Shoemake v. Omniquip Intern., Inc.

• Decision Date: 30 December 2003
• Docket Number: No. W2002-03139-COA-R3-CV.,W2002-03139-COA-R3-CV.
• Citation: 152 S.W.3d 567
• Parties: Michael Gene SHOEMAKE, Sr., et al. v. OMNIQUIP INTERNATIONAL, INC., et al.
• Court: Tennessee Court of Appeals

152 S.W.3d 567

Michael Gene SHOEMAKE, Sr., et al. v. OMNIQUIP INTERNATIONAL, INC., et al.

No. W2002-03139-COA-R3-CV.

Court of Appeals of Tennessee.

November 18, 2003 Session.

December 30, 2003.

Permission to Appeal Denied by Supreme Court June 14, 2004.

Thomas D. Yeaglin, Memphis, For Appellants, Michael Gene Shoemake, Sr., and Joy Shoemake.

Michael B. Neal and Sara Falkinham, Memphis, For Appellees Omniquip Textron, Inc., and Trak International, Inc.

Dale H. Tuttle and R. Douglas Hanson, Memphis, For Appellee, United Equipment, Inc.

OPINION

W. FRANK CRAWFORD, P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS, J. and DAVID R. FARMER, J., joined.

This is a products liability wrongful death case. Plaintiffs' decedent died when he fell from a job-rigged box that was being lifted by a telescoping fork lift to the fourth floor of a job site. Plaintiffs sued the lessor, the manufacturer of the lift, and the manufacturer's parent company, asserting that the lift was defective and unreasonably dangerous, and that the manufacturer and parent company failed to adequately warn. The trial court granted summary judgment to all three Defendants. Plaintiffs appeal. We affirm.

In November of 1997, Zellner Construction ("Zellner") was hired to construct a Fairfield Inn Hotel at the corner of American Way and Perkins in Memphis, Tennessee (the "Site"). Zellner served as the general contractor at the Site. Zellner employed Crenshaw Plumbing Company ("Crenshaw") as one of its subcontractors. On or about March 18, 1998, Zellner leased a Sky Trak Telescopic Handler Model 10054 (the "Sky Trak") from United Equipment, Inc. ("United"). The Sky Trak was purchased by United from the manufacturer, Trak International, Inc. ("Trak"). Trak is a wholly owned subsidiary of Omni Quip Company, Inc. ("Omni Quip," and together with Trak and United, "Defendants," or "Appellees").¹ The Sky Trak is a rough terrain fork lift truck designed for material handling. It is capable of lifting up to 10,000 pounds into the air and capable of lifting substantial weight up to fifty-four feet above ground. Although the Sky Trak is principally designed to lift materials and equipment at a job site, its utility may be enhanced by the use of various attachments. These attachments may be used for such purposes as breaking concrete, lifting cement, and lifting personnel. The Sky Trak at issue in this case had no such attachments. Zellner used the Sky Trak for the purpose of trash removal at the Site.

On November 18, 1998, Michael Gene Shoemake, Jr. ("Shoemake," or "Decedent") was employed by Crenshaw. At that time, Scott Greer was also employed by Crenshaw. Following their lunch break, Messrs. Shoemake and Greer had some pipe to transport from the ground level of the Site to approximately the fourth floor. To that end, Mr. Greer got into the driver's seat of the Sky Trak and Mr. Shoemake took some pipe and got into a wooden box that was then lifted by the front forks of the Sky Trak to the fourth floor.² The box was not secured to the forks of the Sky Trak. When Mr. Shoemake attempted to push the bundle of pipe from the box, the box teetered. Both the box and Mr. Shoemake fell from approximately four (4) stories up to the ground. The injuries sustained in this fall resulted in Mr. Shoemake's subsequent death.

On October 21, 1999, Michael Gene Shoemake, Sr. and Joy Shoemake, as Co-Administrators of the Estate of Michael Gene Shoemake, Jr. ("Plaintiffs," or "Appellants") filed a wrongful death suit against the Defendants. The Complaint alleges that Trak had a duty to manufacture a personnel-lift attachment or to make the equipment function safely as a personnel-lift because it was capable of lifting personnel above the ground and it was foreseeable that the Sky Trak could be adapted for this purpose. According to the Complaint, the Sky Trak is "incomplete" since it is capable of being used for lifting personnel with a poorly rigged trash box. The Complaint further alleges breach of a warranty of fitness for a particular purpose and breach of warranty of merchantability. The Complaint also alleges that the warning displayed on the Sky Trak that shows a figure falling and reads: "Carrying personnel can result in death or serious injury. Use an Approved Work Platform to lift or lower personnel. Machine must not be driven with personnel in the work platform" is inadequate since the warning does not define what is meant by "Approved Work Platform." In short, from our reading of the Complaint, it appears that Plaintiffs advanced three theories of products liability in this case: (1) Defective condition, (2) Unreasonably dangerous, and (3) Duty to warn.

Following discovery, all three Defendants filed motions for summary judgment. After a hearing on September 6, 2002, the Defendants' motions for summary judgment were granted by Order entered September 12, 2002. Plaintiffs filed a Motion to Alter or Amend, which was denied by Order entered November 8, 2002.

Plaintiffs appeal and present two issues for review in their brief which in essence is the single issue: whether the trial court erred in granting summary judgment to each of the defendants.

A motion for summary judgment should be granted when the movant demonstrates that there are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter of law. See Tenn. R. Civ. P. 56.04. The party moving for summary judgment bears the burden of demonstrating that no genuine issue of material fact exists. See Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.1997). On a motion for summary judgment, the court must take the strongest legitimate view of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that party, and discard all countervailing evidence. See id. In Byrd v. Hall, 847 S.W.2d 208 (Tenn.1993), our Supreme Court stated:

Once it is shown by the moving party that there is no genuine issue of material fact, the nonmoving party must then demonstrate, by affidavits or discovery materials, that there is a genuine, material fact dispute to warrant a trial. In this regard, Rule 56.05 provides that the nonmoving party cannot simply rely upon his pleadings but must set forth specific facts showing that there is a genuine issue of material fact for trial.

Id. at 210-11 (citations omitted) (emphasis in original).

Summary judgment is only appropriate when the facts and the legal conclusions drawn from the facts reasonably permit only one conclusion. See Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.1995). Since only questions of law are involved, there is no presumption of correctness regarding a trial court's grant of summary judgment. See Bain, 936 S.W.2d at 622. Therefore, our review of the trial court's grant of summary judgment is de novo on the record before this Court. See Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn.1997).

Appropriateness of Grant of Summary Judgment to United

As noted above, the Sky Trak at issue was manufactured by Trak, whose parent company is Omni Quip. United merely leased the Sky Trak to Zellner but did not construct or manufacture any part thereof, including the wooden box that was used to lift Mr. Shoemake. T.C.A. § 29-28-106 (2000) of the Products Liability Act reads, in relevant part, as follows:

29-28-106. Seller's liability. —

* * *

(b) No "product liability action," as defined in § 29-28-102(6),³ when based on the doctrine of strict liability in tort, shall be commenced or maintained against any seller of a product which is alleged to contain or possess a defective condition unreasonably dangerous to the buyer, user or consumer unless the seller is also the manufacturer of the product or the manufacturer of the part thereof claimed to be defective, or unless the manufacturer of the product or part in question shall not be subject to service of process in the state of Tennessee or service cannot be secured by the long-arm statutes of Tennessee or unless such manufacturer has been judicially declared insolvent.

T.C.A. § 29-28-102(7) (2000) expands the term "Seller," as used in T.C.A. § 29-28-106, to include the following:

"Seller" includes a retailer, wholesaler, or distributor, and means any individual or entity engaged in the business of selling a product, whether such sale is for resale, or for use or consumption. "Seller" also includes a lessor or bailer engaged in the business of leasing or bailment of a product ...

See also Baker v. Promark Prods. W., Inc., 692 S.W.2d 844 (Tenn.1985).

T.C.A. § 29-28-106, when read in conjunction with the definition of Seller found at T.C.A. § 29-28-102(7), clearly permits an action against the lessor only when the lessor is also the manufacturer, or when the manufacturer cannot be located and served, or when the manufacturer has been judicially declared insolvent. None of these criteria are satisfied in the instant case. The lessor United manufactured neither the Sky Trak nor the wooden box. Furthermore, the Plaintiffs have located and procured service against the manufacturer, Trak, and its parent company, Omni Quip. Accordingly, any of the product liability theories propounded by Plaintiffs in this action should fail as against United since United is not a proper party under T.C.A. § 29-28-106(b). Consequently, summary judgment in favor of United was properly granted.

Appropriateness of Grant of Summary Judgment to Trak and Omni Quip

As noted above, Plaintiffs advanced three theories of product liability in this case: (1) Defective condition, (2) Unreasonably dangerous, and (3) Duty to warn. We will address the appropriateness of summary judgment as it relates to each of these theories.

Defective Condition/Unreasonably Dangerous

T.C.A. § 29-28-105 (2000) reads, in relevant part, as follows:

29-28-105. Determination of defective or dangerous condition. — (a) A manufacturer or seller of a product shall not be liable for injury to a...