Danger of falling timber during construction wrecking process was open and obvious


June 14, 2017

The manufacturer of concrete forms was not liable to a construction worker who was injured by a falling timber used with one of the forms because the danger of falling timber during the wrecking process was open and obvious, the Indiana Court of Appeals ruled in affirming a trial court’s grant of summary judgment favoring the manufacturer. The fact that the timber, which had been manufactured by another company, was used with its product did not make the timber part of its product (Gleaves v. Messer Construction Co., June 13, 2017, Baker, J.).

PERI Formwork Systems, Inc. makes and supplies formwork system to concrete contractors for use in forming new structures until the structures harden. Lumber infills are used to fill smaller gaps and are removed after the concrete is cured. In October 2012, while formwork was being dismantled from a building, a sixteen-foot 2x4 lumber infill was ejected from a form being lifted by the crane, fell, and hit a construction worker on his head, causing serious injury. In addition to bringing suit against the construction manager, the worker brought suit against PERI, alleging that it had failed to provide adequate warnings and instructions to end-users and that the danger that lumber infills could eject while being removed and strike a person standing a safe distance away was not open and obvious. The court granted summary judgment favoring both defendants, and the worker appealed.

Open and obvious danger. Testimony by the worker showed that he knew and understood the dangers associated with his work, the potential for injury during the wrecking process, and the need to move to a safe distance when wrecking was ongoing. The court observed that although the worker argued that the lumber infills were part of PERI’s product design because they were a necessary part of the formwork component system and PERI provided instructions for the use of infills, the company had no connection to the infills used at the job site. The fact that an infill were used with its product did not mean that it was part of its product or that PERI should be liable for its use or misuse.

The case is No. 49A02-1609-CT-2140.

Attorneys: William E. Winingham (Wilson Kehoe Winingham LLC) for Mark Gleaves. Louis J. Britton (Kightlinger & Gray, LLP) for Messer Construction Co. Blake P. Holler (Krieg DeVault LLP) for PERI Formwork Systems, Inc.

Companies: Messer Construction Co.; PERI Formwork Systems, Inc.

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