Filed: May 06, 2009
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-1755 DAVID ERROL WERT, Plaintiff - Appellant, v. JEFFERDS CORPORATION, d/b/a Homestead Materials Handling Company, Defendant - Appellee. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Samuel G. Wilson, District Judge. (7:07-cv-00053-sgw-mfu) Argued: March 26, 2009 Decided: May 6, 2009 Before MOTZ and AGEE, Circuit Judges, and Thomas D. SCHROEDER, United States District Judge f
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-1755 DAVID ERROL WERT, Plaintiff - Appellant, v. JEFFERDS CORPORATION, d/b/a Homestead Materials Handling Company, Defendant - Appellee. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Samuel G. Wilson, District Judge. (7:07-cv-00053-sgw-mfu) Argued: March 26, 2009 Decided: May 6, 2009 Before MOTZ and AGEE, Circuit Judges, and Thomas D. SCHROEDER, United States District Judge fo..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1755
DAVID ERROL WERT,
Plaintiff - Appellant,
v.
JEFFERDS CORPORATION, d/b/a Homestead Materials Handling
Company,
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Samuel G. Wilson, District
Judge. (7:07-cv-00053-sgw-mfu)
Argued: March 26, 2009 Decided: May 6, 2009
Before MOTZ and AGEE, Circuit Judges, and Thomas D. SCHROEDER,
United States District Judge for the Middle District of North
Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Steven D. Smith, HAGA & RHODES, PLC, Christiansburg,
Virginia, for Appellant. Joy Lee Price, CASKIE & FROST,
Lynchburg, Virginia, for Appellee. ON BRIEF: Pavlina B. Dirom,
CASKIE & FROST, Lynchburg, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In this personal injury action, David Wert appeals from the
grant of summary judgment to Jefferds Corporation, the lessor of
a forklift that caused Wert serious injury. We affirm.
I.
Jefferds leases forklifts to Wert’s employer, Yokohama Tire
Company. At all relevant times, Jefferds bore responsibility
for periodically inspecting and maintaining the forklifts. * To
that end, Thomas Spence, an employee of Jefferds, serviced the
forklifts on Yokohama’s property. The inspection and
maintenance included servicing of strobe lights, which operate
when the forklifts are in use, and alarms, which sound when the
forklifts are in reverse. Yokohama employees, however, found
the reverse alarms and strobe lights irritating and so routinely
disabled them.
On February 26, 2005, a Yokohama employee backed a forklift
over Wert’s left foot crushing all of its major bones. Wert did
not see any strobe lights or hear any reverse alarm on the
forklift, which would have warned him of its approach.
*
It appears that Jefferds and Yokohama did not have a
written contract in effect at the time of Wert’s accident. But
because the parameters of any contract (written or oral) do not
affect the resolution of this appeal, we need not determine the
terms of any possible contract.
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Moreover, Wert’s expert concluded that the strobe lights and
reverse alarm were disconnected from their power source at the
time of the accident. All parties agree that Spence performed
the scheduled preventative maintenance for the forklift in
question on February 18, 2005, eight days before the accident.
Seeking compensation for his injuries, Wert brought this
action against Jefferds. The district court rejected all of
Wert’s theories of liability and granted summary judgment to
Jefferds. Wert timely appeals, contesting the grant of summary
judgment with respect to only one claim -- common law
negligence.
II.
We review de novo a district court’s grant of summary
judgment, viewing the facts in the light most favorable to the
nonmoving party. Colgan Air, Inc. v. Raytheon Aircraft Co., 507
F.3d 270, 275 (4th Cir. 2007). As the site of the accident,
Virginia law governs this case.
Id. Moreover, in determining
whether the district court erred in granting Jefferds summary
judgment, we may only consider the materials presented to the
court at the time it ruled on that motion. Harrods Ltd. v.
Sixty Internet Domain Names,
302 F.3d 214, 242 (4th Cir. 2002).
Finally, in order to prevail on a negligence claim, a plaintiff
like Wert must offer evidence from which a jury could conclude
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that the defendant -- Jefferds -- owed him a legal duty, which
it breached. Atrium Unit Owners Ass’n v. King, 585 S.E.2d 545,
548 (Va. 2003). With these principles in mind, we turn to the
case at hand.
III.
Wert initially contends that the district court erred in
holding, “as a matter of law, that plaintiff was barred from a
common law negligence claim because plaintiff David Wert was not
in privity of contract with defendant Jefferds.” Brief of
Appellant at 8. The district court, however, never held that
the lack of privity barred a negligence action. Rather the
court held that (1) the only duty Jefferds possibly owed Wert
arose from contract and (2) any such contractual duty could not
give rise to recovery in negligence. The district court
certainly did not err with respect to the second point. Well-
established Virginia law holds that a duty that arises solely
from a contract can only provide the basis for a contract claim;
it cannot provide the basis for a negligence claim. Richmond
Metro. Auth. v. McDevitt St. Bovis, Inc., 507 S.E.2d 344, 347
(Va. 1998).
The district court’s initial conclusion -- that the only
duty possibly owed by Jefferds to Wert sounded in contract --
requires a bit more analysis. This analysis also addresses
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Wert’s central contention: that he has presented facts
sufficient for a jury to conclude that Jefferds breached some
sort of common law, non-contractual duty.
Wert first argues that Jefferds had some non-contractual
ongoing general duty to inspect the forklifts. Wert points to
no authority for such a proposition, and common sense dictates
that, absent a contractual obligation, a company that leases or
repairs equipment owes no ongoing duty of inspection.
Alternatively, Wert contends that, once Jefferds undertook
to service the forklift on February 18, that undertaking created
a duty to repair the vehicle in a reasonable manner. No
Virginia case explicitly recognizes such a duty, but even if we
assume Jefferds owed Wert a duty of reasonable repair, Wert
cannot prevail. For, in order to avoid summary judgment, Wert
must offer evidence from which a jury could conclude that
Jefferds breached this duty. Wert attempts to do this by
asserting that Jefferds (1) failed to assure that an alarm was
installed on the forklift at the time of the accident and/or (2)
inadequately serviced the reverse alarm and strobe lights.
Wert’s first repair argument fails because prior to the
grant of summary judgment, Wert offered no evidence that the
forklift did not have a reverse alarm. Although Spence
testified at deposition that he often replaced reverse alarms on
forklifts, this evidence does not provide any information about
5
the state of the reverse alarm on the particular forklift at
issue.
To support his second repair argument, Wert primarily
relies on the absence of a checkmark next to the item
“pedestrian warning devices” on a February 18, 2005 service
maintenance log and purported inconsistencies in Spence’s
deposition testimony as to whether he inspected the reverse
alarm and strobe lights on that date. In fact, at deposition,
Spence explained that he indicated the functioning of the
reverse alarm and strobe lights by putting a checkmark next to
the category “operation of accessories” (and not “pedestrian
warning devices”) on the service maintenance log. On the
February 18 log, a checkmark in the first column next to
“operation of accessories” indicates that Spence found that the
“accessories” on the relevant forklift were “O.K.” on that day.
Spence also testified that if there had been a problem with the
reverse alarm or the strobe lights he would have issued a work
order for them, and that he did not do that.
Wert provides no evidence to support his contention that
the strobe lights or reverse alarm were, in fact, included in
the category “pedestrian warning devices.” Instead, Wert relies
on certain arguably contradictory deposition statements by
Spence explaining why some items on the maintenance log lack a
checkmark. Although this part of Spence’s deposition is
6
slightly confusing, it is also irrelevant. Spence testified
consistently that the inspection of the reverse alarm and strobe
lights was included within “operation of accessories,” an item
clearly checked as “O.K.” Indeed, Wert’s attorney effectively
conceded in the district court that Spence had adequately
inspected and repaired the forklift when counsel agreed that
eight days before Wert’s accident Jefferds (through Spence) had
“fixed it.”
Wert’s expert report similarly creates no jury issue as to
breach of duty. The expert essentially stated that a reverse
alarm could have prevented the accident and that Spence should
have noticed a broken reverse alarm or strobe light. Although
perhaps accurate, this opinion provides no information about the
reasonableness or effectiveness of Spence’s servicing on
February 18, because it does not contain any information about
the state of the alarm or lights when Spence returned the
forklift to Yokohama. Wert’s expert appears to assume that
Jefferds had a duty of ongoing inspection, which, as discussed
above, does not exist at common law.
Finally, Wert suggests Jefferds breached its duty of proper
repair by not “fixing” the forklift to render it tamper-
resistant. This argument fails for two reasons, both of which
the district court identified. First, Wert offered no evidence
that Jefferds “fixed” the reverse alarm or strobe lights at all.
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In fact, no record evidence indicates the reverse alarm and
strobe lights needed repair on February 18; rather a checkmark
identified them as “O.K.” Second, uncontroverted evidence
indicates that Spence generally repaired reverse alarms and
strobe lights with butt connectors, which restore the wiring to
its original strength. Absent a contractual agreement to do
otherwise, returning the forklift to its “normal, working
condition” does not breach any duty of repair. Baker v.
Poolservice Co., 636 S.E.2d 360, 365 (Va. 2006). Thus the
record contains no evidence supporting a breach of duty.
IV.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
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