Bavuso v. Caterpillar Indus., Inc.

• Decision Date: 28 November 1990
• Citation: 563 N.E.2d 198,408 Mass. 694
• Parties: , Prod.Liab.Rep. (CCH) P 12,672 Ralph BAVUSO v. CATERPILLAR INDUSTRIAL, INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 198

563 N.E.2d 198

408 Mass. 694, Prod.Liab.Rep. (CCH) P 12,672

Ralph BAVUSO v. CATERPILLAR INDUSTRIAL, INC.

Supreme Judicial Court of Massachusetts Middlesex.

Argued Sept. 6, 1990.

Decided Nov. 28, 1990.

Timothy Wilton, Boston, for defendant.

Kenneth A. Pollenz, Wellesley, for plaintiff.

Before NOLAN, LYNCH, O'CONNOR and GREANEY, JJ.

GREANEY, Justice.

In response to special questions, a jury in the Superior Court concluded that the defendant, Caterpillar Industrial, Inc., had committed a breach of its implied warranty of merchantability in the manufacture of a forklift truck leased by the plaintiff's employer. The verdict was premised on a finding that the defendant had failed to furnish adequate warnings of hazards in connection with the plaintiff's operation of the forklift. A judgment awarding damages in accordance with the jury's verdict was entered, and the defendant appealed. We transferred the case to this court on our own motion. We conclude that it was error to deny the defendant's motion for judgment notwithstanding the verdict because the danger which the plaintiff claims he was not adequately warned of was obvious. Accordingly, we reverse the judgment and direct the entry of judgment for the defendant.

We state the facts under the standard applicable to a motion for judgment notwithstanding the verdict. ¹ The defendant manufactured the forklift that the plaintiff was using when he was injured. The front portion of the forklift consisted of the mast, the forks, and the load backrest extension. The mast is a vertical structure of two uprights or columns, seventy-three inches tall. The two forks project forward from the base of the mast. The forks ride up the mast and support and lift the load from beneath. The backrest extension serves as a fence to stabilize the load from the rear and prevent it from falling backwards. (A view of the forklift and these components accompanies this opinion. See Appendix.) On the forklift involved in this case the backrest extension was thirty-six inches tall. ² The entire structure, mast, forks, and backrest, could tilt forward roughly six degrees and backward roughly twelve degrees. The forklift had the capacity to raise the forks 106 inches. Thus, it was possible to raise a load above the seventy-three inch height of the mast columns so that the only support preventing the load from falling backward was the backrest extension.

The forklift operator sits directly behind the mast. To protect the operator from falling objects, some forklifts are equipped with overhead guards. An overhead guard is an opensided canopy of tubular metal with metal slats across the top. (See Appendix.) The forklift in this case was equipped with an overhead guard, but the plaintiff's employer had removed it to improve clearance. There was no overhead guard on the forklift at any time that the plaintiff was using it. Operation of a forklift like this one without the guard is specifically permitted by the Occupational Safety and Health Administration, in some circumstances, see 29 C.F.R. § 1917.43(e)(iv) (1990), and such operation is common in the truck loading industry.

The plaintiff was nineteen years old at the time of the accident and had been operating forklifts since junior high school and through high school (during part-time and summer jobs). ³ As to this forklift, the plaintiff had operated it as an employee of the Rafter Recycling Corporation (which leased the forklift) from January, 1981, until April, 1981, and then again from June, 1981, until July 6, 1981, the date of the accident.

On July 6, 1981, the plaintiff was operating the forklift and was using it to move bales of cardboard into the trailer of a parked truck. Each bale measured about three feet by four feet by six feet, and weighed approximately 1,500 pounds. The plaintiff was moving these bales two at a time, one bale on top of another. Before he was injured, the plaintiff had loaded at least part of a trailer in this way. Assuming that the bales were resting on the forks on their four foot side, ⁴ the top of the bottom bale was exactly even with the top of the thirty-six inch backrest extension, and the top bale was prevented from falling backward only by the mast uprights behind the backrest, and only for so long as the bale was not raised above the uprights. At this time, the plaintiff knew that the forklift he was using lacked an overhead guard because it had been removed to permit more efficient loading.

Just prior to the accident, the plaintiff was moving two bales into the trailer by carrying the elevated bales up a ramp and into the trailer. On one such maneuver, either the forklift or the bales hit the side of the trailer as the plaintiff attempted to enter it. The plaintiff therefore backed up, put the bales down, and moved the ramp away from the rear of the trailer. Without checking the alignment of the bales, or the position of the top bale, the plaintiff then reelevated the bales by about one and one-half feet and moved the forklift behind the trailer. The plaintiff intended to raise the bales to the level of the trailer floor (about three feet) and to place them in the trailer from that position, without actually entering the trailer. While the forklift was stopped behind the trailer, and the plaintiff was checking its position, the top bale rolled backwards onto the plaintiff injuring him. ⁵

The plaintiff's theory of the case, and the thrust of his presentation to the jury, was that the warnings appearing on the forklift itself, and in the operator's manual, were inadequate because they failed clearly to alert him to the danger presented by the forklift's use. These warnings were located on a red metal plate which was attached directly next to the operator's seat. The information on the plate read, in part, as follows:

"WARNING TO THE OPERATOR

"ONLY TRAINED AND AUTHORIZED PERSONNEL MAY OPERATE THIS LIFT TRUCK. FOR SAFE OPERATION, READ AND FOLLOW THE OPERATOR'S GUIDE FURNISHED WITH THE TRUCK AND OBSERVE THE FOLLOWING WARNINGS: ... "16. LIFT TRUCK SHOULD BE EQUIPPED WITH OVERHEAD GUARD AND LOAD BACKREST EXTENSION. USE EXTREME CAUTION IF UNABLE TO USE AN OVERHEAD GUARD AND BACKREST."

In addition, the operator's manual contained the warnings set forth in the margin. ⁶

In support of his contention that these warnings were inadequate, the plaintiff presented an expert witness who testified that the warnings were insufficiently specific and improperly placed on the forklift. In this expert's opinion, there should have been a warning in front of the operator to caution him not to use the forklift without an overhead guard and a warning not to stack above the top edge of the load backrest extension. In addition, the expert stated that there should have been warnings at the locations where the overhead guard was bolted which cautioned that operation of the forklift without that safety device would be hazardous.

It was in this evidentiary context that the defendant sought a directed verdict at the close of the plaintiff's evidence, and again at the close of all the evidence, on the ground that the defendant "owed no duty to warn [the] plaintiff, as a matter of law, because the dangers of operating the forklift without the overhead guard in place were obvious . The defendant's motions for directed verdict were denied. After the trial, the defendant sought judgment notwithstanding the verdict on the ground stated above. This motion was also denied. ⁷

In this court, the defendant has renewed its argument that it was under no duty to warn the plaintiff because the danger the plaintiff faced in using the forklift as he did in this case was obvious. We agree with the defendant's argument.

"A manufacturer of a product has a duty to warn foreseeable users of dangers in the use of that product of which he knows or should have known." Mitchell v. Sky Climber, Inc., 396 Mass. 629, 631, 487 N.E.2d 1374 (1986). However, we have recognized that, "where the danger presented by a given product is obvious, no duty to warn [exists] because a warning will not reduce the likelihood of injury." Colter v. Barber-Greene Co., 403 Mass. 50, 59, 525 N.E.2d 1305 (1988). See, e.g., Slate v. Bethlehem Steel Corp., 400 Mass. 378, 382, 510 N.E.2d 249 (1987); Maldonado v. Thomson Nat'l Press Co., 16 Mass.App.Ct. 911, 912-913, 449 N.E.2d 1229 (1983), and cases cited. See also W. Prosser & W. Keeton, Torts § 96, at 686 (5th ed.1984) ("It is clear that there should be no liability for failing to warn someone of a risk or hazard which he appreciated to the same extent as a warning would have provided"). ⁸

Several courts, considering factors such as the experience and awareness of the operator, have acknowledged or applied this rule in cases with facts similar to those here, and in cases involving other types of forklift-related accidents. See Murphy v. Eaton, Yale & Towne, Inc., 444 F.2d 317, 323-326 (6th Cir.1971); Posey v. Clark Equip. Co., 409 F.2d 560, 563 (7th Cir.), cert. denied, 396 U.S. 940, 90 S.Ct. 374, 24 L.Ed.2d 242 (1969); Collins v. Hyster Co., 174 Ill.App.3d 972, 979-980, 124 Ill.Dec. 483, 529 N.E.2d 303 (1988); Friar v. Caterpillar, Inc., 529 So.2d 509, 515 (La.Ct.App.1988). Cf. Greeno v. Clark Equip. Co., 237 F.Supp. 427, 429 (N.D.Ind.1965) ("Incurring a known and appreciated risk [in the use of a forklift] is likewise a defense"); Torrogrossa v. Towmotor Co., 56 A.D.2d 558, 559, 391 N.Y.S.2d 866 (N.Y.Sup.Ct.1976), aff'd, 44 N.Y.2d 709, 405 N.Y.S.2d 448, 376 N.E.2d 920 (1978) (suggesting that there is no duty to warn an experienced forklift operator that a particular forklift is not equipped with overhead guard). ⁹ See also Restatement (Second) of Torts § 388(b) (1965).

In this case, the forklift had the capacity to lift heavy loads well above the seventy-three inch height of the mast uprights. The load that the plaintiff was in the process of lifting when he was injured consisted of two heavy...