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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 through the warehouse to "pick" the product necessary to "fill" his first order.

Wilkerson kept his assigned order "pick list" of products to be retrieved on a clip board, resting it on the truck's front handlebar. Wilkerson drove truck 61 to various locations in the warehouse, while he checked off items he had located and selected. When he stopped, he plugged the brakes, estimating he did so over one hundred times that morning.

Sometime between 10:30 and 11 a.m., Wilkerson was to move a partial load using truck 61. As he approached a T-intersection at half speed, he sounded the horn. After looking both ways Wilkerson entered the intersection, approximately thirteen feet from the metal racks fixed along the back wall. Just before he turned left, Wilkerson attempted to slow the truck by plugging the brakes, intending to park parallel to the metal racks. He released the forward directional control and moved the hand control to reverse. However, truck 61 continued to coast forward without decelerating. At that speed, Wilkerson determined an attempt to turn could tip the load. He plugged the brakes a second and third time, six and four feet, respectively, from the metal racks, pulling the thumbwheel as far back as possible in reverse. Wilkerson admitted he did not think about using the hand brakes because he routinely braked by plugging. When the truck was two feet from the metal racks, Wilkerson admitted he panicked and braced for impact. Truck 61 collided with the metal shelving and the front bulkhead went completely under the racks. The metal sliced into Wilkerson's abdomen, requiring his evacuation to Cooper Hospital's Trauma Center.[1]

John Danner and Daniel Holmstrom, Wilkerson's co-workers, rushed to his aid and called 9-1-1. Each had observed Wilkerson attempt to reverse direction to slow truck 61 as it approached the intersection, and each saw the truck did not stop. Kevin Warner, the warehouse manager, ordered truck 61 taken directly to the shop and instructed Raymond Nash, defendant's mechanic shop manager, to request MHS to send someone to the warehouse to inspect truck 61 as soon as possible.

At trial, Danner described the training provided to pallet truck drivers, detailing the methods of testing the truck and braking before use. When asked whether Wilkerson was a responsible pallet truck operator, he stated, "He had his moments." Elaborating, he commented on Wilkerson's tendency to "keep his head down" when he drove a pallet truck. He also said Wilkerson kept his clipboard "on top of the battery case" and Danner saw Wilkerson looking in that direction as he approached the T-intersection. Danner was the first person to reach Wilkerson after he heard the crash. Although Danner admitted he saw Wilkerson's hand on the butterfly control as he drove past him en route to the intersection, he did not see what happened as Wilkerson approached the intersection.

Holmstrom described the controls of truck 61 and confirmed the nature of Pitman's pallet truck safety training. On the day of the accident, he saw Wilkerson drive past him "fairly quick" and heard him honk truck 61's horn. As Wilkerson approached the intersection, Holmstrom observed him move his hands on the butterfly control to reverse and slow the truck down. However, the truck continued at "just about the same speed[.]"

Warner also confirmed Wilkerson's habit of keeping his clip board on the battery case. As did Larry Wyman, the assistant warehouse manager, who testified Wilkerson had a tendency to look down while driving, despite being instructed not to do so.

Truck 61 was tested shortly after the accident. William Messenger, defendant's president, drove truck 61 at noon. He found the brakes worked. Nash also tested truck 61 for five to ten minutes and discerned no problem with the brakes or plugging function.

At trial, Robert Schaefer, MHS's technician responsible for scheduled maintenance on Pitman's pallet trucks, described the steps he took when servicing a pallet truck. These included test driving the truck after performing any service or repair. Schaefer explained the procedure followed after identifying a repair was necessary, including directly obtaining Nash's written approval for each repair. A safety sheet was maintained and kept with each individual pallet truck, recording MHS's service and other repairs.

When a Pitman employee experienced a problem with a truck, he or she first brought it to defendant's mechanics, who were required to record the difficulty. Nash confirmed defendant was responsible for "keeping these machines safe to use." At times, defendant's mechanics may perform a minor repair, such as cleaning something or plugging something in, without recording it on the truck's safety sheet.

Schaefer was called after Wilkerson's accident and arrived at the warehouse between 1 to 2 p.m. He test drove truck 61 and successfully performed full plugging about fifty times, both while driving forward and reverse. Schafer's report stated he found nothing wrong with truck 61, noting there were no substances or debris at the accident scene, no problems with the contactor tips, and the plugging mechanism "operate[d] as designed."

Truck 61's repair and service history was introduced at trial. A plugging problem at high speed was recorded on June 17, 1999, which MHS determined was caused by the miswired strobe light. MHS found when the strobe light was disconnected, the butterfly control worked properly. The note further stated: "Customer [defendant] wants strobe unplugged and will have repaired under warranty as well as handle."

Nash admitted truck 61's strobe light was never rewired, repaired, replaced or removed. No steps were taken to assure the strobe light could not be reconnected. Also, Nash never instructed his mechanics that connecting the strobe could cause plugging problems. But Nash insisted his mechanics would bring a safety issue like a disconnected strobe light to his attention, and would not act on their own initiative to reconnect the strobe light. He acknowledged, however, the strobe light on truck 61 could have been reconnected and disconnected very easily. He further conceded his mechanics might have connected the strobe light's wires if they were in the engine compartment. Nash insisted he never saw truck 61's strobe light flashing or reconnected after the June 17, 1999 discovery of the miswiring.

A similar flaw in the strobe light existed on pallet truck number 60 (truck 60), which was truck 61's "sister." The two were manufactured by the same company at approximately the same time. Ultimately, truck 60's strobe light was damaged and then removed.

Witnesses were questioned as to whether truck 61's strobe light was used on the date of the accident. Schaefer stated he never saw it flashing or connected, nor did he connect it. He admitted he was unaware if another MHS mechanic had diagnosed plug-braking failures which were related to the strobe light. Pitman employees Warner, Danner and Holmstrom testified they did not see the strobe light flashing on the day of Wilkerson's accident.

However, Holmstrom had observed operators connect and disconnect the strobe light on truck 61, and demonstrated the ease with which it could be done. He also stated between June and September 2005, he recalled "people messing with" the strobe light, as he saw bright flashing emanating from it. On cross-examination, Holmstrom also admitted a previously filed certification stated truck 61's strobe light was "not working for a long time" prior to the accident, which was inconsistent with his trial testimony. Danner never saw anyone connect or disconnect the strobe light and he asserted it had not worked for a long time.

Truck 61 underwent other repairs, discussed at trial, some of which included braking problems. On March 21, 2001, the pallet truck had braking difficulties. MHS concluded the brake shoes and drums required replacement. On June 6, 2001, brake and plugging problems were reported. MHS determined the plugging distance exceeded seventeen feet both when moving forward and backward, which required a "hand set" to repair. On June 15, 2001, a similar complaint was logged. Nash had a different company perform the repair, rather than MHS. On November 16, 2001, "interim [plugging], no forward after a plug" was recorded. MHS performed scheduled maintenance in November 2003, which included adjusting the brakes, and no plugging problems were noted. In March 2004, repairs to the lift were made, but no plugging problems were found. Routine inspections in May, August and November 2004 revealed no irregularities.

Schaefer inspected truck 61 on January 17, 2005, when an operator explained it "cut out sometimes." Schaefer diagnosed a problem unrelated to the plugging function. In February and May 2005, scheduled maintenance revealed no problems with the brakes, plugging or contactors. However, Schaefer fixed the battery.

Schaefer, the technician who repaired truck 61 following Wilkerson's accident, experienced plugging problems on August 29, 2005. He noted the battery and power contactors functioned properly, but found a cracked forward micro switch in the handle. Otherwise, he discovered no explanation for the plugging complaint.

After the accident, Wyman used truck 61 and noted on one occasion it did not stop when he rotated the butterfly control through neutral to reverse, forcing him to use the mechanical brakes. On October 12, 2005, Schaefer responded to a complaint that truck 61 had no power, which he determined resulted from a problem with the ignition switch. At trial, he insisted he was not told of Wyman's plugging problem. Later that month, Schaefer again was called to repair truck 61 when a piece was found missing. At that time, Schaefer discovered melted reverse contactor tips, which seemed improbable, as the truck had only been used six hours since the accident. Schaefer replaced the forward and reverse contactor tips. Thereafter, truck 61 was not returned to everyday use.

Plaintiff's engineering expert Russ Rasnic explained the results of his testing. Rasnic testified that when he drove truck 61 at high speeds with the strobe light connected, he could not plug the brakes when traveling either in forward or reverse. Rasnic reported "[o]ne hundred percent of the time" plug failure resulted in the reverse direction when the strobe light was connected. Rasnic concluded Wilkerson's experience was caused by the miswired strobe light, whereby electric current bypassed the controller and went straight to the motor, essentially disabling the directional controls when the truck traveled at high speed. Rasnic did not experience any problems when the strobe light was disconnected.

Rasnic noted the service records for truck 61 revealed the miswiring was known in 1999 and the warranty repair was never undertaken. He found the subsequently reported problems with truck 61 were consistent with his opinion of the plugging problem caused by miswiring. His conclusion was further supported by the fact truck 60 contained the same plugging failure because of its miswired strobe light. At trial, Rasnic admitted if evidence showed truck 61's strobe light was disconnected on the date of the accident, his theory of the cause of the accident must be rejected.

However, Rasnic also offered an alternative explanation for the malfunction of truck 61. He stated the forward contactor tips had melted together causing loss of use of the reverse directional, rendering reverse plugging impossible. This opinion was partially based on the post-accident problem requiring Schaefer to replace the contactors. Rasnic calculated the contactors accumulated 368 hours of use, which should have been replaced after 200 hours of use. He opined MHS should have replaced the contactors when Wilkerson experienced a plugging problem in August 2005. Rasnic concluded defendant and MHS were responsible for the maintenance and repair of truck 61, and neither had fulfilled their obligations. Thus, Wilkerson's accident occurred as a result of improper inspection, maintenance and repair of truck 61.

Plaintiff also presented Henry Lipian, an accident reconstruction expert, who agreed the accident was caused by a mechanical failure impacting reverse plugging and not driver error. Lipian agreed Wilkerson could have stopped truck 61 using the handbrake without incident. Alternatively, Wilkerson could have ducked down before impact or even jumped off the truck to mitigate possible injury. Nevertheless, Lipian opined Wilkerson acted appropriately under the circumstances, as he had only two seconds to react when he realized his efforts to plug the brakes failed. At that time, the racks were only four feet away.

Defendant's expert in the handling of pallet trucks and worker safety was David Hoover, who concluded Wilkerson's errors principally caused the accident. He determined Wilkerson did not follow his training by: waiting too long to plug the brakes; not attempting to use the handbrakes; not steering the truck as he approached the T-intersection; and not stepping off the truck before impact.

Next, defendant presented testimony from electrical engineering expert Samuel Sudler. Sudler examined truck 61 and concurred with Rasnic's 2009 inspection findings that the strobe light was miswired, causing plugging failure when traveling at high speeds. However, he did not agree Wilkerson's crash was caused by this anomaly, noting Wilkerson had no plugging failures for three to four weeks before the accident and neither Schaefer nor Nash could recreate the problem that occurred on the date of the accident. This evidence led him to conclude the strobe light was not connected when Wilkerson crashed. He also rejected Rasnic's alternative theory that the forward contactor tips had melted together, finding that opinion inconsistent with truck 61's operational performance before the accident.

On cross-examination, Sudler agreed the problems identified by Wyman shortly after the accident resembled Wilkerson's experience. Further, he agreed an operator would not be able to plug the brakes if the forward contactor tips had been welded together. He nevertheless remained steadfast that Wilkerson's error, not faulty maintenance, caused the crash.

Following the eighteen-day trial presided over by Judge Louis R. Meloni, the jury returned its verdict. The jury found no cause of action against MHS and found for plaintiff as against defendant. The jury apportioned fault twenty-five percent to plaintiff and seventy-five percent to defendant. The total damage award included lost wages, pain and suffering, medical expenses, and loss of services. The judge entered a molded verdict against defendant for $3, 855, 396.97, after adding pre-judgment interest. This appeal ensued.

Defendant challenges various trial rulings, arguing a new trial is warranted. We have considered each of these arguments and are not persuaded error requires the jury's verdict to be vacated.

Defendant initially challenges Judge Meloni's denial of its motions filed at the close of plaintiff's evidence to dismiss and for a directed verdict. Defendant maintains plaintiff's proofs were insufficient to establish causation because Rasnic's opinion regarding the cause of the accident was mere conjecture. See Vuocolo v. Diamond Shamrock Chem. Co., 240 N.J.Super. 289, 294 (App. Div.) (listing elements of negligence as including tortious injury and proximate cause), certif. denied, 122 N.J. 333 (1990). Defendant characterizes Rasnic's expert testimony as nothing more than "a classic example of flawed, deductive reasoning that simply because an accident occurred, some negligence must have been present."

The law is clear plaintiff bears the burden of proving a defendant had a duty of care, which it breached, causing damages. Weinberg v. Dinger, 106 N.J. 469, 484 (1987). A defendant's liability cannot result merely because an accident occurred. Reynolds v. Gonzalez, 172 N.J. 266, 284 (2002). Indeed, "'[t]here must be evidence or reasonable inferences therefrom showing a proximate causal relation between defendant's negligence;' . . . and the resulting injury." Ibid. (quoting Germann v. Matriss, 55 N.J. 193, 205 (1970)). Further, the plaintiff must demonstrate a defendant's conduct was a substantial factor in bringing about the plaintiff's injury. Froom v. Perel, 377 N.J.Super. 298, 313 (App. Div.), certif. denied, 185 N.J. 267 (2005).

Here, contrary to defendant's suggestion, Rasnic, in fact, offered reliable and rational evidence to support plaintiff's claim that defendant's negligent conduct caused Wilkerson's accident. Although Rasnic offered alternative causes of the plugging failure, each was supported by data, after inspecting and testing truck 61, along with engineering evidence. He also offered truck 61's repair and service history of prior plugging failures, before and after the accident, including Wilkerson's experience on August 29, 2005 and Wyman's report on October 12, 2005.

Whether the strobe light was connected on the date of the accident was a question for the jury. Rasnic considered defendant's knowledge of the strobe problem and Nash's acknowledgement it was never repaired nor was the wiring disabled. Nash admitted defendant's mechanics might reconnect the strobe light if they saw it unplugged and no record reflected a warning not to reconnect the strobe light on truck 61. Holmstrom's testimony confirmed operators would reconnect and disconnect the strobe light and noted it was used in the summer months before the accident, although he did not see it ¶ashing on the morning of the crash. Finally, Rasnic identified the factual support for his opinion Wilkerson's error did not significantly contribute to the crash.[2]

In reviewing a motion for judgment pursuant to Rule 4:40-1 or for involuntary dismissal pursuant to Rule 4:37-2(b), the court's review is governed by this standard: "[I]f, accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ, the motion must be denied." Zive v. Stanley Roberts, Inc., 182 N.J. 436, 441-42 (2005) (alteration in original). Our review applies the same standard. Frugis v. Bracigliano, 177 N.J. 250, 269 (2003) (citing Luczak v. Twp. of Evesham, 311 N.J.Super. 103, 108 (App. Div.), certif. denied, 156 N.J. 407 (1998)). "If, giving . . . [plaintiff] the benefit of the most favorable evidence and inferences to be drawn from that evidence, 'reasonable minds could differ' as to the outcome, the contested issues must be submitted to a jury." Ibid. (quoting Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969)).

Viewing plaintiff's proofs in this light, we determine the record includes sufficient credible evidence to allow a rational jury to "reasonably and legitimately" conclude defendant's negligent conduct contributed to the plugging failure, which prevented truck 61 from stopping on the date of Wilkerson's accident. Judge Meloni did not err in denying defendant's motions.

Defendant alternatively argues a new trial should have been granted because the liability verdicts were inconsistent. Defendant suggests finding it liable, but MHS not liable, is irreconcilable. See Mercedes-Benz Credit Corp. v. Lotito, 328 N.J.Super. 491, 508 (App. Div.) (holding "'inconsistent and irreconcilable verdicts are fatally defective and should normally be set aside'") (quoting Brendel v. Pub. Serv. Elec. & Gas Co., 28 N.J.Super. 500, 507 (App. Div. 1953), certif. denied, 165 N.J. 137 (2000)).

We note defendant did not move for a new trial, as required by Rule 2:10-1.[3] Accordingly, appellate review of the sufficiency of the evidence to support the verdict is precluded. Ibid. Further, defendant did not request special interrogatories to identify the basis of the jury's factual findings. See Kassick v. Milwaukee Elec. Tool Corp., 120 N.J. 130, 135 (1990) ("When the [jury's] answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, the court shall not direct the entry of judgment but may return the jury for further consideration of its answers and verdict or may order a new trial.") (citing R. 4:39-2). Nevertheless, we conclude the evidence could reasonably support the jury's finding defendant acted negligently while MHS exercised reasonable care in maintaining and repairing truck 61.

Defendant had the duty to remove from use an unsafe pallet truck and to report problems and necessary repairs to MHS, particularly following Wilkerson's plugging problem experienced on August 29, 2005. Defendant tried to maintain complete records of truck 61's reported problems. This was demonstrated by Schafer's insistence that he was not told of the plugging problems experienced by Wyman in October 2005. Also, defendant stated to MHS representatives it would seek a warranty repair of the strobe light in 1997, but did not, nor did it disable the strobe light to prevent future plugging failures because of the flawed wiring. Taken as a whole, the verdict is supportable and not inconsistent.

Defendant's final challenge attacks as error the jury charge which included, at plaintiff's request and over defendant's objection, the "sudden emergency" doctrine in connection with the question of comparative negligence. Judge Meloni concluded the model charge would be included along with provisions regarding lack of care. Defendant acquiesced, stating "that's fine." The charge given at trial tracked the model charge but added a statement regarding plaintiff's burden. The judge said: "whether such an emergency existed, whether it arose without the fault of . . . [plaintiff], and whether . . . [plaintiff] acted with due care under the circumstances." The burden is on plaintiff to establish such circumstances. See Model Jury Charge (Civil), 5.10G, "Sudden Emergency" (approved pre-1983).

Considering the charge as a whole, we conclude it did not confuse or mislead the jury regarding its factfinding obligation or misstate the law.[4] See Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 418 (1997). The correctness of this determination is supported by the jury's conclusion plaintiff's negligence contributed to causing the accident. We cannot conclude the charge prejudiced defendant or led to an unjust result. See R. 2:10-2.


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