Beard v. Mighty Lift, Inc.

ORDER GRANTING SUMMARY JUDGMENT

I. INTRODUCTION

Before the court is Defendant Mighty Lift, Inc.’s (“Mighty Lift”) motion for summary judgment. (MSJ (Dkt. # 31).) Plaintiff Albert Beard opposes Mighty Lift’s motion. (Resp. (Dkt. # 40).) The court has considered the motion, the parties’ submissions filed in support of and opposition to the motion, the balance of the record, and the applicable law. In addition, the court heard the argument of counsel on December 14, 2016. Being fully advised, the court GRANTS Mighty Lift’s motion for summary judgment.

II. BACKGROUND

This action is a products liability lawsuit involving a pallet jack. (See generally Compl. (Dkt. # 1-2).) Mr. Beard has alleged causes of action for negligence (id. ¶¶ 3.1-3.2) and strict liability based on defective design and manufacture (id. ¶¶ 4.1-4.3). Mighty Lift supplied the pallet jack at issue to Mr. Beard’s employer, ABF Freight. (Id. ¶ 2.2.)

Mr. Beard has worked as a truck driver since 1983. (Beard Decl. (Dkt. #42) ¶2.) He has operated pallet jacks for approximately 30 years. (Id. ¶ 2.) On March 6, 2012, Mr. Beard delivered a load of crated interior tile to a private residence that was being renovated in Seattle, Washington. (See Compl. ¶ 2.1.) The load of tiles *1133weighed approximately 2,000 pounds. (Resp. at 3.) During the delivery, Mr. Beard backed his truck down a “long, sloped driveway” that led to the residence. (Id.; Compl. ¶ 2.2.) The floor of the trailer from which Mr. Beard was unloading material at the time of the accident had a slope of approximately 9 degrees, (Topinka Deck (Dkt. #33) Ex. 2 (“Topinka Exp. Rep,”) at 16.) On the day of the incident, Mr. Beard used a pallet jack that Mighty Lift supplied, (Compl. ¶2.2; see Beard Deck ¶ 13.) This was the first time that Mr. Beard had used a Mighty Lift pallet jack. (Beard Deck ¶ 13.)

Once Mr. Beard was inside the trailer with the load of tiles that he intended to unload, he began using a method he called “drag-braking” to move the load to the back of the trailer. (Resp. at 3.) Mr. Beard testified that he only uses the “drag-braking” method if he is unloading a “heavy pallet” on a “steep incline.” (Beard Dep. (Dkt. ##32-2, 41-1) at 98:26-99:3 (“So you only use this if it’s a steep incline and a heavy pallet or vice versa.”); see also id. at 99:22-100:12 (“Steep incline, necessity, in my book.”).) To accomplish this method of braking, Mr. Beard testified that the pallet truck operator partially loads a pallet so that a third to half of the pallet is resting on the pallet jack’s forks, and the “front part of the pallet furthest away from you is dragging on the deck of the trailer or deck of the asphalt or driveway.” (Id. at 98:5-99:16.) In this instance, he placed himself in front of the load on the downhill side of the slope so that he could use his approximately 200-pound body as leverage against the 2,000-pound load of tiles. (Beard Dep. at 209:5-21.) When he was asked during his deposition if it made “common sense to use your 200-pound body as leverage against a weight that’s 2,000 pounds,” Mr. Beard responded: “If you’re confident, yes.” (Id. at 209:9-12.)

As Mr. Beard was “drag-braking” the load of tiles down the length of the trailer and onto the liftgate, the load became caught on some diamond plating on the floor of the trailer. (Id. at 194:8-12.) The load became ensnared on the diamond plating because the load was touching the ground due to Mr. Beard’s use of the “drag-braking” method. (Id. at 194:13-16.) At this point, Mr. Beard decided to push the forks of the pallet jack all the way into the pallet. (Id. at 194:17-195:7.) He then made three partial pumps on the handle of the pallet jack to slowly lift the pallet. (Id. at 195:4-14.) On the third partial pump, the bottom slat of the pallet that had been caught under the diamond plating broke off. (Id. at 195:15-18.) When the slat broke, the pallet jack raised the load about an inch above the trailer floor and liftgate. (Id. at 195:19-21.) The pallet jack then began to move forward while Mr. Beard was simultaneously attempting to hold it back by pushing with his body and walking backwards. (Id. at 195:21-24.) After the pallet jack had rolled a foot or two, Mr. Beard squeezed the handle or lever of the pallet jack in an attempt to lower the load and stop the pallet jack’s forward, downhill progress. (Id. at 197:15-198:9.) Unfortunately, the pallet jack continued to gather momentum, and Mr. Beard was unable to stop it. (Id. at 198:5-21.) Ultimately, he let go of the pallet jack and jumped off the truck. (Id.) The pallet jack followed Mr. Beard off the truck and landed next to him. (Compl, ¶ 2.4.) The load then fell over, pinning Mr. Beard to the ground and injuring him. (Id.)

■ Mr. Beard believes that the March 6, 2012, accident happened because the Mighty Lift pallet jack that he used did not perform like other pallet jacks that he had used previously. (Beard Decl. ¶ 16.) Indeed, Mr. Beard asserts that, contrary to his expectations, the Mighty Lift pallet jack drops slower with heavier loads than *1134with lighter loads. (Id. ¶¶ 16-17.) Mr. Beard submits expert testimony that (1) the Mighty Lift pallet jack lowers loads up to five times more slowly than pallet jacks made by different manufacturers, and (2) the Mighty Lift pallet jack lowers a light load at a faster speed than a heavy load. (Goodwin Decl. (Dkt. #43) ¶ 2, Ex. 1 (“Goodwin Ex. Rep.”) at 3.) Mr. Beard’s expert witness opines that these features of the Mighty Lift pallet jack constitute either a design or manufacturing defect. (Id. at 4.) Mr. Beard’s expert witness also opines that Mr. Beard “would have been able to stop his load before it fell off the truck if he had been using a pallet jack that lowered its load as quickly as he was expecting,” (Id. at 3.)

Mighty Lift’s expert witness disputes that the Mighty Lift pallet jack contains any manufacturing or design defect. (See generally Topinka Ex. Rep.) In addition, Mighty Lift’s expert witness opines that “Mr. Beard would not have been able to exert enough force to hold the material load after he lifted it off of the trailer floor to clear the edge of the diamond-plate,” (Id. at 16.) Based on tests of the subject pallet truck, Mighty Lift’s expert witness also opines that “Mr. Beard would have been unable to stop and/or lower the load he was transporting prior to stepping off or falling off of the back end of the trailer life gate.” (Id.) This testimony, about the Mighty Lift pallet truck specifically at issue, is uncontested.

The Mighty Lift pallet jack operated by Mr. Beard contained a decal on the handle with four elements. (See Johnson Decl. (Dkt. # 44) ¶ 5, Ex. (“Johnson Ex. Rep.”) at 4 (“As can be seen in Figure 1 (near the end of this report) there are four elements to this illustration....”), 8 (“Figure 1. The label on the handle of the Mighty Lift pallet jack shows four elements (from top to bottom) meant to inform users how to use the device.”). The first three elements in the decal are instructional in nature and depict the operation of the pallet jack on level ground. (See id)

It is uncontested that the fourth element of the decal on the handle of the pallet jack appeared as follows. (See Johnson Ex. Rep, at 4 (“There is an icon on the Mighty Lift that was probably meant to convey the information not to use it on an incline.”), 8 (“The bottom element shows a figure apparently pulling a load down an incline and an X over the element.”); To-pinka Ex. Rep. at 4, Photograph 1 (showing a picture of the decal on the Mighty Lift pallet truck at issue), at 10, Photograph 7 (same).)

[[Image here]]

Ms. Helen Fu, Mighty Lift’s Federal Rule of Civil Procedure 30(b)(6) deponent, testified that this symbol was “a warning against don’t use the pallet jack on [an] incline,” and that a “person should not be *1135in front of the pallet jack when it [is] starting.” (Scott Decl. (Dkt. # 41) ¶ 5, Ex. D (“Fn Dep.”) at 48:21-23.) Nevertheless. Mr. Beard submits evidence from an expert witness indicating that this symbol is confusing. (Johnson Ex. Rep. at 8.) Mr. Beard’s expert witness opines that “[t]he critical confusion in this element is that operators are either being told not to use the pallet jack on any inclined surface (the intended instruction) or, if they do, they should not stand downhill but instead uphill from the pallet jack,...” (Id.) Thus, Mr. Beard’s expert witness concludes that the symbol “is ambiguous as whether this means don’t use a pallet jack on any incline, or, if you do don’t stand in front of it.” (Id. at 8.)

Despite the foregoing expert opinion that the decal at issue is ambiguous or confusing, Mr. Beard testified that he unequivocally understood the information that the warning symbol was intended to convey:

Q: What do you think that image is telling you?

A: Well, obviously, it’s telling you not to go on an incline.

(Beard Dep. at 179:7-8; see also id. at 179:20-25 (“But I know that it’s stating that you shouldn’t go do an incline. That’s what would be the reason why it’s on there.”).)

Further, despite understanding the foregoing warning on the decal, and despite his accident on March 6, 2012, Mr. Beard testified that he would still utilize the pallet jack on an incline and he would still place himself downhill of the pallet jack while operating it on an incline. (See id. at 179:20-25.) However, instead of facing away from the pallet jack as the image depicts in the decal on the pallet jack, he would simply turn his body so that he faced the pallet jack while operating it on an incline. (See id.) He testified concerning the warning image on the decal as follows:

Q: All right. What about the fourth image, the very most bottom one? What does that mean to you?

A: Well, that means that I wouldn’t be doing it the way that he’s doing. If I was pulling it, I would be turned facing it and backing down the hill and having leverage to put it, depending on how heavy this is.

Q: What do you think that image is telling you?

A: Well, obviously it’s telling you not to go on an incline.

Q: Okay.

A: That’s my opinion.

Q: All right. And what about that image tells you that?

A: Tells me what?

Q: Not to go on an incline.

A: That’s what I would assume. But I would say if you’re going to pull it down, my first impression would be—because I know what they were trying to get at. But not knowing that, I would say this guy is not doing it right by turning his back to the load and pulling it down a hill. I would do the opposite. I would be facing the pallet and letting it come down slow, you know, kind of pushing on it and letting it come down real slow.

But I know that it’s stating that you shouldn’t go do an incline. That’s what would be the reason why it’s on there.

(Id. at 178:1-179:25.)

III. ANALYSIS

In his response to Mighty Lift’s motion for summary judgment, Mr. Beard asserts that Mighty Lift is liable for his injuries under Washington’s Product Liability Act CWPLA”), ROW 7.72.030, as a result of a design defect, a manufacturing defect, and inadequate warnings. (See *1136Resp. at 16.) Mighty Lift is subject to liability to Mr. Beard under the WPLA if Mr. Beard’s “harm was proximately caused” by Mighty Lift’s negligence “in that the pallet jack was not reasonably safe as designed or not reasonably safe because adequate warnings or instructions were not provided,” see ROW 7.72.030(1), or if Mr. Beard’s “harm was proximately caused” because the pallet jack at issue “was not reasonably safe in construction,” see ROW 7.72.030(2), Mr. Beard also asserts a claim of negligence against Mighty Lift. (Compl. ¶¶ 3.1-3.2.) “Proximate cause is an essential element of both negligence and product liability theories.” Anderson v. Dreis & Krump Mfg. Corp., 48 Wash.App. 432, 739 P.2d 1177, 1183 (1987). The primary basis for Mighty Lift’s motion for summary judgment is a lack of proximate cause. (See Mot. at 1 (“Mighty Lift ... moves for summary judgment ... of [Mr. Beard’s] claims because [Mr. Beard] cannot demonstrate that a defect in the Mighty Lift pallet truck ... caused his injuries. Instead, the incident was caused by his unfortunate choices.... ”); see generally Reply (Dkt. # 48).)

A. Standards

Summary judgment is appropriate if the evidence shows “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law,” Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Galen v. Cty. of L.A., 477 F.3d 652, 658 (9th Cir. 2007). A fact is “material” if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), A factual dispute is “ ‘genuine’ only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party.” Far Out Prods., Inc. v. Oskar, 247 F.3d 986, 992 (9th Cir. 2001) (citing Anderson, 477 U.S. at 248-49, 106 S.Ct. 2505). Under Washington law, proximate cause is ordinarily a jury question, but the court may determine proximate cause on summary judgment if reasonable minds could reach only one conclusion. Ruff v. Cty. of King, 125 Wash.2d 697, 887 P.2d 886, 889 (1995).

B. Proximate Cause

Mighty Lift contends that Mr. Beard failed to raise a genuine dispute as to any material fact concerning the necessary element of proximate cause in each of Mr. Beard’s claims. To meet the requirements of proximate causation, Mr. Beard must put forth evidence of both cause in fact and legal causation. Baughn v. Honda Motor Co., Ltd., 107 Wash.2d 127, 727 P.2d 655, 664 (1986); Channels v. Mills, 77 Wash.App. 268, 890 P.2d 535,538 (1995) (“Generally, ‘proximate’ cause subdivides into cause in fact and legal cause.”) (citing Christen v. Lee, 113 Wash.2d 479, 780 P.2d 1307, 1321 (1989)). Cause in fact concerns the “but for” consequences of an act or the physical connection between the act and the injury. Baughn, 727 P.2d at 664. Cause in fact is generally a question of fact reserved for the jury, but the court may determine it as a matter of law if “the facts are undisputed and the inferences therefrom are plain and incapable of reasonable doubt or difference of opinion” Id.

Legal causation, on the other hand, “rests on policy considerations as to how far the consequences of a defendant’s acts should extend.” Baughn, 727 P.2d at 666. It involves the “determination of whether liability should attach as a matter of law given the existence of cause in fact.” Hartley v. State, 103 Wash.2d 768, 698 P.2d 77, 83 (1985). “Unlike factual causation, legal causation ‘hinges on principles of responsibility, not physics.’ ” Anderson, 739 P.2d at 1184 (quoting Van Buskirk v. *1137Carey Canadian Mines, Ltd., 760 F.2d 481, 492 (3rd Cir. 1985)), “Consequently, the existence of legal causation between two events is determined on the facts of each case upon mixed considerations of logic, common sense, justice, policy and precedent.” Id. (internal quotation marks and citations omitted).

Mr. Beard submits expert testimony that, if credited,1 would be sufficient to withstand summary judgment with respect to cause in fact concerning all of his theories of liability. Specifically, Mr. Beard provides expert testimony of a design or manufacturing defect related to the speed with which the Mighty Lift pallet jack drops its load to the ground. (Goodwin Ex. Rep. at 4.) Mr. Beard’s expert opines that if the Mighty Jack pallet dropped more quickly, Mr. Beard would have been able to stop the pallet jack in time to avoid the accident. (Id. at 3 (“Mr. Beard would have been able to stop his load before it fell off the truck if he had been using a pallet jack that lowered its load as quickly as he was expecting.”).) Another of Mr. Beard’s experts opines that if Mighty Lift “had informed users that it takes longer to stop the pallet jack when there is a heavy load rather than a light load, then, on a more probable than not basis, [Mr. Beard] could have adjusted his action and reduced the probability of this incident occurring,” (Johnson Ex. Rep. at 7.) Of course, Mighty Lift disputes all of the foregoing evidence (see Reply at 4-5 (citing Topinka Ex. Rep.)), but at best, the evidence that Mighty Lift submits simply creates a genuine dispute of material fact; it is not sufficient to obtain summary judgment in Mighty Lift’s favor with respect to cause in fact.

However, as noted above, in order to establish proximate causation, Mr. Beard must also put forth evidence not only of factual causation, but of legal causation as well. See Baughn, 727 P.2d at 664. The court concludes that Mr. Beard falls short with respect to this prong of proximate cause. The doctrine of superseding cause limits the situations in which the court may hold legal causation to exist between two events. Anderson, 739 P.2d at 1184. “[O]nly intervening acts which are not reasonably foreseeable are deemed superseding causes.” Id. (citing Campbell v. ITE Imperial Corp., 107 Wash.2d 807, 733 P.2d 969, 973 (1987) and cases cited therein). The test for foreseeability, however, is not the unusualness of the intervening act that results in the injury to the plaintiff; rather, the test is whether the result of the act is within the ambit of hazards covered by the duty imposed upon the defendant. Id. In essence, Mighty Lift argues that Mr. Beard’s refusal to heed its warning not to operate the pallet jack on an incline despite Mr. Beard’s testimony that he understood the warning is a superseding cause that breaks the chain of legal causation.2 (See Reply at 2-4, 5-6.)

Baughn is a case in which the chain of legal causation was disrupted due to the plaintiffs’ failure to heed warnings from *1138the manufacturer and others concerning use of the product at issue. In Baughn, some children were injured while riding a mini-trail bike on a public roadway after they drove through three stop signs without stopping and collided with a truck, 727 P.2d at 658. The guardians and parents of these children sued the manufacturer of the bike under theories of strict product liability. Id. at 658-59. The trial court granted summary judgment to the manufacturer, Id. at 669. In upholding the trial court’s ruling, the Washington Supreme Court stated that “[t]he accident in this case occurred because the boys who were injured ignored [the manufacturer’s] and their parents’ warnings not to ride the mini-trail bike on streets and roadways, and because they ignored stop signs on the roadway....” Id. In ruling that the manufacturer should not be held strictly liable for manufacturing an unreasonably unsafe or dangerous product, the Court relied upon Comment j of the Restatement (Second) of Torts § 402A, which states:

Where warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous.

Id. at 661 (quoting Restatement (Second) of Torts § 402A, comment j (1965) and citing Novak v. Piggly Wiggly Puget Sound Co., Inc., 22 Wash.App. 407, 591 P.2d 791, 795-96 (1979)). Indeed, the Washington Supreme Court stated that its “application of this comment, effectively denies the parties’ other strict liability claims” as well. Id.

The court finds the Washington Supreme Court’s analysis in Baughn instructive here. If, under Washington law, a seller “may reasonably assume” that the user of its product will “read and heed[ ]” the warnings the seller has placed on the product, see id. this court cannot conclude that Mr. Beard’s refusal to heed a warning decal on the handle of Mighty Lift’s pallet jack, which Mr. Beard testified he understood correctly, was reasonably foreseeable by Mighty Lift.3 Because Mr. Beard’s act in defying Mighty Lift’s warning decal was not reasonably foreseeable, his act represents a superseding cause that breaks the chain of proximate causation to *1139Mighty Lift.4 Accordingly, the court concludes that Mr. Beard cannot establish proximate cause as a matter of law with respect to his claims for product or strict liability or negligence. Accordingly, the court also concludes that Mighty Lift is entitled to summary judgment on all of Mr. Beard’s claims.

IV. CONCLUSION

Based on the foregoing analysis and authorities, the court GRANTS Mighty Lift’s motion for summary judgment (Dkt. # 31).5