Pitts v. Genie Indus., Inc.
| Decision Date | 18 January 2019 |
| Docket Number | No. S-18-219.,S-18-219. |
| Citation | 921 N.W.2d 597,302 Neb. 88 |
| Parties | Trevor PITTS and Rebekah Pitts, a Married Couple, Appellants, and Haco Electric Company, Incorporated, a Nebraska Corporation, Appellee, v. GENIE INDUSTRIES, INC., a Washington Corporation, Appellee. |
| Court | Nebraska Supreme Court |
Peter C. Wegman, Mark R. Richardson, Lincoln and Alyssa P. Martin, of Rembolt Ludtke, L.L.P., and John W. Ballew, Jr., of Ballew Hazen, P.C., L.L.O., Lincoln, for appellants.
Michael L. Moran, of Engles, Ketcham, Olson & Keith, P.C., Omaha, for appellee Haco Electric Company, Incorporated.
Michael F. Coyle and Timothy J. Thalken, of Fraser Stryker, P.C., Omaha, L.L.O., for appellee Genie Industries, Inc.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
An electrician was injured when an aerial lift malfunctioned and tipped over while the electrician was working approximately 30 feet in the air on the lift’s raised platform. After sustaining serious injuries, the electrician brought strict liability claims, negligence claims, and an implied warranty claim against Genie Industries, Inc. (Genie), the manufacturer and designer of the lift. Genie moved for summary judgment as to all of the electrician’s claims and sought to exclude the electrician’s expert opinions on the issues of unreasonably dangerous conditions, defect, causation, and alternative design. Following a hearing, the district court partially granted Genie’s motion to exclude expert testimony and granted Genie’s motion for summary judgment on all claims. The electrician appeals.
Genie manufactured an aerial lift named Genie model "TZ-34/20." In order to operate the lift, an operator stands on a platform, or "bucket" or "basket," and the platform is raised and lowered. The platform is raised and lowered by an extension of the lift referred to as a "boom." The lift sits atop of four outriggers that can be retracted when the lift is being transported. The outriggers are intended to extend, make contact with the ground, and raise the lift off the ground in a level manner.
The user operates the lift by pressing buttons on one of two control panels: (1) a ground control panel that operates the outriggers, boom, and platform and (2) a platform control panel located directly on the platform that operates only the boom and the platform. There is also a key switch located at the platform controls that selects which of these two controls will operate. For example, when the key switch is turned to the platform setting, the ground controls will not operate. In theory, an operator standing on the platform should not be able to move or control the outriggers by pressing buttons on the platform control panel. This mechanism was designed to avoid destabilization while an operator is on the platform.
The lift in question was sold by Genie to Nebraska Machinery Company (Nebraska Machinery) in May 2011. Over the next few years, a number of repairs were performed on the lift. According to Nebraska Machinery’s work orders, the lift was first repaired in August 2011, 4 months after the sale, when the "limit switch" failed, which caused the lift to become incapable of lowering. In the 2 years prior to the electrician’s accident, there were approximately 30 total work orders for repairs on this particular lift, several of which related to issues with the "auto-leveling" system and the outriggers.
Genie started manufacturing this type of lift in 2003 and has made more than 4,600 of them. Genie is not aware of any other lift falling over in the same manner on any other occasion. During the end of the manufacturing process, Genie tested the lift’s functions and determined that the tested movement functions worked properly. Genie’s senior product safety manager testified that the lift’s design was consistent with all relevant national standards and that in his opinion, the lift’s design used the best technology reasonably available at the time it was made.
In June 2013, Nebraska Machinery leased the lift to a general contractor for use at a jobsite in Seward, Nebraska. Trevor Pitts is an electrician and was working for an electrical subcontractor. On August 21, the lift tipped over while Pitts was working on the platform approximately 30 feet in the air. Pitts had used the lift without any problems for 10 days before the accident. On the day of the accident, other subcontractors had used the lift less than an hour before the incident.
There appeared to be electrical tape over a button on the platform control panel, but Pitts did not know why the tape was on the button or who put it there. According to Genie, the button that was taped over was the button that levels the platform when it is in the air. Genie argues that this indicates that the leveling system was altered after the machine left Genie’s possession.
After the accident, bystanders who came to the scene saw that the left rear outrigger was "retracted." As a result of that outrigger’s being shorter than the others, the lift was not level and tipped over, causing Pitts’ injuries.
Pitts and his wife brought several claims against Genie (and two other parties, now dismissed) in the Lancaster County District Court. These claims included three strict liability claims for manufacturing and design defects and a failure to warn, three negligence claims, one breach of implied warranty claim, and a loss of consortium claim.
The Pittses’ sole expert was an electrical engineer, Dr. John Boye. Boye is a professor emeritus in the University of Nebraska-Lincoln electrical and computer engineering department who holds a Ph.D. in electrical engineering. Along with another electrical engineer, Boye also formed a small electrical engineering consulting firm as a licensed electrical and computer engineer with the state. Boye had never before examined, used, repaired, or designed an aerial lift. He also had never reviewed any other lift in the industry.
In preparing his expert report, Boye reviewed video footage from a November 2014 inspection that he did not attend. In the video, at least 20 different malfunctions of the left outrigger occurred. He also reviewed several photographs taken at the time of the accident and from the 2014 inspection, some technical documents, the work order history, depositions, and a fuel log from Nebraska Machinery. The extensive work order history and fuel log indicated that the auto-leveling system was not working correctly prior to the date of the accident.
Boye reported that the photographs from the 2014 inspection showed the wiring inside the ground control panel was "not well done." He explained that the leads of the diodes were not insulated and were very close together. Boye describes a diode as an electrical device that allows current to flow in one direction.
Boye later participated in a physical inspection of the lift in November 2015. In the year since the November 2014 inspection, the lift remained in the sole possession of Nebraska Machinery. However, when Boye completed his 2015 inspection, the lift behaved differently than it did in 2014. In his report, Boye explained that the lift clearly malfunctioned in the 2014 videos but that during the 2015 inspection, the lift either did not malfunction at all or malfunctioned differently when posed with the same tests. Based on the machine’s failing to malfunction as it did in 2014 and at the time of the accident, Boye assumed that the lift had been altered between 2014 and 2015. Because of the lift’s alleged alteration, Boye opined that the "[parties] may never be able to find [out] what was wrong originally."
Boye reported generally that the accident occurred from an electrical malfunction. However, based on his overall observations, Boye was unable to precisely pinpoint what component caused the lift to malfunction on the day of Pitts’ accident. Although his report proposed an "overview of a few possibilities" that could have been the cause of the malfunction, he conceded several times that he had no opinion as to what specifically failed on August 21, 2013.
The possible causes of the electrical malfunction were (1) incorrect or shorted wiring; (2) bad components, such as bad or touching diodes; (3) other bad or faulty components; (4) failed or stuck limit switches; (5) the sticking of failed or "worn out" switches, buttons, and relays; and (6) potential movement earlier in the day of the accident which loosened diodes or wires and could have caused a short-circuit. He also thought the taped button on the platform control panel may have been a factor, but he was unsure how.
Boye reported that Genie’s technical schematics and diagrams had at least 19 "errors and inconsistencies." In other words, in reviewing seven pages of the "Genie Service Manual " and six sheets of the "ED, TZ34 DC Control " drawings, Boye identified multiple inconsistencies between these documents as to the lift’s design. However, he did not opine that the documents identified design defects. Boye stated that he was never provided a number of documents that would have helped in the evaluation, including certain design documents and other specifications and technical information regarding circuit elements. He admitted in his deposition that these missing documents are critical to understanding the design.
Boye opined that the lift "could have been designed better." In particular, he suggested that Genie could have used a "4-position keyed switch" instead of a "3-position keyed switch." As designed, the lift has a three-position switch in which the user turns a key to activate either the platform control panel or the ground control panel or turns off the machine. It is designed so that only one control panel can be activated at a given time, and none of the buttons on the platform controls should operate the outriggers. Still, Boye explained that this technology could fail if diodes fail. In other words,...
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