Berry v. Crown Equipment Corp.

• Decision Date: 16 August 2000
• Docket Number: No. 99-CV-73530-DT.,99-CV-73530-DT.
• Parties: Lasandra BERRY, Plaintiff, v. CROWN EQUIPMENT CORPORATION, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

108 F.Supp.2d 743

Lasandra BERRY, Plaintiff, v. CROWN EQUIPMENT CORPORATION, Defendant.

No. 99-CV-73530-DT.

United States District Court, E.D. Michigan, Southern Division.

August 16, 2000.

Carl L. Collins, III, Detroit, MI, for plaintiff.

Daniel J. Scully, Jr., Detroit, MI, for defendant.

OPINION AND ORDER REGARDING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

ROSEN, District Judge.

I. INTRODUCTION

Plaintiff Lasandra Berry was injured while driving a stand-up forklift manufactured by Defendant Crown Equipment Corporation. In her Amended Complaint, Plaintiff claims that the forklift she was driving (the "Crown 35RRTT") was defectively designed and alleges as theories of recovery breach of implied warranties (Count I) and negligence (Count II).

This action is presently before the Court on Defendants' Motion for Summary Judgment. Plaintiff has responded to Defendant's Motion. Having reviewed and considered the parties briefs and supporting documents, and having heard the oral arguments of counsel at the hearing held on August 10, 2000, the Court is now prepared to rule on this matter. This Opinion and Order sets forth the Court's ruling.

II. PERTINENT FACTS

Plaintiff Lasandra Berry is an employee of Technicolor Video ("Technicolor"). On July 30, 1998, Plaintiff was working as a material handler in Technicolor's Inventory Control department. As part of her duties as a material handler, Plaintiff moved products (videotapes) from one location to another in the company's warehouse using a stand-up end controlled forklift manufactured by Defendant Crown Equipment Company.

A standup forklift is one that the driver operates while standing within the confines of the machine. An operator controls the forklift with a combination of a multi-function control handle, a steering tiller, and a floor brake pedal. To control the direction of travel, speed, and several other functions, the operator uses the multi-function control handle with her right hand. With her left hand, the operator uses the steering tiller. In order to stop the forklift, the operator can use the spring-loaded floor pedal (the "deadman brake pedal") located on the floor board of the operator's compartment. The deadman brake pedal works in a manner opposite to that of an automobile. The deadman brake is activated by the operator lifting her left heel allowing the pedal to rise from the floor board and engage the brake system. In operating the brake, the operator's foot remains in contact with the elevating pedal. When depressed, the deadman brake pedal is separated from the rest of the floor board by a ridge of approximately ¾ inch. Similarly, there is a ridge approximately 1½ inch high to the outside of the operator's foot.

Another braking mechanism available to the operator is commonly referred to as "plugging." "Plugging" is accomplished by using the multi-function control handle of the forklift as follows. If an operator is traveling with the forks trailing and wishes to stop, the operator reverses the position of the multi-function control handle. This action changes the direction in which the forklift is traveling, reverses the polarity of the electric motors, and thus slows down the forklift. At the point where the forklift has stopped and before it begins traveling in the opposite direction, the operator can either release the multi-function control handle or place it in "neutral," either of which ensures that the forklift will remain in the stopped position. (Should the operator maintain the control handle in the reverse position, the forklift would begin traveling in the "forks-forward" direction.)¹

The stand-up forklift at issue in this action had no door blocking the opening to the operator compartment. According to the record evidence presented in this case, of the 77,000 stand-up forklifts manufactured by Crown, only approximately 350 were equipped with doors of any kind, and only a handful of those remain in use today because all but one customer has removed the doors.²

Plaintiff testified in her deposition that she was trained by Technicolor on the use and operation of stand-up forklifts. She also testified that by "common sense," she knew to keep her hands and feet inside the operator's compartment and that if any part of her body were outside the confines of the compartment, she could get hurt. See, Plaintiff's Deposition, pp. 34-35, Defendant's Ex. C. She further testified that while she was specifically instructed that while operating the forklift, she was to always look in the direction in which the forklift was traveling. Id. at p. 35.

Despite Plaintiff's training and common sense, Plaintiff admitted that on occasion she would operate the stand-up forklift with her foot hanging outside the operator's compartment. Id. at 49-50. She testified that it was a "comfort thing," that she would "get tired of standing" and "get restless" and so she would often drive for a while with her foot stretched out. Id.

On July 30, 1998, Plaintiff began her day at 6:00 am., and operated the stand-up forklift at issue without incident or complaint for four hours. At approximately 10:30 a.m., Plaintiff proceeded to park the forklift so that she could take her second morning break. Plaintiff claims that she was driving the machine with forks trailing, and was approximately 10 to 15 feet from a structural beam. She attempted to apply the brakes to stop the forklift but she claims that the brakes failed to engage and the forklift collided with the beam. Plaintiff was injured when part of her left foot — which was resting outside the confines of the operator's compartment — was crushed between the forklift and the beam. As a result of the accident, Plaintiff had two and a half toes amputated.

Although at her deposition, Plaintiff stated that she "could not recall" whether she had her foot outside of the operator's compartment at the time of the accident, as indicated above, Plaintiff admitted that she often would operate the forklift with one foot hanging outside of the confines of the compartment. Furthermore, one of Plaintiff's co-workers who witnessed Plaintiff operating the forklift just prior to and at the time of the collision testified that Plaintiff's left foot was outside the operator's compartment for the entire time leading up to the collision, see Lewis Dep., pp. 15-16, and Plaintiff does not dispute Ms. Lewis's testimony, nor has she presented any contradictory testimony.³

On June 21, 1999, Plaintiff instituted this product liability action in Wayne County Circuit Court. Defendant Crown Equipment timely removed the action to this Court on diversity of citizenship grounds.

Plaintiff contends that the Crown 35RRTT stand-up forklift was defective due to Crown's failure to have doors enclosing the operator compartment to prevent the operator's foot from extruding beyond the confines of the compartment.⁴

Discovery has now closed and Defendant timely moved for summary judgment in its favor on several grounds. First, Defendant argues that Plaintiff's safety expert, George Bombyk, is not qualified under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), to render an expert opinion as to any alleged design defect in this case and, therefore, his testimony should be disregarded in its entirety. Second, Defendant argues that even assuming arguendo that Mr. Bombyk may be qualified as an expert, Bombyk failed to offer any testimony as to any alternative design or the feasibility of such an alternative design. Lacking such expert testimony, Plaintiff is unable to establish a prima facie design defect claim or a claim of breach of implied warranties under Michigan law. Last, Defendant argues that even if Plaintiff has made out a prima facie case, Crown is entitled to at least partial summary judgment on Plaintiff's claim for non-economic damages because Plaintiff has not sustained a "permanent loss of a vital bodily function," which is required under Michigan law in order to recover such damages. Plaintiff has responded to each of Defendant's arguments.

III. DISCUSSION

A. STANDARDS APPLICABLE TO MOTIONS FOR SUMMARY JUDGMENT

Summary judgment is proper "`if the pleadings, depositions, answer to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Fed. R.Civ.P. 56(c).

Three 1986 Supreme Court cases — Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); and Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) — ushered in a "new era" in the standards of review for a summary judgment motion. These cases, in the aggregate, lowered the movant's burden on a summary judgment motion.⁵ According to the Celotex Court,

In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof.

Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

After reviewing the above trilogy, the Sixth Circuit established a series of principles to be applied to motions for summary judgment. They are summarized as follows:

* Cases involving state of mind issues are not necessarily inappropriate for summary judgment.

* The movant must meet the initial burden of showing "the absence of a genuine issue of material fact" as to an essential element of the non-movant's case. This burden may be met by pointing out to the court that the respondent, having had sufficient opportunity for discovery, has no evidence to support an essential element of his or her case.

* The...