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Darms v. Bunce Rental8/18/2000
In a product liability action, Robert and Deborah Darms sought to recover for injuries Robert received when he fell from a platform lift that rolled and toppled over while he was cleaning awnings. The Darmses filed a lawsuit against the product manufacturer, Bil-Jax Personnel Lift Division, Inc. (Bil-Jax), and the product lessor, Bunce Rental, Inc. (Bunce Rental), alleging defective design and inadequate warnings. The Darmses also brought a negligence claim against both defendants. The trial court granted summary judgment dismissing the Darmses' claims. The Darmses appeal, arguing they established a prima facie case of each cause of action and genuine issues of material fact exist. We affirm.
FACTS
Robert Darms (Darms) owned an awning cleaning business that generally required the use of a personnel lift to reach and clean the raised awnings. On November 22, 1994, Darms rented a Bil-Jax scissor lift from Bunce Rental to help clean awnings at a Kent grocery store. Darms had rented scissor lifts from Bunce Rental several times in the past.
Two days later, Darms and an employee, James Armour, set out to clean the awnings located outside the front entrance of the grocery store. Darms' business had regularly cleaned the store's awnings twice a month for at least the previous four years, over which time the structure and surrounding area of the store had remained essentially the same.
At approximately 5:30 a.m., Darms drove and positioned the lift on the sidewalk under the awning. The lift was placed on level ground, as close to the wall of the store as possible, and perpendicular to a nearby slightly sloped grocery cart ramp.
Darms and Armour both got in the lift, which elevated them to approximately 18 feet, and began to clean the awning. After cleaning for about 20 minutes, the pair ran out of chemical cleaner and lowered the lift. Armour secured more chemical cleaner and Darms used the lift to finish cleaning the small area that was left. Darms had been cleaning for a short time when the lift rolled down the grocery cart ramp, hit a nearby sidewalk curb, and fell over. Darms sustained a fractured elbow and pelvis in the fall, as well as numerous neck and back injuries.
Three years later, the Darmses filed a lawsuit against Bil-Jax and Bunce Rental, alleging claims based upon product liability and negligence. Bunce Rental and Bil-Jax both moved for summary judgment of dismissal.
In opposition to these motions and in support of their cross-motion for summary judgment, the Darmses filed a declaration of a civil engineer. The engineer, acknowledged by defendants to be a qualified expert, stated that he had examined the lift in question, viewed photographs of the location of the accident, reviewed the deposition testimony of Armour, and talked to Robert Darms about the incident. He then explained that there were only two ways the lift could move along the ground, absent brake failure. First, the operator could activate the lift's drive motor via a joystick located on the platform's railing. Second, the 'free wheeling valve' could be engaged. Clerk's Papers at 154.
Asserting there was no evidence that the drive motor had been activated, the engineer concluded that on a more probable than not basis the scissor lift rolled because the free wheeling valve was engaged. Stating that neither Robert Darms nor Armour had opened the valve, the engineer opined that the valve was probably open when Bunce Rental provided the lift to Darms. He also averred that the risk of injury could have been minimized had the lift been designed with an interlocking device that would have prevented the valve from being engaged while the
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