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Archived Webinars

All archived webinars are merely for educational and viewing purposes ONLY. NO CLE CREDIT will be given for watching the archived webinar.

Inside Material Handling Incidents with People in Retail, Warehouse, Distribution Centers and Manufacturing

TASA ID: 3188

On January 14, 2020, at 2:00 p.m. (ET), The TASA Group, in conjunction with retail store safety expert Bob Loderstedt, presented a free, one-hour, interactive webinar presentation, Inside Material Handling Incidents with People in Retail, Warehouse, Distribution Centers and Manufacturing, for all legal professionals. During this presentation, Bob discussed:

  • An approach: Inspect what they expect
  • Types of incidents in retail
  • Causes of material handling equipment hitting pedestrians
  • Where incidents occur and actual cases
  • Best practices

Disclaimer: Please remember that if you are applying for CLE credit you must attend for the full 60 minutes of the LIVE presentation, not the ONDemand version. If a participant is seeking credit in states we are not approved to issue credit and the participating party seeking credit incurs a fee to receive said credit, it is not the obligation of TASA to remit payment for such credit. It is the participant's obligation to remit payment to the state in which they would like to receive credit.

About the Expert:

Robert Loderstedt has more than 30 years of experience in retail safety and management and has been involved in assisting both plaintiff and defense attorneys as an expert in safety since 1996. His expertise is in liability cases in retail, warehousing, distribution centers and manufacturing. Bob has worked as a manufacturer of material handling equipment and was president of a full-service forklift dealership. He has provided written opinions in over 200 cases and supported attorneys in another 70 cases. Bob has testified at a regional OSHA hearing providing input on how operator safety training can be improved. Bob is also a veteran of the United States Marine Corps.

Transcription: 

Rochelle: Good afternoon and welcome to today's presentation, Inside Material Handling Incidents with People in Retail, Warehouse/Distribution Centers, and Manufacturing. The information presented by the expert is not to be used as legal advice and does not indicate a working relationship with the expert. All materials obtained from this presentation are merely for educational purposes and should not be used in a court of law, sans the expert's consent, i. e., a business relationship where she or he is hired for your particular case

In today's webinar, Bob will discuss an approach, inspect what they expect, types of incidents in retail, causes of material handling equipment hitting pedestrians, where incidents occur and actual cases and best practices. To give you a little background about our presenter, Robert Loderstedt has over 30 years of experience in retail safety and management, and has been involved in assisting both plaintiff and defense attorneys as an expert in safety since 1996. His expertise is in liability cases in retail, warehousing, distribution centers, and manufacturing.

Bob has worked as a manufacturer of material handling equipment and was president of a full-service forklift dealership. He has provided written opinions in over 200 cases and supported attorneys in another 70 cases. Bob has testified at a regional OSHA hearing providing input on how operator's daily training can be improved. Bob is also a veteran of the United States Marine Corps.

Attendees who require a password, the code for today is "Material." During the Q&A session, we ask that you enter this passcode into the Q&A widget for CLE reporting purposes. The Q&A is located to the left of your screen. Please remember that if you are applying for CLE credit, you must log on to the computer as yourself and stay for the full 60 minutes. You're also required to complete the survey at the end of the program. Please note that CLE credit cannot be given to those watching together on a single computer.

We will also be sending out an email with a link to the archive recording of the webinar. The slides can be downloaded from the resource list at the widget at the bottom of your screen. Please note that Bob will be answering all questions at the end of this presentation. Thank you all for attending today, and Bob, the presentation is now turned over to you.

Bob: Thank you, Rochelle. Good afternoon, everyone. Thank you for signing on and attending this webinar. I want to thank TASA and Rochelle and her team for getting this thing put together. And with that, we'll start the presentation. So typically when I give these webinars, there's going to  be one or two new things that you will learn. What you need to know about me is I'm an old guy, and that simply means I've been around a long time. I've done a lot, seen a lot, know a lot of people, and that at some point may help you if you have any questions or want to pick my brain on anything.

Also, most people I have found do not listen to understand, most people listen to reply. I'm hoping today, everyone's going to be listening to understand, and then fire away with your questions a little bit later on. And the last thing just happens to be a call from Clarence Darrow, relative to justice.

So our objective today is going to be...and if you're a defense attorney or a plaintiff's attorney, you're in the right place because this stuff's going to apply to both plaintiffs and defense attorneys. So what we're going to give you today is more intelligence. You get a lot of information, but you don't necessarily get the kind of intelligence you need to effectively improve your cases. So we're going to get you more intelligence, understanding about material handling incidents, both in retail, warehouse, distribution, and manufacturing. And the outcome will give you the ability to strengthen your case, your strategy, and the approach that you're going to take to ideally get a favorable outcome on your cases.

So I always like to say inspect what you expect and in that regard, what you want to do on your approach to these cases is you want to determine whether the management has established strategies and programs concerning safety practices to ensure the wellbeing of customers, employees, and don't forget vendors and deploy those policies and procedures and provide initial and ongoing training to managers and employees so that you get the consistency throughout time.

And then you want to make sure that they have implemented... Now, if you're a defense attorney, it's obviously your client. If it's a plaintiff attorney, it's what you want to find out whether or not the defense of the defendant has done these things. Implement the mechanisms to sustain safe environments. Are they doing proactive analysis by risk management people or folks at the store on the incident data to look for patterns? Supervision, do they have in place processes to ensure compliance with policies and procedures? Metrics, I don't find a lot of metrics for safety in these locations, but in any event, what metrics do they have to monitor the success of the programs they have? You also want to determine are there practices and procedures consistent with applicable industry standards, insurance safety standards, customs and practices of the industry. And then to what degree are they benchmarking and reviewing against those industry standards, best practices in management, operations, risk management and safety.

So let's talk about the types of incidents that occur in retail. And this presentation is in two parts. Part one will deal with retail and part two will deal with warehousing, distribution, manufacturing because they're two different animals and it's a couple of significant ways. So I wanted to break that out. So let's stick with the retail. And the types of incidents that occur are forklifts and pallet jacks traveling too fast. They turn too quickly and you've got merchandise that spills over and strikes a customer. You also have product that gets pushed through and falls from overhead racking.

If you've ever been into a Home Depot or Lowe's or a Meyer's or Menards or Restaurant Depot, you know that they have pieces of equipment, forklifts moving around the facility and they have to take certain actions to minimize liability...minimize any incidents to customers and employees and vendors. The other types of activities that you have here that cause injuries is forklifts in general, sit down counterbalances you'll sometimes see on the sales floor, standup electric forklift trucks. There's a piece of equipment called a WAV, it's a work assist vehicle that enables an employee to raise up to halfway up a gondola in a supermarket to put away product. You also have L carts. You'll see those a lot in Costco’s and Sam's Clubs and places like that. You'll also see them obviously in Home Depot and Lowe's. You have flat carts, two-wheeled hand trucks or dollies that are used to move products.

Target has three-sided carts. It's open on one side. They're steel carts and they're used to take product out to the floor during the morning. You have shop carts. Shopping carts that actually...and I'll talk about a case later where you have an overloaded shopping cart that creates an issue. You have the motorized carts that are used for folks that have disabilities to move around the store and navigate through the store. You also have U-boats, you have the produce tables, which are stainless steel with a bottom layer on it, a bottom shelf and then a top shelf that's used to carry product out. And then sometimes you have workers just carrying several boxes, but they have no clear line of sight and they wind up running into somebody.

Now, the causes of these things, typically in retail are the individuals have not been formally trained in operating that piece of equipment and they aren't necessarily complicated, but it's knowing the things you have to do to avoid hitting someone, like you've got to have a clear line of sight. Most of these incidences you'll find there's no clear line of sight. The load has been built too high and they wind up running into somebody. They're traveling too fast. There's a failure to stop at intersections. So they get to an end of an aisle and rather than stop, they just turn right around on that island and hit somebody.

A lot of this equipment does not have any audible sounding devices, but if they do have that in the case of a forklift or on electric pallet jack, there is a horn on those pieces of equipment and that horn needs to be used as you get into intersections. Failing to give pedestrians the right of way, a lot of times they think the pedestrian knows they're coming so the operator keeps moving, again, whether it's a two-wheeled dolly or whatever, and they don't stop to give the right of way to the pedestrians.

A number of times, you have folks that are going out on the floor. They're just not paying attention. They're looking around and they wind up running into somebody and clip them in the back of the leg or heel or something. You have equipment that's left unattended. A lot of times, you'll see these L carts in a Costco’s or a Sam's Club they'll have in a wide aisle, but it's sitting empty in the aisle. You'll also sometimes see a manual pallet jack sitting on the floor that's been left unattended. That's an accident waiting to happen.

No use of spotters when you're out in like a Lowe's or a Home Depot or a Restaurant Depot. They don't use spotters in some cases. The aisles are not closed off so that you're keeping people from going down that aisle and getting hurt by a push through and exiting the back room without stopping. That's kind of common with an electric or a manual pallet jack, where you see those types of things happening. Sometimes it's a U-boat, sometimes it's these produce carts also.

In the back room, you have vendors that are... This was an actual case. A vendor was coming out with a pallet, a vendor was coming in and he wound up knocking...the guy coming in wound up knocking the operator of the other pallet jack to the ground, and he was injured. So you've got to be real careful when these folks are coming in and out of the swinging doors into the back room.

A delivery driver, he was operating an electric pallet jack on a dock and back of a safe way and the congestion in that back room was such that he was forced back into another trailer on another dock board and his foot went between the trailer and the dock and the electric pallet jack that he had continued to ride up on him. And he got some pretty severe injuries.

You have a repair person, he was up elevated on a forklift truck in a Sports Authority, and he was not secured directly onto the forklift truck and fell to the ground and was hurt pretty badly. Sit down counterbalance truck, this was on an outside work location where an employee was sent to get lunch. He gets lunch, and then he starts walking back to the area where the work site was. His supervisor comes down with a sit down counterbalance; you see it on a video. He just starts coming over, over, over, over and wounds up hitting him in the back and knocking him to the ground and running over his foot. That was on video. And you just kind of watch that video and wonder why is the guy driving over directly toward his employee? He later testified, well, he went over there and he wanted to talk to him. Well, you don't drive your forklift that close to somebody to talk to them.

On the sales floor, falling merchandise from a manual pallet jack, that's making a turn too quickly and you've got an overloaded pallet jack, you've got merchandise falling from that. There's a lot of instances where you push the U-boat from behind and you strike someone in front of you. That's why you always have to be careful when you get involved with these cases, did they have a clear line of sight? And in many cases they don't have a clear line of sight, so they can't see what's going on yet they continue to push those U-boats.

A push through pallet, I had several cases where this has occurred, Restaurant Depot's somewhat notorious for that, where you get an operator putting away a load on a rack on one side, but pushes it far enough in or too far in that he pushes product off of that pallet on the other side, that falls to the ground and hits anybody that's walking there because they don't close off the aisles and there's no spotters.

Okay. So I had a case in Costco’s where there was a unattended flat cart. The individual didn't see it, tripped over it, and down they went, hit from behind by a hand truck. I had a case in Chicago where the guy had 12 cases of milk, 4 gallons to a case, backed up on a two-wheeled dolly, obviously could not see, claimed he saw through it, you can't see through those things, and clipped the woman in the back of the leg. She was a 28-year-old dentist. As a result of that injury, she couldn't stand for more than 15 minutes. So that case produced pretty high findings on the part of the jury for the dentist.

Another case where he had an electric standup forklift truck, where somebody was struck by that, by the fork, had an ankle injury. The three-sided tub carts we talked about, in Target, they had a customer squatting down at the end of an aisle looking at bath mats at the lowest level of shelving and this person pushing this tub cart, which did not have a clear line of sight, they did not stop. They turned and went and they knocked this woman over and she got some pretty severe injuries.

Struck by a shopping cart with... This guy had a power generator in a carriage, gets help from a Walmart employee to load it in the carriage, the Walmart employee leaves. And he decides he's going to go up and check out. So he's walking down this cross aisle, and doesn't see an individual coming out an intersecting aisle. And she gets struck. Struck by a pallet on an electric standup forklift truck, this was an individual where the operator did not yield the right of way to a pedestrian, extended the forks forward with a pallet and caused that individual to trip over the pallet. It was about two feet off the ground. And they were injured as a result of that.

Things that happen outside the store, you have flat carts that are left out there. This was a case where someone had a baby shower, a flatbed cart was left out by the cars to load the presents. While they were bringing down the presents, someone tripped over the empty flat cart and was injured pretty severely. So those are the kinds of things that happen in real world.

So where do you turn to bolster your case for your opponent? And there are a couple of places you go and a couple of things you need to do. You want to be looking at the company's documented philosophy, your values, strategies, tactics, and that's found in websites, you need copies of their policies and procedures, their safety manuals, and corporate governance sometimes can help you out. If you get involved with a large company you should be...if they're publicly traded, and then you can get a copy of their 10-K report. And sometimes you will find in 10-K a paragraph or two that references their policies on safety relative to customers, and that they say in those 10-Ks, they actually have these policies in place. And that's something that, again, you can use to force out copies of these policies and procedures.

From a regulatory standpoint, there's an ANSI standard, 1910.178, and that's a standard. It does say powered industrial trucks and mechanized hand trucks. And the second one is ANSI B56.1, which pretty much mirrors the OSHA standard. What you can use these for is they lay out in detail... They're the gold standard for the types of training that individuals are supposed to get to operate these power pieces of equipment, but the training that they get to operate those powered pieces of equipment are the same types of training that individuals should be getting if it's a hand truck, if it's a three-sided tub, if it's a U-boat. If it's any of those other things we've discussed, you can go in there and actually see the kind of things you're supposed to be doing, stopping at intersections, sounding their audible devices, minimizing speed, clear line of sight, pedestrians...yielding to pedestrians, giving them the right of way.

So there's actual documentation in there that you can reference to bolster your case as it relates to what the individual should have done, but did not do. And then you have insurers in the insurance industry, Liberty Mutual, CNA, Grocers Insurance group. They all publish in the case of retail things that retailers should be doing as it relates to material handling equipment and the types of things we discussed. So that's something you can also be looking at to obtain information for your case.

So now let's take a look at building your case, literally its interrogatories, its requests for production, it's depositions and it's admissions. And what you want to do is you want to get the safety manual from, if you're a plaintiff, from the defendant, that details within that safety manual, what training is provided to the employees who use the equipment, what specific training is given. You want a copy of that training, who's authorized to use the equipment, policies on when the equipment can be used on the sales floor? Does everything have to be off the floor by 8:00? Can you not have equipment on the floor at 11:00 p.m. when the store closes at midnight? Copies of past incident reports involving incidents with material handling equipment, if you can get three or four months of those pre-accident, it's amazing what you can find and start to lay out a pattern of other incidents that have occurred in the store. And you can use that to talk about the fact that they clearly, if they have policies, are not enforcing the policies because they had X number of incidents occur in this period of time you've done an evaluation on the incident reports.

The store's surveillance cameras. Ideally, try to get a couple of hours pre and a couple of hours post. A lot of times you're lucky to get... I just got a call on a video last night from a plaintiff attorney, you actually saw 28 seconds on the video, but it was enough to see what happened. So you want to try to get as much video as you can. And in that way, you can really see what goes on pre and post the incident.

Site visits and inspections. Those are just important to see the piece of equipment that was involved, see the area where it was involved in, and they can be helpful for you. Find out who provided the training on the equipment. Get a copy of the training manual so you can see that, the operators that were authorized to use that equipment and then training records of employees, including previous incidents and close calls that they had. And invariably what's going to happen, you're probably going to have to educate and compel production of a lot of this documentation you're looking for. So whether you're defense or plaintiff, you're going to have to educate the judge on what and why you need what you need, or what and why you don't have to provide what you don't want to provide. So does anybody have any questions real quick they want to ask on that retail part?

Rochelle: We don't have any questions so far, so you can just continue.

Bob: Okay. Thank you. Alright. So part two, this is going to get into the material handling in warehouse, distribution and manufacturing. And in this arena, it's a little different animal from retail. And the reason for that is many of attorneys, when you're being educated and getting your degrees, you don't get a lot of time spent on these material handling cases. So you wind up walking away with it's a design issue with the equipment or it's failure to warn. And in those cases, a lot of time attorneys will think about naming the manufacturer. Some of you will think about naming the dealer who sold the equipment.

The negligence, you want to think about naming a dealer who sold the equipment or the maintenance company that maintains the equipment and we'll talk more about that later, naming the manufacturer, you need to really think that through because they have deep pockets and it's really difficult to win a design case. I've been involved in this a number of years, and I don't really know of one case where they wound up having a call back stuff and...for a design issue. So you want to really think more about downstream, the downstream of commerce with the dealer who sold the equipment, because they do have some responsibilities and duties, which we'll talk about.

So types of equipment, you got the sit down counterbalance trucks. Many of you I'm sure are familiar with those. You have the standup electric forklift trucks. You have order pickers or selecting equipment where you are elevated on a platform, 20, 30, 40 feet up, and you're basically picking products off of pallets in the shelving and you're building a load. You have low lift transports, electric pallet jacks, sometimes manual pallet jacks. You have scissor lifts that can tip over. You have the manual pallet jacks I talked about. And then sometimes you have attachments such as work platforms or swing-reach trucks, side loaders, rug, ramps and clamps. So attachments, work platforms and specialized types of equipment like swing-reach trucks and side loaders also become involved in a lot of these incidents.

Now, the job function and what were people doing at the time of the incident? It could have been the operator of the equipment. It could have been a pedestrian working near the equipment. It could have been the pedestrian walking past or near the equipment, a worker being carried on the platform, or carried on the equipment I should say, not with a safe piece of equipment like the work platform, a worker elevated or being elevated on the equipment. And you'll see too much of operators being...not operators, but workers being elevated on a pallet that is being lifted on a forklift and they are grabbing the back rest, the load back rest and that's how they secure themselves, not what you want to do, not what you want to let employees do. And then you have accidents that will occur outdoors in the yard sometimes and things involving trailers and railroad cars.

Now, terms that are used to characterize the type of incidents. You get foot crushes. You get a lot of foot crushes. You get people falling from heights. You get pinned...they get pinned between a rack and the forklift. You can get an actual leg that ultimately gets amputated as a result of the severity of having been run over by a forklift truck. You have rollovers where you have someone operating a sit down counterbalance on an incline, and the truck rolls over, there's a tendency to try to jump off the seat. And that usually doesn't work because you've got an overhead guard and the overhead guard typically catches them across the body because they can't clear that space they need to clear when they jump off.

You have off the dock accidents where you have counterbalance trucks that actually get driven off the dock. That produces horrific injuries. And you can just imagine that thing going off the dock and how they're going to be bounced around between the front and the back of the counterbalance truck. You have underrides or what they call rack intrusion causes, and that causes traumatic asphyxiation. I've had a couple of cases like that. Operator compartment intrusion, and that's where there may be piping or something that penetrates...they're backing up, they don't see it. There's a piece of pipe that's hanging out of a rack further than it needs to be, and that intrudes into the compartment and hits them in the leg. You have carbon monoxide poisoning occurring in a small facility. Improper welds in the maintenance operation and then improper or incorrect attachments.

So those things typically are the terms used for these incidents or accidents. Here's again, for your benefit, actual cases, and what's happened in these incidents. This was a trip and fall on a set of forks that were raised about six inches off the ground. They were parked near a walkway and there were no warning cones and the forks should have been lowered all the way to the ground. And that resulted in the individual tripping and getting injured.

There was a worker that was struck from behind. I actually told you about this case, by a supervisor driving the forklift as he was moving to a new work area. That was a first. I've never seen a second one of those. The over the road driver, I mentioned. He was actually...his hand, he was adjusting the dunnage on a load of sheet rock and the operator dropped the load, the dunnage tilted, and it collapsed on his hand and he lost a couple of fingers.

Forklift, this forklift was never equipped with a backup alarm, strobe lights. And when that operator was backing up the forklift in the warehouse, he struck an employee and created some pretty severe injuries. The over the road the driver had a split run over in a loading dock area by a forklift operator as he was counting pallets, empty pallet jacks. And this again, was a case where that operator was not paying attention and he basically ran into the individual. So now you have a worker was working in the warehouse changing a light, pretty high up on a ceiling, 25 feet up. He was not in a secured work platform, wasn't securely attached and he fell 25 feet to the floor. That was in a Sports Authority.

A worker was loading a sofa on his order picker that's specially designed to enable you to pick furniture from high levels. He was not secured with a full body harness and he fell off and he hit the ground at 18 feet. There was a box truck that was being loaded and the individual ran off the dock when the truck started to roll forward. So you've gotta make sure that these vehicles are stopped and, you know, the trailers are secured up against the loading dock so you don't get the rolling forward.

And then in the warehouse on a late shift, that rack intrusion I told you about, the individual wound up backing underneath the rack and had traumatic asphyxiation. The other thing, I had a couple of cases where you have these employment agencies that will hire workers to work for manufacturers or warehouses or distribution, and they work for those folks and they're not on the payroll of the company that they're working at. I had a situation where an individual had not been trained to operate an electric pallet jack, had a low to high and wound up running into a operator of a forklift truck who was stepping off his forklift and he wound up getting some pretty severe injuries.

So these are some of the major companies that manufacture these pieces of equipment. They go through either independent dealers. Many of them have their own distribution channels with dealers. When I worked at The Raymond Corporation, we had 42 dealers around the country. And that becomes important if you are going to wind up naming a dealer in the case. So a lot of times, you want to think about what the dealer's responsibility was and is it worthwhile bringing or naming that dealer as a defendant in the case.

So the kind of typical arguments that you get back is that the company, they know what their applications are, they know what their needs are, you know, the company that they know what they want, their contract indemnifies them. They're a big company. They have experts. You know, we're not at the [inaudible 00:32:45] every day, how are we going to know what goes on? We told them, or gave them a brochure about operator training or optional equipment. You know, we just fill orders. They call us, they give us an order for a forklift equipped the same way. They got the last one three years ago. We would just fill it out, get it manufactured and sell it to them.

OSHA requires that the employer ensures that a powered industrial forklift operator has been trained to operate these trucks and they've successfully demonstrated they've had the training and they've been certified. And then you'll also hear it was the operator's error that caused the accident. So just some things that you'll run into.

As a plaintiff's attorney or in support of an attorney retained by a plaintiff, you use the industry best practices, defendant's policies or stated duties, the failure to ensure consistent and sustainable implementation of those standards and practices, policies, and duties to prove your case. And then MHEDA, the Material Handling Equipment Distributors Association, has a number of different articles that have been written over the years by individuals who are members of MHEDA. When I had my dealership, we were a member of MHEDA. And they put out some good information about safe things that you need to do. This just happens to be a little bit of an understanding of what they're dedicated to doing, and they just want to really make things safer and get the dealers more proficient.

So best practices, as a solution provider... This is the dealer now, you need to make sure, if you're on the defense side, you need to make sure that you understand what that sales rep did. Did they offer and initiate an offer to do a walk-through of the customer's facility? As a result of that walk through, did they identify any primaries that can cause injury to employees, areas to lessen product loss, ways to keep productivity up and how in general, just to keep people safer in that operation.

Also, when the dealership performed service work, the technician should be doing...should use the same or similar checklists to document missing safety devices and identify and document conditions that could compromise the safe operation of the equipment. So here again, it's a meld of using your technicians with your sales reps to ensure the equipment that you're spacing out is going to operate safely, is going to be productive and will not in fact lead to any injuries.

Then they may talk about an accountability factor, and the dealership, ultimately the responsibility for the business operation is the owner, but employees should be also held responsible for documenting safety inspections and communicating safety information to customers. And then dealerships that adhere to these established procedures that we talked about typically gets favorably viewed by their manufacturers and insurance companies.

Now, one of the things that happens a lot is that the trucks do not...because customers want to spend the least amount of money, they don't necessarily have or want backup alarms, strobe lights, or mirrors on the equipment. And this came from an article that was written in the MHEDA magazine. And it basically talks about 10 things a dealer can do. So if we have any plaintiff's attorneys out there, this you should be going over with your...or making sure your dealer, your client is doing these things.

They need to make sure they understand the regulations and standards for forklifts, what information can they...they have to get for an application for lights, alarms, and mirrors. You have to learn the OEMs', original equipment manufacturers' policies on accessories, train salespeople on the proper way to sell accessories, use the OEM materials to educate the customer about the availability, document the transfer of such information, that the customer, you gave them a proposal for operator forklift safety training, and then document, if they decline or accept the accessories, get back to them with a letter saying, yes, you agreed to have us do it, we're confirming we're going to do it, or you said you didn't want it, I'm just confirming that you don't want us to provide the operator forklift safety training. So that keeps you out of hot water if they proceed to do something on their own, and it results in injuries and problems.

Offer accessories on rental or used equipment. A lot of times these equipment that's involved with accidents is rental equipment from the dealership. And you want to make sure that you offer accessories on these rentals or used pieces of equipment you're buying. Don't refer to optional equipment as safety equipment and materials that you share with the clients, advertise the availability on your website, and encourage customers to work with safety experts if you're a little unclear on what they may or may not need.

Now, here's examples of questions that need to be answered by the dealer who sold and serviced the equipment. The information that the salespeople use to develop specifications on the equipment, including any optional equipment, you want to make sure you get that. What was the source of that information? Did the sales rep visit the site, take measurements, observe the forklift unit to be used in the environment in which it's used? Ensure the equipment recommended will perform the tasks they need. And a lot of times what you want to do, you have second and third shift operations, especially when you've got cross dock operations.

So I recall a number of times when I had dealership, I would, in addition to going out on the first shift, I'd go out on the second shift or the third shift because that's when you see things that sometimes you would not necessarily see on the first shift. So you want to ask your defense attorney, do you have your guys go out on that second shift to observe what kind of congestion there is, or what might need to be additional training of the operators. Did the salesperson, as we said, visit the site, ensure the equipment recommended was going to be used in the way that it was designed to be used? Did the salesperson inform the customer safety features that were available and recommend whatever they felt was required based on their experience and training?

The formal written operator forklift safety training program, was that recommended? And if it was rejected, communicate back to the customer, okay, you said you didn't want it. Get the names of the trained operators of the equipment that are retained in the file, so you know who the operator or operators were of equipment. Did the environment or physical plant change after delivery, therefore modifying the specs, that's where you have this traumatic asphyxiation occurring.

You initially will obtain measurements that say that the load beam, first level of load beam is at 52 inches or 62 inches. Every forklift goes up to a certain height, such that if that operator would have backed up and that first load beam is at again, 62 inches or 52 inches, whatever it is, it's going to strike the back of the forklift and they're not going to have an underride. But what sometimes happens is that warehouse or distribution center gets a new type of product in that they're storing and they have to raise that first level load beam up to maybe 78 inches. So now you have a condition where when that forklift operator puts a pallet away in the opposite pallet and then starts to back up, they wind up getting caught underneath that pallet rack, because it's not stopping. It didn't stop them from doing that underride. So the change in heights of those first load beams is important to periodically double check when your sales rep goes out.

We talked about any changes to the operation. Maintenance programs that were recommended and what were they recommended to do and where you're doing those kinds of things because a lot of times, you can find things that need to be corrected; the customer may not want to do it. So when that happens, you want to make sure that you either complete those, or if they don't want it, you document the fact that you suggested they have this work done and they chose not to do it.

You also want an opportunity if you know some type of a failure to perform a repair was done, get copies of the repair tickets on that truck that go back a period of time and have someone do an evaluation on those repair tickets to see if they somehow might've created the incident or the cause of the incident. The dealership or manufacturer internal accident reports, what do they say about the accident? So you want to get anything at the factory and you want to get anything from the customer. These are examples of questions that you need to be answered by the dealer, who sold it. Service mechanic who worked on the forklift involved in the accident, was he certified, or she certified to work on that particular type of forklift?

Sometimes you'll find that these mechanics, technicians are not trained at the factory to work on a particular piece of equipment. That creates a potential problem. So you always want to start that information out depending on if you've named the dealer in a case. When a dealership, they observe an unsafe act at the facility, who are they communicating that back to? Are they writing that on the mechanics tickets, giving it to the customers and talking to the customer? Are they then getting that back to the sales rep at the dealership to go out, to meet with the customer and talk with them about how they can alleviate that situation with some, let's say safety equipment, for lack of a better word.

And then how the dealership sold that equipment to ensure that it was...it had the safety features, they're working, warning lamps...warning labels are legible. That's an OSHA fine. If OSHA comes in and those warning labels on the forklifts are covered up or ripped off, that's a finable item so you want to make sure that the dealer is also looking at that and making those corrections. And pretty much it at this point.

So here's examples of questions that if you want to call me and talk about a case, what we want to do is talk about... I'm sorry; I'm ahead of myself here. You want to also get questions that need to be answered by the dealer who sold it. The service mechanics who worked on it, were they trained and certified to work on that equipment? The dealership, field observations, unsafe acts if they see it, who they're reporting it to and how does a dealership that sold it ensure that stuff was working safely?

Okay. We're getting near the end here. If there's a situation you have with a case where you want to talk to me, as you'll see at the end, my phone number, you certainly can give me a call to talk about any cases you have to see whether or not I think you have a case or how I might help you with a case. But if you do decide you'd like to work with me, you need to go back to TASA because they drive that process. But these are some of the things that we'll want to talk about and that's the applicability of a couple of uniform commercial codes that are out there. The one is fitness for use. The other is labeling or warnings. And the other one is buyers relying on the seller's expertise.

I have a theory that I've tested with a few attorneys and they say it makes sense, but it's a lot of time and a lot of effort, but it's a way to bring a manufacturer potentially into the case by basically pushing back on these UCC codes at the manufacturer's level and saying, what are you doing to ensure your dealers when they're selling this equipment are ensuring it's fit for use, you have appropriate warnings, you know, safety equipment on the truck or warning labels, and that the buyer is relying on your seller's expertise. And then we'll talk about customer and safety business practices. The two standards I talked about, OSHA and ANSI B56.1, relationships and information flow between manufacturers and their distributors and their dealers.

And lastly, if you take one thing back for use, remember nothing's impossible for the person who doesn't have to do it themselves. And that simply says when it's Friday at 4:00 and you've got to get some work done and you bring your paralegal in and say, "Hey, I need to get this work done. I need you to work the whole weekend to get all this stuff done," they may say, "Okay, I'll do it." And then Monday, when you come in and they have everything on your desk and you haven't read it for a couple of hours, and then they finally come in and say, "What'd you think of that work?" And you say, "I don't know, I didn't read it yet," don't wonder why they're not going to want to do anything and you might have poor morale. So it's just a way to think about when you need something done by somebody, nothing is impossible to the person who doesn't have to do it themselves. So just consider that before you have somebody work crazy hours.

If you're working with outside support for your case, retain them before your rogs go out, not 30 days after the discovery end date. Consult with the retail expert to help prepare. One of the things that I do is I provide supplemental requests for production of documents, always to supplement your initial requests for production. I'll provide questions for depositions to supplement the questions that you'll develop and requests for admissions. So these are just something for you to think about when you retain an expert, do they do that type of stuff?

There's my number, if you want to write that down. If you have anything you want to call and talk to me about, feel free to pick up the phone and call me, and I'll be more than happy to chat with you. No cost to you. And if I think you've got a case, I'll tell you that. If I don't think you have a case, I'll tell you that. And if I think there's somebody better to help you, I'll tell you that. So, questions?

Rochelle: Thanks, Bob. If all the attendees can enter in the passcode for today, which is "Material" and any questions that you may have. Our first question for today is so far only mentioned acts by personal. What about setting up using displays, i.e., wire holders, holding hanging products, you know, things like that? So they have a question regarding displays.

Bob: Well that gets...that...I think of that...I have another presentation that I think I'm giving in April, that's inside retail store safety, where I get into the issues of slips, trips and falls, displays which become tripping hazards if it's built on a pallet and it fell down to under three feet, that becomes a tripping hazard. So there, if you're working with the store, they need to get that replenished. So they need to get that pallet off the floor. You're right about some of the hooks that are out there in places like Kohl's and what have you and clothing that's on the ground or broken hangers that are on the ground. So those are things that I can talk with you about offline. I don't know, did that answer your question? I mean, they are hazards and you have to be aware of them. I just didn't feel they fell under the material handling. I felt they fell under more of premise liability type stuff.

Rochelle: Next question. This is regarding a client who was injured while using a motorized handicapped shopping cart at Costco. I guess he wants some information about that, regarding that incident.

Bob: Yeah. I've had a couple of cases...

Bob: I'm sorry, what was the last... I think I interrupted you. What was the last part?

Rochelle: Sorry, I can send that to you. I can send that over to you to answer in an email.

Bob: Okay. That's fine. I can do that. I've had a couple of cases involving those.

Rochelle: Sure. Next question. How and when should OSHA be brought into the case?

Bob: Well, OSHA comes into cases where there are severe injuries. It's difficult to get them to come in because they have fewer and fewer people. So OSHA will typically be brought in if it's a real severe injury or death, they'll get called in. But it's just difficult to get them in. That's all I can tell you. I've done a lot of cases of which...who got OSHA pulled in and they got pulled in by the...I think by the insurance company, if I'm not mistaken.

Rochelle: Next question, what are your thoughts on saying that it is better not to have a written safety policy than to have one and not follow it?

Bob: Well, my personal opinion is you're going to be in deep trouble because you leave yourself open to, you don't do anything, you know. And you do have a duty, don't forget. In the jury charges, a judge is going to tell the jurors that the defendant has a duty to exercise reasonable care to keep the store safe and they have a duty to exercise reasonable care to keep the aisles safe. So if you have no safety policy, I don't know what you can use for a defense. I think you're almost better off having a policy and making sure you implement the policy. And in that way, you should be minimizing the injuries and you get the benefit of not having injuries to employees or injuries to vendors, or injuries to customers. I think your insurance company looks favorably on that, especially if you're executing those things uniformly and consistently. I think that's dangerous

Rochelle: Next question. I'm surprised that dealers' activities play such a role. In essence, the dealer is made to rise to the level of licensed professional. Is it almost as if the dealer must return and rectify when conditions change like different pallet supports, different pallets and changing low pallet weights? What about waivers or a hold harmless agreement signed by the customers of the dealers?

Bob: Well, I mean, I had a dealership, so I know of what you speak. But I always felt that we would go out there...after a sale, we went out there to make sure that everything that we said was going to happen was going to happen. The operator had training, etc., etc. And then it made sense to us to periodically go back out and visit that customer because there will be either change in the operation or there will be new requirements maybe that they have, something might have changed. And that's a good opportunity to get out there and spend time with your contact and ideally work your way up to the highest level in the company so that they can understand how you can help them operate more safely.

You know, I don't know that you can necessarily be held accountable to the changing of the height of that load beam, but you need to be aware of that. So when your rep goes out, it's something he can do to demonstrate that he's trying to ensure you're operating the safest operation you can have. So if he knows the back of that forklift truck is 59 inches and you've got something that's above that, he can bring that to the customer's attention and document that to the customer. And now what you've done is you've become more of an ally with them and they see that there's more value added than just selling a piece of iron to them in the form of a forklift truck. I think that kind of gets to how you do your business, which I don't want to tell you what to do, but I'm giving you my thoughts on that.

Rochelle: Thanks, Bob. That is all the questions that we have for today. If you could just give some final thoughts before we close out today?

Bob: Well, I guess final thoughts would be hopefully you've taken a few things away from this. If you get involved in any of these types of cases, you know, feel free to call me. I think what you want to try to do is anything you can do to prevent these types of hazards from occurring, because many of these injuries are horrific. So you want to do what you can do to educate your customers. Every time I say this to defense attorneys, they tell me I'm crazy, but if you're handling a Kohl's, anything you can do to pass on safety things that they could do to make the store safer would certainly be to their benefit and it would hopefully eliminate someone getting hurt in that Kohl's on that particular hazard. So I know that's a tough ask because it's how you make your business, but it's really about making these stores as safe as we can make them. And when you do get involved in a case, hopefully you've picked up a few things from what I talked about in the presentation that you can use to strengthen your case or most of your case for your opponent. And if you have any questions or there's anything you want to chat about, just pick up the phone and call me. You can get me 24/7.

Rochelle: Thanks Bob. Please remember that if you are applying for CLE credit, you must have attended for the full presentation. You're also required to complete the survey at the end of the program. I want to take this opportunity to thank everyone for attending and most especially Bob Loderstedt for the time and effort in creating this presentation. If you would like to speak with Bob, or if you would like to speak with a TASA representative regarding an expert witness, please contact TASA at 1800-523-2319. One of my colleagues will be following up with you regarding your feedback on today's presentation. Again, thank you all for attending. Have a great day.

 

Rochelle: Good afternoon and welcome to today's presentation, Inside Material Handling Incidents with People in Retail, Warehouse/Distribution Centers, and Manufacturing. The information presented by the expert is not to be used as legal advice and does not indicate a working relationship with the expert. All materials obtained from this presentation are merely for educational purposes and should not be used in a court of law, sans the expert's consent, i. e., a business relationship where she or he is hired for your particular case

In today's webinar, Bob will discuss an approach, inspect what they expect, types of incidents in retail, causes of material handling equipment hitting pedestrians, where incidents occur and actual cases and best practices. To give you a little background about our presenter, Robert Loderstedt has over 30 years of experience in retail safety and management, and has been involved in assisting both plaintiff and defense attorneys as an expert in safety since 1996. His expertise is in liability cases in retail, warehousing, distribution centers, and manufacturing.

Bob has worked as a manufacturer of material handling equipment and was president of a full-service forklift dealership. He has provided written opinions in over 200 cases and supported attorneys in another 70 cases. Bob has testified at a regional OSHA hearing providing input on how operator's daily training can be improved. Bob is also a veteran of the United States Marine Corps.

Attendees who require a password, the code for today is "Material." During the Q&A session, we ask that you enter this passcode into the Q&A widget for CLE reporting purposes. The Q&A is located to the left of your screen. Please remember that if you are applying for CLE credit, you must log on to the computer as yourself and stay for the full 60 minutes. You're also required to complete the survey at the end of the program. Please note that CLE credit cannot be given to those watching together on a single computer.

We will also be sending out an email with a link to the archive recording of the webinar. The slides can be downloaded from the resource list at the widget at the bottom of your screen. Please note that Bob will be answering all questions at the end of this presentation. Thank you all for attending today, and Bob, the presentation is now turned over to you.

Bob: Thank you, Rochelle. Good afternoon, everyone. Thank you for signing on and attending this webinar. I want to thank TASA and Rochelle and her team for getting this thing put together. And with that, we'll start the presentation. So typically when I give these webinars, there's going to  be one or two new things that you will learn. What you need to know about me is I'm an old guy, and that simply means I've been around a long time. I've done a lot, seen a lot, know a lot of people, and that at some point may help you if you have any questions or want to pick my brain on anything.

Also, most people I have found do not listen to understand, most people listen to reply. I'm hoping today, everyone's going to be listening to understand, and then fire away with your questions a little bit later on. And the last thing just happens to be a call from Clarence Darrow, relative to justice.

So our objective today is going to be...and if you're a defense attorney or a plaintiff's attorney, you're in the right place because this stuff's going to apply to both plaintiffs and defense attorneys. So what we're going to give you today is more intelligence. You get a lot of information, but you don't necessarily get the kind of intelligence you need to effectively improve your cases. So we're going to get you more intelligence, understanding about material handling incidents, both in retail, warehouse, distribution, and manufacturing. And the outcome will give you the ability to strengthen your case, your strategy, and the approach that you're going to take to ideally get a favorable outcome on your cases.

So I always like to say inspect what you expect and in that regard, what you want to do on your approach to these cases is you want to determine whether the management has established strategies and programs concerning safety practices to ensure the wellbeing of customers, employees, and don't forget vendors and deploy those policies and procedures and provide initial and ongoing training to managers and employees so that you get the consistency throughout time.

And then you want to make sure that they have implemented... Now, if you're a defense attorney, it's obviously your client. If it's a plaintiff attorney, it's what you want to find out whether or not the defense of the defendant has done these things. Implement the mechanisms to sustain safe environments. Are they doing proactive analysis by risk management people or folks at the store on the incident data to look for patterns? Supervision, do they have in place processes to ensure compliance with policies and procedures? Metrics, I don't find a lot of metrics for safety in these locations, but in any event, what metrics do they have to monitor the success of the programs they have? You also want to determine are there practices and procedures consistent with applicable industry standards, insurance safety standards, customs and practices of the industry. And then to what degree are they benchmarking and reviewing against those industry standards, best practices in management, operations, risk management and safety.

So let's talk about the types of incidents that occur in retail. And this presentation is in two parts. Part one will deal with retail and part two will deal with warehousing, distribution, manufacturing because they're two different animals and it's a couple of significant ways. So I wanted to break that out. So let's stick with the retail. And the types of incidents that occur are forklifts and pallet jacks traveling too fast. They turn too quickly and you've got merchandise that spills over and strikes a customer. You also have product that gets pushed through and falls from overhead racking.

If you've ever been into a Home Depot or Lowe's or a Meyer's or Menards or Restaurant Depot, you know that they have pieces of equipment, forklifts moving around the facility and they have to take certain actions to minimize liability...minimize any incidents to customers and employees and vendors. The other types of activities that you have here that cause injuries is forklifts in general, sit down counterbalances you'll sometimes see on the sales floor, standup electric forklift trucks. There's a piece of equipment called a WAV, it's a work assist vehicle that enables an employee to raise up to halfway up a gondola in a supermarket to put away product. You also have L carts. You'll see those a lot in Costco’s and Sam's Clubs and places like that. You'll also see them obviously in Home Depot and Lowe's. You have flat carts, two-wheeled hand trucks or dollies that are used to move products.

Target has three-sided carts. It's open on one side. They're steel carts and they're used to take product out to the floor during the morning. You have shop carts. Shopping carts that actually...and I'll talk about a case later where you have an overloaded shopping cart that creates an issue. You have the motorized carts that are used for folks that have disabilities to move around the store and navigate through the store. You also have U-boats, you have the produce tables, which are stainless steel with a bottom layer on it, a bottom shelf and then a top shelf that's used to carry product out. And then sometimes you have workers just carrying several boxes, but they have no clear line of sight and they wind up running into somebody.

Now, the causes of these things, typically in retail are the individuals have not been formally trained in operating that piece of equipment and they aren't necessarily complicated, but it's knowing the things you have to do to avoid hitting someone, like you've got to have a clear line of sight. Most of these incidences you'll find there's no clear line of sight. The load has been built too high and they wind up running into somebody. They're traveling too fast. There's a failure to stop at intersections. So they get to an end of an aisle and rather than stop, they just turn right around on that island and hit somebody.

A lot of this equipment does not have any audible sounding devices, but if they do have that in the case of a forklift or on electric pallet jack, there is a horn on those pieces of equipment and that horn needs to be used as you get into intersections. Failing to give pedestrians the right of way, a lot of times they think the pedestrian knows they're coming so the operator keeps moving, again, whether it's a two-wheeled dolly or whatever, and they don't stop to give the right of way to the pedestrians.

A number of times, you have folks that are going out on the floor. They're just not paying attention. They're looking around and they wind up running into somebody and clip them in the back of the leg or heel or something. You have equipment that's left unattended. A lot of times, you'll see these L carts in a Costco’s or a Sam's Club they'll have in a wide aisle, but it's sitting empty in the aisle. You'll also sometimes see a manual pallet jack sitting on the floor that's been left unattended. That's an accident waiting to happen.

No use of spotters when you're out in like a Lowe's or a Home Depot or a Restaurant Depot. They don't use spotters in some cases. The aisles are not closed off so that you're keeping people from going down that aisle and getting hurt by a push through and exiting the back room without stopping. That's kind of common with an electric or a manual pallet jack, where you see those types of things happening. Sometimes it's a U-boat, sometimes it's these produce carts also.

In the back room, you have vendors that are... This was an actual case. A vendor was coming out with a pallet, a vendor was coming in and he wound up knocking...the guy coming in wound up knocking the operator of the other pallet jack to the ground, and he was injured. So you've got to be real careful when these folks are coming in and out of the swinging doors into the back room.

A delivery driver, he was operating an electric pallet jack on a dock and back of a safe way and the congestion in that back room was such that he was forced back into another trailer on another dock board and his foot went between the trailer and the dock and the electric pallet jack that he had continued to ride up on him. And he got some pretty severe injuries.

You have a repair person, he was up elevated on a forklift truck in a Sports Authority, and he was not secured directly onto the forklift truck and fell to the ground and was hurt pretty badly. Sit down counterbalance truck, this was on an outside work location where an employee was sent to get lunch. He gets lunch, and then he starts walking back to the area where the work site was. His supervisor comes down with a sit down counterbalance; you see it on a video. He just starts coming over, over, over, over and wounds up hitting him in the back and knocking him to the ground and running over his foot. That was on video. And you just kind of watch that video and wonder why is the guy driving over directly toward his employee? He later testified, well, he went over there and he wanted to talk to him. Well, you don't drive your forklift that close to somebody to talk to them.

On the sales floor, falling merchandise from a manual pallet jack, that's making a turn too quickly and you've got an overloaded pallet jack, you've got merchandise falling from that. There's a lot of instances where you push the U-boat from behind and you strike someone in front of you. That's why you always have to be careful when you get involved with these cases, did they have a clear line of sight? And in many cases they don't have a clear line of sight, so they can't see what's going on yet they continue to push those U-boats.

A push through pallet, I had several cases where this has occurred, Restaurant Depot's somewhat notorious for that, where you get an operator putting away a load on a rack on one side, but pushes it far enough in or too far in that he pushes product off of that pallet on the other side, that falls to the ground and hits anybody that's walking there because they don't close off the aisles and there's no spotters.

Okay. So I had a case in Costco’s where there was a unattended flat cart. The individual didn't see it, tripped over it, and down they went, hit from behind by a hand truck. I had a case in Chicago where the guy had 12 cases of milk, 4 gallons to a case, backed up on a two-wheeled dolly, obviously could not see, claimed he saw through it, you can't see through those things, and clipped the woman in the back of the leg. She was a 28-year-old dentist. As a result of that injury, she couldn't stand for more than 15 minutes. So that case produced pretty high findings on the part of the jury for the dentist.

Another case where he had an electric standup forklift truck, where somebody was struck by that, by the fork, had an ankle injury. The three-sided tub carts we talked about, in Target, they had a customer squatting down at the end of an aisle looking at bath mats at the lowest level of shelving and this person pushing this tub cart, which did not have a clear line of sight, they did not stop. They turned and went and they knocked this woman over and she got some pretty severe injuries.

Struck by a shopping cart with... This guy had a power generator in a carriage, gets help from a Walmart employee to load it in the carriage, the Walmart employee leaves. And he decides he's going to go up and check out. So he's walking down this cross aisle, and doesn't see an individual coming out an intersecting aisle. And she gets struck. Struck by a pallet on an electric standup forklift truck, this was an individual where the operator did not yield the right of way to a pedestrian, extended the forks forward with a pallet and caused that individual to trip over the pallet. It was about two feet off the ground. And they were injured as a result of that.

Things that happen outside the store, you have flat carts that are left out there. This was a case where someone had a baby shower, a flatbed cart was left out by the cars to load the presents. While they were bringing down the presents, someone tripped over the empty flat cart and was injured pretty severely. So those are the kinds of things that happen in real world.

So where do you turn to bolster your case for your opponent? And there are a couple of places you go and a couple of things you need to do. You want to be looking at the company's documented philosophy, your values, strategies, tactics, and that's found in websites, you need copies of their policies and procedures, their safety manuals, and corporate governance sometimes can help you out. If you get involved with a large company you should be...if they're publicly traded, and then you can get a copy of their 10-K report. And sometimes you will find in 10-K a paragraph or two that references their policies on safety relative to customers, and that they say in those 10-Ks, they actually have these policies in place. And that's something that, again, you can use to force out copies of these policies and procedures.

From a regulatory standpoint, there's an ANSI standard, 1910.178, and that's a standard. It does say powered industrial trucks and mechanized hand trucks. And the second one is ANSI B56.1, which pretty much mirrors the OSHA standard. What you can use these for is they lay out in detail... They're the gold standard for the types of training that individuals are supposed to get to operate these power pieces of equipment, but the training that they get to operate those powered pieces of equipment are the same types of training that individuals should be getting if it's a hand truck, if it's a three-sided tub, if it's a U-boat. If it's any of those other things we've discussed, you can go in there and actually see the kind of things you're supposed to be doing, stopping at intersections, sounding their audible devices, minimizing speed, clear line of sight, pedestrians...yielding to pedestrians, giving them the right of way.

So there's actual documentation in there that you can reference to bolster your case as it relates to what the individual should have done, but did not do. And then you have insurers in the insurance industry, Liberty Mutual, CNA, Grocers Insurance group. They all publish in the case of retail things that retailers should be doing as it relates to material handling equipment and the types of things we discussed. So that's something you can also be looking at to obtain information for your case.

So now let's take a look at building your case, literally its interrogatories, its requests for production, it's depositions and it's admissions. And what you want to do is you want to get the safety manual from, if you're a plaintiff, from the defendant, that details within that safety manual, what training is provided to the employees who use the equipment, what specific training is given. You want a copy of that training, who's authorized to use the equipment, policies on when the equipment can be used on the sales floor? Does everything have to be off the floor by 8:00? Can you not have equipment on the floor at 11:00 p.m. when the store closes at midnight? Copies of past incident reports involving incidents with material handling equipment, if you can get three or four months of those pre-accident, it's amazing what you can find and start to lay out a pattern of other incidents that have occurred in the store. And you can use that to talk about the fact that they clearly, if they have policies, are not enforcing the policies because they had X number of incidents occur in this period of time you've done an evaluation on the incident reports.

The store's surveillance cameras. Ideally, try to get a couple of hours pre and a couple of hours post. A lot of times you're lucky to get... I just got a call on a video last night from a plaintiff attorney, you actually saw 28 seconds on the video, but it was enough to see what happened. So you want to try to get as much video as you can. And in that way, you can really see what goes on pre and post the incident.

Site visits and inspections. Those are just important to see the piece of equipment that was involved, see the area where it was involved in, and they can be helpful for you. Find out who provided the training on the equipment. Get a copy of the training manual so you can see that, the operators that were authorized to use that equipment and then training records of employees, including previous incidents and close calls that they had. And invariably what's going to happen, you're probably going to have to educate and compel production of a lot of this documentation you're looking for. So whether you're defense or plaintiff, you're going to have to educate the judge on what and why you need what you need, or what and why you don't have to provide what you don't want to provide. So does anybody have any questions real quick they want to ask on that retail part?

Rochelle: We don't have any questions so far, so you can just continue.

Bob: Okay. Thank you. Alright. So part two, this is going to get into the material handling in warehouse, distribution and manufacturing. And in this arena, it's a little different animal from retail. And the reason for that is many of attorneys, when you're being educated and getting your degrees, you don't get a lot of time spent on these material handling cases. So you wind up walking away with it's a design issue with the equipment or it's failure to warn. And in those cases, a lot of time attorneys will think about naming the manufacturer. Some of you will think about naming the dealer who sold the equipment.

The negligence, you want to think about naming a dealer who sold the equipment or the maintenance company that maintains the equipment and we'll talk more about that later, naming the manufacturer, you need to really think that through because they have deep pockets and it's really difficult to win a design case. I've been involved in this a number of years, and I don't really know of one case where they wound up having a call back stuff and...for a design issue. So you want to really think more about downstream, the downstream of commerce with the dealer who sold the equipment, because they do have some responsibilities and duties, which we'll talk about.

So types of equipment, you got the sit down counterbalance trucks. Many of you I'm sure are familiar with those. You have the standup electric forklift trucks. You have order pickers or selecting equipment where you are elevated on a platform, 20, 30, 40 feet up, and you're basically picking products off of pallets in the shelving and you're building a load. You have low lift transports, electric pallet jacks, sometimes manual pallet jacks. You have scissor lifts that can tip over. You have the manual pallet jacks I talked about. And then sometimes you have attachments such as work platforms or swing-reach trucks, side loaders, rug, ramps and clamps. So attachments, work platforms and specialized types of equipment like swing-reach trucks and side loaders also become involved in a lot of these incidents.

Now, the job function and what were people doing at the time of the incident? It could have been the operator of the equipment. It could have been a pedestrian working near the equipment. It could have been the pedestrian walking past or near the equipment, a worker being carried on the platform, or carried on the equipment I should say, not with a safe piece of equipment like the work platform, a worker elevated or being elevated on the equipment. And you'll see too much of operators being...not operators, but workers being elevated on a pallet that is being lifted on a forklift and they are grabbing the back rest, the load back rest and that's how they secure themselves, not what you want to do, not what you want to let employees do. And then you have accidents that will occur outdoors in the yard sometimes and things involving trailers and railroad cars.

Now, terms that are used to characterize the type of incidents. You get foot crushes. You get a lot of foot crushes. You get people falling from heights. You get pinned...they get pinned between a rack and the forklift. You can get an actual leg that ultimately gets amputated as a result of the severity of having been run over by a forklift truck. You have rollovers where you have someone operating a sit down counterbalance on an incline, and the truck rolls over, there's a tendency to try to jump off the seat. And that usually doesn't work because you've got an overhead guard and the overhead guard typically catches them across the body because they can't clear that space they need to clear when they jump off.

You have off the dock accidents where you have counterbalance trucks that actually get driven off the dock. That produces horrific injuries. And you can just imagine that thing going off the dock and how they're going to be bounced around between the front and the back of the counterbalance truck. You have underrides or what they call rack intrusion causes, and that causes traumatic asphyxiation. I've had a couple of cases like that. Operator compartment intrusion, and that's where there may be piping or something that penetrates...they're backing up, they don't see it. There's a piece of pipe that's hanging out of a rack further than it needs to be, and that intrudes into the compartment and hits them in the leg. You have carbon monoxide poisoning occurring in a small facility. Improper welds in the maintenance operation and then improper or incorrect attachments.

So those things typically are the terms used for these incidents or accidents. Here's again, for your benefit, actual cases, and what's happened in these incidents. This was a trip and fall on a set of forks that were raised about six inches off the ground. They were parked near a walkway and there were no warning cones and the forks should have been lowered all the way to the ground. And that resulted in the individual tripping and getting injured.

There was a worker that was struck from behind. I actually told you about this case, by a supervisor driving the forklift as he was moving to a new work area. That was a first. I've never seen a second one of those. The over the road driver, I mentioned. He was actually...his hand, he was adjusting the dunnage on a load of sheet rock and the operator dropped the load, the dunnage tilted, and it collapsed on his hand and he lost a couple of fingers.

Forklift, this forklift was never equipped with a backup alarm, strobe lights. And when that operator was backing up the forklift in the warehouse, he struck an employee and created some pretty severe injuries. The over the road the driver had a split run over in a loading dock area by a forklift operator as he was counting pallets, empty pallet jacks. And this again, was a case where that operator was not paying attention and he basically ran into the individual. So now you have a worker was working in the warehouse changing a light, pretty high up on a ceiling, 25 feet up. He was not in a secured work platform, wasn't securely attached and he fell 25 feet to the floor. That was in a Sports Authority.

A worker was loading a sofa on his order picker that's specially designed to enable you to pick furniture from high levels. He was not secured with a full body harness and he fell off and he hit the ground at 18 feet. There was a box truck that was being loaded and the individual ran off the dock when the truck started to roll forward. So you've gotta make sure that these vehicles are stopped and, you know, the trailers are secured up against the loading dock so you don't get the rolling forward.

And then in the warehouse on a late shift, that rack intrusion I told you about, the individual wound up backing underneath the rack and had traumatic asphyxiation. The other thing, I had a couple of cases where you have these employment agencies that will hire workers to work for manufacturers or warehouses or distribution, and they work for those folks and they're not on the payroll of the company that they're working at. I had a situation where an individual had not been trained to operate an electric pallet jack, had a low to high and wound up running into a operator of a forklift truck who was stepping off his forklift and he wound up getting some pretty severe injuries.

So these are some of the major companies that manufacture these pieces of equipment. They go through either independent dealers. Many of them have their own distribution channels with dealers. When I worked at The Raymond Corporation, we had 42 dealers around the country. And that becomes important if you are going to wind up naming a dealer in the case. So a lot of times, you want to think about what the dealer's responsibility was and is it worthwhile bringing or naming that dealer as a defendant in the case.

So the kind of typical arguments that you get back is that the company, they know what their applications are, they know what their needs are, you know, the company that they know what they want, their contract indemnifies them. They're a big company. They have experts. You know, we're not at the [inaudible 00:32:45] every day, how are we going to know what goes on? We told them, or gave them a brochure about operator training or optional equipment. You know, we just fill orders. They call us, they give us an order for a forklift equipped the same way. They got the last one three years ago. We would just fill it out, get it manufactured and sell it to them.

OSHA requires that the employer ensures that a powered industrial forklift operator has been trained to operate these trucks and they've successfully demonstrated they've had the training and they've been certified. And then you'll also hear it was the operator's error that caused the accident. So just some things that you'll run into.

As a plaintiff's attorney or in support of an attorney retained by a plaintiff, you use the industry best practices, defendant's policies or stated duties, the failure to ensure consistent and sustainable implementation of those standards and practices, policies, and duties to prove your case. And then MHEDA, the Material Handling Equipment Distributors Association, has a number of different articles that have been written over the years by individuals who are members of MHEDA. When I had my dealership, we were a member of MHEDA. And they put out some good information about safe things that you need to do. This just happens to be a little bit of an understanding of what they're dedicated to doing, and they just want to really make things safer and get the dealers more proficient.

So best practices, as a solution provider... This is the dealer now, you need to make sure, if you're on the defense side, you need to make sure that you understand what that sales rep did. Did they offer and initiate an offer to do a walk-through of the customer's facility? As a result of that walk through, did they identify any primaries that can cause injury to employees, areas to lessen product loss, ways to keep productivity up and how in general, just to keep people safer in that operation.

Also, when the dealership performed service work, the technician should be doing...should use the same or similar checklists to document missing safety devices and identify and document conditions that could compromise the safe operation of the equipment. So here again, it's a meld of using your technicians with your sales reps to ensure the equipment that you're spacing out is going to operate safely, is going to be productive and will not in fact lead to any injuries.

Then they may talk about an accountability factor, and the dealership, ultimately the responsibility for the business operation is the owner, but employees should be also held responsible for documenting safety inspections and communicating safety information to customers. And then dealerships that adhere to these established procedures that we talked about typically gets favorably viewed by their manufacturers and insurance companies.

Now, one of the things that happens a lot is that the trucks do not...because customers want to spend the least amount of money, they don't necessarily have or want backup alarms, strobe lights, or mirrors on the equipment. And this came from an article that was written in the MHEDA magazine. And it basically talks about 10 things a dealer can do. So if we have any plaintiff's attorneys out there, this you should be going over with your...or making sure your dealer, your client is doing these things.

They need to make sure they understand the regulations and standards for forklifts, what information can they...they have to get for an application for lights, alarms, and mirrors. You have to learn the OEMs', original equipment manufacturers' policies on accessories, train salespeople on the proper way to sell accessories, use the OEM materials to educate the customer about the availability, document the transfer of such information, that the customer, you gave them a proposal for operator forklift safety training, and then document, if they decline or accept the accessories, get back to them with a letter saying, yes, you agreed to have us do it, we're confirming we're going to do it, or you said you didn't want it, I'm just confirming that you don't want us to provide the operator forklift safety training. So that keeps you out of hot water if they proceed to do something on their own, and it results in injuries and problems.

Offer accessories on rental or used equipment. A lot of times these equipment that's involved with accidents is rental equipment from the dealership. And you want to make sure that you offer accessories on these rentals or used pieces of equipment you're buying. Don't refer to optional equipment as safety equipment and materials that you share with the clients, advertise the availability on your website, and encourage customers to work with safety experts if you're a little unclear on what they may or may not need.

Now, here's examples of questions that need to be answered by the dealer who sold and serviced the equipment. The information that the salespeople use to develop specifications on the equipment, including any optional equipment, you want to make sure you get that. What was the source of that information? Did the sales rep visit the site, take measurements, observe the forklift unit to be used in the environment in which it's used? Ensure the equipment recommended will perform the tasks they need. And a lot of times what you want to do, you have second and third shift operations, especially when you've got cross dock operations.

So I recall a number of times when I had dealership, I would, in addition to going out on the first shift, I'd go out on the second shift or the third shift because that's when you see things that sometimes you would not necessarily see on the first shift. So you want to ask your defense attorney, do you have your guys go out on that second shift to observe what kind of congestion there is, or what might need to be additional training of the operators. Did the salesperson, as we said, visit the site, ensure the equipment recommended was going to be used in the way that it was designed to be used? Did the salesperson inform the customer safety features that were available and recommend whatever they felt was required based on their experience and training?

The formal written operator forklift safety training program, was that recommended? And if it was rejected, communicate back to the customer, okay, you said you didn't want it. Get the names of the trained operators of the equipment that are retained in the file, so you know who the operator or operators were of equipment. Did the environment or physical plant change after delivery, therefore modifying the specs, that's where you have this traumatic asphyxiation occurring.

You initially will obtain measurements that say that the load beam, first level of load beam is at 52 inches or 62 inches. Every forklift goes up to a certain height, such that if that operator would have backed up and that first load beam is at again, 62 inches or 52 inches, whatever it is, it's going to strike the back of the forklift and they're not going to have an underride. But what sometimes happens is that warehouse or distribution center gets a new type of product in that they're storing and they have to raise that first level load beam up to maybe 78 inches. So now you have a condition where when that forklift operator puts a pallet away in the opposite pallet and then starts to back up, they wind up getting caught underneath that pallet rack, because it's not stopping. It didn't stop them from doing that underride. So the change in heights of those first load beams is important to periodically double check when your sales rep goes out.

We talked about any changes to the operation. Maintenance programs that were recommended and what were they recommended to do and where you're doing those kinds of things because a lot of times, you can find things that need to be corrected; the customer may not want to do it. So when that happens, you want to make sure that you either complete those, or if they don't want it, you document the fact that you suggested they have this work done and they chose not to do it.

You also want an opportunity if you know some type of a failure to perform a repair was done, get copies of the repair tickets on that truck that go back a period of time and have someone do an evaluation on those repair tickets to see if they somehow might've created the incident or the cause of the incident. The dealership or manufacturer internal accident reports, what do they say about the accident? So you want to get anything at the factory and you want to get anything from the customer. These are examples of questions that you need to be answered by the dealer, who sold it. Service mechanic who worked on the forklift involved in the accident, was he certified, or she certified to work on that particular type of forklift?

Sometimes you'll find that these mechanics, technicians are not trained at the factory to work on a particular piece of equipment. That creates a potential problem. So you always want to start that information out depending on if you've named the dealer in a case. When a dealership, they observe an unsafe act at the facility, who are they communicating that back to? Are they writing that on the mechanics tickets, giving it to the customers and talking to the customer? Are they then getting that back to the sales rep at the dealership to go out, to meet with the customer and talk with them about how they can alleviate that situation with some, let's say safety equipment, for lack of a better word.

And then how the dealership sold that equipment to ensure that it was...it had the safety features, they're working, warning lamps...warning labels are legible. That's an OSHA fine. If OSHA comes in and those warning labels on the forklifts are covered up or ripped off, that's a finable item so you want to make sure that the dealer is also looking at that and making those corrections. And pretty much it at this point.

So here's examples of questions that if you want to call me and talk about a case, what we want to do is talk about... I'm sorry; I'm ahead of myself here. You want to also get questions that need to be answered by the dealer who sold it. The service mechanics who worked on it, were they trained and certified to work on that equipment? The dealership, field observations, unsafe acts if they see it, who they're reporting it to and how does a dealership that sold it ensure that stuff was working safely?

Okay. We're getting near the end here. If there's a situation you have with a case where you want to talk to me, as you'll see at the end, my phone number, you certainly can give me a call to talk about any cases you have to see whether or not I think you have a case or how I might help you with a case. But if you do decide you'd like to work with me, you need to go back to TASA because they drive that process. But these are some of the things that we'll want to talk about and that's the applicability of a couple of uniform commercial codes that are out there. The one is fitness for use. The other is labeling or warnings. And the other one is buyers relying on the seller's expertise.

I have a theory that I've tested with a few attorneys and they say it makes sense, but it's a lot of time and a lot of effort, but it's a way to bring a manufacturer potentially into the case by basically pushing back on these UCC codes at the manufacturer's level and saying, what are you doing to ensure your dealers when they're selling this equipment are ensuring it's fit for use, you have appropriate warnings, you know, safety equipment on the truck or warning labels, and that the buyer is relying on your seller's expertise. And then we'll talk about customer and safety business practices. The two standards I talked about, OSHA and ANSI B56.1, relationships and information flow between manufacturers and their distributors and their dealers.

And lastly, if you take one thing back for use, remember nothing's impossible for the person who doesn't have to do it themselves. And that simply says when it's Friday at 4:00 and you've got to get some work done and you bring your paralegal in and say, "Hey, I need to get this work done. I need you to work the whole weekend to get all this stuff done," they may say, "Okay, I'll do it." And then Monday, when you come in and they have everything on your desk and you haven't read it for a couple of hours, and then they finally come in and say, "What'd you think of that work?" And you say, "I don't know, I didn't read it yet," don't wonder why they're not going to want to do anything and you might have poor morale. So it's just a way to think about when you need something done by somebody, nothing is impossible to the person who doesn't have to do it themselves. So just consider that before you have somebody work crazy hours.

If you're working with outside support for your case, retain them before your rogs go out, not 30 days after the discovery end date. Consult with the retail expert to help prepare. One of the things that I do is I provide supplemental requests for production of documents, always to supplement your initial requests for production. I'll provide questions for depositions to supplement the questions that you'll develop and requests for admissions. So these are just something for you to think about when you retain an expert, do they do that type of stuff?

There's my number, if you want to write that down. If you have anything you want to call and talk to me about, feel free to pick up the phone and call me, and I'll be more than happy to chat with you. No cost to you. And if I think you've got a case, I'll tell you that. If I don't think you have a case, I'll tell you that. And if I think there's somebody better to help you, I'll tell you that. So, questions?

Rochelle: Thanks, Bob. If all the attendees can enter in the passcode for today, which is "Material" and any questions that you may have. Our first question for today is so far only mentioned acts by personal. What about setting up using displays, i.e., wire holders, holding hanging products, you know, things like that? So they have a question regarding displays.

Bob: Well that gets...that...I think of that...I have another presentation that I think I'm giving in April, that's inside retail store safety, where I get into the issues of slips, trips and falls, displays which become tripping hazards if it's built on a pallet and it fell down to under three feet, that becomes a tripping hazard. So there, if you're working with the store, they need to get that replenished. So they need to get that pallet off the floor. You're right about some of the hooks that are out there in places like Kohl's and what have you and clothing that's on the ground or broken hangers that are on the ground. So those are things that I can talk with you about offline. I don't know, did that answer your question? I mean, they are hazards and you have to be aware of them. I just didn't feel they fell under the material handling. I felt they fell under more of premise liability type stuff.

Rochelle: Next question. This is regarding a client who was injured while using a motorized handicapped shopping cart at Costco. I guess he wants some information about that, regarding that incident.

Bob: Yeah. I've had a couple of cases...

Bob: I'm sorry, what was the last... I think I interrupted you. What was the last part?

Rochelle: Sorry, I can send that to you. I can send that over to you to answer in an email.

Bob: Okay. That's fine. I can do that. I've had a couple of cases involving those.

Rochelle: Sure. Next question. How and when should OSHA be brought into the case?

Bob: Well, OSHA comes into cases where there are severe injuries. It's difficult to get them to come in because they have fewer and fewer people. So OSHA will typically be brought in if it's a real severe injury or death, they'll get called in. But it's just difficult to get them in. That's all I can tell you. I've done a lot of cases of which...who got OSHA pulled in and they got pulled in by the...I think by the insurance company, if I'm not mistaken.

Rochelle: Next question, what are your thoughts on saying that it is better not to have a written safety policy than to have one and not follow it?

Bob: Well, my personal opinion is you're going to be in deep trouble because you leave yourself open to, you don't do anything, you know. And you do have a duty, don't forget. In the jury charges, a judge is going to tell the jurors that the defendant has a duty to exercise reasonable care to keep the store safe and they have a duty to exercise reasonable care to keep the aisles safe. So if you have no safety policy, I don't know what you can use for a defense. I think you're almost better off having a policy and making sure you implement the policy. And in that way, you should be minimizing the injuries and you get the benefit of not having injuries to employees or injuries to vendors, or injuries to customers. I think your insurance company looks favorably on that, especially if you're executing those things uniformly and consistently. I think that's dangerous

Rochelle: Next question. I'm surprised that dealers' activities play such a role. In essence, the dealer is made to rise to the level of licensed professional. Is it almost as if the dealer must return and rectify when conditions change like different pallet supports, different pallets and changing low pallet weights? What about waivers or a hold harmless agreement signed by the customers of the dealers?

Bob: Well, I mean, I had a dealership, so I know of what you speak. But I always felt that we would go out there...after a sale, we went out there to make sure that everything that we said was going to happen was going to happen. The operator had training, etc., etc. And then it made sense to us to periodically go back out and visit that customer because there will be either change in the operation or there will be new requirements maybe that they have, something might have changed. And that's a good opportunity to get out there and spend time with your contact and ideally work your way up to the highest level in the company so that they can understand how you can help them operate more safely.

You know, I don't know that you can necessarily be held accountable to the changing of the height of that load beam, but you need to be aware of that. So when your rep goes out, it's something he can do to demonstrate that he's trying to ensure you're operating the safest operation you can have. So if he knows the back of that forklift truck is 59 inches and you've got something that's above that, he can bring that to the customer's attention and document that to the customer. And now what you've done is you've become more of an ally with them and they see that there's more value added than just selling a piece of iron to them in the form of a forklift truck. I think that kind of gets to how you do your business, which I don't want to tell you what to do, but I'm giving you my thoughts on that.

Rochelle: Thanks, Bob. That is all the questions that we have for today. If you could just give some final thoughts before we close out today?

Bob: Well, I guess final thoughts would be hopefully you've taken a few things away from this. If you get involved in any of these types of cases, you know, feel free to call me. I think what you want to try to do is anything you can do to prevent these types of hazards from occurring, because many of these injuries are horrific. So you want to do what you can do to educate your customers. Every time I say this to defense attorneys, they tell me I'm crazy, but if you're handling a Kohl's, anything you can do to pass on safety things that they could do to make the store safer would certainly be to their benefit and it would hopefully eliminate someone getting hurt in that Kohl's on that particular hazard. So I know that's a tough ask because it's how you make your business, but it's really about making these stores as safe as we can make them. And when you do get involved in a case, hopefully you've picked up a few things from what I talked about in the presentation that you can use to strengthen your case or most of your case for your opponent. And if you have any questions or there's anything you want to chat about, just pick up the phone and call me. You can get me 24/7.

Rochelle: Thanks Bob. Please remember that if you are applying for CLE credit, you must have attended for the full presentation. You're also required to complete the survey at the end of the program. I want to take this opportunity to thank everyone for attending and most especially Bob Loderstedt for the time and effort in creating this presentation. If you would like to speak with Bob, or if you would like to speak with a TASA representative regarding an expert witness, please contact TASA at 1800-523-2319. One of my colleagues will be following up with you regarding your feedback on today's presentation. Again, thank you all for attending. Have a great day.

 

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