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Barrett v. Waco Int'l

Court of Appeals of Ohio, Eighth Appellate District, Cuyahoga County

August 14, 1997, Date of Announcement of Decision

NO. 71199


 [*3]   [**1217]  JOURNAL ENTRY and OPINION


This appeal arises from an order of the trial court granting summary judgment in favor of a scaffolding manufacturer in this personal injury/strict products liability action by an injured worker who fell through the plywood platform of the scaffolding.

Plaintiffs-appellants Donald and Mary Ann Barrett filed this action against [***2]  five entities involved in an asbestos removal project at a public high school gymnasium in Columbus, Ohio after Donald Barrett fell through the scaffolding used in the project. Waco International Inc. and Waco Equipment Co. dba Waco Scaffolding & Equipment ("Waco") owned the scaffolding and, pursuant to a contract with the Columbus Board of Education, leased the scaffolding and installed it in the boys gym.

Asbestos removal workers encountered difficulty in removing asbestos-containing-material ("ACM") from a fire curtain in the gym because operation of the moveable curtain was obstructed by the scaffolding. During removal of the ACM, the fire curtain fell and struck a section of scaffolding adjacent to it. An unidentified person may have modified this section of scaffolding to facilitate access to the fire curtain, although all parties to the litigation denied making any such modification. From the scaffolding Barrett subsequently fell through a loose plywood deck, which was no longer nailed to the scaffolding beams. It is not clear whether the original condition of the scaffolding, the fire curtain striking it, and/or any modification to it caused the loose plywood.

Plaintiffs [***3]  raised several claims arising out of the manufacture, installation and maintenance of the scaffolding. 2 Plaintiffs alleged inter alia that Waco was strictly liable to them for (1) defectively manufacturing and designing the scaffolding, (2) failing to make adequate warnings concerning modifications to the scaffolding, and (3) providing scaffolding which did not conform to its representations. Plaintiffs also alleged that Waco was negligent and breached implied and express warranties. 3 The crux of plaintiffs' claims stemmed from Waco's use of  [*4]  four nails to attach the boards to the scaffolding when its own plans called for the use of at least sixteen nails, Waco's improper installation of I-beams to the scaffolding, and Waco's improper installation in the gymnasium of the scaffoldings which prevented the opening and closing of the fire curtain.

 [***4]  In a brief motion for summary judgment Waco argued that plaintiffs failed to produce evidence to support their claims. Waco argued that someone other than Waco improperly modified the scaffolding and did not nail the plywood deck back in place. In their brief in opposition, plaintiffs argued there was no evidence anyone removed the plywood plank, and, regardless of whether  [**1218]  someone had or not, Waco was nevertheless responsible under various theories. The trial court denied Waco's motion for summary judgment.

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123 Ohio App. 3d 1 *; 702 N.E.2d 1216 **; 1997 Ohio App. LEXIS 3680 ***

DONALD BARRETT, ET AL., Plaintiffs-Appellants v. WACO INTERNATIONAL INC., ET AL., Defendant-Appellees

Subsequent History:  [***1]  As Corrected March 18, 1999.

Prior History: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court. Case No. CV-284521.

Disposition: JUDGMENT: Affirmed in Part; Reversed and Remanded in Part.


scaffolding, modification, curtain, nails, manufacture, deck, plywood, installation, modified, reconsideration, foreseeable, deposition, proximate, conform, users, warranties

Torts, Products Liability, Theories of Liability, Strict Liability, Types of Defects, Design Defects, Causation, Proximate Cause, Foreseeability of Harm, Civil Procedure, Summary Judgment, Entitlement as Matter of Law, General Overview, Contracts Law, Sales of Goods, Warranties, Breach of Warranty, Appeals, Appellate Jurisdiction, Interlocutory Orders