Akers v. Kelley Co.

• Decision Date: 22 October 1985
• Citation: 219 Cal.Rptr. 513,173 Cal.App.3d 633
• Court: California Court of Appeals Court of Appeals
• Parties: , Prod.Liab.Rep. (CCH) P 10,853 Stephen AKERS, an Incompetent Person, etc., Plaintiff/Respondent, v. KELLEY COMPANY, INC., Defendant/Appellant. A016737.

Page 513

219 Cal.Rptr. 513

173 Cal.App.3d 633, Prod.Liab.Rep. (CCH) P 10,853

Stephen AKERS, an Incompetent Person, etc., Plaintiff/Respondent, v. KELLEY COMPANY, INC., Defendant/Appellant.

A016737.

Court of Appeal, Sixth District, California.

Oct. 22, 1985.

Review Denied Feb. 20, 1986. ^*

Terrence P. McMahon, Reed, Elliott, Creech, Roth & McMahon, San Jose, for defendant/appellant

Thomas R. Fellows, Robinson & Wood, Inc., San Jose, for plaintiff/respondent.

BRAUER, Associate Justice.

On April 25, 1980 respondent Stephen Akers, while working as a loading dock supervisor at a freight terminal, sustained permanent brain damage when an adjustable dockboard flew apart and a portion of its mechanism struck him in the head. Through his conservator Akers subsequently brought suit for personal injuries against the manufacturer of the dockboard, appellant Kelley Company, Inc. (hereinafter Kelley). The action was founded on theories of strict product liability and negligence. After a lengthy trial, a jury determined by special verdict (a) that the dockboard was "defective in design and/or manufacture," and that the defect or defects proximately caused the injury; (b) that Kelley had been "negligent," and that such negligence proximately caused the injury; and (c) that Akers himself was without fault. The jury awarded Akers the sum of $3.5 million as compensatory damages. That sum was reduced by the amount of workers' compensation benefits provided by Akers' employer, and the net award amounted to $3,221,976.18. Judgment was entered accordingly, and thereafter Kelley's motions for new trial and for judgment notwithstanding the verdict were denied. ¹

Kelley appeals from the judgment, and contends (1) that a manufacturer cannot be held liable for personal injuries when its product has been "broken" by a third party prior to its use by the injured party; (2) that the trial court committed reversible error in giving certain instructions and rejecting others; and (3) that members of the jury engaged in prejudicial misconduct. We find no error warranting a reversal, and we therefore affirm the judgment.

I. HISTORY

A. Preliminary Notes

The apparatus which caused the injury to respondent Akers is difficult to describe in words alone, and so we have attached as appendices to this opinion excerpts from a Kelley Owner's Manual for the Model 625 Dockboard, which manual was admitted in evidence as Plaintiff's Exhibit 2.

No witness actually observed the impact which was the immediate cause of Akers' injury. Testimony as to how that impact occurred took the form of opinions expressed by defense accident reconstruction experts. Akers produced no contrary evidence. ² Consequently, while we are obliged to view the evidence in the light most favorable to the prevailing party (Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660, 190 Cal.Rptr. 355, 660 P.2d 813),

our recital of the facts relies in part upon a defense theory, because that theory is the only one available.

B. The Parties

At the time of the accident, Stephen Akers was employed as a loading dock supervisor at the Santa Clara freight terminal of Delta Lines, Inc. He was responsible for coordinating freight loading operations at night. On the date he was injured, Akers had been an employee of Delta for approximately six months.

Kelley, the manufacturer of the dockboard which injured Akers, is a Wisconsin corporation having its principal offices in Milwaukee. Kelley first began manufacturing its Model 625 Dockboard in 1966. Several such dockboards were installed at Delta's Santa Clara terminal in 1967.

C. The Dockboard

The Kelley Model 625 Dockboard is essentially an adjustable platform designed to bridge the gap between a stationary loading dock and the rear end of a freight-carrying truck or van. The apparatus enables forklift trucks to move from a stationary loading dock, across the dockboard plate, into the rear end of a van, and back again, to load or to unload pallets of freight (see Appendix A). The "board" of the dockboard is actually a reinforced steel plate, approximately 6 feet wide and 54 inches long, weighing perhaps 700 pounds. A hinged 16-inch steel "lip" is attached to the front (or truckside) edge of the plate; in operation this "lip" rests on the floor of the van (see Appendices A and B).

Below the steel plate, running its full width, is a torque tube assembly containing a torsion bar. A double-beam lifting arm is attached to the torque tube assembly and rides against the underside of the steel plate (see Appendix B). The torsion bar and the lifting arm provide the upward force which enables the front edge of the steel plate to be raised.

Several other forces tend to hold the steel plate in place and keep it from flying upward. We focus on two of those forces: (1) a "hold-down and float assembly," actuated by pulling a release cable, which controls the movement of the front (truckside) edge of the plate (see Appendix A, figure 4, and Appendices B and C); and (2) a "rear hold-down spring," designed to keep the rear (dockside) edge of the plate flush with the level of a stationary loading dock (see Appendices B and C).

Welded to the underside of the steel plate's rear edge are two U-shaped hinge loops, which allow one or both rear corners of the steel plate to rise upward. The hinge loops allow the plate to tilt from side to side, to accomodate uneven or unlevel truck beds. As we shall see hereinafter, the hinge loops on the dockboard which injured Akers were broken and deformed before the accident happened.

D. Theory And Practice

The intended operating sequence of the Kelley Model 625 Dockboard is illustrated in Appendix A. In theory, the rear hold-down spring would keep the rear edge of the steel plate flush with the level of the stationary loading dock. In practice, however, on some dockboards the rear edge tended periodically to "float" upward. The "float" phenomenon was "common enough so it wasn't unusual" at the freight terminal where Akers worked. When the rear edge of a dockboard plate rose above dock level, the plate was susceptible to being hit by forklift blades. Since safety regulations required forklift blades to be carried as close to the floor as possible, the result was that forklift blades collided with dockboard plates with some frequency. Several witnesses testified that before the accident such collisions had occurred at Delta's Santa Clara terminal, where Akers worked.

About a month before the accident one Troy Owens, a truck driver employed by Delta, noticed that the rear edge of dockboard no. 87 at Delta's Santa Clara terminal intermittently rose above dock level. Owens reported the condition to one of Delta's dispatchers, but did not inform Akers. Dockboard number 87 continued to be

used thereafter; the record does not disclose that it was repaired or adjusted before the accident.

E. Events of April 25, 1980

Shortly before 7:00 p.m. on Friday, April 25, 1980, Ted Simmons, a forklift truck driver employed by Delta, was engaged in unloading pallets of freight from a truck trailer parked at door number 87 at the Santa Clara terminal. While unloading he drove his forklift truck across dockboard number 87 several times. Then, heading into the trailer to pick up another pallet of freight, a blade of his forklift struck the rear edge of the dockboard's steel plate, and his forklift truck stopped. Simmons backed up his truck, got off of it, and examined the dockboard; he testified that the "whole plate" was raised up "[a]pproximately a couple of inches or so." He felt that the dockboard was "obviously abnormal" and decided that it could not be used for further unloading. Simmons reported the situation to his immediate supervisor, Allen Selby; then he "punched out" and went home.

When Selby examined the dockboard a few minutes later, he saw that the plate was "cockeyed," i.e., the left rear corner was down an inch or two, and the right rear corner was raised a corresponding distance. In an effort to level the plate, Selby stepped onto it and flexed his knees. At that time Akers was standing two or three feet away, watching Selby. Selby's efforts produced no results. Selby decided "not to use that board anymore," and told Akers to have the trailer moved to another door and to finish the unloading there. Shortly thereafter Selby went home.

Here we pause to note that experts on both sides agreed that the forklift impact broke the welds on the rear hinge loops of dockboard number 87, and deformed the hinge loops from a "U" shape to a lopsided "C" shape. Defense experts went even further; they testified that the forklift impact also dislodged the rear hinge loops from their hinge pins, leaving the rear edge of the steel plate completely unattached. ³ But those defects were not apparent to the casual observer. Simmons testified that in examining the dockboard he could not tell whether the steel plate was attached or detached. Selby testified that he could not see underneath the plate.

At about 8:00 p.m. Frank Klinger, the terminal manager, returned to the terminal to check on the progress of freight movement. ⁴ He knew nothing about the earlier forklift impact. He and Akers toured the terminal to determine how much work remained to be done. The trailer was still parked in front of door number 87. Klinger and Akers both walked across dockboard number 87 into the rear of the trailer, to inspect its remaining freight. As Klinger stepped on the right rear corner of the steel plate, that corner sank two or three inches and the left corner of the plate's front edge rose a corresponding distance. Klinger, who weighed 235 pounds, jumped on the left front corner, without result. He decided that the dockboard could not be used further because the steel plate was not level with the bed of the trailer. He told Akers to have the trailer moved to an adjacent door, "[a]nd that he was to secure the area and we would look into the necessary...