Griffin v. Spacemaker Group, Inc. ( 1997 )


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  • Present:   All the Justices
    HOPE GRIFFIN
    OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR.
    v. Record No. 961851                                   JUNE 6, 1997
    THE SPACEMAKER GROUP, INC.,
    T/A RICHMOND CLARKLIFT COMPANY
    FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
    Theodore J. Markow, Judge
    This is an appeal in an action asserting negligent servicing
    and reconditioning of an industrial lift truck resulting in
    personal injury to the plaintiff.    We consider whether the trial
    court properly excluded certain expert testimony offered by the
    plaintiff.
    Background
    When summary judgment is based upon the granting of a motion
    to strike a party's evidence, we view the evidence and the
    inferences reasonably raised thereby in the light most favorable
    to the party whose evidence has been stricken.    See Meador v.
    Lawson, 
    214 Va. 759
    , 761, 
    204 S.E.2d 285
    , 287 (1974).
    This case involves a Clarklift three-wheel TW-25 lift truck
    (forklift).    Three of the operational and safety features of that
    model forklift are relevant to the issue we address here.
    Although the record contains extensive technical descriptions of
    these features, for our purposes the essential details can be
    summarized as follows:
    The TW-25 forklift's two drive wheels are operated by an
    electric motor.   The forklift's accelerator assembly consists of
    a pedal and mechanical shaft.    When the pedal is depressed, the
    shaft activates a switch which sends electric current from the
    batteries to the motor.   The shaft of the accelerator assembly
    shares its housing with two hydraulic hoses which are part of the
    forklift's cargo handler control system.   These hoses can make
    periodic contact with the accelerator assembly and may become
    abraded as a result.   It is not disputed in this case that the
    accident occurred because one of these hoses made contact with
    the accelerator assembly and caused it to stick in the depressed
    or "on" position.
    The forklift's primary braking system is operated by
    depressing either of two brake pedals which rotate a shaft with
    two arms.    One arm activates a brake drum rod, causing friction
    brakes to be applied to the drive wheels; the shaft's other arm
    activates an electrical cut-off switch which interrupts the flow
    of electricity to the motor.
    Under the operator's seat of the forklift is a "deadman's
    switch" which serves as a redundant emergency braking system.
    Sufficient weight must be placed on the operator's seat to cause
    a connection in the switch which allows electricity to flow to
    the motor.   If the weight is removed, spring tension causes the
    seat to rise, breaking the connection in the switch and
    interrupting the flow of electricity to the motor.   Removing the
    weight on the seat also causes a mechanical parking brake to be
    applied.
    In late 1992, Stanley Hardware Division (Stanley), part of a
    multi-state corporation with a manufacturing and warehouse
    facility in the City of Richmond, acquired five TW-25 forklifts
    as part of the purchase of another company.   The forklifts had
    been in service for over twenty years at the time they were
    acquired.    Stanley determined that the forklifts required
    servicing and reconditioning prior to being added to the fleet of
    seven other forklifts already in use in its Richmond facility.
    Stanley contracted with The SpaceMaker Group, Inc., trading as
    Richmond Clarklift Co. (Clarklift), to bring the forklifts "to a
    level of dependability" including the replacement of all parts as
    necessary.
    The forklifts were in Clarklift's possession for four and a
    half weeks during which time they were serviced by different
    employees.   Jerald LaMaskin, owner of Clarklift, testified that
    the reconditioning of a forklift would include examining the
    safety features of the accelerator and brake assemblies and the
    deadman's switch, and repairing or replacing any defective parts
    which were discovered.
    Clarklift returned the forklifts to Stanley in April 1993,
    and Stanley placed them into service.   Because of the number of
    other forklifts available, forklift No. 5, the forklift involved
    in the accident, received relatively light use, with only
    approximately 101 hours of operation being recorded on its
    service meter over a six and a half month period.   LaMaskin
    testified that 20 to 30 hours of operation per week would be
    common use for this model forklift.
    On November 1, 1993, Hope Griffin was working at Stanley's
    facility operating a packaging machine.   Stephanie Ghee, another
    Stanley employee, was operating forklift No. 5, bringing
    materials to the packaging machine.   After transporting a pallet
    with materials to be packaged to the work floor near the
    packaging machine, Ghee began to back the forklift away from the
    pallet.    Griffin was facing the packaging machine with her back
    to Ghee and the forklift.
    Ghee testified that when she depressed the accelerator pedal
    "the forklift just went all out of control."   Griffin was struck
    by the rear of the forklift and pinned against the packaging
    machine.    Although Ghee applied the foot brake, the forklift's
    drive wheels continued to spin.   Ghee attempted several times to
    move the forklift's gear shift from reverse to neutral and then
    to forward.   After Ghee had made several attempts to change
    gears, the forklift moved forward freeing Griffin.   Ghee then
    jumped off the forklift which continued to travel forward and
    struck another piece of machinery on the work floor.   Another
    employee then boarded the forklift and turned off its ignition
    switch.
    An inspection of the forklift's accelerator assembly housing
    showed that the hydraulic hoses were loose inside the assembly in
    such a way that they would make periodic contact with the
    accelerator linkage.   One of the hoses had caught on the
    accelerator linkage, causing it to stick in the depressed or "on"
    position.   The hoses showed signs of abrasion indicating repeated
    contact with the accelerator linkage.
    An inspection of the foot brake assembly showed that the arm
    which would have activated the electrical cut-off switch did not
    reach the switch when the brakes were applied.   This defect was
    the result of excessive wear in the connection between the arm
    and the rotating brake shaft.   Similarly, the deadman's switch
    mechanisms were misadjusted so that neither the electrical cut-
    off switch nor the parking brake would be activated by removal of
    weight from the operator's seat.
    Griffin filed a motion for judgment alleging that Clarklift
    was negligent in the manner in which it reconditioned the
    forklift.   Relevant to this appeal, the principal disputed issue
    at trial was whether the abrasion of the hydraulic hoses was such
    that it would have been apparent at the time the forklift was
    serviced, putting Clarklift on notice that the hoses needed
    replacing and tying down in order to avoid their catching on the
    accelerator linkage.   Clarklift maintained that the condition of
    the hoses at the time it serviced the forklift was a matter of
    conjecture due to the passage of time between the reconditioning
    and the accident.
    At trial, LaMaskin testified that had the abrasion been
    discovered during the reconditioning, the hoses would have been
    replaced and "rerouted," though not necessarily tied down.
    LaMaskin further testified that the "abrasion did not happen in
    one day, that it happened over a period of time, and it could
    [have been] several months."
    Griffin sought to introduce expert testimony from Curtiss
    Owen, a forklift mechanic with 15 years experience, and Charles
    Crim, a materials engineer employed by an independent testing
    lab, concerning the length of time it would take for the abrasion
    of the hydraulic hoses to occur and whether that defective
    condition, and the other defects previously mentioned, would have
    been obvious at the time of the reconditioning.   In each
    instance, Clarklift objected to such testimony on the ground that
    it would be mere speculation to attempt to determine, from its
    condition some months later, the condition of the forklift at the
    time it was reconditioned.   In each instance the trial court
    sustained the objection.
    Griffin proffered testimony from the two experts that the
    abrasion of the hoses could not have occurred entirely during the
    101 hours of use following the reconditioning.    Each expert noted
    that the exterior rubber coating and the interior steel mesh
    housing of the hoses were extremely durable.    Crim stated that
    the hoses would have been in substantially the same condition at
    the time of the reconditioning as they appeared following the
    accident.   Owen estimated the level of abrasion indicated that it
    had occurred over "[t]he life of the machine."
    At the conclusion of Griffin's evidence, Clarklift made a
    motion to strike Griffin's evidence on the ground that it failed
    to show that the defective condition of the hydraulic hoses, the
    foot brake assembly, and the deadman's switch existed at the time
    Clarklift serviced the forklift and that Clarklift was aware of
    these conditions.   Although stating that it did so "with great
    reluctan[ce]," the trial court sustained Clarklift's motion to
    strike because "there would be at most rank speculation to figure
    out how long . . . these conditions existed."    We awarded Griffin
    this appeal.
    The Expert Testimony
    The thrust of the expert testimony excluded by the trial
    court was that the abrasion of the hoses could not have occurred
    entirely during the 101 hours of use following the
    reconditioning, and, thus, that the defective condition existed
    during the time Clarklift serviced the forklift.   In Tittsworth
    v. Robinson, 
    252 Va. 151
    , 
    475 S.E.2d 261
     (1996), we summarized
    the circumstances under which expert testimony is to be
    permitted:
    Generally, expert testimony is admissible in civil
    cases if it will assist the fact finder in
    understanding the evidence. Such testimony, however,
    must meet certain fundamental requirements. Such
    testimony cannot be speculative or founded upon
    assumptions that have an insufficient factual basis.
    Such testimony also is inadmissible if the expert has
    failed to consider all the variables that bear upon the
    inferences to be deduced from the facts observed.
    Id. at 154, 475 S.E.2d at 263 (citations omitted).
    Contrary to Clarklift's contention that the two experts
    based their opinions solely on their observation of the end
    condition of the hoses, the record shows that each considered the
    structure and design of the hoses and the force necessary to
    cause abrasion of their exterior coating and interior lining.
    These factors are not matters of common knowledge; thus the
    experts' opinions would have been of benefit to the jury in
    understanding the evidence.   Moreover, the experts' assumption
    that the abrasion of the hoses occurred through repetitive
    contact of moderate force over a long period of time, rather than
    constant contact during the 101 hours the forklift was in
    service, was premised upon a sufficient factual basis established
    by their inspection of the forklift and their knowledge of its
    mechanical operation.   Although Clarklift could challenge the
    weight to be given to this assumption on cross-examination, we
    hold that the trial court erred in excluding the expert
    testimony.   Moreover, this evidence alone is sufficient to raise
    a jury question whether Clarklift was negligent in not
    discovering and repairing the defective condition of the
    forklift.
    For these reasons, we will reverse the judgment of the trial
    court and remand the case for a new trial.
    Reversed and remanded.
    

Document Info

Docket Number: Record 961851

Judges: Koontz

Filed Date: 6/6/1997

Precedential Status: Precedential

Modified Date: 11/15/2024