In Lafarge North Am., Inc. v. Nord, No. 109062, six justices found that Nord was contributorily negligent as a matter of law; Malone, Woodall and Main dissented.
The records shows that Nord regularly picked up loads of cement bags at Lafarge’s cement packhouse, which had two loading bays. Drivers would park their trucks in one of two bays and walk to an office “to receive [a] load assignment.” A Lafarge employee, using a forklift, would load pallets of bags onto the truck’s flatbed. Nord had parked his truck in the second bay and walked to the office. Upon leaving the office and as he was walking across the first bay, the forklift operator backed up and ran over Nord’s foot. The jury awarded Nord $125,000 in compensatory damages and $75,000 in punitive damages.
All nine justices agreed that there was not even “substantial” evidence of wantonness. The six-justice majority relied on the following in finding that Nord was contributorily negligent as a matter of law: (1) due to his frequently picking loads at this packhouse, Nord was well aware that forklifts operated in the loading zone; (2) Nord knew that forklifts were dangerous machines that could injure a pedestrian; (3) Nord testified that he knew that it was a good safety practice to get the attention of a forklift operator when entering an area where a forklift was in operation before attempting to walk through that area and (4) Nord indicated that he could have taken an alternative route.
The six-justice majority concluded that, with appreciation of the danger, Nord voluntarily entered into a dangerous situation. Arguably, the most germane fact was that Nord failed to get the forklift operator’s attention despite Nord’s appreciation that the operator might not have known of Nord’s presence.
I must presume that we will see defendants rely on this opinion in future summary-judgment motions. There was evidence that the forklift operator was not looking backwards as he was backing up but the majority concentrated on Nord’s failure to get the operator’s attention, as opposed to taking an alternative route.
