Avalos v. TL Custom, LLC

2014 UT App 156, 330 P.3d 727, 2014 WL 2989509, 2014 Utah App. LEXIS 158
CourtCourt of Appeals of Utah
DecidedJuly 3, 2014
DocketNo. 20120791-CA
StatusPublished
Cited by5 cases

This text of 2014 UT App 156 (Avalos v. TL Custom, LLC) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Avalos v. TL Custom, LLC, 2014 UT App 156, 330 P.3d 727, 2014 WL 2989509, 2014 Utah App. LEXIS 158 (Utah Ct. App. 2014).

Opinion

Opinion

BENCH, Senior Judge:

11 Jose Luis Avalos appeals from a jury verdiet in favor of TL Custom, LLC (TLC). Avalos argues that the trial court exceeded its discretion in admitting evidence that TLC had gone out of business. He also argues that the jury's verdict that TLC was not negligent is not supported by sufficient evidence. We affirm.

BACKGROUND 2

[ 2 This case arises from a workplace injury that Avalos suffered on October 26, 2007. [729]*729While working as an employee for a granite supplier, Avalos delivered a load of granite to TLC, a company engaged in the business of installing granite and tile countertops. While Avalos was helping TLC's employees move an - approximately - five-by-nine-foot granite slab with a forklift, the forklift caught his foot under its wheel, crushing and tearing the skin from his foot. One of TLC's employees (Operator) was driving the forklift at the time.

{ 3 In September 2009, Avalos filed a negligence claim against TLC. Prior to trial, Avalos moved to exelude any references to collateral sources of compensation, including workers' compensation, health insurance, and various other governmental and charitable assistance. Avalos argued that TLC should not be permitted to introduce evidence of collateral sources for the purpose of escaping or minimizing its liability,. The trial court granted Avalos's motion. Similarly, TLC filed a pretrial motion in limine to exclude any references to its liability insurance on the ground that rule 411 of the Utah Rules of Evidence bars the introduction of evidence of liability insurance in most instances. Ava-los's counsel later indicated to the trial court that Avalos had no objection to TLC's motion.

14 A jury trial was held in April 2012. During opening statements, TLC's counsel made three references to the fact that TLC was no longer in business. In the first instance, TLC's counsel stated,

You may say, Well, [Operator] has a bias or motive to protect his job or his employer and that's why he's saying that. Well, that's what really happened. But nine months ago [TLC] elosed. It's not in business anymore. There's no reason for [Operator] to come in here and tell you anything other than what really happened.

Avalos's counsel did not object to this statement. In the second instance, TLC's counsel explained that the owner of TLC (Owner) has been a countertop installer for fifteen years and "(that's what he's doing now even though [TLC] is closed." TLC's counsel continued to explain that "the economy was so bad people ... weren't remodeling kitchens and [Owner] had to go out of business." Again, Avalos's counsel did not object. In the third instance, TLC described its expert witness's preparations for trial: "What he did was he went out to [TLC] before they closed down, operated the forklift, ... and he even built a model of the granite slabs...." Yet again, Avalos's counsel did not object to TLC's counsel's statement that TLC had closed..

T5 During Avalos's presentation of his case, Operator testified that he was driving the forklift when Avalos was struck. Operator indicated that when using the forklift, he typically would have a ground crew control the granite slab and guide him when the slab was perpendicular to the forklift and blocked his view. Operator testified that on the day of the incident, another TLC employee (Spotter) was helping move the granite slab and holding the left side of the slab. According to Operator, Avalos was on the right side of the forklift, facing away from the forklift and holding the slab with his left hand. Operator testified that he could see Avalos but told Avalos that "he shouldn't be standing that close to the forklift." Avalos heard him and answered that he would be fine. Shortly thereafter, when Operator moved the forklift to the right, Avalos's left foot was caught under the right front wheel of the forklift. Although Operator never lost sight of Avalos, Operator admitted that he could not see Ava-los's feet.

16 Operator also offered testimony regarding his own training and TLC's supervision of him. For example, Operator indicated that TLC did not have anyone supervising the floor at the time of the incident and that he had not read the signs on the forklift or the operating manual for the forklift On cross-examination, TLC's counsel asked Operator why Operator no longer worked for TLC, and prompted Avalos's first objection regarding TLC's closure:

[TLC's Counsel: When did you last work at [TLC]?
[Operator:] I believe June or July.
[TLC's Counsel:] And what's the reason you stopped working there?
[Operator:] Ran out of-
[730]*730[Avalos's Counsel:] Objection, Your Hon- or. - Relevance. What's the relevance whether or not [TLC] is still a-
The Court: I understand relevance. Sustained.

Operator then testified that before working for TLC he had received training on operating forklifts from his previous employer and had driven forklifts daily for four or five years. According to Operator, he did not need a second spotter when moving slabs and had never had a spotter on each side before the incident. Operator also testified that some time after the incident Avalos returned to the shop and told Operator that "it wasn't [Operator's] fault."

T7 Avalos testified that he had been working for the granite supplier for approximately ten months prior to the October 26, 2007 incident and that he made thirty to forty deliveries per week. He also testified that his work involved operating a forklift and working as part of the ground crew. Avalos indicated that he had helped unload slabs at TLC several times with Operator at the wheel of the forklift. Avalos testified that on the day of the incident, no one at TLC told him to stay in the truck or not to help move the slabs. Rather, according to Avalos, Operator told him where he wanted the slabs to go. Avalos testified that as Operator slowly drove the forklift forward he grabbed the slab with his left hand and stood on Operator's right side while Spotter acted as a spotter on Operator's left side. Avalos indicated that the slab was perpendicular to the forklift, blocking Operator's forward view. Avalos further testified that he first became aware that the forklift was moving right when the forklift caught the back of his left foot.

8 Spotter testified that TLC trained him on the proper loading and unloading of granite slabs and that he had worked at TLC for about a month before the incident3 Spotter indicated that Avalos helped the TLC employees move a granite slab and that a woman who arrived with Avalos walked along with them. Spotter indicated that he did not tell Avalos not to assist them with moving the slab. According to Spotter, Operator drove the forklift straight, not right, and Avalos was behind Spotter. Spotter testified that Avalos was wearing tennis shoes and was closer to the wheels of the forklift than he should have been. Spotter testified that no one had helped them before from that position. Spotter testified that he noticed Avalos's shoelace was untied because he saw the shoelace go underneath the forklift wheel before Avalos's foot did.

1 9 According to Avalos, he did not contribute to the accident.

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Cite This Page — Counsel Stack

Bluebook (online)
2014 UT App 156, 330 P.3d 727, 2014 WL 2989509, 2014 Utah App. LEXIS 158, Counsel Stack Legal Research, https://law.counselstack.com/opinion/avalos-v-tl-custom-llc-utahctapp-2014.