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Billings v. Lowe's Home Centers, LLC

United States District Court, S.D. West Virginia

April 24, 2019




         Pending are defendant Lowe's Home Centers, LLC's (Lowe's) motions for partial summary judgment as to punitive damages and future damages, each filed February 11, 2019.

         I. Background

         On September 13, 2017, plaintiff Christopher Billings, a West Virginia resident and delivery driver for Wood Plus Hardwood Flooring, LLC, was working as a vendor in Lowe's Fayetteville, West Virginia location. Compl., ECF No. 1, at ¶¶ 1, 6, 8. Lowe's is a limited liability company which is principally located in North Carolina. Id. ¶ 3.

         On that date, plaintiff arrived at Lowe's in Fayetteville, West Virginia to pick up merchandise that was to be returned to Wood Plus. Pl.'s Dep., ECF No. 57-5, at p. 86. A Lowe's employee, Otis Underwood, offered to shift the load already in plaintiff's truck so that Wood Plus's merchandise could be loaded. Underwood Dep., ECF No. 57-3, at p. 131-32. Mr. Underwood checked out a Moffett forklift, which he then used to shift the load on plaintiff's truck. Id. at 131-33. While operating the forklift, Mr. Underwood ran over the plaintiff's foot. Id. at 133-34.

         Mr. Underwood stated that plaintiff moved into the line of travel of the forklift before he had time to react and prevent the wheel from rolling onto the plaintiff's foot. Id. at 134. Mr. Underwood also claimed that plaintiff told him after the incident that plaintiff thought it was more his own fault than Mr. Underwood's. Id. While plaintiff disagreed with this particular portion of Mr. Underwood's testimony, he did note that they both should have been more careful. Pl.'s Dep., ECF No. 57-5, at 87. This opinion was seconded by plaintiff's expert, Nick Barta, who stated that he “wouldn't have done what either of those people did, ” referring to Mr. Underwood and plaintiff's actions that led to the plaintiff's foot being run over. Barta Dep., ECF No. 72-5, at p. 38.

         After the incident, the plaintiff did not fill out an incident report with Lowe's, although Mr. Underwood and plaintiff disagree as to whether Mr. Underwood offered the plaintiff that opportunity. Pl.'s Dep., ECF No. 57-5, at p. 87; Underwood Dep., ECF No. 57-3, at p. 50. Mr. Underwood never reported the incident to Lowe's. Underwood Dep., ECF No. 57-3, at p. 50. Resultant of his failure to report the incident, Mr. Underwood's employment was terminated after plaintiff filed a report with Lowe's over the telephone a week later, on September 20, 2017. Pl.'s Dep., ECF No. 57-5, at p. 93-94; Underwood Dep., ECF No. 57-3, at p. 50.

         At the time of the incident, Mr. Underwood had been an employee of Lowe's for over seven years and had worked in several different capacities. Underwood Dep., ECF No. 57-3, at p. 13. Mr. Underwood was at the time of the accident employed as a return to manufacturers (“RTM”) clerk. Id. Over the course of his employment, Mr. Underwood had undergone extensive training on various power equipment including training on the Moffett in 2013, training on a counterbalance forklift in 2017 and powered equipment trainings in 2014 and 2017. See Underwood's Learning History, ECF No. 57-8. The Moffett forklift is a truck mounted forklift which differs from the counterbalance forklift in the sense that the Moffett has a reach mechanism, may be loaded onto a truck, and can be used on uneven terrain. It also appears that there is no meaningful distinction between how the Moffett and counterbalance forklifts are operated on a flat surface. See Barta Dep., ECF No. 57-12, at p. 19-20; 115-16 (noting that “the basic operating procedures of a forklift are pretty similar”); McNeeley Dep. 57-10, at p. 55.

         Mr. Underwood noted that he was also tasked with training other employees on the use of several pieces of power equipment, including the Moffett. Underwood's Dep., ECF No. 57-3, at p. 39-40. Mr. Underwood's supervisor, however, stated that to the best of his knowledge, Mr. Underwood was not asked to train anyone on the Moffett, but rather “was the trainer for our in-house power equipment; again, the counter-balance forklift, the narrow-aisle reach truck and the order picker.” McNeeley Dep., ECF No. 57-10, at 34.

         It is undisputed that, on the date of the incident, Mr. Underwood was not certified to operate the Moffett. RTM clerks were not expected to ever operate the Moffett forklift, and therefore, Lowe's did not require RTM clerks to receive training or recertification on its operation. Wysong Dep., ECF No. 57-11, at 55-56. Specifically, Mr. Underwood's supervisor stated that “based off of his job description, I would not expect him to be on the Moffett” and that to the best of his knowledge, he had never seen or heard of Mr. Underwood operating the Moffett. McNeeley Dep., ECF No. 57-10, at p. 34-35. Van Wysong, Lowe's Rule 30(b)(6) representative, however, was “absolutely” sure that Mr. Underwood “understood all the safety features and how to operate that piece of equipment.” Wysong Dep., ECF No. 72-3, at p. 42.

         Lowe's has a “Truck Loading and Unloading Safety Policy” which applies to all employees operating power equipment. ECF No. 66-5, Ex. E, at 1.[1] The policy states that power equipment operators must maintain a minimum distance of twenty feet from other people and ensure that truck drivers do not perform any truck preparation within twenty feet of an active unload area. Id. at 2. The equipment operator must also communicate these expectations to the truck driver. Id.

         While he was unable to recite the precise distance at which an equipment operator must remain from another person, Mr. Underwood did state his belief that Lowe's had a ten-foot policy. Underwood Dep., ECF No. 72-6, at p. 81-83. Mr. Underwood did admit, however, that he did not tell plaintiff to back away from the forklift while his truck was being loaded. Id. at p. 83-84.

         Plaintiff initiated this action in this court on January 12, 2018 pursuant to the court's diversity jurisdiction. See 28 U.S.C. § 1332. In the plaintiff's complaint, he asserts a single cause of action for negligence. Plaintiff claims he is entitled to future damages that have become necessary as a result of his injury. Compl., ECF No. 1, at 3. He also asserts a claim for punitive damages by stating: “Defendant Lowe's actions, through its failure to properly train its employees, including the safety coordinator operating the forklift at Lowe's where this incident occurred, was done in a wanton, willful, and/or reckless fashion, warranting the award of punitive damages to the Plaintiff.” Id. at ¶ 16.

         On February 11, 2019, Lowe's filed its motion for partial summary judgment as to future damages. ECF No. 59. Lowe's contends in this motion that it is entitled to summary judgment because plaintiff has provided neither an expert opinion that states with “reasonable certainty” that plaintiff will require any future medical treatment, nor “an expert that can testify about future lost wages, future lost earning capacity, or about any permanency related to his claimed injury.” Lowe's Mot., ECF No. 59, at 1-2.

         In plaintiff's response in opposition to Lowe's motion for partial summary judgment, he argues that none of plaintiff's medical records suggest that his injury was not genuine, and that the only “outstanding issue had been for doctors to diagnose Plaintiff's chronic condition, which has not [sic, now] been done with the records and report of Dr. Schopf. Dr. Schopf has opined that Plaintiff's [Complex Regional Pain Syndrome] CRPS is permanent and will impact him in the future.” Pl.'s Resp., ECF No. 69, at 7-8. Plaintiff further notes that his expert witness, Dr. Davis, has prepared a supplemental report incorporating Dr. Schopf's medical diagnosis of injury and its impact on plaintiff's future activities. Id. at 8. The plaintiff sought, on February 25, 2019, to introduce the testimony and report of Dr. Robert Schopf after the expiration of the expert disclosure, discovery and dispositive motions deadlines. ECF No. 71.

         Also beyond the expert disclosure deadline, the plaintiff moved, on March 6, 2019, to disclose Mr. Dan Selby, an economics expert who would testify as to the amount of future damages based on Dr. Davis's supplemental report. ECF No. 80, at 3-4. By companion order this day entered, the court precluded the use of Dr. Schopf's medical records or reports. Accordingly, the ...

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