Veliz v. Rental Service Corp. Usa, Inc.

• Decision Date: 19 December 2003
• Docket Number: No. 6:02-CV-1335-ORL-22DAB.,6:02-CV-1335-ORL-22DAB.
• Citation: 313 F.Supp.2d 1317
• Parties: David VELIZ, as Personal Representative of the Estate of Felipe Valdivia Ignacio, Plaintiff, v. RENTAL SERVICE CORPORATION USA, INC., and Trak International, Inc. as successor by interest to Lull International, Inc., Defendants.
• Court: U.S. District Court — Middle District of Florida

313 F.Supp.2d 1317

David VELIZ, as Personal Representative of the Estate of Felipe Valdivia Ignacio, Plaintiff, v. RENTAL SERVICE CORPORATION USA, INC., and Trak International, Inc. as successor by interest to Lull International, Inc., Defendants.

No. 6:02-CV-1335-ORL-22DAB.

United States District Court, M.D. Florida, Orlando Division.

December 19, 2003.

COPYRIGHT MATERIAL OMITTED

Julio C. Martinez, Jr., Kissimmee, FL, for plaintiff.

Eugene L. Ciotoli, Anthony P. Corsini, Bobo, Ciotoli, Bocchino & Newman, P.A., N. Palm Beach, FL, John Z. Lagrow, Fisher, Rushmer, Werrenrath, Dickson, Talley & Dunlap, P.A., Jonathan C. Hollingshead, Orlando, FL, for defendants.

ORDER

CONWAY, District Judge.

I. INTRODUCTION

This cause comes before the Court for consideration of the Defendant's, Trak International, Inc., as successor by interest to Lull International, Inc., Motion for Final Summary Judgment (Doc. No. 57), filed August 29, 2003, to which the Plaintiff, David Veliz, as the Personal Representative of the Estate of Felipe Valdivia Ignacio, responded (Doc. No. 95) on September 19, 2003; and the Defendant's, Rental Service Corporation USA, Inc., Motion for Summary Judgment (Doc. No. 75), filed September 8, 2003, to which the Plaintiff responded (Doc. No. 105) on September 26, 2003. Having reviewed the motions and memoranda, this Court GRANTS the Defendants' Motions for Summary Judgment (Docs. No. 57 and 75).

II. BACKGROUND

The Plaintiff, David Veliz, is the Personal Representative of the Estate of Felipe Valdivia Ignacio (hereinafter, "Mr. Ignacio" or "the decedent").¹ Although Mr. Ignacio was an undocumented alien in the United States,² at all relevant times herein he was employed by AMS Staff Leasing (hereinafter, "AMS") as a laborer.³ The Defendant, Trak International, Inc. (hereinafter, " Trak International"), is a Delaware corporation.⁴ It is the successor by interest to Lull International, Inc. (hereinafter, "Lull"),⁵ the manufacturer of the Lull 844C-42 Telescopic Handler (hereinafter, "the Lull 844C-42 Telescopic Handler" or "the lift").⁶ The Defendant, Rental Service Corporation USA, Inc. (hereinafter, "Rental Service"), is an Arizona corporation⁷ engaged in the business of leasing, among other things, the Lull 844C-42 Telescopic Handler.⁸ This is a products liability action arising out of an accident involving the Lull 844C-42 Telescopic Handler.⁹

On October 12, 2000, a general contractor hired Collis, Inc. d/b/a Collins Roofing, Co. (hereinafter, "Collis") to perform roofing work at an apartment complex located in Orlando, Florida.¹⁰ As a result, Collis leased several employees from AMS including the decedent, Cesar Rojas (hereinafter, "Mr.Rojas"), and Roy Templeton (hereinafter, "Mr.Templeton").¹¹ Collis additionally leased a Lull 844C-42 Telescopic Handler from Rental Service.¹² A Lull 844C-42 Telescopic Handler is a rough terrain fork lift capable of lifting products and materials to high elevations such as a roof by raising a boom.¹³ This particular model enables the construction industry to move thousands of pounds of materials to a maximum height of forty-two feet.¹⁴

When the Lull 844C-42 Telescopic Handler arrived at the construction site, AMS' designated supervisor, Mr. Templeton, took possession of the lift and began transporting roofing materials from a supplier's truck onto the roof of a three story apartment complex.¹⁵ In performing these operations, Mr. Templeton encountered no problems.¹⁶ In other words, the lift worked as intended.

Following several hours of operation, Mr. Templeton turned the lift over to Mr. Rojas, a subordinate co-employee of AMS.¹⁷ Although Mr. Rojas was not properly certified to operate heavy industrial equipment in accordance with Occupational Safety and Health Administration (hereinafter, "OSHA") requirements,¹⁸ he utilized the Lull 844C-42 Telescopic Handler to transport and raise roofing material from the ground to the third story roof whereupon Mr. Ignacio was working.¹⁹

Upon removing roofing materials from the lift, Mr. Ignacio stepped off the roof and onto a pallet on the forks of the Lull 844C-42 Telescopic Handler. Thereafter, while Mr. Ignacio was being lowered to the ground, the Lull 844C-42 Telescopic Handler tipped over. Mr. Ignacio sustained fatal injuries as a result.²⁰

At the time of the accident, the Lull 844C-42 Telescopic Handler contained warnings cautioning against using the lift as a personnel carrier.²¹ In addition, it was equipped with proximity switches that enhanced its stability. However, the Defendants maintain that the proximity switches were bypassed at the time the lift tipped over.²²

Following an investigation, Mr. Ignacio's Estate received a workers' compensation death benefit.²³ In addition, Collis was cited by OSHA for violating 29 C.F.R.1910.178(1), which requires employers to ensure that each powered industrial truck operator, prior to operating a powered industrial truck, completes training and an evaluation.²⁴

Against that backdrop, Mr. Ignacio's Personal Representative filed this lawsuit against the Defendants alleging negligence (Count I) and strict products liability (Count II).²⁵ As to Trak International, Count I alleges negligent design, negligent construction, negligent manufacturing, negligent testing, negligent inspection, negligent consideration of warranty claims and/or adjustment records, and negligent warning.²⁶ As to Rental Service, Count I alleges negligent inspection, maintenance, altering, and warning.²⁷ In addition, the Plaintiff charges Rental Service with negligence in "[f]ailing to insure that operators of the subject Lull 844C Telescopic Handler were appropriately trained and licensed to handle such machinery."²⁸ With respect to Count II, the Complaint avers that the Defendants are strictly liable to the Plaintiff inasmuch as Mr. Ignacio's death was caused by the Defendants' introduction of an unreasonably dangerous and defective product into the stream of commerce.²⁹

The Defendants now move for summary judgment (Docs. No. 57 and 75) against the Plaintiff on both the negligence and strict liability claims.

III. ARGUMENTS

In their Motions for Summary Judgment (Docs. No. 57 and 75), the Defendants assert nine rationale for entering judgment as a matter of law in their favor: (1) that the open and obvious doctrine bars the Plaintiff's negligent and defective warning claims; (2) that in any event the warnings afforded here were adequate; (3) that the decedent misused the lift; (4) that the Lull 844C-42 Telescopic Handler's safety devices were bypassed constituting a material alteration of the lift; (5) that workers' compensation immunity protects Rental Service; (6) that in any event the record is bereft of evidence indicating wrongdoing on the part of Rental Service; (7) that the record contains insufficient evidence indicating that Mr. Ignacio provided support to his survivors; (8) that Mr. Ignacio's undocumented alien status precludes an award of lost wages; and (9) that the record contains insufficient evidence of medical expenses. See Docs. No. 57, 58, 75 and 76. This Court will consider each of these arguments seriatim.

IV. STANDARD OF REVIEW

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is material if it is one that might affect the outcome of the case. See id. The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those materials that demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the movant satisfies this requirement, the burden shifts to the non-moving party to "come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 584, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To meet this burden, the non-moving party "may not rest upon the mere allegations or denials of the adverse party's pleadings." Fed.R.Civ.P. 56(e). Nor may the non-moving party rely on a mere scintilla of evidence supporting their position. See Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990). Rather, for a court to find a genuine issue for trial, the non-moving party must establish, through the record presented to the court, that it is capable of providing evidence sufficient for a reasonable jury to return a verdict in its favor. See Cohen v. United Am. Bank, 83 F.3d 1347, 1349 (11th Cir.1996). When a court considers whether or not to enter summary judgment, it views all of the evidence, and all inferences drawn therefrom, in the light most favorable to the non-moving party. See Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 918 (11th Cir.1993).

V. LEGAL ANALYSIS

A. The Defendants had a Duty to Warn Against Using the Lull 884C-42 Telescopic Handler as a Personnel Carrier but Their Warnings Were Adequate as a Matter of Law

On summary judgment, the Defendants' first argument challenges the Plaintiff's claim alleging failure-to-warn and/or inadequate warnings. See Doc. No. 75 at 5-6; see also Doc. No. 58 at 6-9. In that connection, the Defendants contend that they "had no duty to warn Mr. Ignacio of the dangers associated with climbing from the roof of a 3-story building onto the Lull's forks because those dangers are open and obvious." Doc. No. 75 at 5 (emphasis omitted); see also Doc. No. 58 at 7 ("Mr. Ignacio's act of stepping or jumping from a roof of at a minimum of thirty-two (32) feet in...