846 F.2d 69 (4th Cir. 1988), 87-2079, Cherry v. Prime-Mover Corp., a Div. of Hon Inc.

Docket Nº:87-2079.
Citation:846 F.2d 69
Party Name:Clifton CHERRY, Margaret Cherry, Plaintiffs-Appellees, v. The PRIME-MOVER CORPORATION, a division of Hon Incorporated, Defendant-Appellant.
Case Date:April 18, 1988
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 69

846 F.2d 69 (4th Cir. 1988)

Clifton CHERRY, Margaret Cherry, Plaintiffs-Appellees,

v.

The PRIME-MOVER CORPORATION, a division of Hon Incorporated, Defendant-Appellant.

No. 87-2079.

United States Court of Appeals, Fourth Circuit

April 18, 1988

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA4 Rule 36 regarding use of unpublished opinions)

Argued Jan. 5, 1988.

E.D.N.C.

REVERSED.

Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. W. Earl Britt, District Judge. (CA-83-105).

William Louis Young, Bynum M. Hunter (William S. Byassee, Smith, Helms, Mulliss & Moore on brief) for appellant.

Nicholas Gilman (Gilman, Olson & Pangia, Robert A. Mineo, Robert R. Smiley, III, Smiley & Mineo, William P. Harper; Hardee, Hardee & Harper on brief) for appellees.

Before K.K. HALL and CHAPMAN, Circuit Judges, and FRANK W. BULLOCK, Jr., District Judge, for the Middle District of North Carolina, sitting by designation.

CHAPMAN, Circuit Judge:

This is a personal injury action arising out of an accident involving a forklift truck manufactured by defendant-appellant Prime Mover. The district court found that the action was not barred by the statute of repose. After a jury trial, the court awarded damages to plaintiff Clifton Cherry and his wife, Margaret Cherry, in the amount of $300,000. The court also allowed a postjudgment motion for pre- and postjudgment interest and did not reduce the verdict amount by Cherry's workers' compensation award before calculating prejudgment interest.

Finding it unnecessary to reach the other issues of the case, we find the district court erred in finding plaintiffs' claims were not time-barred under the statute of repose and we reverse.

I

Plaintiff Clifton Cherry was employed as a forklift truck driver for the National Spinning Company ("National") in Washington, North Carolina. While on the job operating an RR-20 forklift truck, manufactured by defendant Prime Mover, on July 23, 1980, Cherry was seriously injured when he lost control of the forklift and was caught between the wall of National's warehouse and the RR-20. Cherry asserted that while driving the forklift down an aisle, a vibration in the steering mechanism caused the wheel to turn suddenly, which in turn caused the forklift to spin "on a dime." As a result, Cherry was thrown from the forklift and crushed against a wall. The forklift continued down the aisle for several feet. There was some evidence that the floor in the area of the accident was wet from rain that seeped in under a warehouse door.

On July 22, 1983, Cherry and his spouse brought an action in the United States District Court for the Eastern District of North Carolina for his personal injuries and her...

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