Forklift dealers make attractive targets for plaintiffs’ attorneys.
A recent article in Product Liability Law Reporter, a publication for the Association of Trial Lawyers of America (plaintiffs’ attorneys), boasts this theory, telling the reader: “Attorneys would win more forklift cases by pursuing theories of liability that focus on the forklift dealership.”¹ Forklift dealers make attractive defendants because they have insurance and are less experienced in fighting product liability lawsuits. There are numerous ways to attack forklift dealers for alleged shortcomings in the areas of forkliftsales, rentals, service, used equipment, parts and user/operator training.
One of the areas of vulnerability often overlooked by the dealer is the sale of accessories, particularly “safety” accessories. All manufacturers make available a variety of optional equipment that many would argue could be considered “safety” equipment. Manufacturers depend on their dealers to communicate the availability of such equipment to the customer to enable the customer to evaluate the need for and selection of such equipment. Failure to properly communicate the availability of accessories to the customer could expose the dealer to liability. Failure to make any communication of this type to the customer could be deadly.
Typical Lawsuit Scenario
A forklift being operated in reverse strikes a pedestrian. The forklift has no alarm, no mirrors and no lights. The injured pedestrian files a lawsuit against the dealer and manufacturer, claiming he neither saw nor heard the forklift coming in time to get out of the way, and that such “safety” items should have been installed and would have prevented the accident. The manufacturer of the forklift can prove it offered these types of accessories through its dealer network, and will claim it was the dealer’s responsibility to communicate the availability of this equipment to its customers.
For years, this particular customer has been a good account for the dealer. The dealer always delivered the lift trucks as ordered by the customer. The dealer assumed that if the customer desired accessories, he would have asked for them. However, the customer made no such request when placing the order for the truck involved in the accident. The dealer is certain this issue must have been discussed in the past, but has no evidence to show if or when such a discussion might have taken place.
Defending the Lawsuit
The dealer will face a variety of questions in the lawsuit, including the following:
- What is your relationship with this customer? How many times have you visited the customer’s plant? Who from your dealership has visited this plant?
- What did you do to assess the customer’s need for additional “safety” equipment? Did you perform a plant or application survey?
- What information and other assistance did you provide to the customer about the availability of accessories?
- Upon what do you base your assumption that the customer knew of the availability of these accessories and had decided against them?
- What documents do you have to support your position on the four areas of inquiry above?
|Do not refer to optional equipment as “safety” equipment. Safety is never an option.|
It is likely the dealer will have an abundance of documents to show the dealer’s long-standing relationship with the customer, but will lack any evidence for items 2, 3 and 4.
Types of Accessories
A variety of accessories, sometimes called “safety equipment,” is usually made the subject of lawsuits…
Back-up or motion alarms: There are a multitude of alarms available on the market, and they can be installed to sound when the vehicle is backing, or at all times the vehicle is turned on. Alarms come in a variety of tones, chimes, beeps and even digitized human voices. They can be set to sound at one decibel level, or can be self-adjusting to remain above the ambient noise level, up to a pre-designed limit. In choosing an alarm, the customer will have to decide the right sound, decibel level and actuation that is appropriate in his workplace.
Lights: Many configurations of lights are possible, including headlights, taillights, brake lights, turn signals, reverse lights, strobe lights, revolving lights and blinking lights. Strobe, revolving and blinking lights are available in red, white, yellow and blue. The customer will have to choose a light or combination of lights that will be effective in his environment and will not conflict with lights that are already present in his workplace.
Mirrors: Whether concave, convex or flat, round or rectangular, mirrors come in a variety of sizes. They can be used singly or in combinations of two or more, and installed in various locations inside and outside the operator’s compartment. The customer will have to choose which configuration of mirrors is appropriate for his application.
Are These Accessories “Safety” Equipment?
There are no studies that prove a light, alarm, mirror or any combination of these devices prevent accidents. To the contrary, many manufacturers and dealers have received reports of pedestrian-struck-by-forklift accidents despite an alarm, light or mirror having been installed and functioning at the time of the accident. Regardless of this “real world” phenomenon, many alarms, lights and mirrors are available from forklift manufacturers, their dealers and numerous third-party sources that are sometimes erroneously advertised as “safety” equipment. These items are not safety equipment like a horn, a seatbelt or an overhead guard, and are not standard. Because they are application-dependent, they are optional, and are not required by any regulation or standard applicable to forklifts.
Regulations and Standards
OSHA, Subpart N, Section 1910.178 Powered Industrial Trucks, is the controlling federal regulation applicable to forklifts. It contains no requirement for additional alarms, lights or mirrors as standard equipment. OSHA 1910.178 incorporates, by reference, ASME/ANSI B56.1 Safety Standard for Low Lift and High Lift Trucks, which clearly states the user shall determine if operating conditions require the truck to be equipped with additional sound-producing or visual (i.e., lights or blinkers) devices, and be responsible for providing and maintaining such devices (ASME B56.1-2000, Section 4.15.2). Even the National Safety Council (NSC) requires only an operator-controlled horn as standard equipment. All three require the buyer or user to evaluate its operation to determine the need for accessories, and recognize that unusual operating conditions may require additional safety precautions and special operating instructions (ASME B56.1-2000, Section 4.1.2).
When in doubt, the customer should be encouraged to consult with a safety professional or industrial engineer familiar with its type of operation to determine if conditions in the facility require that lift trucks be equipped with additional audible or visible devices, or mirrors.
|Ten Things a Dealer Can Do to Guard Against
Liability in the Sale of Accessories
What Manufacturers Expect From Dealers
Because the dealer has direct interface with the customer, the manufacturer relies on its dealer to communicate the availability of optional equipment to customers and to educate customers about the numerous issues to be considered when evaluating the need for additional devices. These issues include:
- Ambient noise in the workplace on all shifts;
- Ambient light in the workplace on all shifts;
- Customer’s previous experience with lights, alarms and mirrors, if any;
- Volume and type of vehicle traffic;
- Volume and classification of pedestrian traffic;
- Traffic patterns within the workplace, e.g., limited aisle space, blind intersections, enclosed areas, etc.;
- Hazardous or unique materials handling; and
- Adequacy of operator training and employee supervision.
Many manufacturers have published bulletins, booklets or catalogs, and some have videos available, all of which are designed to serve as tools to aid the dealer in facilitating the discussion with the customer about accessories. However, some of the issues the customer will need to consider may be beyond the dealer’s ability to adequately measure and address, and may require other resources.
Protect Yourself from Liability
The dealer should provide information to the customer to allow the customer to weigh the risks and benefits of having or not having the optional “safety” device. A mere perfunctory offering or complete failure to discuss the optional equipment is not sufficient. The dealer must know and understand the intended uses for the machine in the customer’s application, and recommend that the customer evaluate its need for accessories.
The best approach is to scrupulously follow the forklift manufacturer’s procedures for the sale of optional forklift safety equipment. The dealer must be thoroughly knowledgeable about the pros and cons of these forklift accessories in a wide variety of applications and share the manufacturer’s materials with the customer. The forklift dealer should document the sharing of such information, as well as the customer’s decision.
Remember, forklift safety is never an option.
¹Robert Loderstedt, “Winning Forklift Accident Cases,” Product Liability Law Reporter, October 1999, pp. 160-61.
|Meet the Author
Diane Cashen is product safety manager for Product Liability Solutions, LLC in Lexington, Kentucky.