Liability And The Sale Of Optional “Safety” Equipment
Forklift dealers make attractive targets
for plaintiffs' attorneys.
By Diane Cashen
A recent article in Product Liability Law Reporter, a publication
for the Association of Trial Lawyers of America (plaintiffs' attorneys),
boasts this theory, telling the reader: “Attorneys would win more
forklift cases by pursuing theories of liability that focus on the dealership.”¹ Dealers make attractive defendants because they have insurance and are
less experienced in fighting product liability lawsuits. There are numerous
ways to attack dealers for alleged shortcomings in the areas of sales,
rentals, service, used equipment, parts and user/operator training.
One of the areas of vulnerability often overlooked by the dealer is
the sale of accessories, particularly “safety” accessories.
All manufacturers make available a variety of optional equipment that
many would argue could be considered “safety” equipment. Manufacturers
depend on their dealers to communicate the availability of such equipment
to the customer to enable the customer to evaluate the need for and
selection of such equipment. Failure to properly communicate the availability
of accessories to the customer could expose the dealer to liability.
Failure to make any communication of this type to the customer could
be deadly. Typical Lawsuit Scenario
A forklift being operated in reverse strikes a pedestrian. The forklift
has no alarm, no mirrors and no lights. The injured pedestrian files
a lawsuit against the dealer and manufacturer, claiming he neither saw
nor heard the forklift coming in time to get out of the way, and that
such “safety” items should have been installed and would have
prevented the accident. The manufacturer of the forklift can prove it
offered these types of accessories through its dealer network, and will
claim it was the dealer's responsibility to communicate the availability
of this equipment to its customers. For years, this particular customer has been a good account for the
dealer. The dealer always delivered the lift trucks as ordered by the
customer. The dealer assumed that if the customer desired accessories,
he would have asked for them. However, the customer made no such request
when placing the order for the truck involved in the accident. The dealer
is certain this issue must have been discussed in the past, but has
no evidence to show if or when such a discussion might have taken place.
Defending the Lawsuit
The dealer will face a variety of questions in the lawsuit,
including the following:
- What is your relationship
with this customer? How many times have you visited the customer's
plant? Who from your dealership has visited this plant?
- What did you
do to assess the customer's need for additional “safety” equipment? Did you perform a plant or application survey?
- What information
and other assistance did you provide to the customer about the availability
of accessories?
- Upon what do
you base your assumption that the customer knew of the availability
of these accessories and had decided against them?
- What documents
do you have to support your position on the four areas of inquiry
above?
Do not refer to optional equip-ment as “safety” equipment. Safety is never an option.
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It is likely the dealer will have an abundance of docu-ments to show
the dealer's long-standing relationship with the customer, but will
lack any evidence for items 2, 3 and 4. Types of Accessories
A variety of accessories, sometimes called “safety equipment,” is usually made the subject of lawsuits... Back-up or motion alarms: There are a multitude of alarms available
on the market, and they can be installed to sound when the vehicle is
backing, or at all times the vehicle is turned on. Alarms come in a
variety of tones, chimes, beeps and even digitized human voices. They
can be set to sound at one decibel level, or can be self-adjusting to
remain above the ambient noise level, up to a pre-designed limit. In
choosing an alarm, the customer will have to decide the right sound,
decibel level and actuation that is appropriate in his workplace. Lights: Many configurations of lights are possible, including
headlights, taillights, brake lights, turn signals, reverse lights,
strobe lights, revolving lights and blinking lights. Strobe, revolving
and blinking lights are available in red, white, yellow and blue. The
customer will have to choose a light or combination of lights that will
be effective in his environment and will not conflict with lights that
are already present in his workplace. Mirrors: Whether concave, convex or flat, round or rectangular,
mirrors come in a variety of sizes. They can be used singly or in combinations
of two or more, and installed in various locations inside and outside
the operator's compartment. The customer will have to choose which configuration
of mirrors is appropriate for his application. Are These Accessories “Safety” Equipment?
There are no studies that prove a light, alarm, mirror or
any combination of these devices prevent accidents. To the contrary,
many manufacturers and dealers have received reports of pedestrian-struck-by-forklift
accidents despite an alarm, light or mirror having been installed
and functioning at the time of the accident. Regardless of this “real world” phenomenon, many alarms, lights and mirrors are
available from forklift manufacturers, their dealers and numerous third-party
sources that are sometimes erroneously advertised as “safety” equipment. These items are not safety equipment like a horn, a seatbelt
or an overhead guard, and are not standard. Because they are application-dependent,
they are optional, and are not required by any regulation or standard
applicable to forklifts. Regulations and Standards
OSHA, Subpart N, Section 1910.178 Powered Industrial Trucks,
is the controlling federal regulation applicable to forklifts. It contains
no requirement for additional alarms, lights or mirrors as standard
equipment. OSHA 1910.178 incorporates, by reference, ASME/ANSI B56.1
Safety Standard for Low Lift and High Lift Trucks, which clearly
states the user shall determine if operating conditions require the
truck to be equipped with additional sound-producing or visual (i.e.,
lights or blinkers) devices, and be responsible for providing and maintaining
such devices (ASME B56.1-2000, Section 4.15.2). Even the National
Safety Council (NSC) requires only an operator-controlled horn as standard
equipment. All three require the buyer or user to evaluate its operation
to determine the need for accessories, and recognize that unusual operating
conditions may require additional safety precautions and special operating
instructions (ASME B56.1-2000, Section 4.1.2). When in doubt, the customer should be encouraged to consult with a
safety professional or industrial engineer familiar with its type of
operation to determine if conditions in the facility require that lift
trucks be equipped with additional audible or visible devices, or mirrors.
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Ten
Things a Dealer Can Do to Guard Against
Liability in the Sale of Accessories
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- Learn what
regulations and standards apply to forklifts, and what information they
contain regarding the application of lights, alarms and mirrors.
- Learn the
OEM policy on accessories.
- Train salespeople
on the proper way to sell accessories.
- Use the
OEM materials to educate the customer about the availability
of accessories.
- Document
the transfer of such information to the customer.
- Document
the decline or acceptance of accessories.
- Offer accessories
on rental and used equipment in writing, and obtain the customer's
signature.
- Do not
refer to optional equipment as “safety” equipment
in materials shared with the customer, such as advertisements.
Safety is never an option.
- Advertise
the availability of accessories on your Web site, in flyers,
etc.
- Encourage
customers to consult with safety experts, industrial engineers,
etc. to evaluate their need for accessories.
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What Manufacturers Expect From Dealers
Because the dealer has direct interface with the customer,
the manufacturer relies on its dealer to communicate the availability
of optional equipment to customers and to educate customers about the
numerous issues to be considered when evaluating the need for additional
devices. These issues include:
- Ambient noise
in the workplace on all shifts;
- Ambient light
in the workplace on all shifts;
- Customer's previous
experience with lights, alarms and mirrors, if any;
- Volume and type
of vehicle traffic;
- Volume and classification
of pedestrian traffic;
- Traffic patterns
within the workplace, e.g., limited aisle space, blind intersections,
enclosed areas, etc.;
- Hazardous or
unique materials handling; and
- Adequacy of operator
training and employee supervision.
Many manufacturers have published bulletins, booklets or catalogs,
and some have videos available, all of which are designed to serve as
tools to aid the dealer in facilitating the discussion with the customer
about accessories. However, some of the issues the customer will need
to consider may be beyond the dealer's ability to adequately measure
and address, and may require other resources. Protect Yourself from Liability
The dealer should provide information to the customer to
allow the customer to weigh the risks and benefits of having or not
having the optional “safety” device. A mere perfunctory offering
or complete failure to discuss the optional equipment is not sufficient.
The dealer must know and understand the intended uses for the machine
in the customer's application, and recommend that the customer evaluate
its need for accessories. The best approach is to scrupulously follow the manufacturer's procedures
for the sale of optional equipment. The dealer must be thoroughly knowledgeable
about the pros and cons of these accessories in a wide variety of applications
and share the manufacturer's materials with the customer. The dealer
should document the sharing of such information, as well as the customer's
decision. Remember, safety is never an option.
¹Robert Loderstedt, “Winning Forklift Accident Cases,”
Product Liability Law Reporter, October 1999, pp. 160-61.
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