On November 11, 2008, the 49 year old Plaintiff was employed as a yard foreman for a North Shore lumber company; he also held the title of “Safety Manager” for that same company. On the day in question, a load of lumber was delivered to the yard on a flatbed truck. One of the items that needed to be offloaded was a product known as “Foamular” … a type of Styrofoam building material. The Foamular had been placed on top of the truck so that other loads would not damage it. At deposition, the Plaintiff testified that it was his job to remove the Foamular by use of a forklift. He further testified that although he attempted to pick the Foamular up with the forklift, that he was unable to do so because of the way it had been set onto the truck. Frustrated by his inability to offload the product, the Plaintiff climbed on top of the truck and tried to “spin” the Foamular so that it would be in a position that would allow the forklifts to pass underneath the load and lift it straight off the truck. While attempting this maneuver, the Plaintiff lost his balance and fell approximately twelve feet to the ground below, landing on his feet. As a result, he suffered a calcaneal fracture.
Through discovery it was revealed that the product was received from a lumber yard that served a significant portion of the North Shore. The individual who actually loaded the truck testified at deposition that placing lumber products on a flatbed truck is like “fitting a puzzle”. He further testified that Foamular, because it is light and easily damaged, needed to be placed on the top of the truck. Lastly, he stated that the only way to fit it on the truck was to turn the load perpendicular to the rest of the loads. In other words, the Foamular was strapped to two-by-fours that had been turned on their edge. This elevated the product so that forklift blades could pass underneath it during loading and offloading. The Defendant’s employee, however, stated that he had to turn the Foamular perpendicularly to all other loads on the truck in order for it to fit on the truck. This positioning, so the Plaintiff argued, made it impossible for the forklift blades to pass beneath the Foamular. One of the Plaintiff’s co-workers stated at deposition that, as placed on the truck, you could not take the product off with a forklift. Someone would have to go on top of the truck and turn the load so that the forks could pass beneath the product. Plaintiff’s counsel argued that the product was stacked in a negligent manner which necessitated someone climbing up on top of the truck in order to position it for offloading. The defense countered by stating that the Plaintiff was the “Safety Manager” at the lumber yard, and that yard policy stated clearly that no employee was to ever climb on top of a truck that was loaded with product. In point of fact, every single deponent who worked at either Plaintiff’s or Defendant’s lumber yard, testified that climbing on the trucks was forbidden. Upon cross-examination, every single deponent went on to admit that climbing on the trucks was simply unavoidable in this particular profession. Still, the defense argued that the Plaintiff could have refused the load or used other methods in order to remove the product from the truck. Complicating matters for the Plaintiff, was the fact that the Plaintiff’s employer had an enclosed cage that would have allowed the Plaintiff, if utilized, to safely ascend to the top of the truck if he wished to maneuver the product. At the time of the accident, this enclosed safety apparatus was out of service, and Plaintiff’s employer, although he knew of the breakdown, had allowed the unit to remain in disrepair for a considerable amount of time.
The case was settled at Mediation for $207,500.00.