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McConville v. Jackson Comfort Sys.6/22/1994
COOK, Judge.
In this personal injury action, Thomas McConville appeals the trial court's granting summary judgment to General Electric Company ("GE"), Jackson Comfort Systems, Inc. ("Jackson Comfort"), and Stamm Contracting Company ("Stamm Contracting"). McConville contends that summary judgment was inappropriate (1) for GE, the plant owner, because McConville was not engaged in an inherently dangerous activity and GE actively participated in the project; (2) for Jackson Comfort, the subcontractor, because it knew that the conditions were unsafe for McConville; and (3) for Stamm Contracting, the general contractor, because the action was originally commenced within the time allowed by the statute of limitations. We affirm because (1) McConville was engaged in an inherently dangerous activity and GE did not actively participate in the critical acts resulting in McConville's injury; (2) the submitted evidence did not show that McConville's injury was a substantial certainty; and (3) the action was not properly commenced against Stamm Contracting.
1. Facts
As this appeal is before this court on an appeal of a summary judgment, the following are the undisputed facts. GE contracted with Stamm Contracting for construction work at its Ravenna facility. Stamm then hired Jackson Comfort to install the heating and air conditioning system. On February 8, 1990, McConville worked for Jackson Comfort at GE's facility. On that day, McConville and another Jackson employee worked from scaffolding about thirty feet above the ground. During the afternoon, McConville became dizzy, lost his balance and fell to the concrete floor. McConville had not been utilizing any safety equipment.
McConville contends that the fall was caused because he was overcome by exhaust fumes from welding that was being conducted beneath him. McConville contends that although he detected the fumes from the welding operation and noticed that the fumes were intensifying, he did not put on a ventilation oxygen mask, which was in his truck.
In January 1992, McConville sued GE, Jackson Comfort and two John Does. He claimed that GE was negligent in exposing him to unsafe work conditions, that Jackson Comfort committed an intentional tort against him and that the general contractor was also negligent. McConville amended his complaint to show that the general contractor was Stamm Construction Company, not Stamm Contracting Company. McConville then voluntarily dismissed his suit. Seven months later, McConville refiled his complaint and GE, Jackson Comfort and Stamm Contracting each moved for summary judgment, which the trial court granted.
McConville now appeals, asserting three assignments of error.
2. Summary Judgment Standard
In reviewing a trial court's entry of summary judgment, an appellate court applies the same standard used by the trial court. Parenti v. Goodyear Tire & Rubber Co. (1990), 66 Ohio App.3d 826, 829, 586 N.E.2d 1121, 1122.
Pursuant to Civ.R. 56(C), summary judgment is proper if:
"(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274.
"The trial court erred in granting summary judgment in favor of defendant-appellee, General Elec
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