Avalos v. TL Custom, LLC

Decision Date03 July 2014
Docket NumberNo. 20120791–CA.,20120791–CA.
Citation330 P.3d 727
CourtUtah Court of Appeals
PartiesJose Luis AVALOS, Plaintiff and Appellant, v. TL CUSTOM, LLC, Defendant and Appellee.


Joseph W. Steele and Mark R. Taylor, for Appellant.

J. Angus Edwards, for Appellee.

Senior Judge RUSSELL W. BENCH authored this Opinion, in which Judges GREGORY K. ORME and JAMES Z. DAVIS concurred.1


BENCH, Senior Judge:

¶ 1 Jose Luis Avalos appeals from a jury verdict in favor of TL Custom, LLC (TLC). Avalos argues that the trial court exceeded its discretion in admitting evidence that TLC had gone out of business. He also argues that the jury's verdict that TLC was not negligent is not supported by sufficient evidence. We affirm.


¶ 2 This case arises from a workplace injury that Avalos suffered on October 26, 2007. While working as an employee for a granite supplier, Avalos delivered a load of granite to TLC, a company engaged in the business of installing granite and tile countertops. While Avalos was helping TLC's employees move an approximately five-by-nine-foot granite slab with a forklift, the forklift caught his foot under its wheel, crushing and tearing the skin from his foot. One of TLC's employees (Operator) was driving the forklift at the time.

¶ 3 In September 2009, Avalos filed a negligence claim against TLC. Prior to trial, Avalos moved to exclude any references to collateral sources of compensation, including workers' compensation, health insurance, and various other governmental and charitable assistance. Avalos argued that TLC should not be permitted to introduce evidence of collateral sources for the purpose of escaping or minimizing its liability. The trial court granted Avalos's motion. Similarly, TLC filed a pretrial motion in limine to exclude any references to its liability insurance on the ground that rule 411 of the Utah Rules of Evidence bars the introduction of evidence of liability insurance in most instances. Avalos's counsel later indicated to the trial court that Avalos had no objection to TLC's motion.

¶ 4 A jury trial was held in April 2012. During opening statements, TLC's counsel made three references to the fact that TLC was no longer in business. In the first instance, TLC's counsel stated,

You may say, Well, [Operator] has a bias or motive to protect his job or his employer and that's why he's saying that. Well, that's what really happened. But nine months ago [TLC] closed. It's not in business anymore. There's no reason for [Operator] to come in here and tell you anything other than what really happened.

Avalos's counsel did not object to this statement. In the second instance, TLC's counsel explained that the owner of TLC (Owner) has been a countertop installer for fifteen years and [t]hat's what he's doing now even though [TLC] is closed.” TLC's counsel continued to explain that “the economy was so bad people ... weren't remodeling kitchens and [Owner] had to go out of business.” Again, Avalos's counsel did not object. In the third instance, TLC described its expert witness's preparations for trial: “What he did was he went out to [TLC] before they closed down, operated the forklift, ... and he even built a model ... of the granite slabs....” Yet again, Avalos's counsel did not object to TLC's counsel's statement that TLC had closed.

¶ 5 During Avalos's presentation of his case, Operator testified that he was driving the forklift when Avalos was struck. Operator indicated that when using the forklift, he typically would have a ground crew control the granite slab and guide him when the slab was perpendicular to the forklift and blocked his view. Operator testified that on the day of the incident, another TLC employee (Spotter) was helping move the granite slab and holding the left side of the slab. According to Operator, Avalos was on the right side of the forklift, facing away from the forklift and holding the slab with his left hand. Operator testified that he could see Avalos but told Avalos that he shouldn't be standing that close to the forklift.” Avalos heard him and answered that he would be fine. Shortly thereafter, when Operator moved the forklift to the right, Avalos's left foot was caught under the right front wheel of the forklift. Although Operator never lost sight of Avalos, Operator admitted that he could not see Avalos's feet.

¶ 6 Operator also offered testimony regarding his own training and TLC's supervision of him. For example, Operator indicated that TLC did not have anyone supervising the floor at the time of the incident and that he had not read the signs on the forklift or the operating manual for the forklift. On cross-examination, TLC's counsel asked Operator why Operator no longer worked for TLC, and prompted Avalos's first objection regarding TLC's closure:

[TLC's Counsel: W]hen did you last work at [TLC]?

[Operator:] I believe June or July.

[TLC's Counsel:] And what's the reason you stopped working there?

[Operator:] Ran out of— [Avalos's Counsel:] Objection, Your Honor. Relevance. What's the relevance whether or not [TLC] is still a—

The Court: I understand relevance. Sustained.

Operator then testified that before working for TLC he had received training on operating forklifts from his previous employer and had driven forklifts daily for four or five years. According to Operator, he did not need a second spotter when moving slabs and had never had a spotter on each side before the incident. Operator also testified that some time after the incident Avalos returned to the shop and told Operator that “it wasn't [Operator's] fault.”

¶ 7 Avalos testified that he had been working for the granite supplier for approximately ten months prior to the October 26, 2007 incident and that he made thirty to forty deliveries per week. He also testified that his work involved operating a forklift and working as part of the ground crew. Avalos indicated that he had helped unload slabs at TLC several times with Operator at the wheel of the forklift. Avalos testified that on the day of the incident, no one at TLC told him to stay in the truck or not to help move the slabs. Rather, according to Avalos, Operator told him where he wanted the slabs to go. Avalos testified that as Operator slowly drove the forklift forward he grabbed the slab with his left hand and stood on Operator's right side while Spotter acted as a spotter on Operator's left side. Avalos indicated that the slab was perpendicular to the forklift, blocking Operator's forward view. Avalos further testified that he first became aware that the forklift was moving right when the forklift caught the back of his left foot.

¶ 8 Spotter testified that TLC trained him on the proper loading and unloading of granite slabs and that he had worked at TLC for about a month before the incident 3 Spotter indicated that Avalos helped the TLC employees move a granite slab and that a woman who arrived with Avalos walked along with them. Spotter indicated that he did not tell Avalos not to assist them with moving the slab. According to Spotter, Operator drove the forklift straight, not right, and Avalos was behind Spotter. Spotter testified that Avalos was wearing tennis shoes and was closer to the wheels of the forklift than he should have been. Spotter testified that no one had helped them before from that position. Spotter testified that he noticed Avalos's shoelace was untied because he saw the shoelace go underneath the forklift wheel before Avalos's foot did.

¶ 9 According to Avalos, he did not contribute to the accident. Avalos testified that he was wearing tennis shoes at the time and that his employer did not require him to wear steel-toed boots when working with the granite. Avalos maintained that his shoelaces were tied. Avalos maintained that Operator never told him not to be where he was standing. Avalos denied that he said that the incident was all his fault when he was in the hospital or that he said the incident was not Operator's fault.

¶ 10 Avalos offered testimony from an expert who trains forklift operators. Although Avalos's expert witness did not suggest that the methodology used at TLC was “inherently unsafe,” the expert testified that Operator lacked adequate training for his job as a forklift operator at TLC. Avalos's expert explained that spotters are necessary and that forklift operators should have a full body view of any spotters. The expert testified that federal regulations require operators to be trained with the specific piece of equipment used and that TLC did not satisfy that requirement. Avalos's expert further testified that the forklift should generally travel in reverse when carrying a granite slab except when setting the slab down because the slab can obstruct forward visibility when perpendicular to the forklift. Therefore, Avalos's expert opined that Operator should have been moving the forklift in reverse to eliminate the possibility of running over the spotters.

¶ 11 At a sidebar conference held before Owner testified, Avalos's counsel expressed concern that TLC's counsel indicated in opening statements that TLC had gone out of business. Specifically, Avalos argued that TLC's closure was not relevant and that it would suggest to the jury that if TLC were held liable, then any damages would come out of Owner's pockets. TLC responded that its closure was important to establish the credibility of Operator and TLC's shop manager (Manager) by showing they were not motivated to protect their employer. The trial court ruled, stating,

I'm going to let you—because you mentioned it in opening statements and I think it is marginally relevant for that purpose, I'm going to let you make the point that they are out of business, but I absolutely will not let you even insinuate and go beyond that. I think [Avalos's counsel has] ... a legitimate concern.

The trial court also indicated that Owner's testimony about TLC's closure was to be “very ... circumspect.” Avalos's counsel asked the trial court...

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