Nissenberg on Loading Dock Safety: Legal Issues Involving Forklifts and the Loading and Unloading of Tractor-Trailers
Loading dock activity can be frenetic, and as a result, workplace accidents involving big rigs often occur during the loading and unloading process. OSHA reports that there are close to 70,000 forklift accidents each year. On average, 100 workers are killed and 20,000 are injured every year in forklift mishaps. Truck-accident legal expert David Nissenberg takes a look at the legal issues arising out of such accidents and offers practical suggestions for the attorney representing the injured worker, as well as the attorney defending the trucking company. Nissenberg describes the typical activity on a loading dock, the types of accidents that normally occur, the safeguards in place to minimize such accidents, the applicable OSHA regulations, and the legal theories used to support injury claims from loading dock accidents. He writes:
When an accident occurs that involves the loading or unloading of a truck at a worksite, counsel must immediately determine whether the actions giving rise to the accident were in violation of any OSHA regulations covering loading dock safety and forklift activity. The violation of an OSHA regulation is considered negligence per se. It is essential for the attorney involved in a forklift accident case to review the numerous OSHA regulations on powered industrial trucks at 29 CFR § 1910.178 to determine whether a violation of one of these regulations took place and whether the violation was causally related to the accident.
In all cases, an attorney’s first inquiry should focus on the forklift operator’s training. Under 29 CFR § 1910.178(l)(1)(i), the employer has a duty to "ensure that each powered industrial truck operator is competent to operate a powered industrial truck safely." And, pursuant to 29 CFR § 1910.178(l)(1)(ii), the employer must ensure that "each operator has successfully completed the training required by this paragraph” prior to allowing an employee to operate a powered industrial truck. The regulation includes numerous specified truck-related topics that must be included in the course of instruction. Further, there is a requirement for refresher training under certain circumstances: (a) when the operator has received an evaluation revealing that the operator is not operating the truck safely, (b) when the operator has been involved in an accident, (c) when the operator has been observed operating the vehicle unsafely, (d) when the operator is assigned to drive a different truck, and (e) when a condition in the workplace changes in a manner that would affect the safe operation of the truck.
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The lack of a seatbelt on a forklift is . . . [a] potential area for products liability litigation. In Huss v. Yale Materials Handling Corp., 538 N.W.2d 630 (Wisc. 1995), a forklift operator was knocked from the seat of his forklift by a falling pallet. When he fell to the ground, the plaintiff struck his back and was rendered a paraplegic. One of the plaintiff’s allegations was that the 20-plus year old forklift should have been equipped with a seatbelt. The jury, however, disagreed, finding that the forklift “was not defective and unreasonably dangerous for lack of a seat belt and that [the defendant] was not negligent in the manufacture of the forklift.”
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