By Pamela C. Maloney, J.D.
Two riggers who were injured when a crane malfunctioned failed to establish, as a matter of law, that the manufacturer’s warning to its distributors was inadequate to inform owners who had purchased the crane of the dangers posed by allegedly defective screws that secured the brake and clutch assembly to the crane’s hoist drum, a Louisiana court of appeals ruled, reversing a trial court’s grant of summary judgment on the riggers’ failure to warn claims. The appellate court also found that the evidence raised questions of fact that precluded summary judgment on the issues of whether the use of the crane by the riggers and their employer was a reasonably anticipated use and whether the crane was unreasonably dangerous in construction and/or design (Walker v. The Manitowoc Co., Inc., October 10, 2018, Thibodeaux, U.).
The two riggers were injured during the assembly of a port gantry crane, which is a large tower crane consisting of a steel support tower and a horizontal boom that held an operator’s cab and the crane’s operating mechanism. In order to attach the boom to the tower section, a model 888 crane manufactured by The Manitowoc Company was used to lift the boom into place. While the two riggers were standing on the lifted boom, the crane allegedly malfunctioned, causing the boom to crash into the tower, and dropping the riggers to the ground. In separate products liability lawsuits filed against Manitowoc, the riggers alleged that the crane was unreasonably dangerous under the Louisiana Products Liability Act because of an inadequate warning, a design defect, and/or a defect in construction or composition. Specifically, the riggers contended that the accident was a result of a defect relating to six bearing retainer cap screws that secured the brake and clutch assembly to the crane’s hoist drum. The riggers further alleged that the cap screws had loosened, causing the drum to disengage from the crane shaft and fall, a defect Manitowoc had advised its distributors of in 2002 through the issuance of a service bulletin. The trial court granted partial summary judgment in favor of the injured riggers, finding that Manitowoc, as manufacturer of the crane, had breached its non-delegable duty to warn of defects in the crane. The trial court also denied Manitowoc’s motion for summary judgment based on its argument that the crane was not being used in a reasonably anticipated manner at the time of the accident or, in the alternative, that the riggers had failed to prove the existence of a defect in the crane which had, in turn, caused their injuries. Manitowoc appealed.
The riggers’ claims against one service provider, H&E Equipment Services, Inc. (H&E), were addressed in a companion case which is also reported in this issue of Products Liability Law Daily. See "Repair company had no duty to warn of possible defect in crane unrelated to its repair" for coverage of the companion case.
Reasonably anticipated use. In asserting that the riggers’ products liability claims should be dismissed because the manner in which they were using the crane at the time of the accident—riding on a suspended load—was not a reasonably anticipated use, the crane manufacturer introduced evidence that the riding of a suspended load without fall protections was a violation of the Occupational Safety and Health Administration (OSHA) standards, the employer’s operating procedures, the crane’s operator’s manual, and accepted industry practice. Based on this evidence, the crane manufacturer contended that the riggers’ use of the crane was obviously dangerous and was a known violation of OSHA standards. The riggers countered with expert evidence that the boom could no longer be classified as a "suspended load" because it was pinned and connected to a super structure, i.e., the tower. The court of appeal agreed with the trial court that the evidence presented on this issue was sufficient to raise a question of fact for the jury.
The crane manufacturer additionally proffered expert testimony to support its claim that the employer’s overloading of the crane as well as its poor maintenance of the crane were not reasonably anticipated uses. Once again, the riggers’ offered sufficient testimony disputing whether the crane was overloaded at the time of the accident. They also submitted evidence of the crane’s annual inspections, which were required by OSHA and performed by independent OSHA-certified inspectors, as well as testimony that the crane had been inspected regularly by both the employer and the company that had leased the crane to their employer. None of the inspections revealed poor maintenance. Thus, the riggers’ rebuttal evidence raised a question of fact that precluded summary judgment in favor of the manufacturer.
Unreasonably dangerous condition. The appellate court also found that the evidence presented raised genuine issues of material fact regarding whether the crane was unreasonably dangerous in construction, warning, and/or design. Construction defects. The riggers proffered testimony by the crane manufacturer’s former director of product safety, who stated that the crane’s plans and specifications called for Loctite 242 to be applied to all the cap screws. However, a microscopic examination of the screws after the accident revealed no Loctite on the threads. Instead, the Loctite had collected at the top and bottom of five screws and the sixth screw was completely devoid of Loctite. Another expert for the riggers testified that the unintended load drop was proximately caused by the fact that Loctite coverage for the cap screws deviated in a material way from the manufacturer’s specifications. Noting that there was a lack of evidence in the crane’s history file to show that the cap screws had been replaced, the riggers’ argument that there was ample evidence that the cap screws were the original cap screws that had been installed by the manufacturer was sufficient to raise a question of fact as to whether the crane was unreasonably dangerous in construction or composition when it left the manufacturer’s control. Failure to warn. At issue in the present case was whether the manufacturer had breached its continuing duty to warn of a defect that it discovered in its model 888 cranes after the crane involved in this case left its control in 1998—a defect which had been documented in a service bulletin issued in 2002 after another model 888 crane experienced a similar malfunction—an unintended load drop. The service bulletin advised distributors that loose cap screws could cause damage to the clutch assembly and requested that all model 888 cranes equipped with freefall be inspected by one of the manufacturer’s qualified service technicians. Thereafter, the manufacturer relied upon its distributors to identify any affected cranes that had been sold and to contact the owners of those cranes to warn them of the problem and to advise them to inspect the cranes and perform the recommended repair, if needed.
It was undisputed that the crane at issue was subject to the service bulletin and that the service bulletin had not been sent to the owners. Thus, the dispute centered around whether the manufacturer had breached its duty to warn by issuing the bulletin to its distributors, and not to the owners of the cranes. The determination of whether the manufacturer’s warning to its distributors and its historical reliance on its distributors to inform their buyers and owners of those warnings, along with the manufacturer’s reliance on those distributors to inspect and repair the potential defect, was reasonable and sufficient was a fact-intensive inquiry that required jury resolution in light of the circumstances presented and of evidence of industry practices.
The appellate court further found that because a jury, like the trial court, could find that the manufacturer had breached its duty by failing to send a notice/warning directly to the owners, there was no need to consider the manufacturer’s argument that the riggers had failed to provide an alternative warning that would have prevented the risk of load drop. The court of appeal also found that the riggers had presented sufficient evidence to support a jury finding that the alleged defects in the screw cap assembly could have caused the accident and that the manufacturer might have had a duty to warn of that danger. As a result, neither party was entitled to summary judgment on warnings issues and, therefore, the appellate court reversed the trial court’s favorable ruling on the riggers’ motion for summary judgment on the failure to warn claims. Design defect. The crane manufacturer also had argued that it was entitled to summary judgment on the riggers’ theory that the crane was unreasonably dangerous in design because they failed to provide evidence that a feasible alternative design would have prevented the accident. Contrary to the manufacturer’s argument, the riggers provided evidence of four alternative designs, which in the opinion of their experts, would have substantially reduced the chances of their injuries. This evidence was sufficient to raise a genuine question of material fact and, therefore, the crane manufacturer was not entitled to summary judgment on this issue.
The cases are Nos. CW 16-897, CW 16-898, CA 18-221, and CA 18-223.
Attorneys: Franklin Glen Shaw (Leger & Shaw) for Matthew M. Walker and Jim Lee Hankins. Edward Paul Landry (Landry, Watkins, Repaske & Breaux); Michael Thomas Pulaski (McCranie, Sistrunk, Anzelmo, Hardy, McDaniel & Welch LLC) for The Manitowoc Co., Inc., Westchester Fire Insurance Co., Manitowoc Cranes, LLC; and Harry Joseph Philips, Jr. (Taylor, Porter, Brooks & Phillips LLP) for H&E Equipment Services, Inc.
Companies: The Manitowoc Co., Inc.; Westchester Fire Insurance Co.; Manitowoc Cranes, LLC; H&E Equipment Services, Inc.
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