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Catalfamo v. Lehman Awning Co.6/7/1999
JUDGMENT: Affirmed
Defendant Lehman Awning Company appeals a judgment of the Court of Common Pleas of Stark County, Ohio, entered on a jury verdict finding defendant was liable to plaintiffs Charles and Shelley Catalfamo for personal injuries suffered by Charles Catalfamo while using a truck tarping system appellant provided to appellee's employer. Appellant assigns three errors to the trial court:
"ASSIGNMENTS OF ERROR"
"ASSIGNMENT OF ERROR NO. 1"
"DENIAL OF LEHMAN AWNING COMPANY'S MOTIONS FOR NEW TRIAL, JUDGMENT NOTWITHSTANDING THE VERDICT, DIRECTED VERDICT AND SUMMARY JUDGMENT CONSTITUTES REVERSIBLE ERROR BECAUSE PLAINTIFFS FAILED TO PROVE A DESIGN DEFECT AND ADMITTED THERE WAS NOT ONE."
"ASSIGNMENT OF ERROR NO. 2"
"DENIAL OF LEHMAN AWNING COMPANY'S MOTIONS FOR JUDGMENT NOTWITHSTANDING THE VERDICT OR NEW TRIAL CONSTITUTES REVERSIBLE ERROR BECAUSE THE TRIAL COURT FAILED TO INSTRUCT THE JURY ON INTERVENING CAUSE WHERE A THIRD PARTY CREATED THE RISK OF HARM."
"ASSIGNMENT OF ERROR NO. 3"
"DENIAL OF LEHMAN AWNING COMPANY'S MOTIONS FOR JUDGMENT NOTWITHSTANDING THE VERDICT OR NEW TRIAL CONSTITUTES REVERSIBLE ERROR BECAUSE THE JURY'S INTERROGATORY ANSWERS WERE INCONSISTENT WITH THE GENERAL VERDICT."
The record indicates on September 20, 1994, appellee's employer, Claire Hughes Trucking Company, Inc., purchased a custom-made tarp to cover the bed of its stake-body truck used to deliver and pick up goods from Hughes' customers. Claire Hughes, a consultant with Hughes Trucking, took the truck to appellant's manufacturing plant to have the tarp fitted to the truck. Hughes asked appellant to fabricate a tarp to come down and completely cover the bed of the truck to keep weather out. Mr. Hughes and his wife waited while the tarp was fabricated. Ms. Hughes recalled they waited "a good bit of the day." At trial, Mike Scharboude, one of appellant's employees, testified he fabricated the tarp in question. He testified it took approximately five hours to complete the tarp. This involved measuring and fitting the tarp, then hemming it and putting metal eyelets or grommets in the tarp to secure it to the truck. Scharboude testified that in 1994, appellant's standard practice was to secure tarps with either rubber cords or rope. If rubber cords were used, appellant commonly welded binding hooks to the body of the truck to secure the rubber straps. Appellant's practice at the time was to put "S" hooks on the straps through the grommet holes and then crimp the hooks to the straps. Scharboude also testified there were a number of ways the tarps could be secured to trucks. He testified alternatives to rubber straps included ropes and nylon webbing, used either with or without a racheting system of securement. After Scharboude finished and fitted the tarp, he informed Mr. and Mrs. Hughes he would have to weld the metal binding hooks to the truck frame. Scharboude testified it would involve more time, plus the additional expense of the materials and labor. It was undisputed Mr. and Mrs. Hughes did not wish to wait for appellant to install the securement system for the tarp. Instead, Hughes indicated his company would be able to attach a securing system to the truck body at a later time. Nonetheless, Scharboude placed the tarp on the truck; and decided on the method of securing it to the truck. Scharboude testified he chose to use straps as the securing system for the tarp because it was appellant's common practice. Straps are faster and more convenient than ordinary rope. Scharboude testified he secured the tarp with straps wherever he could safely hook them to the truck. Not all the grommets were equipped with
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