BEHLUL FJOLLA V NACCO MATERIALS HANDLING GROUP INC
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STATE OF MICHIGAN
COURT OF APPEALS
BEHLUL FJOLLA and LINDITA FJOLLA,
UNPUBLISHED
December 9, 2008
Plaintiffs-Appellants,
v
NACCO MATERIALS HANDLING GROUP,
INC., f/k/a YALE MATERIALS HANDLING
CORPORATION, ALTA FORK LIFT, and BELL
FORK LIFT, INC.,
No. 281493
Oakland Circuit Court
LC No. 2006-078921-NP
Defendants-Appellees.
Before: Borrello, P.J., and Davis and Gleicher, JJ.
PER CURIAM.
In this product liability action, plaintiffs appeal as of right a circuit court order granting
defendants summary disposition pursuant to MCR 2.116(C)(10). We affirm.
I. Facts and Proceedings
On January 7, 2005, plaintiff Behlul Fjolla1 attempted to repair a forklift at his place of
employment, PGS, Inc. During plaintiff’s repair efforts, the forklift suddenly and unexpectedly
traveled in reverse, crushing plaintiff’s hand and arm against metal boxes stacked on a nearby
wall. As ultimately amended, plaintiffs’ complaint alleged that defendant Nacco Materials
Handling Group, Inc. designed and manufactured the forklift, that defendant Alta Fork Lift sold
it to PGS, and that defendant Bell Fork Lift, Inc. maintained and serviced the forklift. The
second amended complaint raised product liability and negligence claims against all three
defendants. Against Nacco and Alta, the second amended complaint additionally alleged a
breach of warranty count, premised on their placement of the unreasonably defective forklift into
the stream of commerce.
1
Because plaintiff Lindita Fjolla has raised only a derivative loss of consortium claim, this
opinion refers to Behlul Fjolla when employing the singular “plaintiff.”
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Plaintiff recounted at his deposition that near the end of his shift on January 7, 2005, the
forklift stopped moving and his coworkers summoned him to attempt a repair. Plaintiff had
previously performed small repairs on the four or five PGS forklifts, which included putting
water in the batteries, greasing various components, and fixing signal lights, but he conceded that
he lacked formal training in forklift repair. None of the other PGS employees ever serviced the
forklifts.
When the forklift stopped moving on January 7, 2005, plaintiff attributed the problem to
a malfunction of “plates” that controlled the vehicle’s movement. Plaintiff commenced his
repair efforts by turning off the forklift’s ignition and setting the parking brake. He then
removed the hood from the rear of the vehicle, and attempted to use a screwdriver to separate
two plates that he believed needed cleaning so that they could make contact and conduct power
through the vehicle. Plaintiff asserted that he had previously fixed problems involving the plates
by using a screwdriver to separate them, and had watched Bell’s forklift mechanics employ the
same maneuver.
The plates into which plaintiff inserted his screwdriver are known as contactors. The
electrical energy powering the subject forklift flows from the battery through a circuit composed
of a series of paired contactor plates, or switches, which complete a circuit when closed. Each
contactor plate has two small silver alloy tips. When the forklift’s operator moves the control to
the forward position, two opposing contactor plates, each bearing two tips, move from an open to
a closed position, completing an electrical circuit and delivering power to the motor. The forklift
is equipped with forward and reverse contactors, and several specialized contactors that control
the vehicle’s speed. One such switch, the 1-A, regulates the forklift’s travel at higher velocities.
Occasionally, paired contactor tips may “weld” together and remain in contact when they should
remain open. This problem can occur if the forklift is driven with an incompletely charged
battery, or through normal wear and tear. If the 1-A contactor fails, a safety sensor prevents
engagement of the forward and reverse contactor tips until the 1-A contactor has been repaired.
The parties agree that on the day of plaintiff’s injury, the 1-A contactor tips had welded
together, disabling that switch. When plaintiff inserted the screwdriver into the reverse contactor
he completed an otherwise open circuit, resulting in the forklift’s rearward travel. In essence,
plaintiff succeeded in defeating a safety sensor, and thereby “hot-wired” the vehicle. Had
plaintiff disconnected the forklift’s battery before attempting this repair, the vehicle would not
have moved.
Plaintiff’s expert witness, Donald Blackmore, opined at his deposition that the forklift
was defective because its ignition key switch “did not break or open … the power battery cable
from the battery to the contactor plates ultimately to the drive motors.” According to Blackmore,
plaintiff reasonably expected that because he had turned off the forklift’s ignition switch, no
power could flow to the drive motor, and the vehicle would not move. Blackmore proposed an
alternative design involving an additional contactor controlled by the key switch, which he
suggested would prevent unexpected movement of the forklift when the ignition was turned to
the off position. Blackmore insisted that his proposed alterative design “comports with the
universal expectation of when I shut the key off to something, it’s off. And if the battery circuit
is interrupted by a key switch controlled contactor, that would have prevented this accident.”
Nacco’s expert witness, Raymond McKenzie, estimated that Blackmore’s proposed device
would add approximately $100 to the cost of each forklift.
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Three days before plaintiff’s injury, a Bell mechanic serviced the involved forklift. The
mechanic determined that the forward and reverse contactor tips had corroded, and failed to
make contact. He rebuilt the contactors and installed new tips. Blackmore averred that the
mechanic also should have inspected and rebuilt the 1-A contactor tips. Plaintiffs theorized that
if the 1-A contactor had been replaced on January 4, 2005, the forklift would not have needed
repair on January 7, 2005. As Blackmore further explained,
Contactor plates on an electric forklift are much like brake pads on cars in
that they are expendable wear items. And the condition of the contactor plate that
was on the machine at the time of the accident was well beyond any condition it
should have been in.
In other words, it should have been replaced sometime before this accident
happened. And had it not been in that condition, it wouldn’t have made the weld
connection that stuck it in a closed position.
Defendants sought summary disposition pursuant to MCR 2.116(C)(10), arguing that
plaintiff failed to produce adequate evidence supporting his product liability and negligence
claims. The circuit court issued a “Revised opinion and order” that recited the following
findings:
The Court finds that Plaintiff’s attempt to service the truck was grossly
negligent and was not reasonably foreseeable. Plaintiff attempted to repair an
electrical device by sticking a screwdriver into an electrical contact despite (1) his
lack of training with respect to lift trucks, (2) his failure to read Service Manuals,
Operator’s Manuals or guidebooks, (3) his employer’s directive not to repair or
adjust machinery unless authorized to do so, and (4) his only knowledge being his
observation of trained mechanics employing a similar tactic. [Emphasis in
original.]
On the basis of these findings, the circuit court dismissed plaintiff’s failure to warn and
negligence claims.
Regarding plaintiff’s defective design allegation, the circuit court determined that
plaintiffs failed to establish that the forklift’s design qualified as unreasonably dangerous, or that
a safer alternative design was available. The circuit court reasoned,
Plaintiffs’ expert Mr. Blackmore acknowledged that he will provide no
testimony regarding the magnitude of the risk imposed by the allegedly defective
design. Mr. Blackmore did concede, however, that if Plaintiff’s incident were the
only such incident of which the manufacturer was aware, he would conclude that
the design was “reasonably safe.” In this regard, Defendants attach the affidavit
of Marvin Welch … attesting that NACCO has no reports of any such claims.
Further, although Plaintiffs and Blackmore maintain that the injury could have
been prevented with an alternative design, they fail to demonstrate that the
suggested alternative would either be safer than the original design or that it
would not significantly impair the usefulness or desirability of the product to its
users. In any case, the alleged design defect was not the cause of Plaintiff’s
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injury. Rather, in view of Plaintiff’s lack of training or permission and the
multiple warnings, Plaintiff’s misuse of the product caused his injury. . . .
II. Standard of Review
This Court reviews de novo a circuit court’s summary disposition ruling. Walsh v Taylor,
263 Mich App 618, 621; 689 NW2d 506 (2004). We also review de novo the interpretation and
application of statutes as questions of law. Gilliam v Hi-Temp Products, Inc, 260 Mich App 98,
108; 677 NW2d 856 (2003). “Summary disposition is appropriate under MCR 2.116(C)(10) if
there is no genuine issue regarding any material fact and the moving party is entitled to judgment
as a matter of law.” West v General Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003).
“In reviewing a motion under MCR 2.116(C)(10), this Court considers the pleadings,
admissions, affidavits, and other relevant documentary evidence of record in the light most
favorable to the nonmoving party to determine whether any genuine issue of material fact exists
to warrant a trial.” Walsh, supra at 621.
III. Summary Disposition Analysis
A. Defective Design
Plaintiffs first challenge the circuit court’s finding that plaintiff’s misuse of the forklift
did not qualify as reasonably foreseeable. Manufacturers have a duty to design their products
“so as to eliminate any unreasonable risk of foreseeable injury.” Prentis v Yale Mfg Co, 421
Mich 670, 692-693; 365 NW2d 176 (1984). The statute governing claims alleging a “production
defect”2 provides that a manufacturer has no liability for harm caused by a production defect
unless the plaintiff establishes that the product was not reasonably safe at
the time the specific unit of the product left the control of the
manufacturer or seller and that, according to generally accepted
production practices at the time the specific unit of the product left the
control of the manufacturer or seller, a practical and technically feasible
alternative production practice was available that would have prevented
the harm without significantly impairing the usefulness or desirability of
the product to users and without creating equal or greater risk of harm to
others. [MCL 600.2946(2).]
Thus, § 2946(2) requires a plaintiff to prove that (1) the product was not reasonably safe when it
left the control of the manufacturer or seller, and (2) “a practical and technically feasible
alternative” design “would have prevented the harm without significantly impairing the
usefulness or desirability of the product to users and without creating equal or greater risk of
harm to others.”
2
The term “production” includes “design” MCL 600.2945(i).
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A separate statute addresses potential product misuse. “A manufacturer or seller is not
liable in a product liability action for harm caused by misuse of a product unless the misuse was
reasonably foreseeable. Whether there was misuse of a product and whether misuse was
reasonably foreseeable are legal issues to be resolved by the court.” MCL 600.2947(2).
A manufacturer “is liable for negligence in the manufacture or sale of any product which
may reasonably be expected to be capable of substantial harm if it is defective.” Ghrist v
Chrysler Corp, 451 Mich 242, 248; 547 NW2d 272 (1996), quoting Prosser & Keeton, Torts (5th
ed), § 96, p 683. “A product is defective if it is not reasonably safe for its foreseeable uses.”
Fredericks v General Motors Corp, 411 Mich 712, 720; 311 NW2d 725 (1981). While a design
defect claim tests the conduct of the manufacturer, “[a] breach of warranty claim tests the fitness
of the product and requires that the plaintiff ‘prove a defect attributable to the manufacturer and
causal connection between that defect and the injury or damage of which he complains.’”
Gregory v Cincinnati, Inc, 450 Mich 1, 12; 538 NW2d 325 (1995), quoting Piercefield v
Remington Arms Co, 375 Mich 85, 98-99; 133 NW2d 129 (1965).
Before our Legislature enacted product liability reform legislation in 1995, the common
law generally required the finder of fact to determine whether a product’s danger qualified as
unreasonable and foreseeable. In Casey v Gifford Wood Co, 61 Mich App 208, 217; 232 NW2d
360 (1975), this Court explained that the test for product liability was “whether the danger from
which the plaintiff suffered injury was unreasonable and foreseeable. This usually is a jury
question.” However, MCL 600.2947(2) now mandates that whether “there was misuse of a
product” and whether the product’s misuse “was reasonably foreseeable” constitute “legal issues
to be resolved by the court.” The term “misuse” includes “uses contrary to a warning or
instruction provided by the manufacturer, seller, or another person possessing knowledge or
training regarding the use or maintenance of the product . . . .” MCL 600.2945(e) (emphasis
supplied). Unforeseeable misuse of a product bars a product liability action.3 “Foreseeability of
misuse may be inherent in the product or may be based on evidence that the manufacturer had
knowledge of a particular type of misuse.” Portelli v I R Constr Products Co, 218 Mich App
591, 599; 554 NW2d 591 (1996).
Plaintiff does not contest that he was using or maintaining the forklift at the time of the
accident. Nor does plaintiff challenge defendants’ assertion that his use of the screwdriver
amounts to misuse of the forklift. Instead, plaintiff argues on appeal that his misuse of the
product was reasonably foreseeable. Plaintiff insists that his observation of Bell mechanics using
a screwdriver to separate the contactors, and the presence of “scratches and scrapes” on the
“back cover of the contactors,” demonstrated the reasonable foreseeability of his repair
technique. Additionally, plaintiff invokes Blackmore’s testimony that, “[W]hen you look at the
back cover of the contactors, forward and reverse, there’s some distress to the hole where the
solenoid plunger sits which would appear that it’s been beat on before.”
3
A “product liability action” “means an action based on a legal or equitable theory of liability
brought for the death of a person or for injury to a person or damage to property caused by or
resulting from the production of a product.” MCL 600.2945(h).
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Viewing this evidence in the light most favorable to plaintiffs, we conclude that
plaintiff’s misuse of the forklift was not reasonably foreseeable. Plaintiffs have offered no
evidence that the trained mechanics plaintiff observed repairing the contactors failed to
disconnect the battery cable before using a screwdriver to separate the tips. The existence of
“scratches and scrapes” near the access area for the contactor plates may tend to prove that others
used screwdrivers in that vicinity, but the presence of these marks does not reasonably evidence
that any service occurred without first disconnecting the battery. Plaintiffs have also failed to
demonstrate the existence of any other reported injuries caused by an unexpected movement of
the forklift, and Blackmore opined that he would consider the forklift “reasonably safe” if
plaintiff’s injury constituted the only similar “failure.”
Although a forklift user might reasonably conclude that turning off the ignition would
prevent movement of the truck, we detect no genuine issue of material fact that either Nacco or
Alta reasonably should have foreseen that anyone would have attempted to repair an electrical
system by employing a screwdriver to separate electrical components, without previously
disconnecting the vehicle’s battery. The circuit court thus correctly concluded as a matter of law
that plaintiff’s misuse of the forklift was not reasonably foreseeable. Given these findings, MCL
600.2947(2) compels us to conclude that the circuit court properly dismissed plaintiff’s product
liability claims. In light of our determination that the circuit court did not err in dismissing
plaintiff’s claims for design defect and breach of warranty, we need not address the additional
appellate arguments of Nacco and Alta.
Plaintiffs next contend that the circuit court incorrectly granted Bell summary disposition
because Blackmore’s testimony established that during the January 4, 2005 service call, the Bell
mechanic “should have recognized that the problem was with the 1A contact and fixed the
problem.” Plaintiffs assert that the following evidence supports Blackmore’s opinion: (1) the
forklift worked only eight hours between January 4, 2005 and January 7, 2005, (2) the service
manual instructs to “always install new contacts in sets,” and (3) plaintiff’s supervisor at PGS
denied that the forklifts had been “undercharged.” James Gird, plaintiff’s supervisor, testified to
his knowledge that the contactor plates could “burn out” if the forklifts were operated on an
incompletely charged battery. Gird admitted that “on a few occasions,” PGS employees had
used the forklifts before the batteries were fully recharged. In response, Bell argues that its
mechanic bore no legal duty to inspect for problems other than the obvious cause of the forklift
malfunction, and that plaintiffs produced insufficient evidence that the 1-A contactor required
repair or replacement on January 4, 2005.
Causation requires proof of both cause in fact and proximate cause. Reeves v Kmart
Corp, 229 Mich App 466, 479; 582 NW2d 841 (1998). Cause in fact “generally requires a
showing that ‘but for’ the defendant’s actions, the plaintiff’s injury would not have occurred.”
Skinner v Square D Co, 445 Mich 153, 163; 516 NW2d 475 (1994). The plaintiff must introduce
evidence affording “a reasonable basis for the conclusion that it is more likely than not that the
conduct of the defendant was a cause in fact of the result.” Id. at 165 (internal quotation
omitted). Although a plaintiff may establish causation circumstantially, “[t]o be adequate, a
plaintiff’s circumstantial proof must facilitate reasonable inferences of causation, not mere
speculation.” Skinner, supra at 163-164. When a motion for summary disposition challenges
causation pursuant to MCR 2.116(C)(10), “the court’s task is to review the record evidence, and
all reasonable inferences therefrom, and decide whether a genuine issue of any material fact
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exists to warrant a trial.” Id. at 161. In Skinner, supra at 164, the Supreme Court distinguished
between a reasonable inference and conjecture or speculation by quoting from Kaminski v Grand
Trunk W R Co, 347 Mich 417, 422; 79 NW2d 899 (1956):
As a theory of causation, a conjecture is simply an explanation consistent
with known facts or conditions, but not deducible from them as a reasonable
inference. There may be 2 or more plausible explanations as to how an event
happened or what produced it; yet, if the evidence is without selective application
to any 1 of them, they remain conjectures only. On the other hand, if there is
evidence which points to any 1 theory of causation, indicating a logical sequence
of cause and effect, then there is a juridical basis for such a determination,
notwithstanding the existence of other plausible theories with or without support
in the evidence.
Viewed in the light most favorable to plaintiffs, the evidence fails to establish a
reasonable inference that the 1-A contactor required repair on January 4, 2005. Plaintiffs do not
dispute that when Bell’s mechanic completed his repair of the subject forklift, it functioned
appropriately for several days. Blackmore admitted that he could not know the condition of the
1-A contactor tips on January 4, 2005. Although the 1-A contactor tips may have exhibited some
wear on January 4, 2005, plaintiffs have produced no evidence tending to establish that the tips
required replacement that day. “[T]here must be facts in evidence to support the opinion
testimony of an expert.” Skinner, supra at 173 (internal quotation omitted). Blackmore’s
testimony regarding a need to replace the A-1 contactor tips on January 4, 2005 amounts to pure
conjecture because it is equally likely that the contactor tips lacked obvious signs of wear.
Because plaintiffs failed to present competent evidence tending to prove that the Bell mechanic’s
failure to replace the 1-A contactor tips on January 4, 2005 caused plaintiff’s injury on January 7,
2005, the circuit court properly granted Bell summary disposition pursuant to subrule (C)(10).
Affirmed.
/s/ Stephen L. Borrello
/s/ Alton T. Davis
/s/ Elizabeth L. Gleicher
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