Exemplary damages (also known as punitive damages) are unusual, but may be awarded in personal injury cases involving gross negligence. In contrast to compensatory damages such as lost wages, medical bills and pain and suffering, exemplary damages are meant to punish a defendant for egregious behavior. In 4Front Engineered Solutions, Inc. v. Rosales, the defendant appealed from a judgment for the plaintiff of over $10 million, including exemplary damages, in a personal injury lawsuit based on a forklift accident.
The defendant was a designer and manufacturer of equipment for loading docks and ran a warehouse in Texas. The warehouse manager hired an electrician to repair the illuminated business sign in the front of the warehouse. The electrician asked the plaintiff, also a licensed electrician, to help him to do this work. The warehouse manager allowed the first electrician to borrow a forklift to get the job done.
On the second day, the first electrician was working on the forklift, moving it back and forth so the plaintiff standing on a platform could reach the electrical connections. A forklift’s wheel rolled off the sidewalk. The forklift tipped and caused the plaintiff to fall 25 feet to the ground. He suffered injuries to his spinal cord, brain, hip and leg.
The plaintiff sued both the other electrician and the manufacturer, asserting premises liability, negligence, gross negligence and negligence per se. He claimed that the warehouse manager had ignored requests for more appropriate equipment for the work even though they knew the electrician was not trained sufficiently in proper and safe use of the forklift.
At trial, an occupational health and safety consultant testified for the plaintiff as an expert. He testified outside the jury’s presence that there is an OSHA regulation that sets training requirements for safe operation of a forklift like the one at issue. The expert was allowed to testify about the specific forklift regulation, but not the multi-employer citation policy of OSHA.
At trial, the expert testified that the forklift was the wrong machine to use for the task and the forklift was the wrong machine for the job. He also testified that the first electrician failed to comply with the operating manual because he used the forklift outdoors and tried to move the forklift without lowering the forks. He also testified that the defendant was more responsible than the first electrician for the accident because the defendant was more knowledgeable and had provided the forklift.
The defendant presented its employees’ testimony. They testified that the electricians shouldn’t have been using the forklift in that location. The warehouse manager testified that one of his responsibilities was managing safety, but that he hadn’t been trained on forklift safety. He denied that he was aware that the first electrician didn’t speak English. He knew the wording of the OSHA regulation. He claimed that loaning equipment to nonemployees was a common and safe practice in the industry, but agreed that there was a written policy instituted five days after the accident that independent contractors could not use company equipment. He further claimed that the first electrician had said he would use the company equipment. The defendant’s executives also testified that forklifts were supposed to be used only by those properly trained in their use and operation.
The first electrician testified he’d never been trained in using the forklift. He testified that he had needed another piece of equipment. The plaintiff testified he hadn’t been able to do any work because of his injuries. He testified that he held the manufacturer responsible for the accident, not the first electrician.
The jury attributed 75% liability to the manufacturer, 15% to the first electrician, and 10% to the plaintiff. With regard to the manufacturer, the manufacturer was found liable under both a negligent entrustment theory and a premises liability theory, and it was determined that the manufacturer was grossly negligent. $5 million in exemplary damages was assessed.
The manufacturer appealed on numerous grounds. Among other things, the appellate court explained that negligent entrustment is found where someone supplies chattel for use when the supplier knows or has reason to know the recipient is likely to use it in a manner involving unreasonable risk of physical harm because of the recipient’s youth or inexperience. The court held that the jury’s finding of liability under this theory was supported.
The exemplary damages were assessed based on a finding that the manufacturer was grossly negligent. Gross negligence occurs when actions involve an extreme degree of risk considering the probability of harm to others, or when the actor has actual awareness of the risk involved but nevertheless moves forward with conscious indifference to others’ rights, safety or welfare. The warehouse manager had testified that the first electrician told him he was trained and experienced in using forklifts, and therefore the appellate court found that a reasonable juror couldn’t believe that the defendant knew about the peril but had proceeded anyway. Therefore, the award of exemplary damages was found to be in error.
Work injuries can be devastating. If you or your loved one suffers a catastrophic injury at a construction site or other workplace location, the experienced San Antonio work injury attorneys at Carabin Shaw may be able to help you recover from the person or entity responsible. Call our office for more information at 1-800-862-1260.
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