. .

Invest in your success.
JVRA helps lawyers win cases by providing critical information you can use to establish precedent, determine demand and win arguments.



U.S. District Court, Northern District of West Virginia

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 machine’s 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 Virginia’s "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 machine’s 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 operator’s basket of the machine.

Following the collision, it was discovered that the machine’s 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 plaintiff’s 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 plaintiff’s liability expert opined that the drive line had weakened during years of use before the accident because operators had in the past moved the machine’s directional control lever from one travel position through neutral to another travel position to decelerate or stop the machine. Accordingly, the machine’s 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 plaintiff’s expert.

Additionally, the plaintiff’s 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, plaintiff’s 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 Virginia’s "malfunction theory" because the driveline yoke broke p 7 3 during the machine’s normal use. At some point after the accident, the driveline’s 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 Virginia’s 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 plaintiff’s 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 plaintiff’s 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 machine’s 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 machine’s 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 plaintiff’s 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.

To read the full article, please login to your account or purchase

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:

  1. Determine if a case is winnable and recovery amounts.
  2. Determine reasonable demand for a case early on.
  3. Support a settlement demand by establishing precedent.
  4. Research trial strategies, tactics and arguments.
  5. 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.