Wagner v. Clark Equipment Co., Inc.

Decision Date02 September 1997
Docket NumberNo. 15553,15553
Citation700 A.2d 38,243 Conn. 168
CourtConnecticut Supreme Court
Parties, Prod.Liab.Rep. (CCH) P 15,039 Kevin WAGNER, et al. v. CLARK EQUIPMENT COMPANY, INC., et al.

Wesley W. Horton, with whom were Susan M. Cormier, Deborah S. Freeman and, on the brief, Kimberly A. Knox, Jeffrey L. Williams, Hartford, and Michael Bellafiore, Legal Intern, for appellants (defendants).

William F. Gallagher, New Haven, with whom were Jacques J. Parenteau, New London, and, on the brief, Cynthia C. Bott, New Haven, for appellees (named plaintiff et al.).

Before CALLAHAN, C.J., and BORDEN, NORCOTT, KATZ and McDONALD, JJ.

BORDEN, Associate Justice.

The principal issue in this appeal is whether two or more intervening forces may combine to create a superseding cause of a plaintiff's injuries, thereby relieving a defendant of liability. The plaintiffs, Kevin and Kim Wagner, 1 brought this product liability action against the defendants, Clark Equipment Company, Inc. (Clark), and Summit Handling Systems, Inc., doing business as Clarklift of Connecticut (Summit), for serious injuries sustained by the plaintiff when his left foot was crushed by a forklift manufactured by Clark and distributed by Summit. The jury returned a verdict for the plaintiff, and the trial court rendered judgment on the verdict. The defendants appeal 2 from that judgment on the grounds that the trial court improperly: (1) failed to instruct the jury that two or more intervening forces may combine to create a superseding cause of the plaintiff's injuries; (2) failed to charge the jury that it could consider Clark's compliance with regulations promulgated by the federal Occupational Safety and Health Administration (OSHA) in determining whether the defendants acted with due care and whether the forklift was defective; and (3) admitted evidence of postaccident modifications made to the forklift by the plaintiff's employer, and improperly charged the jury that such modifications could be considered in determining whether the forklift was defective and whether a safer, alternative design was feasible. The plaintiff argues that if we order a new trial, we should consider whether the trial court improperly failed to submit the issue of punitive damages to the jury. We agree with the defendants that the trial court improperly failed to instruct the jury that two or more intervening forces may combine to create a superseding cause of the plaintiff's injuries. Accordingly, we reverse the judgment of the trial court and order a new trial.

The jury reasonably could have found the following facts. The plaintiff was employed as a carpenter at the Electric Boat Division of General Dynamics Corporation (Electric Boat). On October 25, 1989, the plaintiff was assigned to move a staging tower 3 in bay five of building 260, a large building consisting of several bays in which submarines were being built. On that day, bays three and five of building 260 contained submarines in the process of being assembled. Bay four did not contain a submarine, and was being used as a passageway for pedestrian and vehicular traffic, as well as a storage area for materials being used in assembling the submarines in the other bays.

The moving of a staging tower from one section of a submarine to another section required the efforts of three workers. One worker operated an overhead crane from approximately 100 feet above the floor, a second worker attached cables from the crane to the staging tower, and a third worker directed the crane operator from the ground. The plaintiff's job that day was to direct the crane operator from the ground and facilitate communications between the crane operator and the worker at the staging tower. As the plaintiff was standing in the passageway directing the overhead crane operator, a forklift operated by Robert Sarette backed up and struck him from behind. The forklift knocked the plaintiff to the ground and ran over his left foot, causing serious injuries that eventually resulted in the amputation of his lower left leg below the knee.

Several witnesses testified that on the day of the accident building 260 was busy and noisy, and that the passageway was crowded with freight, workers and dumpsters. Two forklifts, one driven by Sarette and the other driven by another Electric Boat worker, were unloading a flatbed trailer in the vicinity of bay five. The passageway was so narrow and cluttered in certain places that only one forklift could pass at a time. Sarette testified that he was turning to the right to allow the other forklift to pass when he backed into the plaintiff.

At the time of the accident, the forklift was equipped with a back-up alarm, two overhead flashing amber lights, rear back-up lights, front and rear directional lights, a rearview mirror and a mirror on the left side of the forklift. The plaintiff was wearing hearing protection, a helmet and safety glasses at the time of the accident. He could hear the forklift's back-up alarm when he was facing it, but the alarm faded into the background noise when he was not. The back-up alarm was sounding right before Sarette struck the plaintiff.

Sarette testified that the forklift had a blind spot to its right rear side. Forklift drivers were trained to look in the direction of travel and to look over their right shoulder when driving straight back in reverse. Sarette, however, was looking over his left shoulder as he was backing up. He did not slow down as he turned to the right and did not look over his right shoulder until the moment of impact. After the accident, Electric Boat added a flat, sideview mirror to the right side of the forklift cab and a strobe light.

At trial, the plaintiff introduced evidence that Clark had convened a task force in the early 1980s to investigate ways to reduce accidents involving forklifts and pedestrians. Frank Entwhistle, who directed the task force, testified by deposition that one of the task force's objectives had been to investigate the feasibility of a standard system that would alert the forklift operator to the presence of a pedestrian and that would alert a pedestrian to the presence of a forklift. The task force initially recommended a system that consisted of two convex sideview mirrors, a rotating strobe light that automatically adjusted to be brighter than the ambient light, and a back-up alarm that automatically adjusted to be louder than the ambient noise. 4 Entwhistle testified that such a system had not been in existence at that time and that the task force had not pursued the development of the system because they had concluded that it was not feasible as standard equipment on all forklifts. The plaintiff introduced evidence that convex sideview mirrors self-adjusting back-up alarms and strobe lights were available at that time, although the strobe lights did not rotate. Additional facts will be provided as necessary.

The plaintiff brought this product liability action 5 pursuant to General Statutes § 52-572m 6 on theories of strict liability for defective design, strict liability for failure to warn or instruct, negligent design, negligent failure to warn or instruct and implied warranty of merchantability. 7 Specifically, the plaintiff alleged that the forklift was defective and unreasonably dangerous because it lacked a standard system consisting of the following: convex mirrors on both the left and right sides of the forklift cab; a strobe light that automatically adjusted to be brighter than the ambient light; and a back-up alarm that automatically adjusted to be louder than the ambient noise.

The jury returned a verdict 8 in favor of the plaintiff in the amount of $3 million, and in favor of Kim Wagner in the amount of $500,000 for loss of consortium. The jury found the plaintiff to be 10 percent responsible for his injuries. The defendants filed a motion to set aside the verdict and a motion for judgment notwithstanding the verdict. The trial court denied both motions and rendered judgment on the verdict. This appeal followed.

I

The defendants' principal claim on appeal is that the trial court improperly failed to charge the jury that two or more intervening forces may combine to create a superseding cause of the plaintiff's injuries, thereby relieving the defendants of liability for such injuries. The defendants argue that the jury should have been able to consider whether the alleged negligence of Sarette, Electric Boat and the plaintiff combined so as to be the sole proximate cause of the accident. 9 The plaintiff responds that in order for two or more intervening forces to constitute a superseding cause, those forces must have acted in concert. We agree with the defendants.

Before turning to the merits of the defendants' claim, we first address two procedural objections raised by the plaintiff regarding the defendants' request to charge. The plaintiff first argues that the requested charge was confusing because it used the "and/or" connector to link the conduct of Sarette, Electric Boat and the plaintiff. Our review of the requested charge in its entirety reveals that it was clear that the defendants were referring to either the combined conduct of all three entities together, or any combination of their conduct.

The plaintiff next argues that the requested charge did not comply with Practice Book § 318 10 because it did not state the evidence that supported the allegation of how the negligence of Sarette, Electric Boat and the plaintiff combined to cause the injuries. Our review of the requested charge reveals that the defendants alleged that the negligence of Sarette and the plaintiff combined with Electric Boat's failure to maintain a safe workplace to cause the accident. We conclude that the requested charge complied with § 318.

Turning to the merits of the defendants' claim, we begin with an analysis of the relationship between the concepts of proximate cause...

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