Virginia Lawyers Weekly VA Lawyers Weekly
Although the Navy was not required to use spotters or safeties when a petty officer operated a 20-ton forklift, and the Navy voluntarily undertook to provide this assistance, a contractor’s installation technician working aboard the ship cannot collect from the shipowner, the U.S., for injuries he suffered when the forklift ran over his foot, a Norfolk U.S. District Court says; the plaintiff must collect from his contractor employer, as plaintiff acted negligently in failing to watch out for the forklift, and he has not shown that the two officers who operated and spotted for the forklift were negligent.
Plaintiff’s cause of action arose on Jan. 29, 2007, when, while employed by Sigmon Group as an installation technician, he was working aboard the USS Theodore Roosevelt, which was docked at the Norfolk Naval Base. Plaintiff was in hanger bay number 1 helping move lockers on the vessel, when a 20-ton forklift, operated by Fredrico Aguilar, a member of the Roosevelt’s crew, ran over plaintiff’s left foot, which resulted in amputation of his left leg.
Although not required by Navy or any other regulations, it was the private practice of the Roosevelt to always have spotters and safeties in place during the operation of forklifts on the vessel. There was no four-man team in place acting as spotters and safeties at the time of plaintiff’s accident.
Rather, Petty Officer Anthony Jones was both the forward spotter and safety for forklift operator Petty Officer Aguilar at the time of the accident, directing the forklift where the load was going and whether or not it was safe for the forklift to move.
Plaintiff was an employee person covered under the Longshore & Harbor Workers’ Compensation Act. The owner of the vessel in a third-party negligence action may be held liable under 33 § U.S.C. 905(b).
The relevant question for the court is whether defendant’s conduct can be characterized as negligent in that defendant, as shipowner, failed to exercise due care for the safety of plaintiff. Plaintiff alleges his injuries were caused by the negligence of U.S. agents and employees because 1) the forklift driver was neither properly trained, certified or licensed to drive the forklift; 2) the forklift driver was negligent in his operation of the forklift by failing to pay proper attention to plaintiff’s location; 3) the forklift driver was not supervised and no spotter was with the forklift, as required; and 4) the forklift was not appropriate for the task in which it was being used.
The court finds that, paperwork issues notwithstanding, Petty Officer Aguilar was a trained and experienced forklift operator, who understood the importance of remaining at a safe distance of at least five feet from others when operating the 20k and making contact with safeties or spotters before moving the forklift. The lack of proper physical paper licensing the day of the accident was neither a contributing factor nor the proximate cause of plaintiff’s injuries.
The court finds plaintiff was in fact in a “blind spot” when the forklift struck him. He was standing with his back to the forklift just prior to the accident. The court finds credible Petty Officer Aguilar’s testimony that the path of the forklift was at least five feet away from plaintiff just prior to moving the forklift forward because when he saw plaintiff as he began going forward, plaintiff was on the iiiother sideiii of the locker box. The court finds Petty Officer Aguilar acted reasonably in moving the forklift forward into what was only a momentary blind spot after ensuring that plaintiff was still at a safe distance of five feet away from the path of the forklift and on the other side of the box. It was at this point that Petty Officer Aguilar could rely on plaintiff as an experienced ship repairman to not place himself in a position of danger. The court finds that Petty Officer Aguilar did not breach his duty to act as a responsible fork lift operator and was not negligent in operating the forklift.
Further, the court finds that Petty Officer Jones did responsibly carry out his job as spotter and safety. He followed the most important protocol, which was to ensure that the forklift’s path was clear of any people before directing it to move forward.
This court cannot impose or simply create a higher duty on defendant when the evidence discloses that forklift spotters and safeties were voluntary under Navy instructions in this instance, and that Petty Officer Jones’ actions based on the training he received were nothing other than reasonable and responsible. The evidence at trial reveals that an ordinarily prudent spotter and safety under these circumstances would direct the forklift to move forward only after determining the path was clear.
This court finds that Petty Officer Jones did just that. He had no additional duty to anticipate the negligence of an experienced ship repair worker.
The court concludes plaintiff did not exercise reasonable care to stay aware of the forklift’s location in his movements with the dolly. At the moment of impact, the two petty officers had every right to rely on the expectation that plaintiff would not place himself in the path that the forklift had traveled on two previous passes, and move from the place where Petty Officer Aguilar saw him at last sight five feet away from the forklift’s path. The court concludes plaintiff’s negligence caused the unfortunate injuries he sustained. Because the shipowner has no duty to anticipate the action or inaction of a careless longshoreman or ship repairman, plaintiff must look only to his employer for compensation for his injuries.
The court finds plaintiff has failed to establish that defendant’s actions were negligent.
Judgment for defendant U.S.
Gauthreaux v. U.S. (Jackson, J.) No. 2:08cv387, Jan. 6, 2010; USDC at Norfolk, Va. VLW 010-3-033, 19 pp.
