Trial Magazine

Aerial boom lifts are commonly used on construction sites, but they have a potentially deadly defect that many manufacturers and equipment rental companies have failed to address—even though a fix has been available for years.

On Jan. 17, 2000, Robert Chismer, a construction worker in Alachua County, Fla., was found crushed between his aerial boom lift’s platform controls and a sprinkler pipe. The medical examiner ruled that the cause of death was compression asphyxiation.¹ Since that time, workers have continued to die or suffer life-threatening injuries in boom lift crushes, despite the existence of a safety guard that could prevent workers from being trapped between their lifts and unseen obstructions.

Aerial boom lifts (also called mobile elevating work platforms) are used frequently to place workers at height instead of ladders and scaffolding. They are motorized platforms with buckets that are elevated through an extending arm, which can be straight or articulated. In regular use, boom lift operators begin in a stowed or driving position, and the operator faces a control panel and looks down the boom to the chassis in front.

To move, operators elevate the platform by increasing their boom angle and extending their boom. While doing this, they continue to face their control panel. As a result, their backs are to the area toward which their platforms and bodies are moving. If they turn around to face that area, they must take their eyes off the controls.

Operators are trained to move slowly when approaching overhead structures, alternately looking forward at the control panel and backward at the structure they are approaching. This places operators at risk for striking their heads or backs against an overhead obstruction, such as a support beam.

When this contact occurs with enough force, the operator’s torso can be pressed into the controller, which may continue to move the lift or drive the joysticks, causing the boom to continuously push the worker into the obstruction. And the operator cannot reach the emergency stop button on the control panel, which is blocked by his or her own torso.

Industry Response

Worker safety agencies began taking note of this hazard in the mid-2000s. In 2005, following another fatality, England’s Health and Safety Executive (HSE), similar to the U.S. Occupational Safety and Health Administration, issued a press release advising manufacturers to redesign controls that were susceptible to sustained involuntary operation.² In April 2008, a major European construction contractor, Balfour Beatty, documented the hazard and recommended that contractors use controllers with smart barrier guards.³ In August 2008, the HSE published a construction information sheet that acknowledged the danger of boom lift crushes caused by sustained involuntary operation and recommended using lifts “with shrouded or otherwise protected controls.”⁴

With evidence mounting of the hazard’s seriousness, manufacturers began developing more advanced protective systems. In 2009, Niftylift devised a Sustained Involuntary Operation Prevention System (SiOPS) to combat the problem. The crush ­countermeasure worked by redesigning the control panel so that the controller joysticks were recessed and a horizontal bar was installed between the operator and the panel. In addition, pressure on the cross bar activated a green button on the control panel. The cross bar keeps the worker’s torso off the control panel and allows the right hand to reach the button to override the boom lift’s movement. The system would then move the platform away from the overhead obstacle.⁵ Niftylift’s SiOPS was identified by multiple sources as an industry best practice.⁶

Between 2012 and 2014, all of the major boom lift manufacturers began introducing some version of an operator crush countermeasure.⁷ Devices such as JLG’s SkyGuard feature a proximity warning device, a cross-arm controller guard, and an automatic override of the controller functions to stop the boom lift from sustained movement into the obstruction.⁸

In April 2012, a leading trade journal, Lift & Access magazine, published an article that identified several different “anti-crushing devices (ACDs)” that could be installed between the operator and controller to eliminate the entrapment hazard.⁹ Jeff Stachowiak, national safety training director for Sunbelt Rentals and vice president of the Scaffold & Access Industry Association, said it is only a matter of time before the entire industry will have to use ACDs.¹⁰

Bringing a Case

Manufacturers continue to offer these devices as optional equipment,¹¹ and rental companies still rent boom lifts without anti-crush technology. Most alarming, rental companies are not routinely steering customers to boom lifts with smart barrier guards, even when they know their customers will be working near overhead obstructions. They install the devices only if a customer specifically requests it.

The myth persists that because construction contractors know best what hazards exist on their own work sites and what tools they want to use, they are in the best position to decide whether they want smart barrier guards for a particular job. But that does not absolve manufacturers and rental companies of responsibility when someone is injured.

The aerial lift rental industry’s position is that its responsibilities are limited to merely dropping off equipment in good working order and collecting rental fees. They refuse to ask three questions that are the standard of care in the broader equipment rental industry:

• What are you using this equipment for? 
• Who is going to operate it?
• Is he or she trained to operate the equipment?

As long as rental companies refuse to ask these questions and refuse to take leadership in recommending new safety devices based on their customers’ anticipated work environments, the death toll will mount.

Is this a case? If your client died or suffered internal injuries from being crushed between a boom lift controller and an overhead obstruction, you have a case. Any case within your state’s statute of limitations is a good case.

Negligence or strict products liability? You can pursue these cases either in negligence or as product defect claims. Negligence claims against rental companies are based on either negligent entrustment or failing to provide the right tool for the job. When a rental company delivers a boom lift to a job site without confirming that the operator has ­undergone aerial lift certification training, it has negligently entrusted the equipment. When the rental company knows or has reason to know that the boom lift will be operated in an environment with overhead obstructions but chooses not to equip the boom lift with a smart barrier guard, it has failed to provide the right tool for the job.

The rental company, based on industry practice, should ask the customer about the intended use and environment for the lift. But it may already know this information because of its familiarity with the type of work the customer generally performs, such as being a bridge contractor, or because the delivery driver saw the worksite at the time of delivery.

The downside of pursuing these claims as negligence actions against the equipment dealer is that the operator’s comparative or contributory fault is admissible.¹² Defense counsel will inevitably ask every witness, including your experts, if it was the operator and only the operator who moved the controls that ran the platform into the obstruction. You can rebut this defense stance by focusing on how we expect more from experts. Contrast the manufacturers and rental companies, who are experts in these machines, with the people who operate them—tradesmen who infrequently and rarely operate identical machines.

And when the operators receive no training, they aren’t even aware of what they don’t know. They have no tools to protect themselves from potentially dangerous machines. You also can make a technical argument under American National Standards Institute standard A92.5-2006 (Boom-Supported Elevating Work Platforms) that workers who operate without training are not “operators” and cannot be held to the duties of operators in §8 of the standard, which outlines the responsibilities of operators.¹³

Rental companies will also deny any responsibility to ensure that each operator is properly certified, contending instead that their only responsibility was to familiarize a designated customer representative with any unusual features on the machine.

Alternatively, you can consider a product defect claim that manufacturers have made safety optional when they offer smart barrier guards without making them standard features. Armed with plenty of other similar incidents, an ­understanding of the mechanism of injury, industry literature documenting the risk, and effective design fixes dating back to 2009, your tool kit should be robust as you approach these cases.

Even with other similar incidents and good alternative designs, a strict liability claim poses challenges. You may run into a statute of repose defense depending on the boom lift’s date of manufacture, or the boom lift may predate the 2009 innovations. Defendants may argue that ANSI A92.5 does not require any devices or systems specifically addressing the operator crush hazard. Manufacturers also will say that their manuals directly address overhead obstructions, so an operator’s failure to protect against entrapment is product misuse. And they undoubtedly will argue that, statistically, the risk of operator crush is de minimis.

Punitive damages. You might also consider a claim for punitive damages. You may reasonably argue that because this hazard has been documented back to 2000 and design fixes have existed since 2009, it is manifestly reckless for a rental company to deliver a boom lift to a job with overhead obstructions unless that boom lift is equipped with a crush ­countermeasure. While the hazard does not occur frequently, the consequences are severe when it does: death or permanent disability. At least one court has approved a claim for punitive damages against United Rentals on this basis.¹⁴

Experts. I use experts in construction equipment training practices, human factors, mechanical engineering, and biomechanical engineering. The training expert talks about how to train workers to safely operate construction machinery. The human factors expert addresses the hazard, the safety hierarchy, and the fact that construction tradesmen are not operators first—they are tradesmen first, so they are not professional aerial lift operators.

The mechanical engineer explains how the machine works, how these crushes can occur mechanically, and the design fix. The biomechanical engineer explains operator body positioning and what happens to the body internally during this type of crush.

Discovery. Discovery from the rental company and the manufacturer should focus on what they knew and when they knew it. The key questions are: When did they learn of the crush hazard risk? What did they do once they learned of it? It is important to establish that they are unaware of incidents or injuries occurring when the boom lift was fitted with a smart barrier guard and that the addition of these systems to the equipment does not appreciably raise the cost of a boom lift rental.

Until manufacturers and rental companies are held accountable for failing to protect workers from the boom lift entrapment hazard, more people will be injured or killed. Plaintiff attorneys can lead the way by recognizing when these cases happen and representing these workers.

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David L. Kwass is an attorney with Saltz Mongeluzzi Barrett & Bandesky in Philadelphia. He can be reached at dkwass@smbb.com.

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Notes

1. U.S. Dep’t of Labor, Occupational Safety & Health Admin., Investigation Summary No. 201350899. OSHA-36 Establishment Name, Fire Protection Systems, Inc. Inspection No. 302735469. Event date 01/17/00. The AAJ Crane and Aerial Lift Litigation Group maintains a database of boom lift crush incidents dating from 2000 to the present.
2. Health & Safety Exec., Mobile Elevated Work Platform (MEWP) Incident Analysis, Research Report 961, at 1 (Jan. 2013).
3. Balfour Beatty, Policy & Background Information—Procurement & Operation of MEWPs (Apr. 2008).
4. Health & Safety Exec., The Selection and Management of Mobile Elevating Work Platforms 3 (Aug. 2008).
5. SiOPS—Sustained Involuntary Operation Prevention System, www.niftylift.com/uk/news/focus-on/siops.
6. On Mar. 19, 2010, Balfour Beatty identified the Niftylift SiOPS as an industry best practice. On Mar. 26, 2010, Niftylift won the International Awards for Powered Access award for “Contribution to Safe Working at Height-Manufacturer.” On May 11, 2010, Niftylift won the Hire and Rental Industry Association award for SiOPS. And on Nov. 8, 2010, Niftylift’s SiOPS took the “Platinum” award at the Leadership in Lifting Equipment and Aerial Platforms awards. See generally www.niftylift.com.
7. Lavendon Group introduced the SkySiren in November 2011. JLG followed almost immediately in December 2011 with its introduction of the SkyGuard.
8. JLG, SkyGuard Product Bulletin, www.jlg.com/en/destination/skyguard. Significantly, the Skyguard is now standard equipment on all new JLG boom lifts and is available to retrofit most JLG boom lifts manufactured after 2004.
9. Guy Ramsey, Anti-Crushing Devices on Boom Lifts Brought to Forefront This Spring, Lift & Access (Apr. 12, 2012).
10. Id.
11. JLG recently made this a standard feature.
12. See, e.g., Woolard v. JLG Indus., Inc., 210 F.3d 1158 (10th Cir. 2000); Magoffe v. JLG Indus., Inc., 2008 WL 2967653, at *28 (D.N.M. May 7, 2008).
13. Am. Nat’l. Standards Inst., American National Standard—Boom-Supported Elevating Work Platforms, ANSI/SIA A92.5-2006 (Feb. 26, 2006). For more on these standards and rental company liability, see David L. Kwass, Dealing in Dangers, Trial 36 (Apr. 2014).
14. Order, Mann v. United Rentals, No. GD-15-10492 (Allegheny Ct. Com. Pleas Dec. 29, 2016).