Printed from

Truck driver can sue for forklift injury

Posted On: Jun. 6, 2019 1:23 PM CST

Forklift at loading dock

A truck driver severely injured by a forklift while standing on a loading dock can seek damages from the facility’s owner, a federal appeals court ruled, overturning a lower court.

Brinson, Georgia-based Spring Creek Cooler Inc. harvests and sells sweet corn, which involves harvesting the corn, placing it in crates, stacking the crates onto pallets, then transporting the pallets in flatbed trucks to a separate facility ,where the corn is washed and doused with cool water, according to Wednesday’s ruling by the 11th U.S. Circuit Court of Appeals in Atlanta in Michael Newcomb, Kathy Newcomb v. Spring Creek Cooler Inc. et al.

The final step in the process is transferring the pallets, each of which contains about 2,100 pounds of corn in 42 crates, from the storage cooler to refrigerated trucks for distribution.

On June 20, 2013, Mr. Newcomb, who  is described as an “invitee driver” in the complaint and was not a Spring Creek employee,  drove his truck to Spring Creek to pick up a load of corn.  Following instructions, he stayed on the loading dock so he could count the corn and take its temperature as it was being loaded.

Meanwhile, over the course of about an hour, a Spring Creek employee was transporting pallets of corn from the cooler to the trailer via forklift, two pallets at a time. 

On his fifth trip to the trailer, with his view at least partially obstructed, the employee did not stop or straighten out the forklift as he had previously and continued driving his forklift directly to Mr. Newcomb, who had remained on the loading dock.

Realizing the employee was headed in his direction, Mr. Newcomb unsuccessfully tried to evade the collision, but was struck with the crates stacked on one of the pallets carried on the forklift.

He was thrown from the loading dock and his head hit a metal hinge on the corner of his trailer.  He suffered a fractured skull and a cerebral brain fluid leak, which required surgery, and is now disabled and unable to return to work.

Mr. Newcomb and his wife filed suit against Spring Creek and the forklift operator in U.S. District Court in Albany, Georgia, claiming the driver was negligent and the company negligent in hiring, supervising and retaining him as a driver.

The District Court ruled the defendants’ favor, stating Mr. Newcomb “had as much, if not more, knowledge than Spring Creek and voluntarily remained in the path of the forklift” and therefore had assumed “the risks and dangers incident to the known condition.”

The ruling was overturned by a unanimous three-judge appeals court panel.

“At this stage in the proceedings … we cannot conclude that Newcomb ‘voluntarily exposed himself’ to the risk of being injured by the forklift or that he made a deliberate choice to pursue ‘an obviously perilous course of conduct’ with ‘a full appreciation of the danger involved,’” said the ruling, in quoting an earlier case.

“Standing there might not have been a wise or judicious decision, but that does not mean that it was an assumption of risk,” the ruling said.

“The long and the short of it is that the district court improvidently granted summary judgment to Spring Creek,” said the ruling, in reversing the lower court’s decision and remanding the case for further proceedings.

Mr. Newcomb’s attorney, Jack J. Helms Jr. of the Helms Law Firm in Homerville, Georgia, said the decision was “thoughtful and well-reasoned. The court basically said if Mr. Newcomb had been standing on a sidewalk in downtown Atlanta” when the accident occurred, there would have been “no question the company was liable, but (just) because this happened to be in a warehouse ... the company couldn’t hide behind that as a defense.”

The court said “the basic rules on negligence in Georgia apply in a case like this,” Mr. Helms said.

The company’s attorney had no comment.

In March, the Occupational Safety and Health Review Commission unanimously affirmed a general duty clause citation and a $6,300 penalty against a cargo handling company whose employee was struck by a forklift and died from his injuries in yet another test of the U.S. Occupational Safety and Health Administration’s use of the clause to cite employers.