Opinion
No. CA-4784.
June 16, 1987. Rehearings Denied August 28, 1987.
APPEAL FROM THIRTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF ST. BERNARD, STATE OF LOUISIANA, HONORABLE MELVYN J. PEREZ, J.
Glen E. Diaz, J. Van Robichaux, Jr., Chalmette, for plaintiffs-appellees.
C.G. Norwood, Jr., Michael M. Noonan, John H. Turner, Jr. McGlinchey, Stafford, Mintz, Cellini Lang, New Orleans, for defendants-appellants.
George E. Cain, New Orleans, for intervenor-appellee.
Before GULOTTA, C.J. WARD, WILLIAMS and ARMSTRONG, JJ., and HUFFT, J., Pro Tem.
In this products liability case plaintiff Linda Ingram filed suit individually and on behalf of her two children against Caterpillar Tractor Company ("Caterpillar") and Boyce Machinery Corporation ("Boyce"). In that petition plaintiff made the following allegations: that Caterpillar manufactured a forklift operated by Linda Ingram's husband, William Charles Ingram; that the design of the forklift was defective because it failed to provide safety doors or rails, safety belts or straps, or a proper suspension system to prevent a flipover; that Caterpillar failed to take precautions or provide alternatives to insure occupant safety when it was foreseeable that the forklift could flip over; that Caterpillar failed to warn the forklift operators of the defect; and as a result the defect caused Mr. Ingram's death. Boyce was sued as the distributor of the forklift.
A jury trial began on July 17, 1985. Following presentation of the plaintiff's case the trial court granted Boyce's motion for a directed verdict and dismissed it from the case After presentation of Caterpillar's defense the jury retired and returned the following verdict in answer to interrogatories:
1. Did the death of William Ingram result from a defective condition in the forklift manufactured by Caterpillar? Yes.
2. Did the defective condition make the Caterpillar forklift unreasonably dangerous to normal use. Yes.
3. Did the defective condition exist at the time the forklift left the control of Caterpillar. Yes.
4.
What amount of money do you think would compensate plaintiffs for the death of William C. Ingram? $1,175,000.00
5.
Do you find negligence on the part of William C. Ingram, which contributed to his fatal injuries? Yes ___ No _ x _
6.
What percentage of fault do you attribute to the decendent William C. Ingram? _0_%
Defendant Caterpillar appeals from that verdict.
Appellant claims that the plaintiff did not prove the forklift was defective; that the damages awarded were excessive; that plaintiff's counsel improperly appealed to the sympathy, passions and prejudice of the jury; that the trial court improperly admitted testimony regarding other forklift accidents; that the trial court improperly allowed evidence of post-accident design changes; and that the trial court gave erroneous instruction to the jury on the issue of comparative negligence.
The test to be applied by an appellate court in reviewing a decision of the trial court has been set forth clearly and concisely in Canter v. Koehring Co., 283 So.2d 716 (La. 1973) as follows:
When ther is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court's finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact, where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.
Id. at 724. When the trial court judgment is based on a jury verdict we are limited in our scope of review to the question of whether there is evidence in the record which furnishes a reasonable factual basis for that verdict. Jackson v. Watson, 360 So.2d 582 (La.App. 4th Cir. 1978). Since the evidence in this case is quite extensive, a review of that evidence and the pertinent testimony is necessary.
William Ingram worked as an electric forklift operator at the Kaiser Aluminum plant in Chalmette, Louisiana. On September 27, 1980 Ingram was maneuvering a Caterpillar M-80 forklift down a paved slightly inclined ramp. He was moving a large coil of aluminum wire, which was either placed on top of the forks or hung from the forks. As he reached the end of the ramp the forklift turned over on its side and Ingram was crushed by the overhead guard.. Ingram died almost instantaneously.
The overhead guard consists of four posts and an overhead steel canopy. It is a safety device used to prevent objects from falling on the operator's head.
There is conflicting testimony regarding what happened to the forklift as Ingram reached the bottom of the ramp. Photographic evidence shows that to the left of the ramp as it levels off, is a short round post with a truck crossing sign attached to it. The post was embedded in a cement mound, the apex of which appeared to be a several inches higher than the surrounding street.
Lawrence P. Lawson Jr., a fellow worker at the Kaiser plant testified that he witnessed the accident. Lawson described the accident as follows:
His first wheel rolled across the hill [of cement in which the sign was embedded] and it went up like. And then when he came down he looked to see what he hit and then after he noticed what he did he just kept on going and when the rear wheel went over the same hill the thing flipped over.
Lawson also testified that as the forklift turned over onto its side Ingram apparently attempted to jump from the forklift.
L.E. Gardner, a supervisor at Kaiser, also testified. Gardner indicated that the truck crossing sign and pole had been hit prior to the accident. However Gardner also testified that immediately after the accident he saw fresh rubber tire marks on the truck crossing sign.
In addition, on direct examination Lawson testified that the forklift may have scraped the side of the pole but he couldn't be certain. However on cross examination Lawson testified that several days after the accident he told an OSHA investigator that the forklift did in fact hit the pole.
Thomas Lajeunesse, Caterpillar's Manager of Product safety and Ecology, testified as follows: with the exception of one extremely large model forklift, neither seat belts nor cages have ever been installed by Caterpillar on any of its forklifts. In addition, with a few exceptions, the overhead guard is required by Federal law on forklifts. The top speed of the model M-80 forklift is approximately 6.7 m.p.h. without a load or 5.7 m.p.h. with a load. Due to their design forklifts generally are laterally unstable. The proper reaction in a lateral turnover is for the operator to stay with the vehicle and hold on rather than attempting to jump from the truck and possibly getting caught under the overhead guard. However, there was no instruction which specifically notified the operator that in a lateral turnover he should stay with the vehicle and hold on rather than jumping from the forklift.
Lajeunesse also testified regarding the American National Safety Institute ("A.N. S.I.") standards for forklifts. According to Lajeunesse in order to meet A.N.S.I. safety standards a forklift would have to be tilted to a slope of 27% before tipping over, and that the Caterpillar M-80 is capable of sustaining a tilt of up to 62.9% before tipping over.
In addition Lajeunesses testified that seat belts were not placed on the forklifts for the following reasons: Caterpillar ascertained that seat belts would hamper the frequent use of the forklifts in reverse thereby increasing the incidence of pedestrian-forklift accidents. Seat belts would also hamper driver positioning for loading and unloading with clear visibility. In addition, seat belts would hinder the driver's ability to escape from the forklift during some types of accidents. Lajeunesse also testified that OSHA regulations prevent employers, such as Kaiser, from providing restraint devices on lift trucks..
29 C.F.R. § 1910((a)(4) states in part that "Modifications and additions which affect capacity and safe operation shall not be performed by the customer or user without manufacturers prior written approval."
Finally, Lajeunesse testified that Caterpillar's approach to dealing with the possibility of lateral tipover was to provide instructions on how to avoid an accident rather than what to do if an accident actually occurs. Lajeunesse stated that lateral upset accidents occur so quickly that instructions on what to do in that type of accident would not be of much use as the driver's instinctive reaction would predominate in the one or two seconds in which the driver has to react. Additionally, lateral accidents happen in a variety of situations, and any one instruction on what to do could be inappropriate depending on the circumstances of the accident. Lajeunesse rendered the opinion that it is unlikely that an operator restraint would have prevented Ingram's death under these circumstances. In Lajeunesse's opinion even with an occupant restraint, Ingram's head would have hit the ground resulting in a very serious or fatal injury.
Robert Lipp, an associate professor of mechanical engineering was qualified as an expert in mechanical engineering and testified for the plaintiff. Lipp has a B.S. in Civil Engineering, a M.S. in Civil Engineering, a M.S. in Mathematics and a M.S. in Engineering Mechanics. Lipp had however never worked specifically with forklift trucks. Lipp testified that if Ingram had been wearing a seat belt the overhead guard would not have fallen on top of him. He also stated that the forklift was reasonably designed but in a rollover situation the forklift is unsafe. In addition, Lipp concluded that due to the nature of the vehicle, Caterpillar must have anticipated lateral instability. However, on cross examination he unequivocally testified that the fork lift hit the truck crossing sign post prior to turning over onto its side, and that the forklift would not have turned over had Mr. Ingram not hit the truck crossing sign post.
Finally, James H. McElhaney testified for the defendant. McElhaney was accepted by the court as an expert in the field of biomechanics, and specifically in the field of head and neck injuries and restraint system design and application. McElhaney is a professor of biomechanics and teaches Biomedical Engineering. He has a B.S. and a M.S. in Mechanical Engineering and a Ph.D. in theoretical and acquired mechanics with a major in biomechanics. In addition, McElhaney was a consultant for the National Institute of Health on head and neck injuries. McElhaney also worked as a consultant for Caterpillar in a capacity in which he specifically evaluated the protective potential of seat belts and performed tests with regard to restraint systems and their applications to forklift trucks.
McElhaney testified that even with a seat belt, due to the small capacity of the driver's compartments, in a lateral turnover of a forklift the driver's head would be whipped to the ground. Additionally, in McElhaney's opinion even if Ingram had been wearing a seat belt at the time of the accident, although he would not have been caught beneath the overhead guard, he probably would have suffered a fatal head injury. McElhaney also testified that in design when one considers the whole spectrum of risks one must be careful "that you don't merely change what we call the injury mechanism that you don't go from a head injury to a neck injury."
McElhaney also testified that the proper response in a lateral overturn accident is to hold tightly to the steering wheel and lean away from the turn. In addition McElhaney, corroborating Lajeunesse's testimony, testified that in a lateral overturn situation the driver has approximately two seconds to decide what to do.
McElhaney also testified that he had conducted tests on lift truck restraint systems in order to determine whether providing any particular type of restraint system would improve lift truck safety. Based on those tests he concluded that restraint systems would not improve lift truck safety, and specifically that in a lateral accident the operator's head, because he is lap belted, would be whipped into the pavement. In sum, McElhaney concluded that lap belts offer no protection in the lateral upset of a forklift, and would in fact create a hazard in types of accidents where the operator had to escape quickly from the truck e.g., fire, explosion, chemical spills; accidents where the lift truck goes off the side of a dock; and those accidents in which another lift truck is involved, i.e. where the forks of one forklift enter the driver's compartment of another forklift.
Caterpillar first claims that the plaintiff failed to prove that the forklift was defective.
A manufacturer of a product which involves a risk of injury to the user is liable to any person, who without fault on his part sustains an injury caused by a defect in design, composition, or manufacture of the article, if the injury might reasonably have been anticipated. However, the plaintiff claiming injury has the burden of proving that the product was defective, i.e., unreasonably dangerous to normal use, and that the plaintiff's injuries were caused by reason of the defect.
Weber v. Fidelity Casualty Insurance Co. of N.Y., 259 La. 599, 250 So.2d 754 (1971).
Plaintiff alleges three defects in the Caterpillar M-80 lift truck: failure to provide a suspension system which would make the lift truck laterally stable, failure to warn operators of the risk of injury in jumping from the lift truck during a lateral turnover or to instruct the operators that they should stay with the truck and lean into the turn; and failure to provide an occupant restraint system.
Thus, in order to prove that the design of forklift was defective, plaintiff had to prove that any of the three alleged defects rendered the forklift unreasonably dangerous to normal use.
A product is unreasonably dangerous when it is dangerous to an extent beyond that which would be contemplated by an ordinary consumer. Hebert v. Brazzel, 403 So.2d 1242 (La. 1981). See, Halphen v. Johns-Manville Sales Corp., 484 So.2d 110, ft. note 2 at p. 114 (La. 1986). "The 'normal use' of a product is its foreseeable use and may include something broader than use exactly in accordance with a manufacturer's instructions. Pawlak v. Brown, 430 So.2d 1346 (La.App. 3rd Cir. 1983) writ denied, 439 So.2d 1072 (La. 1983)." Quattlebaum v. Hy-Reach Equipment Inc., 453 So.2d 578 (La.App. 1st Cir. 1984).
We find that evidence presented at trial provides no factual basis upon which the jury could have found the lift truck unreasonably dangerous to normal use.
With regard to plaintiff's first allegation that Caterpillar failed to provide a suspension system which would make the lift truck more stable, absolutely no evidence was introduced to show that there is a feasible way to design a lift truck to give it more lateral stability while retaining the required maneuverability. There was, on the other hand, substantial evidence that the Caterpillar M-80 electric-powered lift truck is one of the most stable models on the market, and that it is very difficult to overturn. If this model forklift is inherently dangerous, then every forklift is inherently dangerous. The unique facts of this case show that the accident did not occur in normal use, and on this evidence, it was manifest error to find that the M-80's lateral instability renders it unreasonably dangerous.
The second defect alleged by plaintiff is that Caterpillar neither warned operators of the risk of injury in jumping from the lift truck during a lateral overturn nor instructed operators that they should try to stay with the truck if it overturned. Manufacturers are liable only for failure to warn about dangers inherent in the normal use of their products. Chappuis v. Sears Roebuck and Co., 358 So.2d 926 (La. 1978). The evidence in this case shows that Bill Ingram was not exposed to a risk of injury which arose while the lift truck was in normal use. All of the expert witnesses testified that the truck must have run up on the metal sign post, and the Kaiser foreman testified that there were tire marks on the post following the accident. The exhibits corroborate this testimony. Caterpillar's expert testified that the M-80 can sustain a tilt of 62.9% from horizontal before overturning. Clearly, running upon a post causing the truck to tilt more than 62.9% is not normal use. Moreover, Caterpillar's expert, Mr. Lajeunesse testified that the manufacturer had no record of any other lateral overturns involving injury on the M-80 model or on any models in that product line. Considering all types of lift trucks in use today, lateral overturns represent only one to two percent of all accidents, and the ratio of lateral overturns in the M-80 family of trucks is approximately twelve times less than for all lift trucks. Given this rarity of lateral overturns, it cannot be said that the dangers inherent in a lateral overturn arise during normal use, obligating Caterpillar to provide a warning. Nor can it be overemphasized that lateral accidents happen in a variety of situations, and any one instruction on what to do could be inappropriate depending on the circumstances of the accident. Hence, the M-80 could not have been found unreasonably dangerous because Caterpillar failed to warn of the risks of a lateral turnover.
Finally, plaintiff alleges that the lift truck was unreasonably dangerous for failure to provide an occupant restraint. There was extensive testimony from Mr. McElhaney, based on testing and his extensive experience in the field, that the addition of a seatbelt to the forklift would not improve safety but would in fact increase the risk of injury or merely change the "injury mechanism" in accident situations. The only evidence to the contrary, unsupported by any experience with or testing of forklifts and restraint systems, was Lipp's bare assertion that a seat belt would have prevented Ingram's accident. It was manifest error for the jury to have found that the lack of occupant restraint is a defect in the M-80 lift truck.
We find that the evidence in the record does not provide a reasonable factual basis for the trial court's verdict and it was manifest error for the jury to find the forklift defective, therefore, we need not address appellant's other claims.
For the foregoing reasons the judgment of the trial court is reversed.
REVERSED.
GULOTTA, C.J., and HUFFT, J., pro tem., dissent with reasons.
Caterpillar Tractor Co., defendant-appellant, appeals the jury's decision that found it strictly liable as the manufacturer of a forklift which crushed Mr. William Ingram to death and the award of damages. For the reasons given below, we respectfully dissent from the majority's reversal of the jury's decision.
On September 27, 1980, William Ingram, an employee of Kaiser Aluminum Chemical Corporation, was operating a Caterpillar industrial tractor (forklift) in connection with his normal duties at the plant. While transporting a 900 pound coil of wire, Ingram negotiated the forklift down an incline. The machine's left front tire traversed a mound of cement surrounding a metal sign post. When Ingram looked back to see what had happened, the machine's left rear tire rolled up the cement mound. These traversals upset the lateral stability of the machine. The forklift with a load on the forks began to turn over at which time Ingram instinctively attempted to jump to the left toward the pole. However, the force of the fall threw him to the right. He fell to the ground before the lift. The forklift's metal overhead protective device pinned his body to the ground and crushed him to death. Among other injuries, Mr. Ingram suffered a ripped lung and a crushed spine. Plaintiffs showed that Mr. Ingram would not have been killed or seriously injured had he been wearing a seat belt, or some type of adequate occupant restraint. Plaintiffs also showed that the manufacturer anticipated lateral overturns and knew of their consequences (certain death or serious injury) but did not provide any type of restraining device nor warn, in any way, the operator of the forklift how to react in such a situation.
Suit was filed by Ingram's widow, Linda Ingram, individually and on behalf of her two minor children, against Caterpillar Tractor Company (the parent corporation of the manufacturer of the lift) and Boyce Machinery Corporation (the vendor of the lift.) The trial court dismissed the action against Boyce upon motion made after the plaintiffs rested their case. Kaiser Aluminum Chemical Corporation had filed an intervention to recover worker's compensation benefits paid to plaintiffs in the sum of $51,531.00. The trial court granted Kaiser the right to recover such amount from the total awarded plaintiffs pursuant to stipulation.
The relevant facts of this case are simple. Forklifts vary in size, width and capacity; some have combustion engines, while others have electric engines. Forklifts are commonly used for lifting, carrying, and loading heavy objects in warehouses and onto trains, tractor-trailers, ships, etc. They are operated in both forward and reverse. They have a narrow wheel base to enable them to operate in small aisles or other restricted areas of limited space. The front lift mechanism of the forklift obscures the operator's forward vision, particularly when carrying certain types of loads. Forklifts not only have narrow wheel bases susceptible to instability but also have a changing center of gravity as the load is raised or lowered which further lessens stability. Lateral stability lessens as the load increases and the higher it is raised. As a result of the narrow wheel base of a forklift, its changing center of gravity, and the obstruction of the operator's vision, it is susceptible to lateral overturn. This can happen in a variety of ways. A machine can be struck by another vehicle, the operator can turn too sharply, the operator can drive over a depression or obstacle in the roadway. The problem of lateral overturns may not be effectively diminished by re-design of the forklift because an increase in the width of the lifts that would provide improved stability would make them more difficult for or incapable of entering into the narrow passageways of trains, tractor-trailer trucks and warehouse aisles. Even if forklifts were made wider and a little more stable, the risk of lateral overturn would still exist while the forklift is travelling up and down a loading ramp. Vision obstruction would still exist. Given the driver's inability to have a clear range of vision and the narrowness of the wheel base, lateral upsets are a foreseeable type of accident for this particular type of equipment. Forklift manufacturers know, and specifically, Caterpillar was aware, that one out of every four forklift accidents involves a lateral overturn. Approximately 450 to 500 lateral overturn accidents occur in a year. Caterpillar also knows that death or serious injury may be an all too common result from a lateral overturn.
The force of gravity has a great deal to do with these deaths or serious injuries. As the machine begins to tip over, gravity pulls the top of the machine toward the earth; the fall is restrained because part of the forklift is still in contact with the earth. This causes resistance and reduces the rate of descent. The operator, who is either thrown free or instinctively attempts to jump, free-falls (which fall is faster than the machine's), and, in such instances, hits the ground before the forklift completes its lateral overturn. Consequently, the operator is crushed underneath when the machine falls on him.
This is precisely what happened to William Ingram. While operating his forklift in a forward position, with a load on the forks, the front left tire of his lift rolled over an uneven area of concrete and thereafter the lift's left rear wheel grazed the metal sign pole and overturned toward the operator's right. Mr. Ingram attempted to jump to the left but he fell to the right and hit the ground before the forklift completed its roll. The forklift's metal overhead protective guard fell on him and crushed him to death. Though the forklift had no mechanical deficiencies, that is, the brakes worked, the steering worked, etc., the manufacturer of the lift may be held strictly liable for damages under either one of two theories of recovery. In the event of a lateral overturn, (i) the occupant faces death or serious injury because of the absence of protective devices either to prevent or absorb the shock of his fall, and (ii) the manufacturer has not provided any warning for the user concerning the measures he must take in order to save himself from death or serious harm.
The appellant presents the following issues on appeal:
1. Whether there is competent evidence of record to support the jury's finding that the forklift in question was defectively designed.
2. Whether the verdict of the jury should be reversed because of the improper appeal of plaintiffs' counsel to sympathy, passion, and prejudice.
3. Whether the verdict of the jury should be reversed and the case remanded for a new trial because of the trial court's improperly compelling testimony concerning unrelated forklift accidents.
4. Whether the verdict of the jury should be reversed and this case remanded for a new trial because of the trial court's improperly allowing the jury to consider evidence of post-accident design change.
5. Whether the verdict of the jury should be reversed and this case remanded for a new trial because of the trial court's erroneous instruction to the jury regarding comparative negligence.
6. Whether the amount of damages awarded by the jury was supported by the evidence introduced at trial.
Our review of the record before us must be conducted in accordance with the principles set forth in Arceneaux v. Dominque, 365 So.2d 1330, 1333 (La. 1978), where the Louisiana Supreme Court held that the appellate court should not disturb a finding of fact unless it is clearly wrong. The appellate review of facts is not completed by reading so much of the record as will reveal a reasonable factual basis for the finding in the trial court; there must be a further determination that the record establishes that the finding is not clearly wrong.
The record and briefs before us present an abundance of facts, opinions and arguments, but the fundamental fact before us is that Mr. William Ingram faced certain death or serious injury in the event that his forklift sustained a lateral overturn. The manufacturer provided no protective device nor did so little as to warn Mr. Ingram of such condition and how to react under such circumstance. Mr. Ingram's forklift did sustain a lateral turnover which killed him.
The evidence presented to the jury supports the jury's decision to the effect that the forklift had a design defect by reason of its inherent instability and the lack of a restraining device. The defendant Caterpillar Machinery Corporation, through its own representative and expert witness, Mr. Lajeunesse, admitted that approximately 455-500 lateral overturn accidents occur each year. In every one of these accidents, the operator faces certain death or serious injury unless he knows before hand what to do or he just reacts in the correct way by chance.
The defendant has attempted to demonstrate that the particular model of forklift (Caterpillar M-80) operated by Mr. Ingram and which crushed him to death must be distinguished from all other forklifts because its base is much more stable than others due to the heavy batteries which provide its energy source. While the Caterpillar M-80 might not tip over until exceeding a lateral tilt of 62.9%, once turnover commences, the operator has approximately 11/2 seconds not to think but to react. If he reacts incorrectly, he either dies or sustains serious injury.
Caterpillar presented to the jury and reasserts to us the argument that the operator of a forklift falling in a lateral overturn may reasonably protect himself by staying in the cab, holding on, and leaning in the direction opposite to the fall. Caterpillar, as a matter of practice, does not inform the purchasers or the ultimate operators, either formally or informally, what action must be taken in order to prevent death or serious injury in the event of a lateral overturn. The operator who experiences a lateral overturn must in an instant think through concerning what he must do, on his own, without any advance warning, all while he is fighting against gravity that is pulling him down and toward the direction that the outside force is headed and against his natural instinct to jump with and in the direction that the outside force is headed. The operator's mind must contend with all these factors within a period of approximately 11/2 seconds. The operator has no time to think but only to react. The operator is left to fend for himself without the assistance of a restraining device. He must react without previous warning that he must not jump and that he must hold on in order to avoid death or serious injury. The assertion of such a defense no doubt struck the jurors as a defense without merit.
Louisiana law recognizes that a manufacturer of a product may be held strictly liable for damages occasioned by the risk of injury presented by owning or using the product. Weber v. Fidelity Casualty Insurance Company, 259 La. 599, 250 So.2d 754 (1971). The Louisiana Supreme Court has summarized in Bell v. Jet Wheel Blast, Div. of Ervin, Ind., 462 So.2d 166 (La., 1985), the requirements of prior case law that the plaintiff must show in order to meet his burden of proof as to a manufacturer's strict liability:
"The plaintiff must prove (1) that the injury or damage resulted from the condition of the product; (2) that the condition made the product unreasonably dangerous to normal use; and, (3) that the condition existed at the time the product left the control of the manufacturer or supplier." Jet Wheel Blast, supra, at 168.
In the instant case, the jury's verdict rests upon the conclusion that the injury occurred as a result of the inherent instability of the forklift and the absence of an adequate restraining device. The Caterpillar M-80, while more stable than other forklifts due to its heavy base, is susceptible to a lateral overturn and lacks any type of restraining device. These two conditions resulted in the injury (Requirement 1). These conditions clearly existed when the Caterpillar M-80 forklift operated by Mr. Ingram left the control of the manufacturer (Requirement 3).
The remaining issue to address is whether these conditions are unreasonably dangerous to normal use (Requirement 2). In the case of a forklift, the term "normal use" must be understood by reference to the normal uses of a forklift. The actual conditions under which Mr. Ingram operated his forklift — rough concrete around a metal pole at the base of a ramp — do not suggest pristine conditions in which a forklift might be operated without incident but actual work conditions around a warehouse and work yard. The manufacturer should reasonably expect, if not actually know, that forklifts would be, must be, operated in less than ideal conditions. The applicable conditions appear normal to the use of the forklift. The manufacturer knows or should know that such conditions suggest a substantial risk of lateral overturn. The manufacturer knows that certain deaths and serious injuries shall occur from lateral overturns unless protective devices prevent the operator from falling out or the operator reacts by holding on. If the product is proven defective by reason of the risk of hazard presented by normal use, the plaintiff need not prove any particular negligence by the manufacturer or processor; the manufacturer is presumed to know the vices in the things he makes, whether or not he has actual knowledge of them. Jet Wheel Blast, supra, at 168.
Caterpillar has taken the position that the operator's instinctive reaction shall be the sole protection afforded the operator. Caterpillar does not provide any restraining device nor does it provide any type of warning as to how the operator should react. By satisfying all the requirements set forth in Jet Wheel Blast, supra, the plaintiffs might have overcome a burden of proof to the jury greater than necessary. Under the holding of Chappuis v. Sears, Roebuck Company, 358 So.2d 926 (La., 1978), the showing of unreasonably dangerous to normal use (susceptibility to lateral overturn) pretermits the necessity for proving a defect in design or manufacture. The manufacturer has a duty to warn of any danger inherent in the normal use of its product under such a circumstance. Chappuis, supra; and Andries v. General Motors Corp., 444 So.2d 1180 (La., 1983). To warn against doing certain things that would result in a lateral overturn does not suffice. the operator does not have total control of the lift at all times: outside forces and obscured hazards might initiate a lateral overturn. The manufacturer has a duty to warn the operator as to what happens in a lateral overturn and what the operator must do in order to survive.
When the facts of the record before us are applied to the foregoing legal principles and analysis, we cannot find the jury's verdict clearly wrong. The jury considered the evidence presented including several expert's opinions. The jury determined that Mr. Ingram's death resulted from a defective condition in the forklift manufactured by Caterpillar, that the defective condition made the Caterpillar forklift unreasonably dangerous to normal use, and that the defective condition existed when the forklift left the control of Caterpillar. The jury also found that Mr. Ingram did not commit any negligence which contributed to his injuries. A review of the record as required under Arceneaux v. Dominque, supra, shows that the jury's verdict was not clearly wrong.
We have considered the other issues raised by the defendant but find no merit in them. Considered on the whole, the conduct of the plaintiffs' counsel did not constitute that which would necessitate reversal or remand. Similarly, we find no merit in the defendant's argument that the trial court improperly allowed testimony concerning unrelated forklift accidents and post-accident design changes. The direct evidence presented by the defense was so broad and sweeping that the plaintiffs' evidence complained of was properly admissible for purposes of impeaching the evidence the defendant presented. In order to allow the jury to assess the relative stability of the Caterpillar M-80, the trial judge properly allowed introduction of evidence concerning the design of other forklifts, particularly pertaining to susceptibility to lateral overturns.
We do not find any error in the trial court's instruction to the jury concerning application of the doctrine of comparative negligence. Under the holding of Jet Wheel Blast, supra, comparative negligence does not operate as a bar to recovery from a manufacturer who is otherwise held strictly liable; the doctrine applies to reduce the amount of the damages awarded subject to the exception that the doctrine does not apply at all when the applicable injury results from a repetitive industrial task. From the record presented, the jury may have concluded that Mr. Ingram performed a repetitive industrial task that resulted in his death due to the forklift's susceptibility to overturn laterally under certain conditions and the manufacturer's failure to protect him or to even warn him of such a possibility and what he must do to protect himself. Even if Mr. Ingram did not perform a repetitive industrial task, the record would support the jury's finding of no contributory negligence. Any negligence by Mr. Ingram had to be a proximate cause of his injury. The proximate cause of the injury was not the overturn of the forklift but, rather, the absence of a restraining device or even a warning to Mr. Ingram as to how he should have reacted.
Finally, the record establishes that the plaintiffs presented evidence concerning the damages sustained. The defendant did not controvert these amounts at trial but seeks to have these set aside or reduced at the appellate level. In order to do so, we must find an abuse of the much discretion allowed a jury under La.C.C. art. 1999. Reck v. Stevens, 373 So.2d 498 (La., 1979). We do not find an abuse of such discretion.
For the reasons stated above, we dissent from the majority's reversal of the jury's decision which found Caterpillar Machinery Co. strictly liable for damages because the machine had a design defect and also because the manufacturer failed to warn the victim.