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Stu Goldberg Successfully Represents Aerial Lift Manufacturer

8/8/25

Construction workers around an aerial liftStuart J. Goldberg, member of Eastman & Smith, obtained summary judgment for an aerial lift manufacturer sued in connection with the electrocution death of an electric sign service company’s employee.

The plaintiff’s decedent worked for a sign installation and service company. He was working alone on a clear, sunny day, when he got into and raised the basket of his employer’s aerial lift next to a Burger King sign near an intersection, where his task was to replace fluorescent bulbs with 10-foot-long LED light strips.

The aerial lift warned “THIS MACHINE IS NOT INSULATED – ELECTROCUTION HAZARD” and went on to say “YOU MUST MAINTAIN A CLEARANCE OF AT LEAST 10 FEET BETWEEN ANY PART OF THE CRANE, LOADLINE OR LOAD AND ANY ELECTRIC LINE…. DEATH OR SERIOUS INJURY WILL RESULT FROPM CONTACT OR INADEQUATE CLEARANCE.” In addition, OSHA required employers to keep all parts of this type of equipment, as well as conductive tools and users, at least 10 feet from energized power lines.

Plaintiff’s decedent positioned the aerial lift basket in a roughly 9.5-foot space between the Burger King sign and power lines. One side of the almost 6-foot-wide basket was within two feet of the power line, in clear violation of OSHA, the warnings on the lift and common sense. When plaintiff’s decedent manipulated a 10-foot light strip, he brought it in contact with an energized power line and the sign, resulting in his electrocution.

Defense counsel for the manufacturer filed a motion for summary judgment arguing that plaintiff assumed the risk of his death. Assumption of risk is an absolute defense to a product liability claim in Ohio pursuant to Ohio Revised Code 2307.711(B)(2). In support of that defense, defense counsel relied on the decedent’s wife’s deposition testimony. She was at the jobsite two days before the accident with her husband, when he did a “pre-job survey.” She described that when they spoke at the scene, her husband expressed concern that the space between the power lines and the sign was too tight, too close and dangerous. Defense counsel also argued the danger presented by the power lines was “open and obvious” under Ohio Revised Code 2307.76(B). In support of that argument, counsel submitted photos taken by decedent during his pre-job survey that showed the close proximity of the power lines to the sign. Beyond that, defense counsel was able to secure an admission from decedent’s surviving spouse that the danger of electrocution was “common sense.” Finally, defense counsel argued decedent’s failure to heed the manufacturer’s warning was the proximate cause of his injury and death.

Plaintiff opposed the motion, in part, relying on the testimony of an engineer who opined the aerial lift should have been equipped with a proximity warning device (PWD) to warn of the nearness of the energized power lines, or to stop the aerial lift from moving closer to the energized power lines. Defense counsel elicited testimony from the expert that:

  1. No manufacturer of aerial lifts produces lifts with a PWD to sense the proximity to power lines.
  2. The product manufacturer had no prior claims of a lift operator being electrocuted due to that operator positioning a basket in close proximity to an energized power line.
  3. Despite actual written warnings to keep at least 10 feet from energized power lines, decedent voluntarily placed himself within two feet of an energized power line.
  4. There is no law or regulation preventing the sale of aerial lifts without such PWDs.
  5. Although the expert claimed that it can be hard to estimate the distance to a power line from ground level, or when the view of the power lines is blocked by trees, the power lines in this case were in plain view to the operator who brought the basket to a dangerous position, not a situation where proximity was challenging to estimate.
  6. When an operator is aware of the close proximity of an energized power line (two feet), the only proper thing to do was to call the power company to have the power line deenergized.

The common pleas court granted summary judgment to the manufacturer and its remaining co-defendant power company. Should you have any questions involving this decision, please contact Mr. Goldberg.