13.01.2008

Federal court overturns liability ruling

The Federal Court of Appeals has overturned a Missouri courts summary judgement in favour of Skyjack regarding the fitting of pothole protection on older lifts.

The United States Court of Appeals has overturned a summary judgement handed down by the Western District court of Missouri that had ruled in favour of Skyjack and rental company RSC.

The case concerns a product liability suit following the death of Doyle Sappington, a carpenter employed by a general contractor carrying out work on a parking garage in Kansas City, Missouri in October 2001. Sappington died after the 1995 Skyjack SJII 4626 scissor lift he was using tipped over after he reversed into a pothole. The lift had been rented from RSC.

Sappington was operating the lift close to its full 26ft platform height with a 305lbs (135kgs) load on the deck. The lift was on a smooth concrete surface with a slope of 0.07 percent. The accident occurred when he drove the lift in reverse and the rear wheels dropped into a hole created earlier in the day when a portion of the concrete floor was removed.

When the rear wheels dropped into the hole the lift became unstable and tipped over. Sappington fell from the lift and later died from his injuries.

Sappington’s mother, daughter and son brought a strict products liability claim against Skyjack, and RSC claiming that the design of SJII was defective and unreasonably dangerous because it was not sufficiently stable to remain upright when its wheels dropped into the hole.

They contend that Skyjack should not have manufactured the lift in 1995 without pothole protection, and pointed out that all lifts now incorporate pothole protection, including the Skyjack SJIII, the successor to the SJII. Their case rests on the argument that pothole protection technology was available and feasible in 1995 when the SJII was manufactured.

They also contend that the later SJIII design would have prevented the accident and that the design was economically and technologically feasible in 1995 and that “the safer design” should have been used by Skyjack. Finally they also claim that as RSC had both SJII and SJIII lifts available for rent, providing an SJII was “defective and unreasonably dangerous” action.
In order to prove its case the Sappington lawyers hired three experts, Ken Zimmer (an ex employee of MEC), Bryan Johnson and Dr Blundell.

Johnson conducted a test that attempted to replicate the accident with a current Skyjack SJIII2646. Johnson placed the SJIII on a seven inch high wooden platform, sloped at two degrees, he loaded the platform with 205 lbs (93kgs), raised it to its maximum height and drove it at maximum speed off the edge of the platform, the lift remained upright.

Blundell, an associate professor of mechanical engineering at the University of Missouri, with a PhD in mechanical engineering, reviewed the various depositions, accident scene photographs, OSHA investigation files and a report written by Johnson and Zimmer which included a Mayville Engineering Company (MEC), promotional video entitled “Pot Hole Protection Can You Live Without It?”

Blundell stated that the SJII was defective and unreasonably dangerous because it did not remain upright when its wheels dropped into the depression. He also claimed that the pothole protection would have prevented the unit from overturning.

He also stated that the SJIII could and should have replaced the SJII by 1995, and that the accident would not have occurred had Sappington been using an SJIII lift. He pointed out that at least three manufacturers, MEC, Snorkel, and Upright, had incorporated pot hole protection into their lifts by 1995.

He also identified internal Skyjack communications from August 1995 discussing the need to implement pothole protection.

In the original district court hearing Skyjack and RSC moved to exclude the testimony of both experts, and requested summary judgment, arguing that without expert testimony the plaintiffs could not prove that the SJII lift was defective and unreasonably dangerous.

The district court agreed that the experts' testimony was neither relevant nor reliable and excluded it as evidence. It further held that the plaintiffs could not prove their claims and granted summary judgment in favour of Skyjack and RSC.

The plaintiffs appeal to the federal court, argues that the district court abused its discretion when it excluded the expert testimony, and therefore the summary judgment that it handed down is inappropriate.

On Friday the federal court overturned the lower courts exclusion of the expert witnesses testimony on the basis that in Missouri, "the concept of 'unreasonable danger' is to be treated as an issue for the jury - Missouri courts have consistently refused to define what qualifies as ‘unreasonably dangerous’. As such it ruled that the Sappingtons were "entitled to assist the jury in defining the term 'unreasonably dangerous' by presenting expert evidence.

The federal court also said that there has been no evidence offered to suggest Sappington was using the SJII lift in a manner that could not be reasonably anticipated. This supported the plaintiff’s contention that Sappington was killed because the lift failed to remain upright when it encountered “a common workplace hazard.”

The court also said that while the tests carried our by Johnson were clearly flawed they might still have relevance to the plaintiffs case.
The Federal Court therefore reversed the order of the district court granting summary judgment and excluding the testimony of plaintiffs' experts. The case will now go back to the district court.

Vertikal Comment

This judgement by the federal court in itself says nothing about the speed with which manufacturers should adopt new safety items. It is principally directed at a point in law. The verdict did however discuss the detail of the plaintiff’s case and raises the profile of an issue which could have far reaching implications for manufacturers of any product.

If the district court was to rule for the plaintiffs it would send a message that even if a manufacturer diligently designs and builds its products to meet the national standards of the day (Ansi only required a pot hole test from 1999) it can be punished any time someone has an accident that could have been prevented by later technology.

In this case Sappington was clearly at fault, the operators manual for the machine and any training he would have received, stresses the fact that the ground conditions need to be checked before using the machine and that when the lift is being driven the operator needs to keep a close eye on the floor below.

If there is a guilty party here, it is clearly the contractor, Sappington’s employer, no mention has been made of whether Sappington received any training on the safe use of aerial lifts, if he had he would have been instructed on the importance of checking the ground for depressions or other obstacles.

If a hole had been dug in the concrete floor it should have been fenced off particularly if scissor lifts were operating in the area.
In the federal hearing MEC was cited as having adopted pot hole protection as early as 1987, however this was only on lifts that required stabiliser bars to meet ANSI stability standards in force at the time. Skyjack and other manufacturers met those standards without such stabilisers.

The SJIII is also not simply an SJII with pot hole protection, SkyJack took time to completely redesign the product so that it met all of the current and upcoming regulations, this included increasing its weight by around 300kgs.

We do not hear of car companies having their 12 year old cars declared as defective and unreasonably dangerous for not having airbags or brakes that are as good as their latest models. A head on crash is a common road hazard and airbags were technically and economically feasible 12 years ago. If you are killed in car crash can you make a claim against the manufacturer for not having fitted airbags 12 years ago?

Mr Sappington’s death was without questions a tragedy, one that could have been avoided with proper training and due care and attention on site. It can though hardly be blamed on a manufacturer which built a product that complied not only with all of the current and impending standards and regulations but one that was also well regarded and of a similar design to the majority of such lifts built at the time.

It is appalling that a case such as this, which based on the court papers has no merit, is allowed to proceed to court, particularly given that the defendants are unlikely to award any costs even if they are found to be totally innocent of any wrongdoing and win the case.