A worker fell from a scissor lift while installing glass panels. He failed to latch a chain that was designed to guard the lift entrance. The suit alleged product defect and also alleged that a warning label on the equipment was too far from the edge of the equipment to draw attention to it and failed to explicitly warn the worker of the need to latch the chain. In holding that the case must go to a jury for decision instead of being dismissed on motion, the court found a jury could reasonably infer the design of the lift with the chain and no toe board was a substantial factor in causing the worker’s fall. The jury could also infer that if the warning label had been placed near the entrance of the equipment and explicitly warned of the need to latch the chain then the worker may have heeded the warning and not fallen. The court noted that manufacturer also made an alternative model of the lift with a spring-loaded self-closing gate at the entrance, and a toe board that extended across the entrance when the gate was shut. An expert witness testified that this system eliminated the chance for human error (i.e., failure to lock the chain) from allowing a worker to fall. Camacho v. JLK Industries, Inc., 93 Cal, App. 5th 809 (2023)..
The biometrics expert opined that if the lift had been equipped with the self-closing gate with a toe board at the entrance, the worker would not have fallen out. A separate, safety engineering expert testified that “a chain with no toe board that relies on somebody to remember every single time to put across is clearly inferior from a safety point of view than a design with a swinging gate.”
“JLG also argues: “Because Camacho and Figueroa did not use the chain when the accident occurred [citation], a defect in the chain design could not have caused Camacho’s injury.” We disagree.
JLG appears to fundamentally misapprehend Camacho’s products liability design defect claim, at least in its appellate briefs. Camacho’s theory of liability was not that the chain—itself—was somehow defective or defectively designed. Indeed, as JLG’s counsel recognized at the beginning of the jury trial: “So to begin it might help if I start by telling you why we’re not here today. We are not here today because the scissor lift that was being used broke or malfunctioned in any way.”
Rather, Camacho’s claim is the scissor lift was “built in accordance with its intended specifications, but the design itself is inherently defective.” (See Chavez v. Glock, Inc., supra, 207 Cal.App.4th at p. 1303, 144 Cal.Rptr.3d 326, italics added.) In other words, Camacho’s products liability claim was that the scissor lift as designed with the chain was inherently defective because it was highly foreseeable he would not latch the chain, and that dangerous design defect is what caused his injuries. Camacho also claimed JLG could have easily avoided the need for him to manually latch the chain by marketing only its alternative passive design with the self-closing gate that would have added about $154 to the cost. (See Trejo, supra, 13 Cal.App.5th at p. 142, 220 Cal.Rptr.3d 127 [“ ‘ “A product … is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design” ’ ”].)
JLG also argues: “There is no duty … to warn about a risk that is objectively obvious or known to the plaintiff. Here, the risk of serious injury from falling through an unguarded entrance on the subject lift was obvious to anyone using the lift.” We disagree because this is a disputed issue of fact.
While Camacho’s human factors expert acknowledged, “the hazard of falling is open and obvious”; the expert clarified: “What’s not open and obvious is … what the chain does and doesn’t do, and how to safely protect yourself from that fall hazard.” The expert further testified the top-level guardrail of the scissor lift provides a false sense of security to users. Moreover, the safety engineering expert testified, “it’s very foreseeable” workers will neglect to latch the chain: “I see it a lot. In fact, when I confront people, sometimes they laugh at me and say that chain’s not doing anything.”
The risks of failing to latch the chain, and whether the danger was open and obvious—such that the lift should (or should not) have included a specific warning to latch the chain—was plainly a disputed factual issue. Given the standard for a directed verdict, we find it was an error for the trial court to have taken that disputed factual issue away from the jury.
About the author: Article written by J. Kent Holland, Jr., a construction lawyer located in Tysons Corner, Virginia, with a national practice (formerly with Wickwire Gavin, P.C. and now with ConstructionRisk Counsel, PLLC) representing design professionals, contractors and project owners. He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects. He is publisher of ConstructionRisk Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932. This article is published in ConstructionRisk Report, Vol. 26, No. 1 (January 2024).
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