Facts

On Aug. 28, 2007, plaintiff John Barrera, 31, was an employee of Federighi Design Inc. He was standing outside his employer's warehouse on Isis Street in San Francisco next to a forklift truck watching a co-employee offload a double stacked-load of boxes containing commercial cooking ranges manufactured by defendant Montague Company when the top box fell. The top box fell on Barrera, folding him in half at the waist.

Federighi Design, a contractor that installed kitchen appliances for customers in the food industry, had been buying commercial equipment from Montague for many years. Typically, a Federighi employee would drive a flatbed truck to Montague's facility, where a Montague employee would load the truck. The ranges involved in this accident were individually packaged, set onto a skid (a wooden pallet platform supported on a 4x4 wood stringer board) and covered in plastic. A five-sided cardboard box was set over the top of it and secured to the pallet with metal banding. It was common practice for the ranges to be double stacked onto the Federighi truck.

Barrera filed a third party complaint against Montague setting forth causes of action sounding in negligent, strict products liability, and breach of implied warranty.

PLAINTIFF'S CONTENTIONS:
Barrera contended that Montague negligently packaged, double stacked and loaded the boxes onto the Federighi truck so as to create a foreseeable risk that the boxes would tip and fall during offloading.

Barrera contended that Montague's skids, with no bottom deck fastened under the 4x4 stringers, were unsafe, and that the concentrated force exerted by the narrow exterior stringers on the box below contributed to the tipping accident.

Barrera also contended that Montague's skid design allowed a small margin of error for the exterior stringers to tip and fall. When the exterior stringer supporting the top box fell off the curbside edge of the bottom box, the load tipped off to its side because there was no bottom deck board under the skid. If there had been a bottom deck board under the skid supporting the lower box, the blades of the forklift would have been anchored between the top and bottom deck boards, adding greater stability and balance.

Barrera's theme of the case was the failure of Montague to provide a "margin of safety" by not assembling their pallets with bottom deck boards.

Double-decked pallets are better because the presence of a bottom deck board under the stringers requires more distance before the unit load will tilt to its side; there is more surface area contact with a bottom deck, compared to the surface area of exterior stringers; more surface area contact translated to more force required to move and tilt the load; because of the tendency of exterior stringers to collapse, it is common practice that unit loads on skids without bottom deck boards are not stacked on top of another unit load; the presence of a bottom deck board under the stringers also anchors the forks.

The plaintiff sought to prove that at the time the box fell on plaintiff, lateral force toward the curb was present due to the side slope of the city street. Unavoidable jiggling of the double-stacked load occurred during the acceleration of the forklift, which broke the static friction otherwise preventing the top box from sliding on the bottom box. After the top box's skids stringers slid toward the curb, the top box suddenly dropped off the edge of the bottom box. The resulting motion was rotation about the corner of the lower box, which continued as the upper carton tipped over and fell on Barrera.

The plaintiff argued that products liability claims were applicable for both bystanders as well as users or consumers and applied to any foreseeable use, including the "normal storage and movement" of a product while it is still on the market.

DEFENDANT'S CONTENTIONS:
Montague contended that it had no duty to warn sophisticated users such as Federighi. Also, Montague never received a single report of any load tipping and falling off the blades of a forklift truck during loading or unloading.

Montague also contended that bottom deck boards fastened under exterior stringers of the skid would not have stopped the load from tipping and falling on Barrera under the circumstances.

Federighi employees were in charge of the offloading operations, but failed to properly balance the load, thereby causing it to tip and fall.

The defendant, through its experts, contended that photometric measurements proved that the forklift blades were set too narrow - only 22 inches apart, were off center, and biased to the right. This meant that the load was not balanced, and was subject to tipping and falling off the blades of the forklift during the forklift's acceleration on the sloped street.

Federighi violated T8CCR-3668(f)-Certification, and California Code of Regulations, Title 8, Section 3650, "Loads of excessive width, length, or height shall be so balanced, braced, and secured as to prevent tipping and falling." Federighi's management had actual or constructive knowledge of these dangerous practices. Still, Barrera and other employees were not trained to stay away from the forklift blades whenever the forklift was in operation, or to push back tipping loads instead of letting it fall on them. Federighi knew or should have known there was a substantial probability that death or serious bodily harm could result from these violations.

Thus, Federighi's employees failed to properly balance, brace, and secure the load that tipped and fell, and allowed an uncertified forklift operator to operate the Federighi forklift.

Montague contended in a motion for summary adjudication that Barrera could not maintain a strict-products liability claim based on defective packaging because such a claim can only apply to the product itself and can only be brought by the ultimate user or consumer of the product. Barrera was not an uninvolved bystander, but a participant in the unloading of the product.

Specials in Evidence

John's claimed medical bills paid by the workers' compensation carrier were approximately $831,000.

Damages

John was a high school graduate who had completed about 60 units of college work prior to enlisting in the United States Army. He was honorably discharged after five years of service, which included combat tours in Afghanistan and Iraq. He attended Los Medanos College for six months, where he completed its process technician program. It was his plan to go to work for an oil refinery where he believes he would have been able to earn about $40,000 to $60,000 a year. Defendant estimated that given the college education that plaintiff has had, he will complete his undergraduate degree and receive a teaching credential within approximately three years. Thereafter, he would be capable of returning to work as a teacher earning as much or more than he would have been able to earn as a process technician. The cost of completing his undergraduate education and receiving a teaching credential would be in the range of $15,000 to $20,000. Assuming that John would have been hired by Chevron shortly after the date of his accident, his past loss of earnings would be approximately $60,000. According to the defendant, his lost earning while becoming a teacher would be approximately $120,000. According to Barrera's "Life Care-Disability Related Plan and Vocational Analysis" by Carol Hyland, rehabilitation consultant, and analysis by forensic economist Robert W. Johnson & Associates, the present cash value of future medical expenses, non-medical expenses, plus expected income less mitigating income as a college graduate working 25 hours a week, was approximately $9.6 million. Defendant's life care expert believes that the cost of future care as outlined in a report prepared for the defendant by Dr. Thomas Hedge of the Pacific Region Spinal and Head Injury Care System was approximately $3.1 million.

Injuries

John sustained crush injuries to his thorax, abdomen and spine. At the scene of the accident, he was conscious and alert. He had neither sensation nor voluntary movement in his lower limbs. He had multiple rib fractures, and required a laparotomy for repair of a ruptured diaphragm. He underwent posterior fusion with rods and redicle screws from T11-L4, and also had an inferior vena cava filter placed. He was extubated and treated with Septra for pneumonia to stabilize his spine as a result of the injury sustained at L1-L2. He is a T12-L1 paraplegic. He was transferred to Santa Clara Valley Medical Center where he had in-patient rehabilitation until Oct. 18, 2007. Upon discharge, he moved to San Diego to his parents' home. Plaintiff continues to have severe paralysis of his lower limbs and to rely chiefly upon a wheelchair for his mobility. He has pain during wheelchair propulsion. He is playing wheelchair basketball twice a week and practicing about two hours each time. Barrera is independent with his basic self-care, and is independent transferring in and out of his wheelchair.

Result

The plaintiffs settled with defendants for $5 million. Barrera's future workers compensation benefits were settled in a WCAB approved compromise and release for $477,000 new money, including an annuity to cover the Medicare set-aside account in the sum of $318,000. Federighi's insurance carrier is not entitled to reimbursement for its past lien claim, nor credit against future workers compensation benefits.

Other Information

The summary judgment motion on the strict products liability claim was heard by the court. No ruling was issued on the motion.