Forklifts are used throughout Kansas in warehouses, by delivery companies, and at retail stores. Because Kansas is centrally located within the United States, shipping and delivery jobs are very common. This means interactions with forklifts, including potential harmful accidents involving the machines, are very common within the state. When an individual is harmed by a forklift, several questions can determine what the outcome will be.

What Types Of Laws Control Forklift Operation?
The safety requirements for operating a forklift are actually controlled by federal, rather than state, law. This might seem strange, as states are largely responsible for the safety of citizens and have the exclusive power to grant other licenses, such as a driver’s license or commercial driver’s license. However, the regulations relating to forklift operation come from the Occupational Health and Safety Act, commonly known as OSHA. OSHA has allowed the US Department of Labor to issue rules and regulations concerning forklift safety in the workplace. The most important of these comes in 29 C.F.R. 1910.178(k). This regulation requires that a forklift operator have a certificate showing he or she completed safety training. Unlike a driving test for a car, the government does not need to administer this test. Instead, the employer may use in-house employees with the necessary knowledge and experience or outside training companies that specialize in training. Additionally, these certificates are not directly “transferrable” like a driver’s license. Instead, an employee that believes he or she has the needed experience can be given a performance test in lieu of training. This test must be overseen and graded by a worker of the employer that is planning on hiring the applicant driver—there is no outsourcing for that position.

What Types Of Claims Arise From Forklift Accidents?
Two main bodies of claims exist in the context of forklift accidents: equipment error and operator error. A forklift must be manufactured so it is not unreasonably dangerous to the operator or those around the machine. When a machine contains a defect, and that defect leads to an individual being injured, the injured party has a claim under strict product liability. The defect can be an error in manufacturing the machine (missing a bolt or part), an error in designing the machine (the machine can tip over when carrying an unexpectedly low weight), or an error in warnings (failing to warn that the machine can tip over when turning sharply). In these instances, the manufacturer or seller of the machine would be liable for injuries caused.

The more common type of claim revolves around operating errors. When a forklift operator is using the machine, he or she must do so in a reasonable and careful manner. When the operator is careless and an individual is injured, the operator will be liable for those injuries. This is true so long as the carelessness, and not a superseding event, caused the injury. Thus, the forklift doesn’t have to collide with an individual to create liability. If the operator carelessly stacks pallets too high and they fall on someone, liability still exists. Under these claims, the employer of the operator will also likely be liable under a theory of law called respondeat superior. So long as the accident happened while the operator was acting under the course and scope of employment, e.g., on the clock, then the employer is also liable for injuries.

Can I Recover When The Forklift Accident Happens At Work?
When accidents happen to an employee at work, the first question that must be answered if whether worker’s compensation covers the injury. Worker’s compensation is a program that was developed to make it easier for injured employees to recover for on-the-job injuries. Every state has enacted a worker’s compensation program to achieve this goal, including Kansas, which passed the Kansas Worker’s Compensation Act (now at Section 44-501 et seq.). However, these acts are compromises between labor and management; this means that both sides have given up something to get what they wanted. For injured employees, this means strict limits on what damages are recoverable. In work comp cases, formulas are used to determine what amount an employee will be given and the judge (technically an administrative law judge) always hears matters—never a jury. The end result is that an employee is able to recover more easily, but what is available for recovery is severely limited.

What really makes worker’s compensation claims important to address is the rule of exclusivity. As part of the compromise of worker’s compensation, employers are protected against double liabilities: if worker’s compensation covers the injury, worker’s compensation is the exclusive remedy. The employee has no option to decline worker’s compensation and pursue a claim in court. To make matters worse, worker’s compensation is extremely broad and covers any and every injury “arising out of and in the course of employment.” This means that almost all injuries will fall under the umbrella of worker’s compensation. Two important exceptions under Kansas law are intentional actions taken by the employer to hurt the employee and the “dual capacity doctrine.”

The dual capacity doctrine is a bit difficult to describe, but essentially it involves an employer that is “wearing two hats” by employing the worker and serving a function traditionally held by a third-party. In Kimzey v. Interpace Corp., the employer manufactured rolled steel pipes that workers created using large rolling machines. When the maker of the rolling machine was going out of business, the employer purchased the company so it could keep buying machines. When a machine hurt the worker, the court allowed the worker to sue his employer because it had stepped into the role of manufacturer by buying up the company; the worker could have sued the manufacturing company had it survived, so he was also allowed to sue the employer since it was filling that role.

Forklifts can be dangerous when improperly made or driven. These large and industrial machines can cause very serious injuries. It is important to contact an attorney right away if you have been hurt by a forklift—whether you are an employee or simply a bystander. A capable and experienced attorney can answer the questions that you have about potential claims and help you get the redress you are entitled to.