100% Defense Verdict in Forklift Case

Reviewed by a Mechanical Engineering Expert Witness

TASA ID: 7934

About 10:30 am on the morning of October 26, 2007, Jose Avalos was delivering slabs of granite to a local installer.  The countertops were being loaned to the installer to be displayed at an open house barbeque for customers that was to take place later that day.  Mr. Avalos brought two A frames and between four and eight slabs of granite on a 20' flatbed gooseneck trailer.
Upon arrival, two of the installers employees proceeded to unload the truck.  One of them drove a Hyster forklift that had a custom boom attached to the forks and had a gravity clamp (Abaco Lifter) that hung down from the end of the boom.  The lifter was at the end of the boom. The setup is shown below:

They first unloaded the A-frames used to display the granite slabs.  Mr. Avalos stayed on the trailer during this process, attaching clamps to the next A-frame.  Mr. Avalos also stayed on the trailer to attach the clamp to the center of the first granite slab.  

Deposition testimony revealed that after Mr. Avalos attached the clamp to the slab that was in transit at the time of the accident, he jumped down from the trailer continuing in conversation with the installers employees.  Mr. Fleming was holding the slab on the left hand side with his right hand.  Mr. Avalos was holding the slab on the right hand side of the slab, holding it with his left hand.   

He then described that as the slab was turned to be in line with the forklift and that he would come closer to the forklift the more in line the slab was. 

As they were transporting the slab, Mr. Avalos’ foot got caught on the wheel and the forklift ran over his foot from the heel towards the toes causing a severe crushing injury.  As the forklift rolled onto his foot, Mr. Avalos began to scream.  Mr. Edgington realizing that he had run up on Mr. Avalos' foot, stopped, put the forklift in reverse and came off.  Emergency personnel were summoned and Mr. Avalos was life-flighted to LDS hospital in Salt Lake City.

Mr. Avalos sued the driver of the forklift and the installer (company) that he worked for.  Alpine Engineering and Design, Inc. was retained by the installer’s council to provide opinions on how the accident happened and whether or not the process being used by the installer was proper.  

The first thing we do with a new case is to examine the evidence and try to figure out what happened.  Sometimes determining what happened is easy, for example, when it is caught on a security camera.  Other times, and usually more often, it involves reviewing reports and deposition testimony as well as creating and testing models.  In this case, our models and testing were very informative and allowed us to show what happened rather than just talk about it. 

In this particular case, the slab comes off of the trailer perpendicular to the forklift, at which time it would be rotated to the in-line position.  At the inspection, we put together a wood panel that was 65” by 120”, approximately the size of the slab being carried at the time of the accident.  This was supported on the fork truck in the same manner, using the same equipment at the slab was on the day of the accident. If Mr. Avalos grabbed the slab when it was nearly perpendicular (i.e. when it came off the trailer), and either Mr. Fleming or Mr. Avalos started rotating the slab to the parallel position, by moving their corners as indicated by the green and orange arrows, Mr. Avalos would necessarily move towards the forklift along the path of the orange arrow to the point of the injury at the red X.

The following sequence of photographs show how easily it is to go from a position of seemingly relative safety to one where the fork truck tire can roll over your foot.  This occurs because of a slight turn of the slab.  A person walking on the right-hand side of the slab ends up being pushed into the exact position where the right front fork truck tire can run over his left foot as the slab rotates rearward.

With this simple recreation, we were able to determine and show what happened and how Mr. Avalos’ foot was injured.

Now that we knew how the injury occurred, we needed to determine if the company was following proper procedure in transporting the slabs.  Relying on our experience and training and forklift operators and forklift operator trainers, we explained that the procedure was in fact proper and that Mr. Avalos’ injuries were the result of his own negligence, disregarding his own training and experience as a forklift operator and company policy.    

The correct method of moving a slab is to have it parallel to the axis of the fork truck so the driver could see where he was going.  OSHA 1910.178(n)(5) states that "the driver shall be required to look in the direction of, and keep a clear view of the path of travel."  If the slab were perpendicular to the forklift the driver would have a very limited field of vision.

To illustrate why rotating the slab to a position parallel to the fork truck was desirable for the operator to see where he was going we took the following pictures from the seat of the forklift while our wood slab was hanging from the clamp.  The first photograph shows how the slab would obstruct the operators view when in the perpendicular position. 

In contrast, the following picture shows the view with the slab rotated parallel to the fork truck axis with the spotter out in front.  Clearly, the in-line position provides much better visibility.  

We also noted that this was the proper position for the spotter as he is as far away from the fork truck as possible and rotation of the slab will move him out of the path of the fork truck.  It will also give the operator adequate time to react, should that be necessary.

Plaintiff’s expert argued that the forklift should have been driven in reverse.  However, it is well known and best practice to always be looking in the direction of travel and also to be able to see your spotter at all times.  If the spotter is with the granite at the front of the forklift, and the driver is looking towards the rear of the forklift (path of travel) then the driver cannot possibly comply with both cannons of forklift operation.  Thus, this argument was unpersuasive.  
We also made a video showing how quickly one could end up in a dangerous position when the slab is rotating.  The video showed that Mr. Avalos very easily could have gone from a position of relative safety as shown on the picture on the left to the position where his foot gets run over shown in the picture on the right in approximately one second.  

Even assuming that the driver immediately recognized that Mr. Avalos was being pulled toward the fork truck, a typical average reaction time for a surprise event would be 1.5 seconds, while an 85 percentile reaction time would be 1.9 seconds.  (Dewar, Robert, Human Factors in Traffic Safety, 2nd ed., p. 41)  This simply means that the driver could not have reacted quickly enough to stop the fork truck from running over Mr. Avalos’ foot.  This is akin to a child darting out between two parked cars.  There isn’t anything the driver can do about it.  

We made the point that because Mr. Avalos went from a seemingly relative position of safety to the point of injury so quickly, there was nothing that the driver could have done to avoid the collision.
We also noted that the forklift driver was trained, and that his training included both classroom and hands on experience.  He was trained on the equipment he would be using, including how to use the boom and how to work in concert with a ground crew.  He had also driven a forklift for 5 years without incident.  We did not find anything regarding Mr. Edgington’s training or his actions on the day of the accident that would be in opposition to OSHA 1910.178 or ANSI B56.1 regarding powered industrial trucks.
After showing that the driver had done what he was supposed to do, and that Mr. Avalos moved into a dangerous position so quickly that it could not be avoided, we then looked at what Mr. Avalos was doing immediately prior to the accident and how that compared to industry practice and his own company policy.  

It is common industry practice for the driver to remain with the truck and let the customer unload the granite slabs.  Mr. Fleming stated, “…our regular routine was the drivers would just bring it and let us do the unloading and taking it back into the shop.  Mr. Avalos agrees that typically the driver would unstrap the granite and let the company move their own granite.  On the day of the accident Mr. Avalos did not abide standard procedure and decided to help transport the granite from the truck to the A-frames.
Not only was it standard procedure in the industry, but it was a policy of his employer for the driver to stay with the trailer.  When asked in his deposition what could have been done to avoid the accident, Mr. Avalos’ employer, Mr. Wirtz stated, “…if Jose (Avalos) had never left the truck, that was a common policy for us at the time, he wouldn’t have been on the ground.   
Having spent time operating and guiding forklifts, Mr. Avalos testified that he had seen some close calls where people's feet were almost run over by forklifts.   Having seen these close calls in the granite industry where he had worked and been trained and having recognized them as close calls, Mr. Avalos was aware of the hazard of getting too close to a fork truck such that your feet can be run over by a fork truck wheel.  He should have known better.   
Mr. Avalos’ employer at Terra Bella, Mr. Wirtz also stated in his deposition, that one of the key principles in their training was, “we make sure that you’re always at the far end of the slab, you’re never standing between the slab and forklift.  This is also what the installer’s employees were taught.  His employer, Mr. Wirtz also testified that with someone already in the proper position at the front of the slab, there was no reason for him to be holding the back of the slab.  Mr. Avalos also knew that slabs were transported with one spotter all the time, and could have been moved with just a driver and one spotter that day.  He also admits that the accident in question would have been avoided if only one person had been guiding the granite on the day of the accident and that one could avoid getting pushed into the forklift if you were on the other side of the slab.  

Clearly, Mr. Avalos knew better than to assist where no assistance was necessary and where assisting put him in a dangerous position that he knew could result in serious injury.  Thus, we opined that Mr. Avalos disregarded his training by being on the wrong end of the slab and was therefore responsible for his own injuries.    

This case went to trial and the Jury agreed with our opinions and awarded a 100% defense verdict.  

While we wish we never had to work this case, we love helping companies design, analyze, improve and protect the things that keep them in business.  Whether that is a new product design, safety reviews on existing products and processes or litigation support, it you have something that you would like to get an opinion on or help with, let’s get in touch.  

TASA Article Disclaimer

This article discusses issues of general interest and does not give any specific legal or business advice pertaining to any specific circumstances.  Before acting upon any of its information, you should obtain appropriate advice from a lawyer or other qualified professional.

This article may not be duplicated, altered, distributed, saved, incorporated into another document or website, or otherwise modified without the permission of TASA and the author TASA ID#: 7934. Contact marketing@tasanet.com for any questions.

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