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McMahon v. F & C Material Handling, Inc.

Court of Appeals of Kentucky

April 5, 2019

WILLIAM MCMAHON APPELLANT
v.
F & C MATERIAL HANDLING, INC., d/b/a KENTUCKIANA MATERIAL HANDLING APPELLEE

          APPEAL FROM SIMPSON CIRCUIT COURT HONORABLE JANET J. CROCKER, JUDGE ACTION NO. 09-CI-00452

          BRIEFS FOR APPELLANT: Craig Housman Paducah, Kentucky James A. Harris, Jr. Paducah, Kentucky

          BRIEF FOR APPELLEE: Beth A. Lochmiller Andrew T. Garverich Elizabethtown, Kentucky

          BEFORE: DIXON AND LAMBERT, JUDGES; HENRY, [1] SPECIAL JUDGE.

          OPINION

          LAMBERT, JUDGE

         William McMahon appeals from the Simpson Circuit Court order granting summary judgment to F & C Material Handling, Inc., doing business as Kentuckiana Material Handling (KMH).[2] He argues that summary judgment was improper because privity of contract was not required for him to recover and that there were genuine issues of material fact that should have been decided by a jury. We reverse and remand for trial on the issue of negligence.

         On December 1, 2008, McMahon was injured at his place of employment, the Walmart Supercenter in Franklin, Kentucky. We repeat the circuit court's summary of facts relating to McMahon's injury:

McMahon was 22 years old when he was hired by Store No. 282 [Walmart Supercenter] on August 25, 2008. He was paid minimum wage and was assigned to second shift - 4:00 p.m. to 1:00 [a.]m. - as an "unloader." His general job duties required him to unload trucks, take freight out to the store floor, and put up freight. He was trained to use the unloading equipment, which included an electric floor jack that was used to offload palletized merchandise. He maintains that it was necessary to walk backwards when unloading a truck with the electric pallet in order to monitor the pallet, periodically checking the pathway behind him. There is contrasting testimony that he should have operated the electric jack facing forward.
. . . . It is not disputed that the injury occurred on the right-hand interior dock, hereinafter referred to as "dock #2." That dock is denoted externally with what appears to be the words WAL-MART GM spray painted on the dock door. According to McMahon, "GM" referred to general merchandise. The word "Grocery" is denoted on the left-hand exterior dock door.
On December 1, 2008, which the Court notes would have been the Monday following "Black Friday" of the 2008 Christmas season, McMahon had previously unloaded a "GM" truck at dock #2, which entailed engaging the dock leveler and then positioning a roller conveyor belt inside the truck to move the boxes into the receiving area. Although the dock leveler should remain in place if the "hold-down" mechanism is functioning properly, the weight of the conveyor belt would have held the dock plate in place even if the hold-down mechanism was not functioning properly. He then removed the conveyor belt, leaving the dock leveler in place, and began unloading a truck of palletized frozen products with the use of the electric floor jack.
Walmart video surveillance establishes that during that process the dock plate did not stay in place, but rather gradually lifted or "creeped" up on its own five (5) times while McMahon was moving in and out of the back of the truck. As that occurred, other employees and the truck driver (on one occasion) "walked" the dock plate back down level with the trailer. However, on the fifth occurrence, while moving backwards McMahon pinned his right leg between the electric pallet and the dock plate, crushing his femur which subsequently resulted in amputation above the knee.

         McMahon sought redress for his injuries by suit filed on November 30, 2009. His initial complaint was filed against the manufacturer of the dock leveler (4Front) under a product liability theory, and KMH for negligent repair of the dock leveler. Claims Management, Inc. (as subrogee and third-party administrator of Walmart Stores, Inc.) filed as intervening plaintiff. McMahon amended his complaint to include BCI for improper coordination between Walmart and KMH for the repair. In 2014, a third-party complaint was brought by BCI and KMH against Overhead Door Company and Warehouse Equipment and Supply Company, Inc.; there were also cross-claims for apportionment. The only remaining parties to this appeal are McMahon and KMH. The relationship between these parties is described by the circuit court:

The defendant, Bid Central, Inc. d/b/a BCI and BCI Management Group ("BCI"), is a construction and maintenance management firm located in Conway, Arkansas. At the time of McMahon's accident, BCI dispatched repair services for Walmart Stores in 30 states across the country under a contractual arrangement with Walmart corporate operations located in Bentonville, Arkansas. BCI in turn contracted with regional service providers, such as the defendant, F&C Material Handling, Inc., d/b/a Kentuckiana Material Handling ("KMH"). KMH specializes in the service and repair of loading docks and doors.

         There is no dispute that BCI had dispatched KMH to Walmart Supercenter Store No. 282 within weeks before McMahon's injury (following Walmart's November 3 and November 10 calls for repairs) and that KMH's employee had made repairs to the dock leveler at a different dock (i.e., not the specific site of McMahon's injury) on November 6 and 11, 2008. The controverted testimony and evidence concern whether KMH had attempted to repair the dock leveler that caused McMahon's injury, whether KMH had a duty to investigate and repair the remaining docks at the loading area, and what information was passed along from Walmart to BCI and in turn from BCI to KMH. McMahon insists, as he did in the circuit court, ...


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