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Ostendorf v. Clark Equipment Company12/18/2003
TO BE PUBLISHED
AFFIRMING
Michael Ostendorf was severely injured when the Clark forklift he was driving tipped over and pinned his right foot to the ground. The accident occurred when a baggage tug vehicle operated by another employee collided with the forklift Ostendorf was driving. The accident occurred in October 1994 at the Delta Airlines terminal of the Greater Cincinnati-Northern Kentucky International Airport in Boone County, Kentucky. Ostendorf was employed by Delta at the time.
Ostendorf and his wife filed suit in Kenton Circuit Court against Clark claiming (1) strict product liability, (2) negligent design, (3) breach of duty to retrofit the forklift with operator restraints, (4) negligent conduct of the retrofit campaign, and (5) breach of warranty. In addition to compensatory damages, Ostendorf sought punitive damages.
The circuit court granted summary judgment in favor of Clark. Ostendorf appealed to the Court of Appeals, which reversed the summary judgment on the strict liability and negligent design claims, as well as the compensatory and punitive damages relating to those claims. The Court of Appeals further held that Kentucky does not recognize a common law duty by a seller to retrofit an existing product that was not defective at the time it was manufactured. Finally, the Court of Appeals held that Ostendorf failed to present sufficient evidence to impose liability on Clark for negligent performance of a voluntary retrofit campaign. We affirm the Court of Appeals' decision.
Because this matter was disposed of on a motion for summary judgment, we shall review the facts of this case in the light most favorable to the Appellant. See Steelvest Inc, v. Scansteel Service Center Inc., Ky., 807 S.W.2d 476 (1991). The forklift Ostendorf was operating was a 1980 model C-300Y40 manufactured by Clark Equipment Company. It was sold to Western Airlines by an authorized Clark dealer in California. Delta Airlines acquired the forklift when it purchased the assets of Western Airlines. The forklift was designed and manufactured in accordance with the then applicable industry standards, as set out by the Federal Occupational Safety and Health Act (OSHA) and the American National Standards Institute (ANSI). At the time the forklift was manufactured, operator restraints were not required.
Ostendorf presented evidence that Clark and other manufacturers of forklift trucks exercised considerable influence on the formulation of the ANSI standards through their membership in the Industrial Truck Association (ITA). Since the 1960's, Clark and the ITA were aware of the tendency of forklift trucks to overturn under certain circumstances, causing injury and death to the operator. However, there was considerable debate throughout the 1970's regarding the need to install operator restraints. In 1979, a Clark engineer was killed when a forklift that he was test driving overturned. This incident, among other things, prompted Clark to further study the need for operator restraints.
In 1983, Clark developed a new safety seat incorporating an operator restraint for its forklifts. In addition, Clark voluntarily implemented a retrofit program that provided owners of the C-300 and C-500 model forklifts with the opportunity to have the new restraint system installed on their forklifts. Under this program, Clark offered to retrofit qualifying forklifts without cost either for parts or for labor. Clark mailed notices to its customers advising them of the availability of the retrofit. There is a dispute concerning whether Delta received notice of the retrofit program; Clark claims it mailed the notice to Delta, but Delta denies receipt.
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