The 6th U.S. Circuit Court of Appeals, in a March 31 ruling, concluded that a jury should decide. The circuit court opinion reverses the decision of the U.S. District Court for the Eastern District of Michigan, which dismissed the lawsuit in favor of the auto parts company.
The district court, interpreting Michigan law, found that Visteon Corp. was not responsible for truck driver Howard Kessler's injuries because the danger of being run over by a forklift at the plant was an "open and obvious" hazard.
The appeals court disagreed, ruling that Visteon through its employee who ran over Kessler's foot with the forklift "owed Kessler a duty of care to operate its machinery in a reasonably safe manner."
In this case that looks at the different aspects of negligence liability under Michigan case law, the federal appeals court noted that "[w]e think that the Michigan Supreme Court would not hesitate to add that the operators of [forklifts] must take reasonable measures to avoid injury to pedestrians."
"Whether Visteon's employee breached this duty, we think should be a question for the jury," the court wrote in its per curiam opinion.
Kessler Alleges that Visteon, Forklift Driver Were Negligent
Kessler was injured on Nov. 6, 2000, during a delivery to Visteon's former plant in Utica, Mich.
Kessler, who made regular deliveries to the Utica plant for Dakota Leasing/Short Freight Lines, was delivering a load of dashboards for the Ford Taurus. After waiting in the plant's lounge for assistance, he walked through the plant to find a Visteon employee to unload his trailer, which he parked near the loading dock.
When he entered the loading dock, Kessler saw Michael Hyde, a Visteon employee, using a forklift to unload another Dakota trailer.
When Kessler approached Hyde to tell him he should be unloading his trailer, Hyde's forklift which was moving in reverse rolled over Kessler's foot, breaking it. The forklift's counterweight struck Kessler in the leg, knocking him over.
Kessler on Feb. 19, 2003, sued for damages, alleging, among other things, "that Visteon had been negligent in its ownership and maintenance of the [forklift], that [Hyde] had been negligent in the operation of the [forklift] and that these breaches of duty had resulted in severe, permanent and irreversible injury to Kessler," according to the appeals court.
Visteon argued that, regardless of Hyde's actions, the company cannot be held liable because the danger of forklifts was open and obvious to Kessler. The district court agreed with Visteon.
That decision was reversed by the appeals court's March 31 ruling.
"Although Visteon has a more limited duty to Kessler as an owner of the property on which the injury occurred, it has an independent duty to Kessler arising vicariously from its employee's operation of the [forklift]," the appeals court concluded. "This latter duty is unaffected by the open and obvious nature of the hazard because it is unrelated to premises liability."
Forklift Incidents Prompted Safety Campaign
During the discovery phase of the case, it was revealed that more than 20 incidents involving forklift drivers and pedestrians occurred at the Utica plant in 1994, with four resulting in permanent disability. Because of those incidents, Visteon launched a safety campaign "to eliminate the dangers posed by men and machine working so closely together," the appeals court explained.
"Visteon's training videotapes, and safety standards promulgated by both the Michigan Occupational Safety and Health Administration and the American Society of Mechanical Engineers, all state that safe operation is the responsibility of a [forklift] operator, that pedestrians have the right of way and that an operator should always look in the direction of travel," the appeals court noted in its opinion. "The deposition of Hyde revealed that he had viewed the videotapes and that none of the Visteon [forklifts] that he operated sounded an audible warning when moving in reverse."
'Special Aspects' of a Hazardous Condition
One of the key cases cited by the appeals court in its decision is Lugo v. Ameritech Corp., issued by the Michigan Supreme Court in 2001.
Lugo v. Ameritech Corp. states that, in general, a property owner is not required to protect an invitee from open and obvious dangers unless "special aspects of a condition make even an open and obvious risk unreasonably dangerous." (Kessler, Visteon and the district court agreed that Kessler should be categorized as an invitee for this case.)
An example of "special aspects" of a hazardous condition that would require a property owner to take measures to protect invitees from that condition might include the sole exit of a store being covered with standing water or "an unguarded, 30-foot-deept pit in the middle of a parking lot," according to Lugo v. Ameritech.
"The danger of falling in the pit presents a risk of injury so severe that maintaining it without warning or protective measures becomes unreasonable," the appeals court concluded.
On the other hand, a common pothole does not fit the definition of special aspects, according to Lugo v. Ameritech.
"Simply put, there must be something out of the ordinary, in other words, special, about a particular open and obvious danger in order for a premises possessor to be expected to anticipate harm from that condition," the Michigan Supreme Court stated in Lugo v. Ameritech.
Conditions Could Have Qualified as Special Aspects
Taking into consideration the two examples of special aspects presented in Lugo v. Ameritech, the appeals court asserted that the conditions at the Utica plant could have qualified as special aspects of a hazardous condition.
Where in the first example, the puddle of standing water covering the sole exit of a store made traversing it, in the words of the Michigan Supreme Court, "effectively unavoidable," the appeals court stated that there is enough question as to whether Kessler could have avoided an encounter with a forklift that a jury should decide.
Where in the second example, the 30-foot-deept pit presents a substantial risk of death or severe injury, "there is undisputed evidence of a number of [forklift] injuries occurring at Visteon plants, many leading to severe injury," the appeals court stated.
"Thus, a jury could reasonably conclude, and the district court ignored the fact, that a 30-foot fall might equal in severity a collision with a [forklift]," the appeals court wrote.
The appeals court also mentioned that Visteon's training videotapes included the statement: "To do this job, you have to operate your vehicle in a space that's also occupied by pedestrians and other vehicles. Your ability to safely control your vehicle and the load you're transporting is sometimes the one factor that can prevent a potentially hazardous situation from turning into a disaster."