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Halter v. Waco Scaffolding & Equipment Co.5/3/1990
DAVIDSON, JUDGE
Plaintiff, Susan D. Halter, appeals the summary judgment entered against her and in favor of defendants, Waco Scaffolding & Equipment Co., Colorado Scaffolding Equipment Co., Inc., and Reck/Duff Architects, on her claims in negligence and strict liability for the death of her husband. We affirm in part and reverse in part.
The decedent, a mason employed by Columbine Masonry to help erect a brick wall at Faith Presbyterian Church, was killed when scaffolding near him collapsed and, in combination with brick being stored thereon, crushed him. The scaffolding had been erected to a height of about 40 feet and, to afford protection from winter weather, had been enclosed in a protective plastic known as visqueen. The visqueen, in turn, was secured on the scaffolding with a combination of wind/weather clips and wire.
Subsequent to the accident, it was determined that the scaffolding had been erected and enclosed in an unsafe manner. Contrary to OSHA regulations, the scaffolding had been neither anchored to an existing structure nor secured by cross-bracing or vertical locks. In addition, the visqueen, which had originally been attached by means of clips that would pop off in the wind, had been reattached in several places with wire. It appears that the accident occurred when a strong gust of wind whipped against the sail-like visqueen and blew down the structure.
Asserting that they knew or should have known of the dangerous propensities of the products and set up, plaintiff, individually and as next friend of her three children, filed a wrongful death suit against the following defendants: Snow Construction Co., the general contractor for the project; Max Katz Bag Co., the manufacturer of the visqueen; Waco International, the manufacturer of the scaffolding equipment; Waco Scaffolding & Equipment Co., the supplier of the scaffolding equipment; Colorado Scaffolding & Equipment Co., Inc., the supplier of the wind clips used to secure the visqueen; and Thomas Reck and Charles Duff, d/b/a Reck/Duff Architects, the architects who designed the project and, allegedly, "administered" construction.
The claims against Snow Construction Co. were dismissed, and discovery proceeded with respect to the remaining defendants. On November 16, 1987, the trial court granted summary judgment to all defendants except as to the negligence claims against Waco International and Max Katz Bag Co. Among other grounds for the ruling, the court held that only Waco International and Max Katz Bag Co., and not the remaining defendants, owed a duty of care to the decedent and his employer.
In preparation for trial, plaintiff, Waco International, and Max Katz Bag Co. conducted additional discovery. In the course thereof, Waco International produced an engineering manual which it had supplied to Waco Scaffolding prior to the accident. Although plaintiff had previously requested both Waco International and Waco Scaffolding to produce " ll written literature produced by Waco International and/or Waco Scaffolding or its agents relating to the scaffolding it produces," this manual did not come to light until plaintiff deposed a particular officer of Waco International subsequent to the summary judgment orders. The manual included specific precautions to be taken when using enclosed scaffolding in the wind.
Alleging that the delinquently produced manual provided proof that Waco Scaffolding was aware of the dangers that caused her husband's death and that it was, therefore, negligent in failing to warn Columbine Masonry or decedent thereof, plaintiff moved for reconsideration of the summary judgment in favor of Waco Scaffolding. The trial cou
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