JANIER JIMENEZ AND MELISSA JIMENEZ v. CROWN EQUIPMENT CORP.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5145-05T55145-05T5

JANIER JIMENEZ AND MELISSA

JIMENEZ,

Plaintiffs-Appellants,

v.

CROWN EQUIPMENT CORP.,

Defendant,

and

A.J. JERSEY, INC.,

Defendant-Respondent.

________________________________________________________________

 

Argued March 20, 2007 - Decided April 5, 2007

Before Judges Lisa and Grall.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-289-04.

Robert W. Ruggieri argued the cause for appellants (William P. Ronner, attorney; Mr. Ronner, on the brief; Mr. Ruggieri, of counsel and on the brief).

Paul C. Johnson argued the cause for respondent (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Mr. Johnson, on the brief).

PER CURIAM

Plaintiff, Janier Jimenez, appeals from a summary judgment dismissing his personal injury complaint against defendant, A.J. Jersey, Inc. Plaintiff alleged he was injured in a work place accident while operating a forklift truck, which had been recently serviced by A.J. Jersey. Plaintiff alleged that his injury occurred because the brakes on the forklift were not functioning properly as a result of the negligence of A.J. Jersey in maintaining, testing, inspecting and adjusting them. Plaintiff produced a report and supplemental report from an engineering expert supporting his position. The trial judge found that expert testimony was necessary to enable plaintiff to establish a prima facie case of causative negligence against A.J. Jersey, and that his expert's reports were deficient because they constituted nothing more than a net opinion. The judge accordingly granted A.J. Jersey's summary judgment motion dismissing the complaint.

Plaintiff argues that summary judgment was improperly granted. He argues that the trial judge failed to give proper consideration to plaintiff's version of the happening of the accident, that his expert's reports were properly supported and did contain more than net opinions, and, in any event, expert testimony is not required in this case. We agree with plaintiff that, in light of plaintiff's version of the happening of the accident, the reports of plaintiff's expert contain a sufficient basis to support the opinions rendered, which, in turn, establishes a prima facie case of causative negligence against A.J. Jersey. We therefore reverse the order granting summary judgment. In light of our determination we find it unnecessary to address plaintiff's alternative argument that expert testimony is not required in this case.

Applying the Brill standard, these are the facts. Plaintiff was a warehouse employee of Applegate Farms. On May 15, 2003, plaintiff was operating a standing forklift truck, manufactured by defendant, Crown Equipment Corp. The warehouse was laid out in long rows of racks separated by aisles about twelve to thirteen feet wide. The racks contained three levels, each of which would accommodate a pallet filled with product. Employees would remove product from the floor level rack. When the pallet at that level became empty, one of the upper level pallets would be removed from its rack by use of the forklift truck and repositioned at floor level.

The forklift truck involved in this incident was a battery operated device operated from a standing position. To move the truck, the operator would depress a deadman's foot pedal. Upon releasing the pedal, the brakes would automatically engage. This was the only braking system on the truck. The overall length of the truck, including the projecting forks, was about eight-and-one half feet.

The incident occurred while plaintiff was repositioning a pallet filled with product from a second level rack to the floor level rack. Plaintiff positioned the forks in the pallet and lifted it the minimal amount required to remove it from the rack. He slowly backed up in the aisle until the pallet cleared the rack. He lowered the pallet to about ten to twelve inches above the floor. As he was centering himself with the rack, he backed up slowly, moving two to three feet, at which time he released the deadman's pedal. He felt the brakes begin to engage, but the brakes then disengaged and the truck continued rolling backwards. The distance from the point where he released the deadman's pedal to the rack behind him was about three feet. Anticipating a collision with that rack, plaintiff jumped off the truck at the last minute, but his ankle got caught between the truck and the rack, causing him injury.

About three weeks prior to this incident, Applegate Farm contacted A.J. Jersey for a service call on the forklift truck, which pertained to a noise the truck was making while tracking. At that time, A.J. Jersey and Applegate Farms were not parties to a maintenance contract, and A.J. Jersey had not worked on this truck previously. After inspecting the truck, A.J. Jersey determined it would be necessary to transport it to its shop for repairs. According to A.J. Jersey's work records, it performed work on the right side drive unit, and as part of that work bled the brake line. The truck was returned to Applegate Farms on May 6, 2003, and was apparently used uneventfully until plaintiff's injury on May 15, 2003.

After the incident, Applegate Farms contacted A.J. Jersey, whose representatives came to Applegate Farms to inspect the truck. Its representative performed a test on the brakes on that date. He certified that he performed the test in accordance with the product specifications manual for that model truck issued by Crown Equipment, and the truck "stopped within 5 feet." A.J. Jersey removed the truck to its shop. Work records reveal that the brakes were out of adjustment, and the left brake was not functioning properly and required replacement. A.J. Jersey performed those repair services.

Plaintiff engaged the services of Craig D. Clauser, an engineer, to examine the truck and pertinent records and documents, and to render an opinion regarding culpability for the brake failure. Plaintiff had brought suit against both the manufacturer, Crown Equipment, and the repair service provider, A.J. Jersey. Upon ascertaining the model of the truck involved, Clauser opined, based upon his familiarity with that model and his considerable experience in evaluating that model and others like it, that there was no design defect. Based upon that opinion, Crown Equipment was dismissed from the case.

Clauser was able to locate the truck, which had been sold by Applegate Farms, but which was still in use by another company. Clauser performed a test with the truck, simulating the conditions described by plaintiff. He caused the truck to be backed up three feet. He did so accelerating with maximum power, thus simulating conditions probably more severe than described by plaintiff, but which would produce in a conservative result. After moving three feet, he released the deadman's pedal, and the truck stopped within six inches. Based upon that test and his experience in analyzing braking systems and other systems on forklift trucks over the years, Clauser concluded that with properly adjusted and maintained brakes the truck should have stopped under conditions described by plaintiff within six inches.

In his initial report, dated January 14, 2005, Clauser stated:

The above examination together with incident circumstances shows that Mr. Jimenez was injured when [his] right foot was pinched between the lift truck which he was operating and a pallet. This incident occurred because the brakes of the subject lift truck were not functioning properly at the time of the incident. The brakes were not functioning properly because they had been improperly and negligently maintained by the lift truck servicing company, A.J. Jersey, Inc.

The subject lift truck is a battery powered, counter balanced unit on which the operator rides in a standing position. The unit is driven by a pair of electric motors. Both the left and right front wheels have their own motor and geared drive train. The shafts of both motors are fitted with disc brakes. The brake pads are spring loaded against the disc rotors. The brakes are released hydraulically when the operator presses the pedal on the floor of the operator's compartment. When the operator allows the pedal to rise, the brakes are applied. As confirmed by my inspection and testing of the subject unit, properly adjusted brakes are capable of stopping the unit within a distance of approximately 6 inches when it is accelerated over a distance of 3 to 4 feet. Had the brakes been properly adjusted, Mr. Jimenez would have had no difficulty in backing the unit up and stopping it before contacting the rack behind him.

The brakes were grossly out of adjustment at the time of this incident as confirmed by the A.J. Jersey post incident inspection. At the time of that inspection a 5 foot stopping distance was noted. It was further noted that the left motor brake was totally out of adjustment and not working at all. Not only did A.J. Jersey determine that the brakes were not working, they also determined that the plugging circuitry was not functioning properly.

A.J. Jersey had performed work on the right side unit of this lift truck shortly before the subject incident. As part of that work they bled the brake line. While they were working on the unit, the cover over both the right side and left side units was removed. Reasonably, they would have tested, inspected, and adjusted both the right side and left side brakes while performing the work which they were doing. They returned the unit to Applegate Farms on May 6, 2003. When they returned the unit to Applegate Farms, the brakes were in a dangerous and out of adjustment condition. Had the brakes been properly maintained, tested, and adjusted when the unit was returned, they would [not] have been in that condition at the time of the incident on May 15 and at the time of the post incident inspection on May 19. Brakes do not wear and loose adjustment that quickly.

To return a lift truck to service with brakes in a dangerous and out of adjustment condition, is below the expected standard of care for an organization maintaining lift trucks.

OPINION:

Mr. Jimenez was injured when his right foot was pinched between the lift truck which he was operating and a pallet. This incident occurred because the brakes were not functioning properly at the time of this incident. The brakes were not functioning properly because they were improperly and negligently maintained, tested, inspected, and adjusted by A.J. Jersey, Inc.

All opinions expressed in this report are to a reasonable degree of engineering certainty.

Clauser issued a supplemental report on February 14, 2006, after A.J. Jersey filed its summary judgment motion. The report responded to A.J. Jersey's argument that Clauser's initial report did not rely upon any recognized standards for the determination of braking distance and was a net opinion. A.J. Jersey submitted information in support of its summary judgment motion establishing that Crown Equipment prescribed a standard for testing the brakes on this model forklift truck. The test requires moving the truck in a forward direction, empty, on a level and dry concrete pavement, to its maximum speed (6.4 miles per hour empty; 6.2 miles per hour loaded), and then releasing the deadman's pedal. The specified stopping distance following this procedure should be 5.75 to 6.75 feet. A.J. Jersey also submitted the standard promulgated by the American Society of Mechanical Engineers and American National Standards Institute (ASME/ANSI) which prescribes a similar test, but with the truck loaded. Under the ASME/ANSI standard, a formula is provided, and, at the maximum loaded speed specified by the manufacturer (6.2 miles per hour), the stopping distance is specified at slightly more than 6.7 feet. A.J. Jersey argued that because Clauser did not utilize any recognized standard, his opinion that with properly working brakes the truck should have stopped within six inches was nothing more than a net opinion.

In his supplemental report, Clauser explained his view that the stopping distance tests described above were simply not applicable to the circumstances of plaintiff's accident. Therefore, he utilized an empirical testing method simulating and reenacting the event as described by plaintiff. He stated that "[a] re-enactment of this type, based on my years in industry and years as a forensic engineer, is a commonly used procedure in industrial accident investigation." He further explained that because plaintiff's velocity after moving two to three feet was not known, he could not utilize a formula to determine stopping distance at the speed plaintiff was moving when he released the deadman's pedal. He further explained:

My testing showed that under these conditions the incident Crown lift truck when properly adjusted stops within a distance of six inches or less which confirmed my hypothesis. When this model Crown lift truck is placed in service the brakes are adjusted to stop within a pr[e]scribed range from full speed with no load (reference: Crown Manual). During use brakes wear and the stopping distance increases. Since the incident unit which I tested was able to stop in six inches, I can reasonably and logically conclude that a properly adjusted unit will stop in six inches or less. Had the unit had a stopping distance of six inches when Mr. Jimenez applied the brakes after accelerating over a distance of approximately three feet, Mr. Jimenez would have been able to control the unit and avoid a collision.

In his supplemental report, Clauser reviewed the information he derived from A.J. Jersey's work order and repair records after plaintiff's accident. He was critical of the stopping distance test reported by A.J. Jersey, concluding that either of two deficiencies were apparent. First, details of the test were not given, other than the conclusory statement that the test was conducted as specified by Crown Equipment. If the truck, in an empty condition, was propelled to its maximum speed before activating the brakes, and if it indeed stopped in less than five feet, this stopping distance was significantly less than that specified by Crown Equipment (and, generally, by ASME/ANSI), which would indicate that "the spring adjustment should have been changed." On the other hand, because there was not a full description of the test procedure, it is also possible that full speed was not reached before activating the brakes, which would also account for a shorter stopping distance.

More importantly, however, Clauser reiterated that A.J. Jersey's "work order shows that when the unit was inspected after the incident, the brakes were out of adjustment, out of specification, and in need of repair." He then concluded:

My testing which was an attempt to recreate the incident conditions using a calibrated measuring device was appropriate and much more meaningful than the undefined "stopped within 5 ft" referenced in the work order.

Based on my experience with this type Crown lift truck in many other investigations, I know that Crown designed the subject lift truck to meet the ANSI B56.1 Service Brake requirements. My testing was not designed to test that hypothesis. The Brief spends some time discussing the ANSI tests. The ANSI test is done from maximum speed as stated in the Brief. Not stated in the Brief is that the ANSI standard requires that the test be done with the unit fully loaded. The Crown Manual test for checking and adjusting the brakes is not the ANSI test. The Crown test is done with the unit empty, not fully loaded.

There is no question that the ANSI test is a different test that the Crown test and that my test is different than both of them. Each test has its purpose. The ANSI test tests the brake design. The Crown test tests the brake adjustment. The Crown and ANSI tests measure stopping from full speed travel. The purpose of my test was to ascertain the stopping characteristic from a relatively low speed (limited by the short acceleration distance available in the area where Jimenez was working). My test was based on basic scientific principles and was appropriate for its purpose. I know of no published standard nor any published Crown data which provides the information obtained by my testing.

The trial judge agreed with A.J. Jersey's argument and concluded that

there is nothing concrete or foundational that can be relied upon to base the conclusions that are set forth relative to the opinion that the brakes were not functioning properly at the time and were negligently maintained.

And although it says, the opinion expressed in this report are to a reasonable degree of engineering certainty, there is nothing there to back up that as far as standards that were relied upon, whether it be testing standards or periodicals or other books or anything in the field that were relied upon. And based on that the Court feels that this is something that could not basically support the opinion that it set forth in this case.

We do not agree with the judge's analysis and conclusion. We first note that considering the evidential materials in the light most favorable to plaintiff, including all reasonable inferences that could be drawn in his favor, the fact that a brake failure occurred does not require expert testimony. According to plaintiff, while moving at a very slow speed after traveling only two to three feet, he activated the brakes by releasing the deadman's pedal. He felt the brakes begin to grab, but they then released, and the truck continued to roll, not coming to a stop until it struck a fixed object after rolling about three feet. This description leads to the fair inference that after the brakes initially began to grab but then released, the truck was coasting freely, with no braking force being applied. Without the aid of expert testimony, a lay person could reasonably find that a brake failure occurred.

The next inquiry is whether the truck should have been capable of stopping within the three feet between the point where the brakes were applied and the rack to the rear of the truck. It seems obvious that a forklift truck such as this must be designed to be capable of short stopping distances when maneuvering in tight quarters such as existed in this case. As plaintiff described his movements immediately prior to the accident, he was maneuvering safely back and forth within the aisle, until the brake failure occurred. This leads to an inference that at these speeds and within these close quarters, the truck was normally capable of stopping within three feet or less. But plaintiff presented additional evidence, namely Clauser's report, in which he described a stopping distance of six inches or less under similar (and probably more severe) circumstances. Clauser's test was performed using the same truck plaintiff was operating when he was injured. Certainly, if nothing else, Clauser's testimony, if believed, establishes that under conditions such as those encountered by plaintiff, the truck is capable of stopping in six inches or less.

Clauser also provided his expert opinion that the brakes were not in proper working order and that A.J. Jersey breached the prevailing standard of care for a repair facility by failing to properly inspect, test, maintain and adjust them. We do not agree that this was nothing more than a net opinion. An expert's opinion must be based upon "facts or data . . . perceived by or made known to the expert." N.J.R.E. 703; see Buckelew v. Grossbard, 87 N.J. 512, 524 (1981). A net opinion is one that lacks such foundation and consists of nothing more than bare conclusions unsupported by factual evidence. Buckelew, supra, 87 N.J. at 524. To be admissible, an expert's opinion must "explain a causal connection between the act or incident complained of and the injury or damage allegedly resulting therefrom." Ibid.

Clauser's opinions are not deficient for failure to rely upon the standards promulgated by Crown Equipment or ASME/ANSI. He provided a reasonable explanation for why he found those standards inapplicable to the issue in this case. Of course, at trial the defense can cross-examine Clauser on the subject and present evidence of its own that may tend to establish the applicability of those or other standards. Clauser's opinions are based in part upon the controlled experiment he conducted with the instrumentality involved in this accident, the forklift truck, simulating conditions similar to those described by plaintiff. His opinion also relied in part on his extensive knowledge and experience in analyzing braking systems and other features of forklift trucks and similar equipment. And, his opinion was also based upon the work records of A.J. Jersey.

Based upon facts and data derived from these sources, Clauser concluded that the brakes were not in proper working order at the time of the accident, that the malfunction in all probability existed when A.J. Jersey inspected and worked on the truck prior to the accident, including its work on the brakes, because "[b]rakes do not wear and lose adjustment that quickly." Clauser opined that A.J. Jersey should have tested, inspected, and adjusted the brakes while performing the pre-accident work they were doing, and, the brakes were not working properly at the time of the accident because of A.J. Jersey's negligence in maintaining, testing, inspecting and adjusting the brakes prior to returning the truck to service. Finally, Clauser opined that this negligence caused the brake failure that caused plaintiff's injury.

We are satisfied that Clauser's reports provide the basis for competent evidence that (1) fills in any factual gap that might be needed to enable lay persons to understand a reasonable stopping distance for a forklift truck at slow speeds, and (2) provides an opinion, supported by sufficient facts and data, upon which the factfinder could reasonably find causative negligence on A.J. Jersey's part.

The summary judgment order dismissing the complaint is reversed.

 

Melissa Jimenez, the wife of Janier Jimenez, also sued, asserting a per quod claim.

Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

(continued)

(continued)

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A-5145-05T5

April 5, 2007