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Temple v. Fence One12/15/2005
{ } Plaintiff-appellant, Antoinette M. Temple, appeals from the judgment of the Common Pleas Court granting the motions for summary judgment of defendants-appellees, Fence One, Inc. ("Fence One"), Electro-Analytical, Inc. d/b/a/ EA Group Laboratories "(EA Group"), ISK Biocides, Inc. ("ISK Biocides"), and Ozark Timber Treating, Inc. ("Ozark Timber"). For the reasons that follow, we affirm.
{ } Temple originally filed this action on April 29, 2002, claiming numerous physical injuries as a result of alleged exposure to chemicals from an outdoor wood fence erected on the property of a neighbor who lives two houses away from her. The case was voluntarily dismissed and refiled in October 2003.
{ } In her refiled complaint, Temple named as defendants:
{ } 1. Alan and Gloria Komar, the owners of the property where the fence was erected and installed;
{ } 2. Fence One, the entity that erected and installed the fence on the Komars' property;
{ } 3. Ozark Timber, the manufacturer of the treated wood for the fence;
{ } 4. ISK Biocides, the supplier of the wood preservative used to treat the fence; and
{ } 5. EA Group, a scientific testing agency that was retained by ISK Biocides to provide testing for Temple on the Komars' fence.
{ } Temple alleged claims for nuisance, negligence, recklessness and fraud in her complaint. She claimed that "from the outset, the [Komars'] fence was unsafe in that it allowed arsenic, chromium, copper, creosote and other dangerous chemicals to escape from the fence into the ground and into the air" causing "serious and permanent injuries to Temple and her property."
{ } The record reflects that Temple first experienced symptoms of multiple chemical sensitivity ("MCS") in 1988 when she was exposed to zinc chloride from the furnace in a home that she owned in Indiana. She currently complains of MCS and other disabilities, which include vascular disorder, peripheral neuropathy, cellulitis, diabetes, hemorrhaging of leg veins and anemia.
{ } The record further indicates that this is not Temple's first lawsuit stemming from her MCS; she has filed numerous lawsuits against former landlords and property owners as a result of alleged exposure to various harmful chemicals in apartments and homes she formerly lived in.
{ } Temple purchased her home at 6179 Stratford Drive, Parma Heights, Ohio in December 1997. The home is on a small lot and is surrounded on all sides by neighbors. When she moved in, Temple did not advise any of her neighbors of her alleged MCS.
{ } In November 1998, the Komars, who live two houses away from Temple, contracted with Fence One to install a wooden fence surrounding their yard. The wood components of the yellow pine wood fence were manufactured by Ozark Timber and sold to Fence One.
Prior to selling the wood to Fence One, Ozark Timber treated it with copper naphthenate, purchased from ISK Biocides, to retard fungi and insects and enhance the durability of the fence. Ozark Timber does not use any other wood treatment process other than copper aphanites; it does not treat wood with chromium, nor does it use arsenic in its treatment process. Ozark Timber does not treat wood with chromated copper arsenate, also known as CCA. Copper napthenate has been used as a wood preservative for well over 100 years. Neither Ozark Timber nor Fence One has ever had any prior complaints regarding any physical symptoms allegedly related to copper napthenate exposure.
{ } After purchasing the wood from Ozark Timber, Fence One did not apply any other chemical to the fence before it was installed in t
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