than the sole and heel. The plaintiff related that he suffers ulcerations which range from the size of a dime to a quarter when he walks more than a relatively short distance and the plaintiff indicated that he suffers the smaller ulcers more frequently than the larger ones.

The plaintiff indicated that such painful ulcers occur when he walks as little as 1/2 to 1 mile or spends too much time on his feet. The plaintiff’s physician testified that the plaintiff will permanently suffer such ulcers.

The plaintiff testified that he attempted to return to work approximately seven months after the accident, but could not continue because of the extensive amount of time a plant supervisor is required to spend on his feet. The plaintiff, who was 67 at the time of the trial, contended that the injury occasioned $________ for seven years past lost wages. The plaintiff indicated, however, that he would have retired at age 65 even if he had not been injured. The plaintiff testified that he had planned on traveling and touring extensively during his retirement and has been forced to significantly limit such plans because of the pain caused by extensive ambulation, and argued that the jury should consider that he has been deprived of the ability to fully enjoy his retirement years. The jury found the defendant manufacturer 75% liable, the settling co-defendant 25% negligent and rendered a gross award of $________, which was molded accordingly. Plaintiff’s expert engineer: Matthew Burkart from South Hampton, Pa. Plaintiff’s plastic surgeon: Howard Caplan from Paoli. Defendant’s in-house expert engineer: Thomas DeBuhr from Mentor, Ohio. Heverley vs. Caterpillar Industrial Inc., et al. Case no. Nov. ________ no. ________; Judge M. Joseph Melody, Jr. 6-18-90. Attorney for plaintiff: Peter J. Hart; Attorney for defendant manufacturer: David Sandel.

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