Fatal Forklift Trip Will Send Home Depot to Trial

     (CN) - Home Depot must head to trial after an elderly man tripped over the blades of a forklift left near a store entrance and died from his injuries, a federal judge ruled.
     The incident occurred on the afternoon of April 9, 2011, while James C. Devlin was visiting a Home Depot in Wilkes-Barre, Pa., with his daughter and son-in-law, Ann Marie and Dwayne Poepperling.
     As they approached the contractor's entrance, an employee named Larry James was sweeping the floor where a concrete pallet would soon be placed by a forklift.
     The employee later testified that, as required by company policy, he had been working as a spotter that day for co-worker John Murray, who Home Depot claims was a licensed forklift operator for seven years.
     Devlin's family claims, however, that James was not actually assisting Murray at the time and that the forklift lay idle and empty with "its forks directly in the path of" Devlin.
     Rather than warn Devlin or his relatives about the dangers of the forklift or try to direct them around the operation, James allegedly looked down and kept sweeping.
     Soon, Devlin's "foot caught the blade of the forklift, and he was suddenly and violently thrown to the ground," according to the family's complaint. Footage from a security camera shows the recumbent fork had been cast under a shadow before Devlin fell.
     The noise caused James to look up and see Devlin lying on the ground with a laceration on his elbow, the family added.
     A statement of facts from Home Depot says that Devlin was taken to the Wilkes-Barre General Hospital after he complained of pain in his left side, radiating from his hip.
     Devlin died of complications from his injuries on April 14, 2011.
     The executor of his estate, James F. Devlin, brought the negligence suit, which Home Depot removed to federal court.
     U.S. District Judge Robert Mariani allowed the family to seek punitive damages in 2012, but U.S. District Judge Matthew Brann dismissed that claim on Dec. 23, 2013.
     Though Home Depot is accused of having breached some forklift operating procedures, Brann found "no indication that the defendant's conduct was 'particularly egregious' or the result of 'evil motive.'"
     A jury must decide whether the forklift was an "obvious hazard," as was a puddle of water in a recent state court case, Antolik v. Camelback Ski Corp. Inc.
     "As Devlin approached the store with his daughter, the forklift was idling to the right of the entrance," Brann wrote. "It was a large machine making noise with the engine running. Several other younger patrons successfully navigated the passage that led to the entrance to the store between the forklift and adjacent pallets. Unlike in Antolik, however, there was no sign or anything in the vicinity other than the forklift itself to warn an approaching elderly man of impending danger."
     Security footage sheds doubt on the obviousness of the hazard since a shadow obscured the fork, and, "in the moments before the fateful incident, the footage shows that Devlin's daughter was walking approximately one pace ahead of Devlin, between him and the forklift they were approaching," the ruling states. "Reasonable minds could differ as to whether her path contributed to masking the danger from a reasonable senescent man in Devlin's situation so that he would not see the fork."
     Home Depot does not deserve summary judgment, however, based on its claim that Devlin never looked down.
     "Home Depot fails to demonstrate that Devlin could have 'known' of the risk the forklift presented, let alone appreciate the gravity of the threatened harm," Brann concluded.