Industrial Equipment Accidents

• Author: Larry Booth/Roger Booth
• Pages: 399-446

13-1 (Rev. 2, 11/13)

Chapter 13

INDUSTRIAL EQUIPMENT

ACCIDENTS

I. ELEMENTS OF CAUSE OF ACTION AND DEFENSES

A. Theories of Liability

§13:01 In General

§13:02 Strict Liability

§13:03 Negligence

§13:04 Breach of Warranty

B. Industrial Equipment

§13:10 Heavy Equipment

§13:11 Power Tools

§13:12 Punch Presses, Paper Cutters and Other Assembly-Line Machines

C. Defenses and Defense Strategies

§13:20 Litigating in the Industrial Setting

§13:21 Blaming the Employer

§13:22 The Sophisticated User

§13:23 Blaming the Plaintiff-Employee

D. Countering Defense Strategies

§13:30 Prior Similar Accidents and Injuries Involving Same Machine

§13:31 Competing Products

§13:32 Use of Patents

§13:33 Unsafe Designs That Sell

II. INTERVIEW AND INVESTIGATION

§13:40 Client Interview

§13:41 Witness Statements

§13:42 The Critical “Boss” Interview

§13:43 Field Survey With Expert

§13:44 The Vital Operator’s Manual

§13:45 Sales Literature

§13:46 Literature on Competing Brands

Personal Injury Handbook 13-2

III. PLEADINGS

§13:60 Complaints in Equipment Injury Cases

§13:61 Form: Complaint; Industrial Equipment Accident

§13:62 Form: Answer; Industrial Equipment Accident

IV. WRITTEN DISCOVERY

A. Interrogatories

§13:70 Interrogatories to Set Depositions

§13:71 Form: Interrogatories Regarding Liability Insurance

§13:72 Form: Interrogatories Regarding Past Product Failures

§13:73 Form: Interrogatories for Forklift Inadvertent Actuation Case

B. Requests for Production

§13:80 Production of All Literature and Drawings

§13:81 Production of Accident Reports on Prior Accidents

§13:82 Form: Plaintiffs’ Requests for Production in Inadvertent Actuation of Forklift Case

V. RESPONDING TO DEFENDANT’S WRITTEN DISCOVERY

§13:90 Form: Defendant Manufacturer’s Interrogatories and Plaintiff’s Objections

§13:91 Form: Defendant Manufacturer’s Requests for Production

VI. DEPOSITIONS

A. Deposing Defense Witnesses

§13:100 Whom to Depose

§13:101 The “Boss’s” Deposition

§13:102 Company Rules

§13:103 OSHA Regulations

§13:104 Daily Safety Meetings

§13:105 Design Engineer Checklist

§13:106 Operator’s Manual Executive Checklist

§13:107 Literature and Brochure Executive Checklist

§13:108 Defense Expert Deposition Checklist

B. Preparing Plaintiff’s Witnesses for Depositions

§13:120 Plaintiff’s Deposition Checklist

§13:121 Plaintiff’s Expert Deposition Checklist

VII. MOTIONS

§13:130 Discovery Obstacles

VIII. SETTLEMENT STRATEGIES

§13:140 Timing

§13:141 Mediation

§13:142 Settlement Tactics and Tips

IX. TRIAL PREPARATION

§13:150 Trial Notebook

§13:151 Juror Selection Checklist

§13:152 Opening Statement and Closing Argument

13-3 Industrial Equipment Accidents §13:11

(Rev. 2, 11/13)

I. ELEMENTS OF CAUSE OF

ACTION AND DEFENSES

A. Theories of Liability

§13:01 In General

An industrial equipment case, like any products

liability case, can rely on three possible theories: strict

products liability, negligence and/or breach of war-

ranty. The operative cause of action is normally strict

liability, although negligence is usually pleaded but

often dropped before trial or verdict.

§13:02 Strict Liability

Products liability or strict liability requires that the

plaintiff establish that the product was either defec-

tively manufactured or defectively designed when it

was released into the stream of commerce. The vast

majority of cases involve design. It is rare to have an

injury that is caused by some irregularity in the product

due to a mistake in the manufacturing process. When

that does occur, there is often a battle over whether this

took place because of age or poor maintenance or was

present when the product left the factory.

PRACTICE TIP:

In a design defect case, the plaintiff’s job is to:

• Simplify the design issue so that the safer

design appears to be just “common sense”;

• Minimize the additional cost of redesigning

the product to make it safer;

• Attribute some motive to the defendant,

such as additional profits or sales, for not

making the product safer; and

• Show that the safer design was feasible at the

time of manufacture.

§13:03 Negligence

Negligence requires the additional element of

proving the defendant’s knowledge that the design

was defective. There is usually no reason to take

on that burden. Further, if the case goes to the jury

on both negligence and strict liability theories, the

plaintiff runs the risk of an inconsistent verdict. The

jury may find negligence, but not strict liability on the

same theory of defect as the negligence count. This

can be fatal to the verdict.

Nonetheless, it is often advisable to plead negli-

gence in order to justify discovery that goes to the

question of knowledge and then to drop it before the

jury is instructed. See §§13:60, 13:61.

§13:04 Breach of Warranty

Express or implied warranty, which requires priv-

ity of contract, is usually not available because the

injured worker did not purchase the machine. Nor-

mally, it is unnecessary in cases involving injuries

caused by industrial equipment.

[§§13:05-13:09 Reserved]

B. Industrial Equipment

§13:10 Heavy Equipment

The most complicated cases involve heavy equip-

ment used in either construction or industrial build-

ings. These include forklifts, backhoes, bobcats and

other similar equipment. Forklifts come in a wide

variety of sizes. Some forklifts can lift loads 30 feet

in the air. They often do a poor job of protecting the

operator. Backhoes are a combination of a simple skid

loader and a device that digs holes like a dog. They

present special safety problems because the operator’s

seat rotates so that he can face whichever end he is

using. A skid steer is a small front end skid loader that

has caused enumerable accidents because the arms

on each side of the machine that raise and lower the

loading bucket can cause severe injury to the operator

if his arms get in the way.

Taking on a heavy equipment case is tantamount

to auto-defect litigation; it requires a lot of time,

money and patience.

§13:11 Power Tools

The most common power tools involved in prod-

ucts cases are table saws and portable circular saws

that can cause severe injuries if the guard is poorly

designed, non-existent or compromised. There have

also been electrocution cases when these devices

come in contact with a source of electrical energy.

Unlike heavy equipment cases, power tool litigation

is much more manageable and far less expensive to

process.