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Imbraguglio v. Great Atlantic & Pacific Tea Company3/10/2000
ample, loaded pallets were being inserted into or withdrawn from a particular bin. Although the allegations of primary negligence in Petitioner's amended complaint are vague, at least one theory of liability suggested by Petitioner's argument is that the Respondents, as owner and manager of the warehouse, failed to furnish a safe place to work by, inter alia, failing to supply bins with barriers that would prevent cartons from becoming mispositioned.
Part of the duties of a warehouse worker such as Imbraguglio was to place in the proper position a product that had become mispositioned. When the mispositioned product was in a bin other than at ground level a worker would reach the higher elevation by a procedure that required two workers. A forklift with an empty pallet placed upon the forks was positioned in front of the column of bins where the task was to be performed. One worker would stand on the pallet while a second worker operated the controls of the stationary forklift in order to raise the pallet to the desired elevation. It was also necessary for the warehouse workers to be raised in this fashion when taking inventory.
Respondents had caused some number of the ordinary pallets to be modified by erecting a post at each corner and by affixing a railing between the posts. Respondents call these modified pallets "cages." The evidence on behalf of Respondents is that warehouse workers who were repositioning stock or taking inventory were required by management to, and so far as management knew, universally did, use cages when the workers were elevated by forklift.
On the other hand, evidence on behalf of Petitioner, derived from the report of the Maryland Occupational Safety and Health Act (MOSHA) inspectors, is that the warehouse workers did not regularly use cages and that the storage area for the cages was "at the far end of the warehouse which was not an area" where they could be "easily retrieved by the employees for use." Instead, the warehouse workers used pallets that had not been modified into cages. Imbraguglio fell to his death after he had been elevated on an unmodified pallet.
We also learn from the MOSHA inspectors' report that Imbraguglio's fall was caused by his having lost his balance due to a shift of position by at least one of the cartons in the bin where he was working. The inference most favorable to Petitioner is that the shift took place among the product that remained in the bin and that it was not a shift in weight of a carton that Imbraguglio was then handling.
Respondents' position on summary judgment is that Imbraguglio voluntarily chose to use an unguarded pallet when the alternative of using a cage was available to him and that, by this voluntary choice, Imbraguglio assumed the risk of falling. The director of warehousing for SDS acknowledged on deposition that the cages did not comply with the Federal Occupational Safety and Health Act requirements, but the particulars of that noncompliance are not developed in the record. From this unspecific noncompliance Petitioner argues that use of a cage was not a safe alternative.
I.
Initially, we need to determine the record that may properly be considered on this summary judgment motion. In support of their motion Respondents submitted four items of evidence. The first is a typewritten and signed, but unsworn, statement by David Alonzo Williams (Williams) that was given to a representative of Respondents. Williams was the co-worker who was operating the forklift controls when Imbraguglio was elevated on the pallet. The second item is the transcript of the testimony given before the Maryland Workers' Compensation Commission (the Commission) by Jef
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