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Joliff v. Detroit City Dairy9/6/2002
UNPUBLISHED
Defendant appeals by leave granted from the trial court's order denying its motion for summary disposition. We affirm.
Plaintiff Floyd Joliff was hired to work the night shift as a picker of goods in defendant's shipping department. This position required plaintiff to use electric powered Crown pallet jacks to transport merchandise from the warehouse to the loading dock. Pursuant to an operator's manual regarding the use of pallet jacks provided during discovery, a pallet jack can be operated by standing on it or walking beside it. The brakes of the pallet jack are activated by a control handle that can be pushed forward or down. The manual further indicates that a pallet jack can weigh more than three automobiles once loaded and that it can not be slowed down or stopped by putting a foot down.
Plaintiff testified during his deposition that defendant required its pickers to meet a quota of approximately 120 orders per hour and that a warehouse employee could not pick without a pallet jack. According to plaintiff, the newer pallet jacks were assigned to senior employees. The less senior or probationary employees, like plaintiff, were not assigned specific pallet jacks but were required to choose from those that remained. Plaintiff indicated that if a pallet jack needed maintenance, a supervisor would mark it with a red tag and remove it from service. If there was no functional pallet jack available in a given shift, plaintiff testified that his supervisor would assign him to another job for the night. It was uncontested that defendant used an outside company to perform the maintenance on its pallet jacks.
On October 27, 1996, plaintiff arrived for work and discovered that the only remaining pallet jacks were marked with red tags. Plaintiff testified that he went to see his supervisor, Leonard Sturgeon, to inform him of the situation. After notifying Sturgeon, plaintiff claimed that Sturgeon drove one of the red-tagged pallet jacks over to plaintiff and ordered him to use it. Plaintiff maintained in his deposition that he informed Sturgeon that the red tag on the pallet jack said "no brakes." He alleged Sturgeon told him to use it or go home. Plaintiff interpreted this to mean that he would be fired if he did not use the pallet jack. During his deposition, plaintiff admitted that Sturgeon did not appear to have a problem stopping the pallet jack when he brought it to plaintiff. Plaintiff further testified that a pallet jack could be slowed down by putting it in reverse.
Sturgeon could not recall plaintiff's accident when he was deposed, but maintained that he would never instruct an employee to use equipment that was red-tagged for repairs. Sturgeon acknowledged that the rationale behind this policy was to prevent injury . He also acknowledged that brake failure would be one reason to red-tag a pallet jack. According to Sturgeon, although reversing the pallet jack or changing its direction with the twist grip would eventually slow the pallet jack down, these actions will not stop the machine.
Plaintiff alleged that on the night of the accident he took additional precautions and drove the pallet jack at a lower speed. However, plaintiff claimed that he was still forced to jump off the pallet jack when it failed to stop. According to plaintiff, the brakes on the pallet jack worked sporadically. Plaintiff further testified that after running into several objects, he repeated his safety concerns about the pallet jack to Sturgeon and Gordon Johnston, a senior employee, but was required to continue using it. Plaintiff stated that he used the pallet jack for approximately four more hours before running run into a pole and falling off
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