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Fitzpatrick v. R&L Carriers, Inc.

Court of Appeals of Ohio, Fifth District

July 31, 2013

SHAWNA M. FITZPATRICK Plaintiff-Appellant
v.
R&L CARRIERS, INC. Defendant-Appellee

Civil appeal from the Ashland County Court of Common Pleas, Case No. 11-CIV-415

For Plaintiff-Appellant MARK ADAMS

For Defendant-Appellee JOSEPH PAPPALARDO, JAMIE PRICE, JEFFREY STUPP

Hon. W. Scott Gwin, P.J. Hon. Sheila G. Farmer, J. Hon. John W. Wise, J.

OPINION

HON. W. SCOTT GWIN

{¶1} Appellant appeals the November 21, 2012 judgment entry of the Ashland County Common Pleas Court granting summary judgment to appellee.

Facts & Procedural History

{¶2} On September 12, 2007, appellant Shawna Fitzpatrick was working at Pentair Water facility in Ashland, Ohio. Appellant would load and unload trucks using mechanical forklifts or tow motors to move pallets with pumps on them. The warehouse contained a dock plate to connect the trailers that would come into the warehouse to the dock. The plate attached to each trailer itself is called a deck plate and each deck plate is fastened directly to the floor of the trailer. Appellant was operating a stand-up tow motor to move and unload products into a trailer of appellee, R&L Carriers, Inc. It was Pentair's policy that employees are not to use this type of tow motor when loading product onto a trailer, but appellant utilized this particular tow motor on September 12, 2007 because none of the tow motors acceptable for loading the product were available.

{¶3} On September 12, 2007, when appellant entered appellee's trailer to load a pump, she moved the tow motor into the trailer and deposited the pump near the front of the trailer. When she backed the stand-up tow motor out of the trailer, appellant states that as the tow motor traveled over the deck plate in appellee's trailer, a part of it caught on the edge of the deck plate which caused the tow motor to suddenly stop, throwing appellant to the ground and causing injuries to her left shoulder, hip, elbow, and back. There were no employees of appellee at the scene of the accident. Appellant did not inspect the trailer before she entered the trailer and appellant's mother, also a Pentair employee, entered and exited the same trailer several times without incident and did not notice any problem with the trailer.

{¶4} Appellant's supervisor, Robert Flowers ("Flowers") investigated the accident. Flowers did not see the accident, but inspected the trailer immediately after the accident occurred and, when he inspected the trailer, the tow motor had not yet been moved. Flowers noticed part of the tow motor had caught on the deck plate of the trailer and the deck plate was bent. Flowers also noticed that several screws that would normally hold the deck plate to the floor of the trailer were missing. He did not observe the screws lying loose anywhere on the floor of the trailer. Flowers confirmed that appellant was using the stand-up tow motor because the other forklifts were in use. Flowers completed an accident investigation report and determined that the following unsafe conditions were responsible for the accident: loading with reach truck, short on sit-down lift trucks, and screws missing from steel plate.

{¶5} Kevin Kelley, an employee of appellee who repaired and replaced deck plates, stated a deck plate that was missing screws would be loose and could create a flap. Kelley fixed the trailer at issue after the incident and when he replaced the deck plate, he requested fourteen (14) new screws, although he stated he sometimes uses old screws to repair deck plates. Kelley confirmed it is appellee's policy that anytime a repair that requires a trailer to be brought into the shop, the interior trailer should also be inspected. The repair record for the trailer at issue in this case demonstrates that it was in the repair shop on September 10, 2007 for repairs and/or replacement of the tires, mud flaps, and brakes.

{¶6} On November 28, 2011, appellant filed a complaint against appellee, alleging appellee: negligently provided appellant's employer with a defective trailer; appellee negligently failed to inspect, maintain, and repair its trailer and provide it in a safe state of repair; appellee negligently failed to maintain its trailer in a condition safe for individuals, including appellant, who would have to travel into and out of the trailer on the equipment in order to load the trailer; and appellee negligently failed to use reasonable care with respect to the trailer it provided to appellant's employer. Appellee filed a motion for summary judgment on September 10, 2012. On November 21, 2012, the trial court granted appellee's motion for summary judgment, finding appellant failed to establish the deck plate was actually defective before or at the time of the accident and that appellant failed in showing that negligence on the part of appellee proximately caused the tow motor to abruptly stop, resulting in her being thrown to the floor of the loading dock. Appellant assigns the following errors on appeal:

{¶7} "I. IN THIS PERSONAL INJURY CASE, THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT BECAUSE THE TRIAL COURT FAILED TO CONSTRUE THE FACTS, AND INFERENCES THEREFROM, IN FAVOR OF PLAINTIFF-APPELLANT, THE NON-MOVING PARTY, AND WHERE THERE WERE DISPUTED FACTS REGARDING THE LIABILITY OF DEFENDANT-APPELLEE WITH RESPECT TO THE DEFECTIVE DECK PLATE THAT CAUSED PLAINTIFF-APPELLANTS ACCIDENT AND INJURIES.

{¶8} "II. IN THIS PERSONAL INJURY CASE, THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT TO DEFENDANT-APPELLEE WHERE THE TRIAL COURT FAILED TO APPLY THE CORRECT STANDARD OF REVIEW TO THE FACTS, AND INFERENCES THEREFROM, RELATING TO THE LIABILITY OF DEFENDANT-APPELLEE WITH RESPECT TO THE ACCIDENT BUT CHOSE INSTEAD TO IMPROPERLY WEIGH THE EVIDENCE ...


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