On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1160-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Holston, Jr. and Grall.
Defendant Crown Equipment Corporation (Crown) appeals from a final judgment awarding plaintiff Jorge Albarracin damages for personal injuries. Plaintiff's right hand was amputated because of damage sustained when it was pinned between the mast and body of a forklift manufactured and serviced by Crown and owned by plaintiff's employer, defendant A&E Stores, Inc. (A&E). Plaintiff alleged that the accident was caused by defendant's negligence and A&E's intentional wrong. Crown filed a cross-claim against A&E for contribution and indemnification. All claims against A&E were dismissed prior to trial. A jury found plaintiff thirty-two and one-half percent and Crown sixty-seven and one-half percent negligent.
Plaintiff used the forklift he was operating at the time of the accident on a daily basis for about six months prior to the accident. The accident occurred on March 15, 2001. The fifteen-year-old forklift was one of two owned by A&E.
The forklift is equipped with a glass safety shield that rests in rubber grooves which hold it in place. The shield separates the compartment in which the operator stands from the path of the forklift's mast. At the time of the accident, the safety shield on this forklift was cracked and taped with yellow and black tape across the top of the glass and several layers of clear tape along one side of the rubber channel that holds the glass.
On four or five occasions before his accident, plaintiff was unable to lower the forks of the lift because the safety shield tilted outward and blocked the descent of the mast. In order to continue his work when this occurred, plaintiff raised the forks off the safety shield, turned off the machine and left the compartment to push the safety shield back into place. He generally used a metal bar, but on the day of his accident, he reached under the mast and repositioned the glass with his hand. Plaintiff knew it was dangerous to use his hand and had been warned not to stand under or on the forks. He did not know that the mast could fall on him. On the day of the accident, plaintiff did not see the metal bar or anything else he could use as a tool. When he pushed the safety shield back, the mast fell and trapped his hand and forearm against the machine.
Crown manufactured and serviced the forklift. Jose Rodriguez was hired by Crown in September 2000 to inspect and repair forklifts. He visited A&E twice prior to plaintiff's accident. On February 19, 2001, Rodriguez performed a planned maintenance inspection. He noticed a crack in the right side of the glass safety shield. Crown inspectors doing planned maintenance checks use a prepared form that lists the component parts of a forklift. Rodriguez wrote the letter "R," signifying the need for repair, next to "Safety Shield" and other items. He did not elect to mark the box with a "U," which indicates urgency. On the section of the form reserved for comments, Rodriguez listed several parts in need of repair or replacement, including the safety shield.
Michael Smith, plaintiff's supervisor, signed the February 19 planned maintenance form twice -- once on a printed signature line reserved for an "Authorized Signature" and once in the margin above the comments section. A line with an arrow at its end was drawn between Smith's signature in the margin and the last line of the comment section. That is the line on which Rodriguez had written the words "Replace, load wheels safety shield."
Smith did not recall why he signed the form twice, but he understood that his signature indicated his authorization of the repairs. According to Rodriguez, when he reviewed the form with Smith, Smith told him that he would call Crown when he was ready to have the repairs done. For that reason, Rodriguez did not complete a work order to replace the safety shield. To Rodriguez, Smith's signature on the line reserved for an "Authorized Signature" simply confirmed the service visit. Rodriguez asked Smith to sign in the margin to indicate his refusal to authorize the repairs. He did not repair the safety shield. Smith explained that Rodriguez did not have the necessary part and he expected Rodriguez to return when the part was available. Smith's father, who supervised him at A&E, also understood that the safety shield was to be repaired when Crown received the part.
Rodriguez did not advise Smith to take the forklift out of service. Rodriguez knew that a safety shield tilted outward could obstruct the movement of the mast and pose a safety threat. When he moved the forks up and down during his inspection on February 19, however, he did not have that problem. Rodriguez understood that the purpose of planned maintenance inspections is to ensure the safety of the forklifts. On other occasions he had told forklift owners not to use machines until necessary repairs were made. He did not recall whether he saw tape on the shield on the date he inspected it.
Both Smith and his father denied any knowledge of the problems that plaintiff experienced with the safety shield obstructing the movement of the forks. Smith used the same forklift regularly, but the safety shield never blocked the descent of the mast. Smith also claimed that plaintiff did not tell him about the difficulties he was experiencing. According to plaintiff, the first time the safety shield blocked the descent of the forks, he told Smith and was directed to call Crown. He claimed that he told Smith and called Crown every time the forklift got stuck.
When plaintiff called Crown, he spoke with a woman whose name he could not recall. After the first call, while waiting for Crown's representative to arrive, plaintiff noticed that it was the safety shield that was blocking the mast. He took it upon himself to fix the problem by pushing the safety shield back into place with a metal bar so that he could do his work.
On March 9, 2001, Rodriguez returned to A&E at the direction of Crown's dispatcher, who told him that A&E had a forklift that was not moving. According to plaintiff, he placed a call on March 9, which he believed was the second day on which he had trouble with the safety shield. Prior to calling, he tried to fix the problem himself, as he had the first time, but could not restart the machine to raise the forks off the safety shield.
Crown's service order, dated March 9, 2001, and signed by Smith for A&E, indicates that the customer described the problem on March 9 as "some time not move [sic]." A&E's work order, which Smith did not sign until March 27, 2001, reflects a call for service on March 8 and a service visit on March 9, in response to a complaint that the forklift would not "consistently travel." Crown's service manager reviewed company records of service calls and found one call related to this forklift made on March 8, 2001 and reporting a "travel" problem.
When Rodriguez arrived on March 9, plaintiff took him to the forklift but did not talk to him or mention the problem with the safety shield blocking the descent of the mast. According to plaintiff, he had told the woman who took his call for service and did not repeat himself. According to Rodriguez, he was sent to A&E on March 9, 2001 to fix a "travel problem," which he did. He did not have a problem with the safety shield when he had raised and lowered the forks.
Plaintiff was not sure whether he told Smith that Rodriguez left without fixing the safety shield. He continued to use the same ...