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Sproles v. Simpson Fence Co.12/12/1994
WALSH, Judge.
Plaintiff-appellant, Charles Sproles, appeals a decision of the Warren County Court of Common Pleas granting a motion for summary judgment filed by defendant-appellee, Simpson Fence Company.
In August 1985, appellant contracted with appellee to have a fence with an electric gate installed on his property. After appellee installed the fence and gate, appellant hired a third party to install the electrical service for the operation of the gate. The mechanism for operation of the gate is manufactured by Stanley Products. Approximately two months after installation, appellant began having problems with the gate. The gate would occasionally begin operating on its own, opening and closing unexpectedly. After several unsuccessful attempts to reach Allen Simpson, appellee's President, appellant, contacted someone from Middletown Door Sales to service the gate.
On or about April 2, 1991, appellant's wife informed him that the gate had unexpectedly begun to close while she was proceeding through it. Appellant then observed the gate for approximately thirty minutes in order to determine what was wrong with it. Appellant was aware that the gate had operated in this fashion in the past, opening and closing unexpectedly. Appellant attempted to grease the chain to the gate, which was powered by the motor, using his hand to apply the grease. Although appellant knew that he could have turned off the power to the gate, thereby eliminating any possibility that the gate would unexpectedly begin to operate, causing the chain on which he was placing the grease to begin moving, he did not do so. At some point, the motor unexpectedly engaged and the chain began moving. Appellant's hand became caught in the chain and was pulled into the mechanism operating the gate, causing the tip of his finger to be severed.
On February 19, 1993, appellant filed a complaint against appellee, alleging that appellee provided him with inadequate warnings regarding the hazards of using the electric gate, that the installation of the gate was defective, and that appellee violated the Ohio Consumer Sales Practices Act ("OCSPA"). Appellee filed a motion for summary judgment on March 16, 1994, and the trial court granted the motion on June 8, 1994. On appeal, appellant presents three assignments of error for review.
In his first assignment of error, appellant asserts that the trial court erred in granting summary judgment to appellee on the basis that appellant's conduct constituted a voluntary and unreasonable assumption of a known risk. We disagree.
Summary judgment is to be granted where there exists no genuine issue of material fact, the movant is entitled to judgment as a matter of law, and when construing the evidence most strongly in favor of the nonmoving party, it appears that reasonable minds can come to but one conclusion, which is adverse to the nonmoving party. Harless v. Willis Day Warehousing Co., Inc. (1978), 54 Ohio St.2d 64, 8 O.O.3d 73, 375 N.E.2d 46. In addition, a motion for summary judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095, paragraph three of the syllabus.
Appellant claims that appellee failed to instruct him as to the installation, operation, and hazards associated with the use of the electric gate, and that he was injured as a direct and proximate result of this inadequate warning. The record indicates that a caution sign was affixed to the gate, warning users to stay clear of the gate, and appellant was aware of and understood this warning si
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