ARTICLE ID 28872
- PRODUCTS LIABILITY - PLAINTIFF INJURED IN FALL AS AN ALLEGED RESULT OF DEFECTIVELY DESIGNED AERIAL PLATFORM - FAILURE TO EQUIP PLATFORM WITH ADEQUATE WARNING/INSTRUCTIONS - BREACH OF IMPLIED WARRANTY OF FITNESS - CLAIM ADDITIONALLY ASSERTED AGAINST BOTH MANUFACTURER AND OWNER OF THE AERIAL PLATFORM UNDER STATUTORY "MALFUNCTION THEORY."
U.S. District Court
This action arose out of a worksite accident involving an aerial
platform manufactured by the defendant Terex Aerials, Inc. and
owned by the codefendant Howard L. Bowers Contracting, Inc. The
plaintiff was driving the platform, which had been delivered to
his jobsite three days prior, when the machines drive-line
broke, causing the aerial lift to "free wheel" down a steep hill
and collide with two parked cars. The plaintiff asserted products
liability claims against the defendant manufacturer of the aerial
platform. As against the co-defendant then-owner of the platform
as well as the defendant manufacturer, the plaintiff also p 7 3
asserted statutory liability under West Virginias "malfunction
theory" because the accident-causing malfunction allegedly
occurred during normal use.
The subject accident occurred on March 26, ________, while the
plaintiff was operating a Terex Model AT60C aerial platform
produced and sold in ________. At the time of the accident, the
machine was owned by the co-defendant Bowers Contracting and had
been delivered to the job site three days prior to the day of the
accident.
The accident occurred while the plaintiff was driving the aerial
lift from the operator compartment or basket leading (meaning
that his back faced the direction of travel) down a small hill
and through an "S-curve" from one location on the job site to
another. As the aerial platform approached the second curve in
the "S," the machines driveline broke, causing the aerial lift
to "free wheel" down a steeper hill and ultimately collide with
two parked cars. As a result of the collision, the plaintiff was
forcibly thrown about inside the operators basket of the
machine.
Following the collision, it was discovered that the machines
yoke which connected the rear drive shaft to the transfer case
had broken, causing the rear drive shaft to detach from the
transfer case. This disconnected the driveline from the
transmission and allowed the machine to freely roll and
accelerate down the hill, according to the plaintiffs claims.
Some time after the accident, the codefendant Bowers disposed of
the failed components. The plaintiff did not, however, assert a
spoliation claim against Bowers. Rather, the plaintiff asserted
claims against Bowers for delivering a defective product and for
breach of the implied warranty of fitness.
The plaintiff asserted that Terex defectively designed the aerial
platform, failed to equip it with adequate warnings and
instructions, and breached the implied warranty of fitness. The
plaintiffs liability expert opined that the drive line had
weakened during years of use before the accident because
operators had in the past moved the machines directional control
lever from one travel position through neutral to another travel
position to decelerate or stop the machine. Accordingly, the
machines control panel should have been equipped with a blocking
mechanism to prevent the movement of the directional control
lever from one travel position to another, according to the
plaintiffs expert.
Additionally, the plaintiffs expert asserted that the aerial
platform should have been equipped with a feature delaying the
shifting of the hydraulic transmission after the directional
control lever has been reversed from one travel position to
another. Further, the plaintiff claimed that the machine should
have incorporated a "safety harness" preventing an operator from
being thrown about inside the operator basket during a collision.
Finally, plaintiffs expert asserted that the machine and/or its
manual should have been equipped with a warning/instruction to
not move the directional control lever from one travel position
to another while the machine is being driven.
The plaintiff claimed that both defendants were liable under West
Virginias "malfunction theory" because the driveline yoke broke p 7 3
during the machines normal use. At some point after the
accident, the drivelines broken components were disposed of.
Accordingly, the broken components were never examined by any
party, hence, no specific defect could be identified to explain
the metallurgical reason for the failure. Under West Virginias
malfunction theory, a defect can be proven by circumstantial
evidence if it can be shown that the occurrence of the
malfunction would not ordinarily occur in the absence of a
defect.
The defendants denied the plaintiffs contentions. Both
defendants asserted that the aerial platform was not defective
and that it was delivered in a proper and safe condition.
Moreover, the defendants claimed that the accident was not caused
by a malfunction or the broken drive shaft, but rather, the
accident was caused by the plaintiffs misuse of the machine.
According to the defendants, the accident occurred because the
plaintiff was driving the machine down a hill and through the "S-
curve" in high gear and at an excessive rate of speed. This
caused the plaintiff to lose control of the machine and panic as
he entered the second curve, according to the defense. In an
effort to regain control, instead of properly using the machines
control mechanisms, the plaintiff moved the directional control
lever from the reverse position to the forward travel position,
thereby overloading the driveline and causing it to fail.
Finally, after the driveline failure, the plaintiff failed to use
any of the machines four means of applying the brakes to stop
the machine, according to the defense evidence.
As a result of the accident, the plaintiff alleged that he
sustained a torn medial meniscus of the left knee, a herniated
disc at L5-S1 and degenerative lumbar disc disease. The left knee
injury required two arthroscopies. Although no surgery was
performed for the low-back injuries, the plaintiff continues to
receive medical treatment for these injuries. According to his
physicians, plaintiff is completely and permanently disabled from
returning to work in his occupation as a plasterer. The
plaintiffs claim for past medical expenses totaled approximately
$________ and his claim for past and future lost wages ranged from
$________ to $________.
The jury found for the defendants.
5 ways to win with JVRA
JVRA gives you jurisdiction-specific, year-round insight into the strategies, arguments and tactics that win. Successful attorneys come to the table prepared and use JVRA to:
- Determine if a case is winnable and recovery amounts.
- Determine reasonable demand for a case early on.
- Support a settlement demand by establishing precedent.
- Research trial strategies, tactics and arguments.
- Defeat or support post-trial motions through past case histories.
Try JVRA for a day or a month, or sign up for our deluxe Litigation Support Plan and put the intelligence of JVRA to work for all of your clients. See our subscription plans.