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Are trainers liable?

Thursday, 19 Jul 2007 ( #319 ) - FARGO, ND, United States
News Story
There’s a heated debate raging in the Forums about trainer liability in forklift accidents, and US correspondent Roger Renstrom examines some of the issues.

Insufficient or inadequate operator training was an important issue in wrongful-death-related litigation stemming from the August 2000 fatality of Nola Olson, 30, a forklift operator for steel fabricator BDI Inc in Fargo.

On behalf of Olson’s parents, attorney Thomas J Conlin filed suit against dealer/lessor F-M Forklift Sales & Services Inc and original lessee Dahlgren & Co Inc in Cass County District Court in Fargo in 2002. North Dakota’s worker compensation law precluded suing the employer. Attorney Patrick Morley defended F-M and Dahlgren.

"The Toyota forklift had been manufactured with a seat belt, but it had been removed by the original purchaser/lessee of the forklift and not replaced before re-sale by the dealer," says Conlin. "One morning, Nola was bringing the forklift from the dirt/gravel yard, and, while making a turn, it tipped over, and the overhead guard crushed her as it came down."

Conlin sued F-M for selling a forklift without a seatbelt and Dahlgren for removing the seat belt and not replacing it. Dahlgren’s "lease with the dealer required that they return the forklift to the dealer post-lease with all original safety equipment intact," Conlin says. "Obviously, if a seat belt had been available and had been used, Nola would have remained inside of the protective cage instead of being thrown beneath the overhead guard."

F-M settled with Robert and Goldie Olson for a nominal amount before the start of a scheduled trial. Separately, in December 2005, a jury before Judge Cynthia Rothe-Seeger absolved Dahlgren of negligence without explaining the reasoning.

Morley says that Olson was trained to operate a hard-tyred forklift, but she was not trained to operate a soft-tyred forklift for outdoor operation. "The employer under OSHA (regulations) had an obligation to see she was trained."

Morley says the case "drove home to me that there are legal and regulatory requirements for anyone operating a forklift and being trained by an employer." Part of the training would be to make sure the forklift had a seat belt and that it was engaged before any operation began, he says.

Conlin believes the defendants "wished to blame Nola for her own death and also blame Nola’s employer for not training her, and so the forklift training she received came into question".

"Because Nola had received certification in a previous job, the question was whether she had been adequately trained, and hence we came to learn that the training course she received did not contain all the OSHA-mandated provisions, especially the performance review. In other words, she was given her forklift certificate without the trainer ever observing her operate a forklift."

In the Olson case, Conlin retained expert witness Joe Monaco, president of Martinsville, New Jersey-based Monaco Group Inc, which runs the National Lift Truck Operator Registry including forklift operator training.

Speaking in generalities, Monaco says that suitable training programs for forklift truck operators are "qualitatively much different than the brand-X training process" involving classroom training, videotapes and written tests. "None (of those methods) confers the severity related to injury from forklift trucks."

Monaco stresses that training is effective if a front-line supervisor conducts content-valid performance tests to verify that a transfer of new on-the-job skills has occurred to the operator. "If an operator does not pass, the supervisor is responsible for helping them learn," he says.

A trainer needs to know how to school an operator and provide analysis for a specific forklift job such as loading or unloading "trucks full of electronic components or boxes of shampoo or cosmetics," he adds. A trainer "should be able to do this analysis with precision."

"There should be a lot less passive classroom instruction offered to operators" and more on-the-job forklift practice, he says.

Another advisor believes OSHA regulations have made a difference for forklift users since being implemented in 1999. Previously, "we did not have specific training required—all specific to vehicles—and we never had refresher intervals," says W. Garland Hanson, principal consultant with Atlantic Safety LLC of Midlothian, Virginia. About one-third of Hanson’s business involves training, with a significant portion dealing with forklifts.

Hanson encourages employers with inhouse training capability to have the experience to perform evaluations, properly insure the operations and follow-up in checking references of operator candidates.
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