Continued
from page 2
A There was no persuasive evidence that Mr. Stadtherr
suffered any physical injury before he was crushed and instantly
killed on impact with the ceiling, and therefore, under Kansas
law there was no evidence to support a survival claim for post-impact
conscious pain and suffering and defendant argued that Kansas
law does not allow claims for pre-impact emotional distress (see
article below) for Mr. Stadtherr’s estate. Plaintiffs’
evidence was that decedent’s lost future earnings amounted
to approximately $500,000, his family’s claim for lost services
was approximately $250,000, and the remaining $1,050,000 was paid
for economic damages for the loss of the decedent’s services,
attention, protection, training, and guidance as described in
Wentling v. Medical Anesthesia Services, 237 Kan. 503 (1985).
|
Standards
for Work Platforms on Forklifts
ASME-B 56.1-2000 |
In the
Stadtherr case reported in this issue, one of the contested
issues was whether the work platform attached to the forklift
met safe industry standards. The American Society of Mechanical
Engineers has published ASME-B 56.1-2000 safety standards
for low lift and high lift trucks including standards
for the use of work platforms on forklifts. The standards
set forth the requirements for many aspects of safe powered
industrial truck use including: |
• Section 4.17.3 requires that the work platform comply
with the design requirements in Section 7.36.3. Work platform
must have:
– Slip-resistant floor;
– Minimum floor space of stated size;
– Protection for personnel in the work platform;
– Means for securing the personnel in the work platform;
and
–Perimeters for guardrails and
guarding.
|
• Platform must be securely attached to the lifting
carriage or forks;
• The platform is horizontal and centered;
• All controls on the truck are placed in neutral
and the parking brake set;
• Before elevating personnel, mark area with safety
warning devices;
• While personnel are elevated, move the truck only
for minor adjustments in horizontal positioning; and
• Have a trained operator controlling the truck. |
| Plaintiffs’ evidence
in the Stadtherr case was that the work platform (pictured
on page 2) did not meet many of the B 56.1 standards. |
|
| The modern trend in a majority of
states is to allow claims for conscious pre-fatal injury and mental
anguish resulting from the apprehension of impending death, even
without corresponding physical injury. Kansas legal precedents have
not resolved the issue; however, a federal court interpreting Kansas
law predicted that Kansas would not recognize a claim for negligently
induced pre impact mental anguish, not itself resulting in physical
injury, notwithstanding that the accident causes death. Fogarty
v. Campell’s 66 Express, Inc., 640 F. Supp. 953, 956 (D.
Kan. 1986). The Kansas Supreme Court declined to address whether
Kansas would recognize pre-impact |
emotional distress claims without
accompanying physical injury in St. Clair v. Deny, 245
Kan. 414 (1989). Since Fogarty was decided 16 years ago,
a number of the authorities relied on by the Fogarty
court have been reversed and additional jurisdictions have recognized
these claims. This article suggests Kansas would join the majority
view which allows claims for pre-impact fright and emotional distress
damages
In the Stadtherr case (see page 2), evidence
showed that Bill Stadtherr suffered fear and mental anguish from
his impending death as he was raised up into the ceiling, but
he was helpless to do anything to save himself. Hesuffered fear
fo death and emotional distress, but |
there was not persuasive evidence
that he suffered any physical injury before his death.
In
a case where the decedent experienced mental anguish resulting
from the fear of impending death, but not physical injury prior
to an accident causing immediate death, it is an open question
in Kansas whether a decedent’s estate can pursue a survival
claim for the pre-death emotional distress. Faced with this situation,
there are two theories of recovery to pursue. First, Kansas law
allows recovery for emotional distress injuries without physical
injury when the defendant is guilty of reckless or wanton conduct.
Roberts v. Saylor,
CONTINUED
ON PAGE 7 |
