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Want To Rent a Forklift? No Problem!


Anyone who has ever rented a car knows that there are lots of requirements–you have to be 25, you have to have a valid driver’s license, you have to either purchase insurance or initial a laundry list of waivers.  And so on, and so on.

Apparently, it’s much easier to rent a forklift.

In a recent Appeals Court decision, Vintimilla v. National Lumber Co., the court refused to impose liability on a corporation that leased a forklift to a construction company without checking to see that any of the company’s employees had a license to operate the machine.  And sure enough, none of them did.  The plaintiff was an employee of the construction company who was severely injured, allegedly by the negligence of an unlicensed operator.

The plaintiff sued the lessor, National Lumber Company, for negligent entrustment.  Among the undisputed facts were that National Lumber had no idea whether any of the employees of the lessee, Vermont Construction Company, had a license to operate the forklift, or whether they had any training or competence in this area.  National Lumber further knew that Vermont Construction had been cited in the past for OHSA violations, but did not know the specific nature of the violations.  National Lumber provided an instruction manual for the machine but no other training, warning or instruction.

The plaintiff was injured when he fell 35 feet to the ground while standing on the forks of the machine, which was being operated by an unlicensed co-employee.  Stymied by the worker’s compensation bar, he sought other responsible parties, and quickly focused on the lessor, National Lumber.  But the Appeals Court affirmed the trial court’s grant of summary judgment, finding that the lessor had no duty to insure that the lessee had personnel qualified to operate the machine.

In a typically cogent and well-reasoned dissent, Judge Agnes argues that, given the potential and foreseeable danger from the operation of a forklift by an untrained and unlicensed operator, it would be reasonable to impose upon the lessor the obligation to check to make sure that the lessee or an employee was properly licensed before turning over the machine.  Noting that a forklift is considered a “dangerous instrumentality,” Judge Agnes reviewed the various applicable statutes and regulations and concluded that there was a clear public policy supporting the imposition of a requirement that the lessor check licenses, and no decisional law to the contrary.  He found nothing too cumbersome in requiring lessors to check licenses, particularly in view of the potential danger.

Clearly, Judge Agnes has the better of this argument.  Perhaps the Supreme Judicial Court will grant further appellate review in this case, which has important safety ramifications for workers.

Read the Appeals Court’s decision in Vintamilla v. National Lumber here.

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