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GRIFFIN v. THE SPACEMAKER GROUP, INC. (59914)


GRIFFIN v. THE
SPACEMAKER GROUP, INC.


JUNE 6, 1997
Record No. 961851

HOPE GRIFFIN

v.

THE SPACEMAKER GROUP, INC.,
T/A RICHMOND CLARKLIFT COMPANY

OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR.
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND

Theodore J. Markow, Judge
Present: All the Justices


This is an appeal in an action asserting negligent servicing
and reconditioning of an industrial lift truck resulting in
personal injury to the plaintiff. We consider whether the trial
court properly excluded certain expert testimony offered by the
plaintiff.

Background

When summary judgment is based upon the granting of a motion
to strike a party’s evidence, we view the evidence and the
inferences reasonably raised thereby in the light most favorable
to the party whose evidence has been stricken. See Meador
v. Lawson
, 214 Va. 759, 761, 204 S.E.2d 285, 287 (1974).

This case involves a Clarklift three-wheel TW-25 lift truck
(forklift). Three of the operational and safety features of that
model forklift are relevant to the issue we address here.
Although the record contains extensive technical descriptions of
these features, for our purposes the essential details can be
summarized as follows:

The TW-25 forklift’s two drive wheels are operated by an
electric motor. The forklift’s accelerator assembly consists of a
pedal and mechanical shaft. When the pedal is depressed, the
shaft activates a switch which sends electric current from the
batteries to the motor. The shaft of the accelerator assembly
shares its housing with two hydraulic hoses which are part of the
forklift’s cargo handler control system. These hoses can make
periodic contact with the accelerator assembly and may become
abraded as a result. It is not disputed in this case that the
accident occurred because one of these hoses made contact with
the accelerator assembly and caused it to stick in the depressed
or "on" position.

The forklift’s primary braking system is operated by
depressing either of two brake pedals which rotate a shaft with
two arms. One arm activates a brake drum rod, causing friction
brakes to be applied to the drive wheels; the shaft’s other arm
activates an electrical cut-off switch which interrupts the flow
of electricity to the motor.

Under the operator’s seat of the forklift is a "deadman’s
switch" which serves as a redundant emergency braking
system. Sufficient weight must be placed on the operator’s seat
to cause a connection in the switch which allows electricity to
flow to the motor. If the weight is removed, spring tension
causes the seat to rise, breaking the connection in the switch
and interrupting the flow of electricity to the motor. Removing
the weight on the seat also causes a mechanical parking brake to
be applied.

In late 1992, Stanley Hardware Division (Stanley), part of a
multi-state corporation with a manufacturing and warehouse
facility in the City of Richmond, acquired five TW-25 forklifts
as part of the purchase of another company. The forklifts had
been in service for over twenty years at the time they were
acquired. Stanley determined that the forklifts required
servicing and reconditioning prior to being added to the fleet of
seven other forklifts already in use in its Richmond facility.
Stanley contracted with The SpaceMaker Group, Inc., trading as
Richmond Clarklift Co. (Clarklift), to bring the forklifts
"to a level of dependability" including the replacement
of all parts as necessary.

The forklifts were in Clarklift’s possession for four and a
half weeks during which time they were serviced by different
employees. Jerald LaMaskin, owner of Clarklift, testified that
the reconditioning of a forklift would include examining the
safety features of the accelerator and brake assemblies and the
deadman’s switch, and repairing or replacing any defective parts
which were discovered.

Clarklift returned the forklifts to Stanley in April 1993, and
Stanley placed them into service. Because of the number of other
forklifts available, forklift No. 5, the forklift involved in the
accident, received relatively light use, with only approximately
101 hours of operation being recorded on its service meter over a
six and a half month period. LaMaskin testified that 20 to 30
hours of operation per week would be common use for this model
forklift.

On November 1, 1993, Hope Griffin was working at Stanley’s
facility operating a packaging machine. Stephanie Ghee, another
Stanley employee, was operating forklift No. 5, bringing
materials to the packaging machine. After transporting a pallet
with materials to be packaged to the work floor near the
packaging machine, Ghee began to back the forklift away from the
pallet. Griffin was facing the packaging machine with her back to
Ghee and the forklift.

Ghee testified that when she depressed the accelerator pedal
"the forklift just went all out of control." Griffin
was struck by the rear of the forklift and pinned against the
packaging machine. Although Ghee applied the foot brake, the
forklift’s drive wheels continued to spin. Ghee attempted several
times to move the forklift’s gear shift from reverse to neutral
and then to forward. After Ghee had made several attempts to
change gears, the forklift moved forward freeing Griffin. Ghee
then jumped off the forklift which continued to travel forward
and struck another piece of machinery on the work floor. Another
employee then boarded the forklift and turned off its ignition
switch.

An inspection of the forklift’s accelerator assembly housing
showed that the hydraulic hoses were loose inside the assembly in
such a way that they would make periodic contact with the
accelerator linkage. One of the hoses had caught on the
accelerator linkage, causing it to stick in the depressed or
"on" position. The hoses showed signs of abrasion
indicating repeated contact with the accelerator linkage.

An inspection of the foot brake assembly showed that the arm
which would have activated the electrical cut-off switch did not
reach the switch when the brakes were applied. This defect was
the result of excessive wear in the connection between the arm
and the rotating brake shaft. Similarly, the deadman’s switch
mechanisms were misadjusted so that neither the electrical
cut-off switch nor the parking brake would be activated by
removal of weight from the operator’s seat.

Griffin filed a motion for judgment alleging that Clarklift
was negligent in the manner in which it reconditioned the
forklift. Relevant to this appeal, the principal disputed issue
at trial was whether the abrasion of the hydraulic hoses was such
that it would have been apparent at the time the forklift was
serviced, putting Clarklift on notice that the hoses needed
replacing and tying down in order to avoid their catching on the
accelerator linkage. Clarklift maintained that the condition of
the hoses at the time it serviced the forklift was a matter of
conjecture due to the passage of time between the reconditioning
and the accident.

At trial, LaMaskin testified that had the abrasion been
discovered during the reconditioning, the hoses would have been
replaced and "rerouted," though not necessarily tied
down. LaMaskin further testified that the "abrasion did not
happen in one day, that it happened over a period of time, and it
could [have been] several months."

Griffin sought to introduce expert testimony from Curtiss
Owen, a forklift mechanic with 15 years experience, and Charles
Crim, a materials engineer employed by an independent testing
lab, concerning the length of time it would take for the abrasion
of the hydraulic hoses to occur and whether that defective
condition, and the other defects previously mentioned, would have
been obvious at the time of the reconditioning. In each instance,
Clarklift objected to such testimony on the ground that it would
be mere speculation to attempt to determine, from its condition
some months later, the condition of the forklift at the time it
was reconditioned. In each instance the trial court sustained the
objection.

Griffin proffered testimony from two experts that the abrasion
of the hoses could not have occurred entirely during the 101
hours of use following the reconditioning. Each expert noted that
the exterior rubber coating and the interior steel mesh housing
of the hoses were extremely durable. Crim stated that the hoses
would have been in substantially the same condition at the time
of the reconditioning as they appeared following the accident.
Owen estimated the level of abrasion indicated that it had
occurred over "[t]he life of the machine."

At the conclusion of Griffin’s evidence, Clarklift made a
motion to strike Griffin’s evidence on the ground that it failed
to show that the defective condition of the hydraulic hoses, the
foot brake assembly, and the deadman’s switch existed at the time
Clarklift serviced the forklift and that Clarklift was aware of
these conditions. Although stating that it did so "with
great reluctan[ce]," the trial court sustained Clarklift’s
motion to strike because "there would be at most rank
speculation to figure out how long . . . these
conditions existed." We awarded Griffin this appeal.

The Expert Testimony

The thrust of the expert testimony excluded by the trial court
was that the abrasion of the hoses could not have occurred
entirely during the 101 hours of use following the
reconditioning, and, thus, that the defective condition existed
during the time Clarklift serviced the forklift. In Tittsworth
v. Robinson
, 252 Va. 151, 475 S.E.2d 261 (1996), we
summarized the circumstances under which expert testimony is to
be permitted:

Generally, expert testimony is admissible in civil cases
if it will assist the fact finder in understanding the
evidence. Such testimony, however, must meet certain
fundamental requirements. Such testimony cannot be
speculative or founded upon assumptions that have an
insufficient factual basis. Such testimony also is
inadmissible if the expert has failed to consider all the
variables that bear upon the inferences to be deduced from
the facts observed. Id. at 154, 475 S.E.2d at 263
(citations omitted).

Contrary to Clarklift’s contention that the two experts based
their opinions solely on their observation of the end condition
of the hoses, the record shows that each considered the structure
and design of the hoses and the force necessary to cause abrasion
of their exterior coating and interior lining. These factors are
not matters of common knowledge; thus the experts’ opinions would
have been of benefit to the jury in understanding the evidence.
Moreover, the experts’ assumption that the abrasion of the hoses
occurred through repetitive contact of moderate force over a long
period of time, rather than constant contact during the 101 hours
the forklift was in service, was premised upon a sufficient
factual basis established by their inspection of the forklift and
their knowledge of its mechanical operation. Although Clarklift
could challenge the weight to be given to this assumption on
cross-examination, we hold that the trial court erred in
excluding the expert testimony. Moreover, this evidence alone is
sufficient to raise a jury question whether Clarklift was
negligent in not discovering and repairing the defective
condition of the forklift.

For these reasons, we will reverse the judgment of the trial
court and remand the case for a new trial.

Reversed and remanded.

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