Horn v. Manitex Inc et al

Filing 63

ORDER granting 37 40 Motions for Summary Judgment; finding as moot 44 Motion to Exclude. Signed by Judge James M. Moody on 6/5/12. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION

MICHAEL KEVIN HORN

VS.

PLAINTIFF

CASE NO. 4:11CV00041 JMM

MANITEX, INC., ET AL.

DEFENDANTS

ORDER
Plaintiff Michael Kevin Horn has brought this action for personal injuries against
Defendants Manitex, Inc. (“Manitex”), and Hi-Tech Pump and Crane, Inc (“Hi-Tech”). The suit
arises out of an accident which occurred on a gas well site in White County, Arkansas, on
January 25, 2008.
Facts
Plaintiff was part of a crew engaged in closing down the well which involved the use of a
crane manufactured by Manitex. A device described as an injector was suspended from the
boom of the crane. Plaintiff claims the accident occurred when the suspended injector suddenly
and unexpectedly dropped approximately 18 inches and began swinging back and forth. Plaintiff
who was standing near the suspended injector at the time was struck in the forehead and fell off
the pipe on which he was standing causing him permanent injuries.

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Plaintiff filed suit on January 18, 2011, alleging negligence by Manitex in the
manufacture of the crane and negligence by Hi-Tech in maintaining it. In support of these
claims Plaintiff relies on the opinion testimony of Mike R. Queenan who was offered as an
expert witness. Both Defendants have moved for summary judgment (Doc. #37 and #40) and to
exclude the opinion testimony of Queenan (Doc. #44) and Plaintiff has responded. For the
reasons stated below the Defendants’ summary judgment motions will be granted and the motion
to exclude will be denied as moot.
The Claim against Manitex
Although Plaintiff’s complaint does not mention the Arkansas strict liability statute,
Plaintiff now argues that the crane was defective and unreasonably dangerous at the time it was
manufactured by Manitex. To support his claim, Plaintiff relies on the opinion of Queenan that
the accident was caused by the failure of a counter-balance valve in the crane which produced a
bleed of hydraulic fluid allowing the load to drop.
The flaw in Plaintiff’s case is that Queenan could not express an opinion as to what point
in time that the valve became defective so as to allow for a failure. Plaintiff admits that Manitex
had no control over the crane after it left the factory until some time after the accident. Queenan
testified in his deposition that, so far as he knew, the crane was properly assembled by Manitex
and he had no proof that it did not leave the factory with all properly functioning components
including the counter-balance valve which he said failed at the time of the accident. Even giving
Queenan the benefit of the doubt as to his qualifications for expressing an opinion, there is
insufficient evidence to make a submissible jury issue as to the strict liability of Manitex.
Queenan’s opinions at most are explanations as to what caused the load to drop but fall far short

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of establishing a defective and unnecessarily dangerous component of the crane at the time it left
the factory.
Plaintiff’s theory of negligence against Manitex likewise fails for lack of sufficient
evidence. Plaintiff has the burden of showing that Manitex breached some duty owed to him in
the manufacture of the crane. It is axiomatic that the fact that an accident occurred is not
evidence of negligence. In the absence of evidence of negligence, Plaintiff argues that there is a
res ipsa or implied defect citing to Crawford v. Sears Roebuck & Co., 295 F.3d 884 (8th Cir.
2007). This case may be on point but actually supports Manitex’s argument since there is no
evidence that the crane was furnished in a defective condition.
The Claim Against Hi-Tech
Plaintiff’s only claim against Hi-Tech is for negligent maintenance of the crane. As in
the case against Manitex, Plaintiff relies on the testimony of Mr. Queenan. Hi-Tech performed
maintenance work on the crane during 1987 none of which involved the counter balance valve
which Queenan alleged to have failed and caused the accident. Plaintiff has produced no
competent evidence that anything Hi-Tech did or failed to do caused or contributed to the
accident.
Conclusion
Summary judgment is granted to both Defendants and a judgment will be entered
accordingly. The motion to exclude the testimony of Mike Queenan is denied as moot.
IT IS SO ORDERED this 5

day of

June , 2012.

James M. Moody
United States District Judge

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