Gates & Sons, Inc. v. Brock

• Decision Date: 09 May 1967
• Docket Number: No. I--188,I--188
• Court: Florida District Court of Appeals
• Parties: GATES & SONS, INC., a foreign corporation, Appellant, v. Shelby BROCK, Appellee.

Page 291

199 So.2d 291

GATES & SONS, INC., a foreign corporation, Appellant, v. Shelby BROCK, Appellee.

No. I--188.

District Court of Appeal of Florida, First District.

May 9, 1967.

Rehearing Denied June 20, 1967.

H. O. Pemberton, of Keen, O'Kelley & Spitz, Tallahassee, for appellant.

Nichols, Gaither, Beckham, Colson, Spence & Hicks, and Podhurst & Orseck, Miami, for appellee.

JOHNSON, Judge.

Appellant appeals from a final judgment entered upon a jury verdict in plaintiff-appellee's favor of $86,300.00.

The plaintiff, Shelby Brock, a carpenter employed by Albritton-Williams, Inc., received severe personal injuries when he fell from a distance of forty-seven feet after a scaffold from which he was working suddenly collapsed. At the time of the unfortunate accident Brock was standing on a scaffold and placing wooden forms for wall construction on the partially completed Game and Fresh Water Fish Commission Building in Tallahassee, Florida, when a snap-tie broke which had been supporting the scaffold. Plaintiff's motion for summary judgment on the issue of contributory negligence was granted.

Plaintiff's employer on the date of the accident was using a 'snap-tie' device to support the scaffold on which Brock was standing prior to his fall. The poly-cone break-back tie was sold to Albritton-Williams by Strickland-Chrobak, Inc., the latter corporation being named as a defendant in the original complaint but was granted a summary judgment in its favor. Gates & Sons, Inc., the defendant at the trial of this cause, was the manufacturer of the poly-cone break-back tie.

The sales and advertising promotion presented by Gates to prospective construction customers is that this break-back tie will serve a dual perpose in the construction of concrete walls. Not only will it serve the usual purpose of holding at an even distance the inner and outer plywood forms within which concrete is poured in erecting a concrete wall, but the tie can also be used to support a steel bracket against the wall on which scaffold boards are placed for use during construction. It is this latter use from which the issues in this case arose.

After the concrete wall has hardened and when the snap-ties are no longer needed to support scaffolds the snap-tie loop which protrudes from the wall is to be twisted or broken off. When this is accomplished the concrete is smoothed over. There is a small notch in the snap-tie known as the 'upset area' which is designed to break off when the tie is twisted.

In constructing a building extra reinforcement is needed especially at floor levels and sometimes in other areas. A 'spandrel beam' serves this purpose and when such is present a snap-tie can be fastened only to the outer form. Because it can not fasten to the inner wall form the snap-tie rod after it passes through the outer wall form is embedded in the concrete.

There was some evidence that during the course of construction some of the snap-ties would become bent, either from contact by the workmen as they climbed about the building or they would be deliberately bent when a 'spandrel beam' presented an obstruction. After the concrete was poured it was impossible to know whether the ties which were embedded in the concrete were bent. No evidence was presented showing that Gates ever warned or stated, either in its advertising or personal discussions with plaintiff's employer, that the use of bent ties to support scaffolds was dangerous or hazardous to employees working from the scaffolds and that such ties should not be used for the purpose of scaffold support. Nor was there any proof that Albritton-Williams, plaintiff's employer, ever gave a specific warning to its employees to refrain from attaching scaffold brackets to snapties they knew to be bent.

A six inch diameter concrete core containing the broken poly-cone break-back tie was removed from the wall of the building and the broken tie was removed from the concrete by a metallurgical engineer, Mr. Ralph T. Duncan. It was found upon examination that the broken tie had been fastened only to the outer wall form and the end of the tie was embedded in the concrete. There was a 42.5 degree bend in the notch tie which was embedded in the concrete. It was the conclusion and opinion of Mr. Duncan that there were no inherent defects in the metal of the tie and the tie broke because the 42.5 degree bend caused the tie to fail below its normal yield strength.

A witness, with many years experience as a mechanical engineer in industry and as a professor of metallurgy, testified on behalf of the plaintiff. He was of the opinion that the snap-tie manufactured by Gates was not safe for the purpose of holding scaffold brackets and scaffolds. He stated that the upset area, at which point the tie could be broken off when its use had ended, was so designed as to weaken the tie too much to be used for the scaffold purpose. Not only was the upset area of an unsafe nature, but this witness was of the further opinion that the product was not safe for use to support a scaffold because there was no safety factor present in case one of the ties broke, as was the situation resulting in Brock's fall. If a tie should break the scaffold which it supported would then fall if the Gates system was being used.

The Gates method of using snap-ties for a dual purpose had been tested for about two years prior to its introduction on the market. This method had been used in other states for about seven years although the construction job at which Brock's accident occurred was the first or one of the first at which the Gates poly-cone break-back tie had been used in the state of Florida. An official of the Gates company testified that this accident was the only one of which he was aware that a snap-tie had broken while being used as a...