Lafarge N. Am., Inc. v. Nord

• Decision Date: 16 December 2011
• Docket Number: 1090620.
• Citation: 86 So.3d 326
• Parties: LAFARGE NORTH AMERICA, INC., and Wayne Looney v. Lawrence NORD.
• Court: Alabama Supreme Court

86 So.3d 326

LAFARGE NORTH AMERICA, INC., and Wayne Looney

v.Lawrence NORD.

1090620.

Supreme Court of Alabama.

Sept. 23, 2011.

Rehearing Denied Dec. 16, 2011.

J. Michael Bowling and Joseph L. Kerr, Jr., of Friedman, Leak, Dazzio, Zulanas & Bowling, P.C., Birmingham, for appellants.

Apsilah Owens Millsaps of Owens & Millsaps, LLP, Tuscaloosa, for appellee.

PARKER, Justice.

Lafarge North America, Inc. (“Lafarge”), and Wayne Looney (hereinafter collectively referred to as “the defendants”) appeal from a judgment entered against them following a jury verdict in favor of Lawrence Nord. We reverse the trial court's judgment and render a judgment in favor of the defendants.

Facts and Procedural History

Nord's claims arise out of a personal injury sustained by Nord at Lafarge's cement packhouse (“the packhouse”). At the packhouse, various forms of bagged cement are loaded onto flatbed trucks owned and operated by companies other than Lafarge, by Lafarge employees using forklifts. The drivers of the flatbed trucks drive their trucks into the loading zone of the packhouse, which consists of two loading bays. The drivers are warned by signs posted at the entrance of the loading zone to “watch for lift trucks.” After parking the flatbed truck in one of the two loading bays within the loading zone, the driver of the flatbed truck must then register with Lafarge at the packhouse's office (“the office”) to receive his or her load assignment. A Lafarge employee then loads the flatbed truck with bagged cement using a forklift.

On June 14, 2006, Nord, an employee of Southern Tank Transport, Inc. (“Southern Tank”), drove a Southern Tank flatbed truck to the packhouse to pick up a load of bagged cement. Nord testified that he regularly picked up loads of bagged cement from the packhouse. When Nord arrived at the packhouse, a truck was parked in the first loading bay, which is nearest the office, so Nord parked his truck in the second loading bay and proceeded to walk through the loading zone to the office to register and receive his load assignment. ¹ After registering at the office, Nord began walking back to his truck, and he noticed that Looney was using a forklift to load the truck parked in the first loading bay with pallets of bagged cement. Nord waited until Looney had begun to load a pallet of bagged cement onto the truck in the first loading bay before attempting to walk through the loading zone and behind the forklift to return to his truck. As Nord was walking behind the forklift Looney was operating, Looney, unaware of Nord's presence, placed the forklift in reverse in order to make a U-turn and ran over Nord's foot; Nord testified that after Looney placed the forklift in reverse “[i]t was coming kind of fast.”

Nord suffered three broken bones in his foot, which required surgical repair. Nord incurred medical expenses for the treatment of the injury to his foot in the approximate amount of $12,985. As a result of the injury, Nord was unable to work from June 15, 2006, to November 20, 2006, amounting to $27,436 in lost wages. The parties stipulated to the fact that Nord was paid $10,440.77 for medical expenses and $14,197.48 for lost wages by Southern Tank's workers' compensation insurer. Nord's physician subsequently released him to work without any restrictions.

Nord testified that he knew that he needed to be careful around “construction equipment,” such as the forklift being operated by Looney, and that if he failed to exercise caution he could be injured. During cross-examination of Nord by Lafarge's trial counsel, the following exchange occurred:

“Q. [Lafarge's trial counsel:] We can go to your deposition, if you want. If you will pick up and turn to page 79, starting at page 19 on the deposition that's got a number one on it. Tell me when you're there.

“A. [Nord:] I'm here.

“Q. Question, ‘Did you have any conversation with the forklift operator before he hit you?’ ‘No’ is the answer.

“Question, ‘Do you know whether or not he knew you were in the area before he hit you?’ ‘No.’

“Question, ‘In other words, you don't know whether he saw you at all?’ ‘No, I don't.’

“ ‘I'm not talking about when he's backing up. I'm talking about do you know if he even knew you were out of your truck?’ ‘No.’

“So in other words, you didn't have any evidence that he saw you?

“A. No.

“Q. But you knew he was there?

“A. Yes.

“Q. You knew he was loading the truck in front of you?

“A. Yes.

“Q. You knew that what those forklifts do is, they drive up and they drop their pallets off on the truck, and then they've got to back up in order to get turned around and go get the next load, right?

“A. Yes.

“Q. And you knew that's what he was going to do. As soon as he dropped those pallets off, he was going to back up and go get more.

“A. Yes.

“Q. And you knew that being around the forklift without him knowing you were there could be dangerous?

“A. Yes.

“Q. And at that point, you testified in your deposition that you could have just taken a left and gone along that wall and you would have never encountered him?

“A. Yes.

“Q. And what you also could have done, though, I don't know that it's in good practice, is—that facility is 50 yards wide. You could have walked the other direction away from the office and away from him and gone around that way (indicating)?

“A. Yes, I could have did [sic] all that.

“Q. You could have done any of those things, Mr. Nord. And all I'm saying is this: The one avenue that put you in danger was to take a direct line right behind the back of that forklift. And what you did, your deposition testimony says it perfectly, you waited until he was putting the pallets down and then you walked right behind him without him ever knowing you were there, right?

“A. Yes.

“Q. When you knew that as soon as he got the pallets down, he was going to back up. You could have just stopped where you were and gone back to the computer until he was done loading that truck, couldn't you?

“A. I could have done that, too.

“Q. I mean, we can at least agree to this: Any one of those options would have been safer than walking behind that forklift, knowing that it was going to back up?

“A. Yes.

“Q. Mr. Nord, you've got a right to file this lawsuit, and I promise you I don't begrudge you for that. It's a right we've all got, and it's your right to have 12 peers deciding it. My question is this, though: If you're honest with yourself and honest with this jury, don't you have to admit that you bear at least some responsibility for putting yourself behind that forklift without making sure [that Looney knew you were] there?

“A. I suppose so.”

Nord further testified that he regularly walked through the loading zone in the packhouse in order to get to the office and that he had witnessed other drivers walk through the loading zone as well. Looney testified that it is not unusual for the truck drivers to walk through the loading zone. In fact, Nord and Looney testified that the drivers had to be in the loading zone in order to direct the forklift drivers where to place the pallets of bagged cement onto their flatbed trucks.

Looney testified that he was a trained forklift operator and that he had worked as a forklift operator for Lafarge since 1993. Looney testified that he had a duty to watch for pedestrians while operating the forklift in the packhouse and that it was “a basic principle of forklift operation” that the driver look in the direction he was traveling. Concerning the details surrounding the accident, Looney testified that after placing the pallet of bagged cement on the flatbed truck in the first loading bay and before backing up, he “[l]ooked left and right and looked in [his] rearview mirror.” There was some discrepancy in Looney's testimony concerning the last time he looked behind the forklift before backing the forklift up and hitting Nord:

“Q. [Nord's trial counsel:] Now, when you went to load that truck in loading zone one on June 14, 2006, you placed your load on the truck and then you went to back up, right?

“A. [Looney:] That's right.

“Q. But before you backed up, you looked in your mirror, right?

“A. Looked left and right and looked in my rearview mirror.

“Q. Left, right, and then rearview mirror, right?

“A. That's right.

“Q. And then you backed up, correct?

“A. That's right.

“Q. And the last time you looked in your rearview mirror was before you started backing up, right?

“A. That's right.

“Q. So the last time you checked behind you was before you started backing up, right?

“A. Right.

“Q. And, in fact, once you started backing up, you didn't look back there again, did you?

“A. I looked back once again after I cleared my forks out from under my pallets.

“Q. Now, do you recall your deposition—let me get you to the right page there. Look at page 125. The question, line 19—

“A. Okay. Hold it, I ain't there yet, Okay.

“Q. I asked you, ‘Now, when had you last checked your mirror before you heard Mr. Nord's hat hit the ground?’ And you answered what?

“A. ‘Before I backed up.’

“Q. ‘Before I backed up.’ That's what you said just a minute ago to us as well, right?

“A. That's right.

“Q. But for the first time in today or at your deposition, you just said you looked back before you—after you pulled your pallets—forks out of the pallets. That's not what you told us before, is it?

“A. No, ma'am, it's not.

“Q. And you were under oath before, correct?

“A. That's right.

“Q. You had absolutely no idea from the time you put your forklift in reverse, backed away from that truck, turned way on with the back end of your truck going towards the south end of that building, you never saw Mr. Nord, did you?

“A. No, ma'am, I did not.

“Q. And that's not because of a blind spot, it's because you weren't looking, isn't it?

“A. Yes, ma'am, I was looking.

“Q. But what you've just talked about, you just told me that the last time you looked back was before you backed up; isn't that correct?

“A. That's right.

“Q. So you are now saying that the last...