Herman Blankenship v. Crt Tree
| Decision Date | 03 October 2002 |
| Docket Number | 80907,02-LW-4089 |
| Parties | HERMAN BLANKENSHIP, PLAINTIFF-APPELLANT v. CRT TREE, ET AL., DEFENDANTS-APPELLEES |
| Court | Ohio Court of Appeals |
Civil appeal from Common Pleas Court, Case No. CV-373437.
For Plaintiff-appellant: TIMOTHY A. ITA, Esq., R. Jack Clapp & Associates, One Cleveland Center, #2420, 1375 East Ninth Street, Cleveland, Ohio 44114
For CRT Tree, et al.: STANLEY S. KELLER, Esq., Keller and Curtin, 330 Hanna Building, 1422 Euclid Avenue, Cleveland, Ohio 44115-1901
For Capitol Indemnity and Capitol Indemnity Corp: JOHN D. TRAVIS Esq., GARY L. NICHOLSON, Esq., Gallagher, Sharp, Fulton & Norman, 7th Floor Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio 44115
For Manitex, Inc.: JOHN A. MUGNANO, Esq., RALPH STREZA, Esq., Porter, Wright, Morris & Arthur, 1700 Huntington Building, 925 Euclid Avenue, Cleveland, Ohio 44115-1483
For Mirk, Inc. and Sun & Seed Landscaping, et al: JAMES T. MILLICAN, Esq., JOHN G. FARNAN, Esq., SHAWN W. MAESTLE, Esq., Weston, Hurd, Falllon, Paisley & Howle, 2500 Terminal Tower, 50 Public Square, Cleveland, Ohio 44113-2241
For Progressive Insurance Co.:THOMAS S. MAZANEC, Esq., Mazanec, Raskin & Ryder, 100 Franklin's Row, 34305 Solon Road, Cleveland, Ohio 44139
{¶1} Plaintiff-appellant Herman Blankenship ("Blankenship"; d.o.b. August 24, 1973) appeals from the granting of summary judgment to the following defendants-appellees-movants: (1) Manitex, Inc.[1]; (2) Sun and Seed Landscaping, Gregory Naploszek, and Paula Naploszek[2]; (3) CRT Tree Service, Mr. Simms Goodman, and Mr. Robert Doyle, Jr.[3]; (4) MIRK, Inc.[4]; (5) Progressive Casualty Insurance Company[5]; and, (6) Capitol Indemnity Corporation[6]. For the reasons adduced below, we affirm.
{¶2} A review of the record on appeal indicates that Blankenship was severely injured in an accident while bungee bouncing at approximately 3:10 p.m. on Saturday, May 27, 1995.[7]
{¶3} Blankenship was employed, at times, by both CRT Tree Service and Sun & Seed Landscaping, and had just returned to the Sun & Seed Landscaping premises after having returned a stump grinding machine to a rental company. Goodman testified that the crane, which he had leased approximately two weeks prior to the accident, was being stored on the premises of Sun & Seed as a favor from Gregory Naploszek. Goodman deposition at 7-8.
{¶4} According to Blankenship, Doyle, an employee of CRT Tree Service, had already set up the boom crane with the jib extension by the time Blankenship arrived. Blankenship deposition at 40, 63. Doyle testified that no wire rope retaining pins were removed during the set up of the crane, and that he was unaware of the missing pins until after the accident had happened. Doyle deposition at 39-41. Doyle also testified that he was not trained on the operation of the crane, and did not recall if there were operating manuals with the crane or whether there was an aluminum load charter capacity chart warning sign on the crane. Doyle deposition at 53-55. Goodman and Greg Naploszek were on the scene for a period of time with Doyle and Blankenship. Goodman had been summoned there by radio so as to watch Doyle and others engage in bungee bouncing. In fact, while the crane was set up that afternoon, Goodman had hoisted Greg Naploszek and his son up into the air with the crane without bouncing so they could look around from the elevated vantage point. Gregory Naploszek deposition at 9. Following this, Goodman and Naploszek joked with Doyle about Doyle getting up in the air and bungee bouncing from the crane, but the two business owners decided to leave the area. Before Goodman and the Naploszeks left the scene, Goodman and Gregory Naploszek allegedly ordered Doyle and Blankenship to break down the equipment, pack up everything and go home. Goodman deposition at 54-55; Gregory Naploszek deposition at 10, 65-66. Doyle disputed that these instructions were given, testifying that Goodman said , Doyle deposition at 11-12, and Gregory Naploszek told him to "don't take all day." Doyle deposition at 29. Doyle specifically stated that he was not told to "put this stuff away right now." Doyle deposition at 29. Blankenship testified that, before leaving the scene, Goodman told him to "take it easy." Blankenship deposition at 87. Blankenship interpreted this "take it easy" instruction to mean Blankenship deposition at 115.
{¶5} With Doyle at the crane controls, the employers gone from the scene, and the crane still deployed to its maximum length of 108 feet using the optional jib extension, Blankenship climbed into a harness. This harness was attached to a forty foot length of blue and white bungee cord, which in turn was secured to the crane's steel wire rope at the lower load block. The lower load block assembly consists of a steel hook, which is attached to a short length of wire cable, which is attached to a heavy steel ball (a.k.a. the "overhaul" ball), which is attached to the wire rope used by the crane. According to the May 27, 1995 Brooklyn Police Department supplementary report on the incident, the distance from the tip of the crane to the ground measured 105 feet. Doyle then retracted the wire rope, thereby hoisting Blankenship into the air. While Blankenship was suspended in mid-air, Doyle spasmodically raised and lowered the wire rope so as to cause Blankenship to bounce up and down in the air. According to Blankenship, he bounced "above the jib." Blankenship deposition at 83. Blankenship also admitted to one previous episode involving bungee jumping, approximately nine months prior to this accident, when, despite being scared by the idea of dropping off a bridge and being hurt, he was, at his own insistence, dropped by a friend from a bridge at Boston Mills Ski Resort. Id. at 24-25.
{¶6} This bouncing caused the wire rope to derail from the deep groove in the pulley (a.k.a. jib sheave), which was mounted between the two steel side plates of the upper load block assembly at the extension jib point, and slide down to the end of the main boom, a.k.a. the boom point, where it caught hold. According to the police supplementary report, this derailment action caused approximately 25 feet of wire rope to now be immediately available to the acrobatic Blankenship. With this extra length of wire rope now in play, Blankenship plummeted to the ground where he struck a pile of logs.
{¶7} Inspection of the crane subsequent to the accident revealed several anomalies in the mechanical operation of the machine that day. First, two steel wire rope retaining pins, which would normally be located running through the two steel side plates of the upper load block at the jib point and whose safety function is to prevent the lower load block from riding up and over the sheave and thereby cause the wire rope to derail, were missing. These retaining pins "must be removed in order to place wire rope inside" the groove of the sheave. Manitex brief at 6, Fig. 5; accord, the January 12, 1995 engineering report prepared by plaintiff's expert David W. Kassekert, at 2, Description of the Crane. These retaining pins were allegedly given to Goodman by Doyle after the accident: According to Goodman, Doyle had put the pins inside the flatbed truck. Goodman deposition at 29-31; Gregory Naploszek deposition at 53-56. However, Doyle denied ever having these pins. Doyle deposition at 42. Second, the anti-two block safety device on the jib point was not activated by the operator at the time of the accident.[8]
{¶8} Blankenship filed his original action on January 13, 1997. See Cuyahoga County Common Pleas Court, General Division, Case No. 322825. Following four amended complaints and extensive discovery, a number of the defending parties therein filed motions for summary judgment. On June 16, 1998, Blankenship filed a combined brief in opposition to these motions for summary judgment. Also on June 16, 1998, the trial court issued status form half-sheet orders which granted the motions for summary judgment for the following parties: (1) Capitol Indemnity; (2) CRT Tree Service, Goodman, and Doyle; (3) Progressive; (4) Manitowoc Company; (5) Sun & Seed Landscaping, Gregory Naploszek, and Paula Naploszek: These summary judgment orders were journalized one day later, sometime on Wednesday, June 17, 1998. See Journal Vol. 2228, page 650. Also on June 17, 1998, at 9:15 a.m., Blankenship filed a notice of voluntary dismissal, without prejudice, of all claims pursuant to Civ.R. 41(A)(1).[9]
{¶9} Blankenship then filed a notice of appeal on Monday, July 20, 1998, from the summary judgment rulings in the first action. This appeal was dismissed sua sponte on September 3, 1998, for failing to file a timely notice of appeal. See Cuyahoga App. No. 74909.[10] The thirty-day appeal period had expired on Friday, July 17, 1998.
{¶10} On January 7, 1999, Blankenship refiled the first action. See Cuyahoga County Common Pleas Court, General Division, Case No. 373437. On February 2, 1999, the case was reassigned to the docket of the judge who had been originally assigned to the first action. This refiled complaint alleged the following causes of action: (1) count one, negligence by Doyle in the operation of the crane for bungee bouncing; (2) count two, negligence by John Doe defendants 1 through 5 who were believed to be employees of CRT Tree Service and who were thought to be involved in the bungee bouncing activity on the day of the accident; (3) count three, vicarious liability/respondeat superior by the "CRT defendants"[11] for the...
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