Host Sean Harris talks with Columbus attorney and OAJ member Mike Rourke about zero turn mower cases and surprisingly, how common they are.

Sean: Hello and welcome to Civilly Speaking, OAJ’s monthly podcast on practical and timely legal issues, I’m your host Sean Harris. Our guest today is Mike Rourke from Columbus, he is with the firm Rourke & Blumenthal. Mike, good morning to you.

Mike: Good morning.

Sean:  Thanks for joining us. Our topic today is zero turn mowers. For those of us who don’t know, what does that even mean?

Mike: Well, that’s a great question. Most of you have probably seen them, a lot of you don’t own them, but they’re riding mowers and they’re set up so exactly what they say, zero radius turn, you can turn on a dime because each of the drive wheels, the rear wheels, are able to be controlled independently. So you can rotate one forward and one backwards and literally spin around on a dime, which enables you to do a couple of things. One get around trees and other objects with almost no room to spare so you don’t have to do any trimming. They’re also usually faster than the average tractor and they’re low to the ground. They can have very broad, wide decks so back long ago in a galaxy far, far away when I had twenty-seven acres in Delaware County, I used one you know weekly to cut grass because they were so much more efficient. So there’s a lot of good things about this product.

Sean:  I was going to say they sound great, what’s the problem?

Mike: Well, well and that’s why I am here today because back in 2007 we had a case come in the door that I thought at the time was probably one of these freak accidents that never happen before and would never happen since. A young man working at a golf course down in Pickerington was cutting the grass on a zero radius turn mower, got to close trying to do his job as well as he could, cutting close to the pond and one of the rear wheels went in and it flipped over and one of his coworkers found him an hour or so later pinned under water in about two and a half, three feet of water, drowned, dead and we pursued that case and in investigating that case and beginning to work on more cases I realized that instead of a freak accident, this was a far too common accident, incident. I shouldn’t use the word accident because the problem is, they’re preventable, they’re foreseeable and what I’ve learned is the manufacturers and there’s several of them know about this and because of competitive reasons, price consciousness reasons they aren’t making these standard equipment. In fact, aren’t even making them as options on what they call many of the residential mowers and it’s, it’s a crime.

Sean: Now, I want to go back to something you mentioned and that is the, how common these are. Now is this, this something that’s happening all the time?

Mike: Yeah, yeah once again I mean I am sure everybody listening felt just like I did, well that never happens. Just before I came I pulled off from the OSHA website, you can search by category of incidents and so I chose mower incidents and in the last four months that are recorded I found 1, 2, 3, 4, 5, 6, 7, 8, 9 deaths and I eliminated deaths that I thought, well cause one fell off a hundred foot embankment another one was clear that the operator wasn’t wearing his seatbelt so I eliminated those, but nine deaths in a four month period, six of them drowning’s so this and this is just OSHA. These are guys that are working where more often they do have roll over protection because the commercial grades often do have roll over protection so god knows how many are going on and I have had some other examples of just how much more common they are than one would think.

Sean: And you make a good point there that when we hear of, you know, fancy mowers we tend to think of them as commercial, but these, when we talk about zero turn mowers, these are both commercial and personal that you might buy at Home Depot or Lowes.

Mike: Absolutely, in fact driving here I was on 270 and drove by a John Deere dealership that you can see from the road and there were dozens of zero radius turn mowers and probably about half of them had roll over protection and the other half didn’t and you know I look at John Deere as you know one of the better manufacturers and yet they, along with all the manufacturers differentiate between commercial mowers, which are 880 pounds or more and residential mowers, which are under 880, but usually between at the minimum of about 550 and most of them are in the 6-700 pound category and when one of those is laying on your back or you’re rolling over with one rolling on top of you it still causes a lot of harm.

Sean: And you made that point earlier, before we hit the record button, whether it’s 600 pounds or 1,200 pounds when it’s lying on top of you that’s kind of an artificial distinction.

Mike: Absolutely and remarkably and sadly many of these and I have cases that involve crush industries, paraplegia, head injuries, but drowning even though you would think that is really a freak accident is common. I have one right now, just resolved another one and both of those, one was in eight inches of water in a drainage ditch along the side of the road and the other one was in a small pond on a campground. Neither of those were in water that was you know anything like the depth you would consider to be dangerous for an adult, except for the fact that they have a 800 pound piece of equipment laying on top of them.

Sean: Now you’ve mentioned the term roll over protection that’s sounds like a term of art, what are we talking about?

Mike: It is and it’s by no means a new thing. Roll over protection has actually been required on certain agricultural tractors for years. You go back into the 60s, 50s and 60s and advocates were starting to promote them and it’s simply steel usually one bar that is up over the driver and what it does is it provides a safety zone so that in the event of a roll over the operator is not crushed or if they’re put into water they have an escape zone and they’re very effective, in fact I have yet to have a case in which the expert for the manufacturers can sight me an instance where somebody died when they had roll over protection and were using their seatbelt, which is pretty impressive because in other product cases a lot of time they’ll argue that well this really doesn’t make much difference, they would have died anyway and you know obviously there’s probably x crashes that could happen with ROPS, roll over protection that still would cause serious injury or death, but I haven’t had one and they sure save a lot of lives.

Sean: Well bolting on a steel bar doesn’t seem like it would either be that expensive or that difficult to do.

Mike: It’s you know, it’s not and what’s amazing, we’ve seen everything from some of the commercial mowers, this has been phased out, but one of my earlier cases they still made the roll over protection as an option and not only did they make it an option and I won’t name the manufacturer because with a lot of these we have confidentiality agreements, but they made it a profit center. They were trying to inhibit people from purchasing them. It cost them about a $100 or less per unit to make these and they were charging $600. Later, and I am not saying it was due to our litigation or anybody’s litigation, but they did finally go to a free retrofit program on those particular ones but what’s scary with a lot of these mowers, even today, we had one that we just recently resolved, we wanted to get roll over protection for it because we didn’t want to sell it without it and we went to the manufacturer and they wouldn’t do it because there’s no bracket, it wasn’t set up for roll over protection so we had to go to a machinist and believe it or not this was in Southern Ohio our client, or the clients spouse was able to find a machinist and they put on a seatbelt and a steel bar for $125, which was amazing. I was shocked because I thought it was going to be a lot more so there is something that can be done, but what should be done is they should be not an option, they should be mandatory, they should be standard equipment and we’d love to see the manufacturers step to the plate and start doing that.

Sean: I mean I’m sitting here, even giving them the benefit of the doubt, I’m trying to figure out what possible rationale they could get other than I suppose there is some cause.

Mike: Yeah, I really do think and they don’t come out and admit it, but there’s stiff price competition among the six or seven manufacturers. You know, they’re selling them all over the place, Home Depot, Lowes, etc. and so there’s a lot of price competition and nobody seems to be willing to step to the plate and because the manufacturers control standard groups like ANTSY, there hasn’t been any move to make them mandatory requirements or require the entire industry to do it. They haven’t done that either so nobody’s willing to take the first step unfortunately our governmentally agencies have long since you know, they have some great people still working with them, but their probably so behind in just doing their basic work, I don’t expect to see OSHA or the consumer product, CPSC anytime soon implementing any safety guidelines like this especially under certain current administrations.

Sean: And now we’ve talked about the distinction between commercial and residential as far as the weight limits, but does that play itself out as far as, I mean do all commercial mowers use these roll over bars or?

Mike: I won’t say that I have done a compete survey, but might belief is that as of 2015 all of the manufacturers were providing roll over protection as standard equipment on their commercial mowers. There may be some exceptions, but even the ones that were doing it as an option have phased that out and yet, it almost makes cases for the residential ones even stronger from my standpoint. There’s a clear admission that roll over protection is a good thing and yet for often for the people, you know instead of the professional landscaper who you know maybe a little more understanding of the do’s and don’ts of these machines, mom and pop, whether there 15 years old or 70 years old, can buy these and not even have an option to buy ROPS and it makes no sense.

Sean: I was sitting here thinking and we had talked about earlier the idea of somebody going to work for a company and using one of these where the employer chose not to purchase it and I was just, I’m thinking I wonder if that counts as an equipment safety guard for a claim against the employer, I don’t know if you’ve ever encountered that.

Mike: Absolutely, I mean I don’t do workers’ compensation work, but oh in terms of an intentional tort, employer intentional tort…

Sean: Yes.

Mike: We actually, we did not pursue just more for strategic reasons in the case I mentioned with the golf course that was actually because of the date of the incident, I’m trying to recall back, may have even been pre new employer intentional tort law, but even now I do think certainly the because what happened with those options a lot of times they, the dealer will require you to sign a document stating that you’ve been offered roll over protection and have declined it, now was it ever put on there and they removed it? No, but that’s pretty darn close to removal of a safety guard and a ROPS is one of the most basic and long standing safety guards around so it’s certainly there for somebody if you don’t have that product claim and you know for example that is a problem just because with our current law it gives an empty chair for the manufacturer and say hey we offered it. The employer opted not to get it you should hold them x% accountable and I think in certain cases a jury would do that.

Sean: So it sounds like you’re target defendant is the manufacturer?

Mike: Absolutely, they have the knowledge, they have the ability, and they chose not to.

Sean: So this is a design defect claim?

Mike: That’s correct.

Sean: The hardest of the product liability claims?

Mike: Yeah, that’s why so few overall product liability claims, design product liability claims are filed anymore. They’re expensive, they’re difficult, but this is a sweet spot in that very, in the desert it’s an oasis because I think for plaintiffs’ attorneys, you’re still going to spend some serious money. A few really good mechanical engineers out there who have been involved in the past with the industries so they are knowledgeable about testing that has gone on with roll over protection, so you’re going to be into some significant expert witness dollars, but the design is so long, well recognized you’re not in that zone where you’re trying to figure our an alternate design or anything else. It’s right there and every manufacturer actually already has it and they are putting it on other mowers. So it’s really as design cases go, I don’t want to say they are easy, they are not, but they are certainly ones that are viable, where as other there’s are a lot of design cases as we all know that are not. Now, one thing I will mention and this is just another bash against tort reform, if you want to call it that, the statute of repose for products cases, when we vet these cases, first thing we try to find out is when did you buy the mower. When was it first sold because we have had to turn down a couple because they were more than ten years old. The Statute of Repose bars claims and what’s so, this is a classic case of what that statute of repose is ridiculous. They have known about roll over protection since the 60’s and the 50’s, this isn’t some new technology that we’re trying to hold manufacturers accountable for. They knew it in 2006 as well as they know it now, hell they knew it in 1996 and probably 1986 and their failure to put them on is no less defective back ten years ago or eleven years ago than it is now and it’s really a shame, but we have had two specific cases where they were good cases, but the Statute of Repose prevented them.

Sean: You mentioned earlier the idea of experts, what types of experts do you typically involve in these types of cases.

Mike: Yeah, I mean, well as I said the key is a good mechanical engineer, preferably someone who has been involved in either work on fabricating and testing roll over protection and there’s several out there, Tom Berry is one out of Nebraska and Tom has been doing this for years, in fact he’ll be testifying in a different type of case, stand up fork lift case for us that’s set for trial later this year, but Tom is very knowledgeable about roll over situations, roll over protection so, but there are others and you need a good mechanical engineer. In certain cases, we’ve decided to really simplify these as much as possible, but sometimes a true accident Reconstructionist may be needed if you think the sequence of events is such that the defense is going to be able to argue or try to argue the roll over protection wouldn’t have saved the individual, but so far we’ve been able to avoid that other than one case. Sometimes you will need to survey the scene or the site and if you’re other expert can’t do that you may have to actually hire a surveying group just so you can map out the area. One of the things the manufacturers do is they put in their owner’s manual that you should not operate these on ground greater than fifteen degree slope. Well, of course, first of all most people don’t know the difference between a fifteen and a twenty or ten degree slope. These don’t have any meter on them that tells you what slop your on and what’s interesting there is data out there from some cases that the manufacturers know that up to 60% of their purchasers will operate their mowers on greater than fifteen degree slopes so they know this is going on and then you have the inadvertent ones that I told you where the edge gives away on a ditch or  in my other example our client who is a paraplegic he didn’t intend to get on that slope, but because he bumped into the tree, he kicked back and went down that slope, but that’s often times a defense so you want to have a good idea of what the slopes are so you’re at least ready to address why were they on a steeper than fifteen degree slope. One thing you’ll find out is often, I’ve cut that slope a hundred times and either it’s because they’re going a little bit faster or there was dew on the ground or a lot of other things. That one time it all the sudden went from they were just fine to all the sudden they’re rolling over and that’s a problem.

Sean: And Mike you obviously seem very interested in these cases. How did you get interested or what grabs you about them?

Mike: Well, I guess there are really two things. One is very, very personal. I told you about having property in Delaware County that’s because my two daughters at the time were very interested in horses. They were horseback riders, etc. so we actually had a mini horse farm, which is where all my money went for a number of years, but one of the things we bought was a small size, but a John Deere tractor, with a front end loader and the whole works and it had not, due to any smarts on my part because I bought that in 2002, before I had one of these cases, but it had roll over protection and my youngest daughter, Stacy, one time was out on our property, we had  a decent hill, which was really made because they had dug a pond, the former owners and it had a nice hill where they put the soil and she was driving over the hill with a bale of hay in the front end loader to drop off for some of the horses and she had probably been on that hill a hundred times, maybe a thousand, who knows, lots of times because it was right on the route to get back to the back field and she rolled it over and I was at work  and all I had to deal with when I got home was an embarrassed daughter because there was a dent on the hood of our John Deere and she had the seat belt on, the roll over protection did exactly what it was supposed to do and she was fine and when I see these cases now and know what could have happened and when I think how many times I even let my kids with our zero radius turn mower, which I will be the first to admit back at that time, we’ve long since got rid of it, but didn’t have roll over protection, it was a “residential” one even though it was a pretty good size. We cut around that pond all the time and so did I and unfortunately nobody went in. That makes me a real advocate because it was too close to home; both ways there and then what has really triggered my interest is just the different families that I’ve worked with. The young man with the golf course, my client right now who’s a paraplegic is a former police officer, great guy. The farmer, when I say farmer this is a very successful farming family up in northern, north western Ohio, meeting that family and realizing how devastating it’s been for them to lose the patriarch of the family who once again probably cut that grass, you know, he bought that mower in  2010 and had used it every summer. So I am passionate about it because I am passionate about people and how much harm this does and how little recognition there is by consumers and how much recognition there is by the industry and there not doing anything so I’d love to have, by the way they are very good cases from a plaintiff attorneys standpoint. You can do very well for your clients and do a good job and get a well-deserved fee as a result so they’re good from that stand point, but I would be happy to have as many as I could and I’ve teamed up some lawyers, there are a few lawyers across the United States that are very much advocates on this and they are involved in their own state trial lawyers associations and nationally and one guy that I’ve worked with a few times, John Gehlhausen, in Colorado is a great guy and if anybody gets a case call me, I’ll be happy to talk to you, but one of the first things I’ll do is give you John’s number and you’ll want to talk to him too because he truly does have the book on these cases and he’s been a wealth of information for me.

Sean: Well Mike Rourke, thanks very much, we appreciate it, it’s been informative.

Mike: Thank you, Sean. I really enjoyed it.