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Staub v. Toy Factory3/23/2000
J. E03002/99
1 In this negligence/personal injury action, plaintiffs/appellants Paul and Nancy Staub appeal from the order dated November 5, 1997, granting summary judgment to defendants Grimm Industries, Inc., Toy Factory Inc., and Karl Kenyon ("collectively, the "Grimm defendants" or "Grimm"); and Carrara Steel Erectors, Inc., Carrara Steel, Inc., and Amthor Steel, Inc. ("collectively, the "Carrara defendants" or "Carrara"). We affirm in part, reverse in part, and remand.
2 The facts of the case are as follows. Appellant Paul Staub ("appellant") was employed by Barnhart Builders, Inc. ("Barnhart"), as a roofer. Grimm Industries hired Barnhart to install insulation and other materials on the roof of a building being constructed for Toy Factory, Inc. A Grimm Industries employee, Karl Kenyon, designed the building and coordinated the construction process. Grimm Industries hired Carrara to manufacture and erect the structural steel for the building. At Kenyon's request, a Carrara employee carved ten openings in the roof to accommodate skylights and ventilation devices, after which a Grimm Industries employee installed wooden "curbing" around the perimeter of the openings. The curbing was not, however, designed to safeguard the openings. Grimm and Carrara dispute when the openings were cut and which of the defendants, if any, was in charge of safeguarding the roof openings. No one covered the holes or otherwise safeguarded the openings in the roof.
3 Appellant was injured on December 3, 1993 while installing foam insulation sheets on the roof when he stepped backward, caught his ankle on the curbing around one of the holes, and fell through the hole. The procedure employed by appellant and his co-worker required appellant to walk backward so that he could catch the sheets of insulation his co-worker passed to him and then move them into place with his foot. The workers had to work quickly so that other workers could perform the next phase of the roofing process. Appellant knew the holes existed but could not see their exact location because he was walking backward; therefore, he would occasionally glance around to watch for the openings. He was, however, focused on catching the insulation sheets his co-worker passed to him when he encountered the first hole, tripped, and fell through. Although other Barnhart employees were on the roof at the time, no one, including appellant's co-worker, warned that he was approaching a hole. Appellant had worked on other roofs which had holes in them; however, this was the first time that appellant had installed insulation near the holes in this particular roof.
4 Appellants Paul and Nancy Staub filed three separate complaints, which were consolidated for discovery and trial. The Grimm defendants then filed a motion for summary judgment, and the Carrara defendants filed an amended motion for summary judgment. By order dated July 14, 1997, the court entered summary judgment with respect to the Carrara defendants but denied summary judgment with respect to the Grimm defendants. The Grimm defendants then filed a motion for reconsideration. On November 5, 1997, the trial court vacated its July 14 th order and granted summary judgment to all defendants, finding that material issues of fact remained as to whether appellees owed appellant a duty of care, but nevertheless finding that appellant had knowingly and voluntarily assumed the risk of his injuries. This timely appeal followed.
5 On appeal, appellant ostensibly raises four issues, which properly constitute one issue with several sub-issues. We have re-phrased appellant's issues as follows:
Whether the trial court abused its discretion and comm
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