Martinez v. Clark Equipment Co., 79-956
| Decision Date | 29 April 1980 |
| Docket Number | No. 79-956,79-956 |
| Parties | Ildefonso MARTINEZ and Nancy Martinez, Appellants, v. CLARK EQUIPMENT COMPANY and W. E. Johnson Equipment Company, Appellees. |
| Court | Florida District Court of Appeals |
Richard E. Doherty, Miami Beach, for appellants.
Highsmith & Strauss and Philip Glatzer, Pyszka, Kessler & Adams and William M. Douberley, Miami, for appellees.
Before HUBBART and NESBITT, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
This is an action for strict liability in tort and negligent product design brought against the manufacturer of a forklift, and for negligent repair of the forklift brought against the company which serviced the forklift. The trial court directed a verdict for the manufacturer on the strict liability count and sent the other counts to the jury against both defendants. The jury returned a verdict in favor of the defendants on all counts and a judgment for the defendants was entered thereon. The plaintiffs appeal.
The central question involved in this appeal is whether on this record a directed verdict for the defendant manufacturer on the strict liability count was proper on the ground that (a) the forklift in question had substantially changed between the time it left the manufacturer's control and the time the plaintiff was injured, (b) the plaintiff was guilty of contributory negligence in the use of the forklift which led to his injuries in the subject accident, or (c) the plaintiff's negligence was the sole proximate cause of his injuries. For the reasons stated below, we conclude that the directed verdict for the manufacturer was improperly entered on the strict liability count based on this record. Accordingly, we reverse the judgment entered for the manufacturer and remand for a new trial on the strict liability count.
The facts pertaining to the above issue are as follows. On March 2, 1976, the plaintiff Ildefonso Martinez was employed as a warehouse worker for the Dade Division of American Hospital Supply Corporation in Dade County, Florida. Part of his employment duties included operating a forklift in the warehouse of his employer. This forklift was manufactured by the defendant Clark Equipment Company and was serviced by the defendant W.E. Johnson Equipment Company. On the day in question, the plaintiff was operating the subject forklift, driving it in reverse, when the brakes failed and slammed the forklift up against the wall. The plaintiff's foot was crushed between the forklift and the wall causing certain injuries.
The plaintiff and his wife Nancy Martinez brought suit against the manufacturer for strict liability in tort and negligent design of the forklift and against the servicing company for negligent repair of the forklift. At trial, the plaintiff introduced expert and lay testimony tending to establish that the forklift contained a defective condition which was inherently dangerous to the user in that the forklift did not have a rear bumper or other similar safety device to protect the driver of the forklift from injuries to his feet in the event of a collision involving the rear of the forklift, that the plaintiff would not have been injured in this accident had such a rear bumper or other such safety device been on the forklift, that the defendant manufacturer is engaged in the business of selling forklifts and did in fact sell the subject forklift to the plaintiff's employer, and that the forklift reached the plaintiff at the time the accident occurred without any substantial change relating to the rear configuration of the forklift.
The defendant manufacturer introduced evidence at trial tending to establish that the plaintiff was aware of the dangerous condition of the forklift, that a co-employee had suffered a prior similar injury while operating the forklift and this injury was known to the plaintiff, and that the plaintiff knew that it was dangerous to allow his foot to protrude over the side of the forklift when operating it as there was no protective bumper to shield his foot from contact with other objects. The plaintiff countered with evidence tending to show that the most comfortable and, therefore, the most reasonable way to operate the forklift was to allow the foot to slightly protrude from the rear of the forklift as the plaintiff did at the time of the subject accident.
The defendant manufacturer also introduced evidence that subsequent to the sale of the forklift in 1970 to the plaintiff's employer, the drive wheel and hydraulic system of the forklift had been repaired. No evidence was developed, however, which showed any alteration or change in the rear configuration of the forklift.
At the conclusion of all the evidence, the trial court directed a verdict for the defendant manufacturer on the strict liability count and sent the count of negligent design against the manufacturer to the jury. Also the trial court sent the count of negligent repair against the defendant W.E. Johnson Equipment Company to the jury. The jury found for both defendants on all counts and a final judgment was entered for the defendants based on the verdict. The plaintiffs appeal.
It is clear that the doctrine of strict liability in tort as stated by Restatement (Second) of Torts § 402A (1965), has been adopted as the law of this state. West v. Caterpillar Tractor Co., 336 So.2d 80, 87 (Fla.1976). Section 402A of the Restatement (Second) of Torts (1965), accordingly, represents the controlling law in Florida as to strict liability in tort and states as follows:
In the instant case, the plaintiff adduced, in our view, sufficient evidence at trial to establish each of the above elements of strict liability in tort against the defendant manufacturer. The defendant manufacturer, a seller engaged in the business of selling forklifts, sold the subject forklift to the plaintiff's employer, which product had a defective condition unreasonably dangerous to the user in that it lacked a rear bumper or similar safety device to protect the driver's feet against impact with other objects. The lack of such a bumper was in part responsible for the subject injuries as such injuries would not have been sustained had such a bumper or similar safety device been originally installed.
We have no difficulty in rejecting the defendant manufacturer's contention that the forklift was substantially changed between the time it left the manufacturer's control and the time of the subject accident so as to negate any liability for the alleged defect in the forklift under Section 402A. It is true that changes were made to the forklift in the form of repairs to...
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