Gaddy v. Terex Corporation et al

Filing 363

OPINION AND ORDER. The Terex Defendants' Motion for Partial Summary Judgment Regarding the Non-Party Fault of Ace Tree Surgery 321 is GRANTED. The Court finds that Ace's conduct "contributed" to Plaintiff's injuries. The jury will decide, in accordance with O.C.G.A. § 51-12-33, the percentage of fault attributable to Ace. Signed by Judge William S. Duffey, Jr on 4/26/2017. (bgt)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
JEFFREY GADDY,
Plaintiff,
v.

1:14-cv-1928-WSD

TEREX CORPORATION, et al.
Defendants.

OPINION AND ORDER
This matter is before the Court on Defendants Terex Corporation (“Terex
Corp.), Terex South Dakota, Inc. (“Terex SD”), and Terex Utilities, Inc.’s (“Terex
Utilities”) (collectively, “Terex” or the “Terex Defendants”) Motion for Partial
Summary Judgment Regarding the Non-Party Fault of Ace Tree Surgery [321]
(“Motion”).
I.

BACKGROUND
A.

Facts

This is a products liability action stemming from the failure of a 2002 Terex
Hi-Ranger XT 60/70 boom, Serial No. 2021020554 (the “Subject Boom Truck”),
an aerial lift device. Terex XT aerial devices are commonly utilized by tree

trimming companies. The Subject Boom Truck consisted of a lower boom, upper
boom, and bucket, as depicted in the following diagram:

On April 9, 2014, Plaintiff Jeffrey Gaddy (“Plaintiff”) was in the bucket of
the Subject Boom Truck when the lower boom stub fractured, causing Plaintiff to
fall to the ground. Plaintiff suffered spinal injuries resulting in paraplegia.
Plaintiff claims Terex negligently manufactured and designed the Subject Boom
Truck, and that it failed to warn him of certain dangers.
On April 30, 2003, Non-Party Ace Tree Surgery, Inc. (“Ace”) purchased the
Subject Boom Truck. (Defs.’ Statement of Undisputed Material Facts [321.2]
(“DSMF”) ¶ 3; Pl.’s Resp. to DSMF [339.1] (“R-DSMF”) ¶ 3). From 2003
through the date of the accident, the Subject Boom Truck was operated almost
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exclusively by Plaintiff. (DSMF ¶ 4; R-DSMF ¶ 4). The Subject Boom Truck had
a maximum rated load capacity of 350 lbs, which was typical in the industry.
(DSMF ¶ 8; R-DSMF ¶ 8). When calculating the load placed in the bucket, a user
must consider (1) the weight of the operator; (2) the weight of the liner; (3) the
weight of any tools; and (4) the weight of any debris that may have gathered in the
bucket. (Id.). Plaintiff weighed approximately 330 lbs during his use of the
Subject Boom Truck. (DSMF ¶ 9; R-DSMF ¶ 9). Terex contends that, when
considering Plaintiff’s weight and the weight of the equipment in the bucket, the
amount of weight or load consistently and routinely placed in the subject bucket
for 11 years was 430 lbs, which exceeded the rated load capacity by approximately
80 lbs.1 (DSMF ¶ 10). Plaintiff claims that Ace did not know that the
Terex-required liner must be factored into the load capacity, which caused the load
capacity consideration to be off by 50 lbs. (R-DSMF ¶ 34). Plaintiff claims that
“Terex’s instruction to factor in the weight of the mandatory bucket liner in the
load capacity appears only on in [sic] one clause or one sentence one [sic] page of
its Owner’s Manual.” (R-DSMF ¶ 8).
1

Plaintiff claims the amount of overloading is disputed, and ranges from 57
lbs to 93 lbs. (Pl.’s Statement of Additional Material Facts [339.2] (“PSAF”)
¶¶ 45-47). Plaintiff does not dispute that overloading occurred. (See id.).
3

The American National Standards Institute (“ANSI”) sets forth the standards
for the design, use and operation of vehicle-mounted elevating and rotating aerial
devices, such as the Subject Boom Truck. (DSMF ¶ 11; R-DSMF ¶ 11).
Specifically, Section 8 of ANSI A92.2 (2001) (the “ANSI Standard”) sets forth the
responsibilities of owners of this equipment and Section 9 provides the
responsibilities of users. (Id.). The ANSI Standard provides that owners have a
responsibility to be familiar with the use and operation of the subject aerial device,
including the Operator’s Manual. (DSMF ¶ 14; R-DSMF ¶ 14).
The Operator’s Manual for the Subject Boom Truck contains the following
warning requiring the user not to exceed the rated load capacity:

(DMSF ¶ 17; R-DSMF ¶ 17).2 The Operator’s Manual also provides that the
operator should “[n]ever exceed the rated loaded of the platform. Know the total
weight; including the operator, platform liner, tools, and equipment, and/or other
items before entering platform.” (DSMF ¶ 18; R-DSMF ¶ 18). The Subject Boom
2

Plaintiff disputes the adequacy of this warning, but does not dispute that the
Operator’s Manual contains it.
4

Truck itself also had two decals on it warning users that death or serious injury
“will” occur if the machine is used beyond its rated capacity:

(DSMF ¶¶ 19, 20; R-DSMF ¶¶ 19, 20).
Prior to the accident, Ace was aware that applicable standards required it not
to exceed the rated load capacity for its equipment, and that overloading the
buckets could lead to the exact problem that occurred in this case. (DSMF ¶32;
R-DMSF ¶ 32). It is undisputed that, had Ace not overloaded the bucket of the
Subject Boom Truck for 11 years, the boom would not have fractured on

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April 9, 2014, and the accident at issue in this case would not have occurred.
(DSMF ¶ 35; R-DSMF ¶ 35).3
B.

Procedural History

On June 19, 2014, Plaintiff filed his Complaint [1]. On March 10, 2016,
Plaintiff filed his Sixth Amended Complaint [215], asserting claims of negligence
per se, negligent design and manufacturing, and failure to warn. Plaintiff seeks
punitive damages and attorneys’ fees.
On January 30, 2015, Terex filed its Notice of Apportionment of Fault to
Non-Parties, listing Ace as a non-party at fault. ([57] at 2-3).
On December 21, 2016, the Terex Defendants filed their Motion. Terex
argues that the undisputed evidence shows that Ace was negligent and that its
negligence proximately caused or contributed to the subject incident and Plaintiff’s
damages. Terex thus seeks a determination, as a matter of law, that Ace is a nonparty at fault, pursuant to O.C.G.A. § 51-12-33(d), and that the actual percentage
of fault attributable to Ace shall be determined by a jury. Specifically, Terex states
that, should its Motion be granted, “Ace would be on the verdict form and the jury
3

Plaintiff does not dispute this fact, but maintains that “[i]t is likewise
undisputed” that the boom would not have cracked had Terex not used lower
quality steel or if Terex’s design did not create a high stress area. (R-DSMF ¶ 35).
6

would be instructed that Ace has been found, as a matter of law, to be a non-party
at fault and that its fault contributed to the subject incident.” ([351] at 5).
Plaintiff argues that it is premature for the Court to determine what nonparties should be on the verdict form, and that that decision must be made based
upon the facts presented at trial.
II.

DISCUSSION
A.

Legal Standard

Summary judgment is appropriate where the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue
as to any material fact and that the moving party is entitled to judgment as a matter
of law. See Fed. R. Civ. P. 56. The party seeking summary judgment bears the
burden of demonstrating the absence of a genuine dispute as to any material fact.
Herzog v. Castle Rock Entm’t, 193 F.3d 1241, 1246 (11th Cir. 1999). Once the
moving party has met this burden, the nonmoving party must demonstrate that
summary judgment is inappropriate by designating specific facts showing a
genuine issue for trial. Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282
(11th Cir. 1999). The nonmoving party “need not present evidence in a form

7

necessary for admission at trial; however, he may not merely rest on his
pleadings.” Id.
“At the summary judgment stage, facts must be viewed in the light most
favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those
facts.” Scott v. Harris, 550 U.S. 372, 380 (2007). Where the record tells two
different stories, one blatantly contradicted by the evidence, the Court is not
required to adopt that version of the facts when ruling on summary judgment. Id.
“[C]redibility determinations, the weighing of evidence, and the drawing of
inferences from the facts are the function of the jury . . . .” Graham, 193 F.3d at
1282. “If the record presents factual issues, the court must not decide them; it must
deny the motion and proceed to trial.” Herzog, 193 F.3d at 1246. The party
opposing summary judgment “‘must do more than simply show that there is some
metaphysical doubt as to the material facts . . . . Where the record taken as a whole
could not lead a rational trier of fact to find for the nonmoving party, there is no
genuine issue for trial.’” Scott, 550 U.S. at 380 (quoting Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). A party is entitled
to summary judgment if “the facts and inferences point overwhelmingly in favor of
the moving party, such that reasonable people could not arrive at a contrary
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verdict.” Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir.
2002) (quotations omitted).
B.

Analysis

In 2005, the Georgia General Assembly abolished the doctrine of joint and
several liability in personal injury actions. The statute provides:
Where an action is brought against more than one person for injury to
person or property, the trier of fact, in its determination of the total
amount of damages to be awarded, if any, shall after a reduction of
damages pursuant to subsection (a) of this Code section, if any,
apportion its award of damages among the persons who are liable
according to the percentage of fault of each person. Damages
apportioned by the trier of fact as provided in this Code section shall
be the liability of each person against whom they are awarded, shall
not be a joint liability among the persons liable, and shall not be
subject to any right of contribution.
O. C. G. A § 51-12-33. The statute further provides that, “in assessing percentages
of fault, the trier of fact shall consider the fault of all persons or entities who
contributed to the alleged injury or damages, regardless of whether the person or
entity was, or could have been, named as a party to the suit.” Id. § 51-12-33(c).
“Negligence or fault of a nonparty shall be considered if the plaintiff entered into a
settlement agreement with the nonparty or if a defending party gives notice not
later than 120 days prior to the date of trial that a nonparty was wholly or partially
at fault.” Id. § 51-12-33(d)(1). “The notice shall be given by filing a pleading in
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the action designating the nonparty and setting forth the nonparty’s name and last
known address, or the best identification of the nonparty which is possible under
the circumstances, together with a brief statement of the basis for believing the
nonparty to be at fault.” Id. § 41-12-33(d)(2).4
The Georgia Supreme Court recently clarified that O.C.G.A. § 51-12-33(c)
allows a jury to assess a percentage of fault to the non-party employer of a plaintiff
who sues a product manufacturer and seller for negligence in failing to warn about
a product danger, even though the non-party employer has immunity under
Georgia’s workers’ compensation laws. Walker v. Tensor Machinery Ltd., 779
S.E.2d 651, 656 (Ga. 2015).
Terex seeks a determination, as a matter of law, that Ace is a non-party at
fault, pursuant to O.C.G.A. § 51-12-33(d), and that the actual percentage of fault
attributable to Ace shall be determined by a jury. Plaintiff argues that it is
premature for the Court to determine what non-parties should be on the verdict
form, and that that decision must be made based upon the facts presented at trial.

4

It is uncontested that Terex’s Notice of Apportionment of Fault to
Non-Parties [57] constituted proper notice under subsection (d).
10

Rule 56 of the Federal Rules of Civil Procedure provides that a party may
move for summary judgment, “identifying each claim or defense—or the part of
each claim or defense—on which summary judgment is sought. The court shall
grant summary judgment if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a) (emphasis added). Apportionment of fault under Section 51-12-33
is an affirmative defense. See Union Carbide Corp. v. Fields, 726 S.E.2d 521, 524
(Ga. Ct. App. 2012), reversed on other grounds by Georgia-Pacific, LLC v. Fields,
748 S.E.2d 407 (Ga. 2013) (citing Clay v. Oxendine, 645 S.E.2d 553 (Ga. Ct. App.
2007)); Argonaut Midwest Ins. Co. v. McNeilus Truck and Mfg., Inc., No. 1:11CV-3495-TWT, 2013 WL 504897, at *3 (N.D. Ga. Feb. 8, 2013). Terex is entitled
to move for summary judgment on any “defense,” Fed. R. Civ. P. 56(a), including
his apportionment defense under Section 51-12-33. The jury’s role under Section
51-12-33 is to determine the percentage of fault of each person or entity “who
contributed to the alleged injury or damages.” O.C.G.A. § 51-12-33(c). If there is
no genuine issue of material fact as to whether Ace’s conduct “contributed” to
Plaintiff’s injuries, Terex is entitled to summary judgment on this question. The

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jury may then decide the percentage of fault attributable to Ace, in accordance with
O.C.G.A. § 51-12-33.
The Court finds Terex meets its burden to show that there is no genuine
issue of material fact as to whether Ace’s conduct contributed to Plaintiff’s
injuries. In determining whether a non-party contributed to a plaintiff’s injury, a
court looks to the causation standard under the negligence cause of action. See
Union Carbide, 726 S.E.2d at 559-60 (looking to applicable standard of causation
in asbestos product liability actions in determining whether a non-party contributed
to injury). Under Georgia law, “in order to recover for any injuries resulting from
the breach of a duty, there must be evidence that the injuries were proximately
caused by the breach of the duty.” Goldstein Garber & Salama, LLC v. J.B., 797
S.E.2d 87, 89 (Ga. 2017) (citation omitted).
The uncontested evidence shows at least the following:
1.

The ANSI Standard requires that owners have a responsibility to be
familiar with the use and operation of an aerial device, including the
responsibility to be familiar with the Operator’s Manual;

2.

A decal on the Subject Boom Truck provided that it had a maximum
rated load capacity of 350 lbs;

3.

To calculate the load, a user was required to consider (1) the weight of
the operator; (2) the weight of the liner; (3) the weight of any tools;
(4) the weight of any debris that may have gathered in the bucket;
12

4.

Terex’s Owner’s Manual instructed that the bucket liner was required
to be used in calculating the load;

5.

During the 11 years Ace owned and operated the Subject Boom
Truck, the load in the bucket consistently and routinely exceeded the
rate load capacity;

6.

Prior to the accident, Ace was aware that applicable standards
required it not to exceed the rated load capacity for its equipment, and
that overloading the buckets could lead to the exact problem that
occurred in this case; and

7.

Had Ace not overloaded the bucket of the Subject Boom Truck for 11
years, the boom would not have fractured on April 9, 2014, and the
accident at issue in this case would not have occurred.

This uncontested evidence establishes that Ace’s conduct was an actual and
proximate cause of Plaintiff’s injuries, and thus, as a matter of law, Ace
“contributed” to Plaintiff’s injuries. The jury will decide, in accordance with
O.C.G.A. § 51-12-33, the percentage of fault attributable to Ace. Terex’s Motion
is granted.
III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that the Terex Defendants’ Motion for Partial

Summary Judgment Regarding the Non-Party Fault of Ace Tree Surgery [321] is
GRANTED. The Court finds that Ace’s conduct “contributed” to Plaintiff’s

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injuries. The jury will decide, in accordance with O.C.G.A. § 51-12-33, the
percentage of fault attributable to Ace.

SO ORDERED this 26th day of April, 2017.

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