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Wilkerson v. Raymond-Muscatine, Inc.

Superior Court of New Jersey, Appellate Division

November 13, 2013

DARLENE WILKERSON, Individually and as Administratrix of the ESTATE OF JAMES WILKERSON, deceased, Plaintiff-Respondent,


Argued September 11, 2013

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4919-07.

Steven J. Ahmuty, Jr. (Shaub, Ahmuty, Citrin & Spratt, LLP) of the New York Bar, admitted pro hac vice, and Jeffrey M. Kadish argued the cause for appellant (Golden, Rothschild, Spagnola, Lundell, Boylan & Garubo, PC and Mr. Ahmuty, attorneys; Timothy R. Capowski (Shaub, Ahmuty, Citrin & Spratt, LLP) of the New York Bar, admitted pro hac vice, Mr. Ahmuty and Mr. Kadish, on the briefs.)

Alan M. Feldman (Feldman, Shepherd, Wohlgelernter, Tanner, Weinstock & Dodig, LLP) of the Pennsylvania bar, admitted pro hac vice, argued the cause for respondent (Daniel J. Mann and Edward S. Goldis, attorneys; Mr. Mann, Mr. Goldis and Mr. Feldman, on the brief).

Before Judges Lihotz, Maven and Hoffman.


James Wilkerson suffered serious work-related injuries when the pallet truck he was operating failed to stop and crashed into a rack of metal shelving. Although Wilkerson survived the crash and initiated this litigation, he ultimately died, in part from complications resulting from the injuries suffered in the crash. His wife, Darlene Wilkerson, individually and on behalf of Wilkerson's estate (plaintiff), proceeded with this action.

Defendant Campbell's Auto Express, Inc. (defendant) was initially joined as a third-party defendant by defendant Material Handling Supply, Inc. (MHS). Thereafter, plaintiff amended the complaint to join Campbell's as a direct defendant. Defendant subsequently filed a cross-claim for indemnification against MHS, as the party responsible for ordinary maintenance and significant repairs of its forklifts, pallet trucks and other material hauling vehicles. Plaintiff settled all claims with other defendants and the jury trial proceeded against defendant and MHS. On February 14, 2012, the jury rendered a no cause of action verdict for MHS but found defendant negligent, apportioning 75% of total fault to its negligent conduct.

Defendant appeals from the verdict, maintaining plaintiff's expert evidence was insufficient to support causation and the judge erred in denying its request for a new trial. Defendant also challenges certain jury instructions as erroneous. Following our consideration of these arguments in light of the record and applicable law, we affirm.

These facts are taken from the trial record. Wilkerson worked for Pitman Warehousing, Inc. (Pitman), as a "picker/puller." Wilkerson's job was to take a list of customer products to be "picked, " locate the products stored on metal racks in the warehouse, "pull" them from the racks and stack the items on wooden pallets. Then, using a pallet truck, he would deliver the load to a designated warehouse area for loading onto delivery trucks by other employees.

Defendant operates a trucking company, which shared the warehouse space with Pitman. Defendant also operated a maintenance shop. Although the shop performed routine repairs to Pitman's over-the-road trucks, it also provided limited maintenance and minor repairs to Pitman's pallet trucks and forklifts, such as replacing wheels, hand grips, horn fuses, and micro switches. Defendant contracted with MHS to provide extensive repairs and routine maintenance service for Pitman's material handling equipment. For pallet trucks, service was scheduled the earlier of every three months, or after 250 hours of use.

The accident involved Pitman's pallet truck number 61 (truck 61), which we will describe. The three wheeled truck allows the operator to stand in the center platform, surrounded by a front bulkhead and a rear metal dividing wall. Two cargo forks protrude from the rear, which are inserted onto the sides of a wooden pallet to allow the pallet to be raised. The load is secured on the pallet and carried by the truck through the warehouse. The front bulkhead contains the hand controls, placed in front of the operator. The truck is directed by a thumb operated butterfly directional control, which, when centered, keeps the truck in neutral, but when pushed up moves the pallet truck forward, and when pushed back, reverses. The farther the butterfly control is pushed in a direction, the faster the truck travels in the designated direction. Hand brakes are located on the sides of the front center console. Other controls include those to operate the forked prongs and the horn. Finally, there is an aftermarket strobe light affixed to the front hood.

The pallet truck travels up to eight miles per hour without a load and six miles per hour bearing a load. The truck is slowed and stopped either by engaging the mechanical hand brakes, or by using the butterfly control to engage the electrical braking system, reversing the direction of travel. This procedure, known as plugging, requires the operator to wheel the butterfly control through neutral to the opposite direction the truck is traveling. This process engages the truck's brakes, allowing it to slow and eventually stop. Although using the hand brakes is more effective than plugging to slow or stop the truck, the operational manual states the plugging function is "[a]n equally acceptable method of stopping the truck's travel."

Wilkerson had used truck 61 since the summer of 2005. On August 29, 2005, he experienced plugging failure, which caused a loss of directional control, preventing him from reversing direction or plugging the brakes. Wilkerson stopped the pallet truck using the hand brakes, parked, and reported the problem to Dave McNair of defendant's maintenance department. McNair submitted an order for service to MHS. When truck 61 was returned to service, Wilkerson was informed the problem was fixed and he noted it worked "perfectly." Over the next three to four weeks, Wilkerson used truck 61 every day, plugging the brakes several times a day, without experiencing further problems.

Wilkerson's accident occurred on September 22, 2005. He arrived at work between 7 and 8 a.m., and selected truck 61. He performed a pre-trip inspection, which included testing the mechanical handbrakes, checking the truck's steering, and attempting forward and reverse directional travel. When he completed testing without incident, Wilkerson drove truck 61 ...

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