Bilotta v. Kelley Co., Inc., CX-82-186

• Decision Date: 16 March 1984
• Docket Number: No. CX-82-186,CX-82-186
• Citation: 346 N.W.2d 616
• Parties: Albert J. BILOTTA, Jr., et al., Respondents, v. KELLEY COMPANY, INC., et al., Appellants.
• Court: Minnesota Supreme Court

Page 616

346 N.W.2d 616

Albert J. BILOTTA, Jr., et al., Respondents, v. KELLEY COMPANY, INC., et al., Appellants.

No. CX-82-186.

Supreme Court of Minnesota.

March 16, 1984.

Syllabus by the Court

1. In design-defect cases, a jury must be instructed on the manufacturer's duty of care to produce a reasonably safe product. We adopt as additional instructions, to be substituted for the consumer-expectation standard, set out in paragraph 2 of JIG II 118, the definition of that duty of care which we approved in Holm v. Sponco, 324 N.W.2d 207 (Minn.1982).

2. An erroneous instruction on design defect requires a new trial on the issue of liability where it is impossible to tell whether the jury based its findings on liability on design defect or on failure to warn and the evidence on failure to warn is not conclusive against appellant as a matter of law.

3. Because a manufacturer may not delegate its duty to produce a reasonably safe product, the offer by a manufacturer of an optional safety device without which the product is unreasonably dangerous does not relieve a manufacturer of liability.

4. An instruction on express warranty should be given only if the trial court finds that the evidence supports the giving of such an instruction and if, on the verdict form, a special interrogatory is submitted to the jury on that issue.

5. Third-party negligence and OSHA violations which were reasonably foreseeable do not entitle a manufacturer to an instruction on superseding cause.

6. The evidence of causation was sufficient to submit the issue to the jury.

7. The negligence of the defendants will be resubmitted to the jury on retrial.

Richard Baldwin, John F. Cook, St. Paul, for appellants.

John V. Norton, Minneapolis, Thomas M. Mooney, St. Paul, John S. Schomburg, Minneapolis, for respondents.

Heard, considered and decided by the court en banc.

WAHL, Justice.

Albert J. Bilotta, Jr., suffered severe and permanent brain damage as the result of an industrial accident on December 5, 1977. He was pinned at the neck against a doorjamb when a forklift truck tipped over onto him at a warehouse loading dock. He filed this lawsuit through his special guardian, alleging strict liability, negligence and breach of warranty against ELCA Enterprises (ELCA), the owner of the warehouse, Rauenhorst Corporation (Rauenhorst), the contractor who built the warehouse Robert R. Pugleasa Company (Pugleasa), the distributor of the dockboard, and Kelley Company (Kelley), the manufacturer of the dockboard. Kelley then commenced a third-party action against Safelite Industries (Safelite), the lessee of the warehouse, two of Safelite's employees, Michael P. McGrath and Dan Selley, Labor Pool, Inc., which sent Bilotta to the warehouse as day labor, and finally, Allis-Chalmers Corporation (Allis-Chalmers), the manufacturer of the forklift truck. ¹

Following a 7-week trial, the jury was given a special verdict form which asked, among other questions, whether the dockboard was defective and unreasonably dangerous when it left the Kelley Company and whether Kelley, ELCA, Rauenhorst, and Safelite were negligent. The jury returned a verdict finding Kelley strictly liable and finding Kelley, Safelite, and Pugleasa negligent. It attributed 50% of the liability to Kelley, 40% to Safelite, and 10% to Pugleasa and assessed $2,300,000 in damages.

Kelley appeals from the trial court's denial of its post-trial motions for a JNOV or a new trial on the grounds of erroneous jury instructions, insufficient evidence of causation, and irreconcilable apportionment of liability.

A. The Product:

Dockboards are used to bridge the gap between a loading dock and a carrier bed. Personnel and various types of forklift trucks then maneuver across the board to load or unload the carrier. Ninety percent of all dockboards are portable plates that are manually placed over the gap. The other ten percent are either mechanical or hydraulic operations.

Mechanical dockboards are operated by raising the ramp component and extending a hinged lip onto the carrier bed. They are installed over a recessed pit, giving the dockboard a capability of accommodating carrier beds either above or below the dock level. When not in use, the lip returns to a pendant position and the ramp is supported at dock level by steel legs underneath the ramp at each side.

When in use, a dockboard is supported on one side solely by the carrier bed. Thus, a major hazard at loading docks is that the carrier may become separated from the lip extension, leaving the dockboard without support on one side, perhaps with equipment and/or personnel on the dockboard at the time. This can occur either (1) if the semi truck pulls or rolls away with a load on the ramp or (2) if the angle of the lip is too steep for a forklift truck to ascend, in which case the forklift's drive wheels, upon hitting the lip, effectively push the carrier away from the dock.

In addressing the first hazard, Kelley's competitors universally employ a fixed safety leg, which prevents the dockboard from falling below dock level should the semi truck pull away. Kelley claims, however, that such a system in itself exacerbates the second hazard of the forklift pushing away the carrier. It claims that truck deflection from the weight of the load and forklift may cause the lip to drop below ramp level, while the fixed leg prevents the ramp from following the lip. The forklift driver either will not notice the deflection and resultant steep lip angle or will not bother to stop and manually adjust the legs.

Kelley addressed the hazard associated with truck deflection by its patented "cross-traffic legs." Upon raising the ramp, the lip automatically flips up. The lip flip in turn cams the safety leg into a retracted position. In this way the ramp and lip can "float" together up and down with the deflection of the carrier bed, thus preventing the creation of an angle dangerous to forklift operation. Without a load on the dock, the ramp would raise by its own upward bias, the lip would drop, and the cam would return the legs to their fixed position for support at dock level.

The cross-traffic leg, however, left the first hazard unaddressed. If the carrier pulled or rolled away while a heavy load was on the dock, there would not be time for the lip to drop and cam the safety legs into position, and thus the dockboard would fall to its lowest position. To prevent this occurrence, Kelley's engineers developed a "panic stop." This patented device is a notched post which "senses" the ramp's speed of descent and can catch a fall within 3 inches. Thus, Kelley's two patented devices corrected both hazards when used in combination, while its competitors addressed only one hazard.

Kelley's dockboards are priced above its competitors' models. In order to compete, Kelley offered both the fixed-leg safety system and the cross-traffic leg system, for which it offered a panic stop as a $200 option.

In 1970, Kelley developed Model 6280, which is a contractors' dockboard. It was "self-forming" in that it came equipped with a steel pan around which concrete for the dock was poured, thereby saving time and installation costs. It had a smaller recessed pit than the other mechanical model, Model 6081. Because of this, use of the panic stop in Model 6280 would require additional installation steps and would increase the per-unit price by several hundred dollars, to almost equal the price of the 6081, a larger and higher-capacity board. Thus the 6280 was not marketed with a panic stop, but it did have retractable cross-traffic legs.

In 1971, the contractor for Safelite's Eagan warehouse, Rauenhorst, specified the Model 6081 with panic stops for its loading docks. To meet anticipated competitive bids, Pugleasa, Kelley's distributor, requested and received permission to submit alternative bids. Pugeasa's submitted bid on the 6280 contractors' boards, without panic stops, was eventually accepted to save time and costs in construction.

B. The Accident.

On December 5, 1977, Albert Bilotta, age 20, went to Labor Pool to request work and was sent to the Safelite warehouse with another man, Keith Meyer. They were assigned general clean-up chores near the loading dock. Meanwhile, Mike McGrath, a Safelite employee, was unloading pallets from a semitrailer with a forklift truck. He was using the Kelley dockboard a few inches above dock level. After this point, accounts of what happened vary substantially. It is clear that the forklift became stuck somehow, its right wheels on the dock and its left wheels on the raised ramp, and that McGrath could not move it. ²

Unable to free the forklift, McGrath conferred with the semi driver, Dan Selley, and told him to pull the semi out. Selley pulled out about 15-20 feet. This removed the dockboard's support, and the ramp fell to its lowest position under the weight of the forklift truck. Somehow, Bilotta became backed up against the warehouse doorjamb and was pinned there at the neck when the forklift truck tipped over onto him.

Bilotta was trapped by the forklift for several minutes before paramedics were able to release him. As a result, his brain was deprived of oxygen and he suffered severe and permanent brain damage.

Kelley's appeal raises the following issues:

1. In a conscious design-defect case, are instructions adequate when they fail to direct the jury to consider the factors which a manufacturer must consider in producing its product?

2. Were the instructions adequate when they failed to state that warnings are not required for obvious dangers?

3. Does the offer of an optional safety device, without which the product is unreasonably dangerous, relieve the manufacturer from liability as a matter of law?

4. Was it error for the trial judge to instruct the jury on express warranties?

5. Did the trial court err in failing to instruct the jury on superseding cause?

6. Is the expert testimony on causation...