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COA rules for plaintiff in dumpster tipping accident.

Byline: Thomas Franz

A Michigan Court of Appeals panel has affirmed a Lenawee Circuit Court ruling that awarded $200,000 to a boy who was 8 years old when he sustained injuries while trying to do a pull-up on a bar connected to a dumpster that tipped over on him.

Plaintiff's attorney John J. Koselka of Koselka DeVine PLC said there was an obvious question of fact in the case.

"These garbage cans are not supposed to tip over. They're supposed to withstand 191 pounds of force and this was an 80-pound kid trying to do a pull-up and it tipped over on him," Koselka said.

Court of Appeals Judges Karen M. Fort Hood and Kirsten Frank Kelly ruled in favor of the plaintiff in Eichler v. Modern Waste Systems (MiLW No. 08-99063, 21 pages), while Judge Colleen A. O'Brien dissented.

Pull-up gone wrong

On Sept. 19, 2014, Shawn Eichler, then 8 years old, was attempting to perform a pull-up on the bar of a dumpster that was sitting in the yard of his grandmother's house, which was next door to where he lived with his mother.

Eichler's grandmother, Brenda Baker, had rented the dumpster from Modern Waste Systems. The dumpster was described as being slanted with a large overhang. The plaintiff pulled the dumpster down on himself while attempting the pull-up. He sustained a fractured pelvis.

In the COA opinion, the court wrote that the defendant argued that it owed no duty, and that it was Baker who wanted the dumpster in her yard instead of on a concrete surface.

The defense also argued that Eichler's mother and grandmother were negligent in failing to supervise Eichler, and the boy himself was comparatively negligent for the accident.

A three-day bench trial concluded with the court finding that the design and placement of the dumpster made it dangerous, therefore making the defendant's negligence the proximate cause of the plaintiff's injuries.

COA analysis

The defendant argued that the trial court should have granted its motion for summary disposition because the evidence at the time the motion was made showed that it owed no duty to the plaintiff.

In the unpublished case, the panel wrote that Modern Waste Systems did owe plaintiff a common law duty of care, and there was a question of fact whether the defendant placed an inherently dangerous dumpster on something other than a flat surface.

To further its argument, the court cited several pieces of evidence to show the danger of the dumpster.

First was an unsigned and unsworn affidavit from a plaintiff witness who stated that the dumpster was inherently dangerous and not placed on a level surface.

The court also reveals that the dumpster was sitting in that spot on the lawn for several years, but that did not make it any less dangerous. The panel also cited plaintiff's evidence from the Consumer Product Safety Commission, which revealed that type of dumpster to be prohibited as it was not retrofitted with footings or braces.

In deciding whether the trial court correctly found the defendant to be negligent, the court analyzed the testimony of Steven Ziemba, who was described as a safety consultant.

Ziemba testified that slanting dumpsters were banned in 1978 because they had the potential for being unstable, but owners could retrofit them with bracing extensions.

To illustrate the difference between a safe and dangerous dumpster, Ziemba performed a pull test on a slanted dumpster which had bracing extensions and was placed on a hard surface. The dumpster did not tip at all.

However, when he performed a similar test on a dumpster without extensions and on a dirt surface, the dumpster could be tipped easily.

Dissent

In her dissenting opinion, O'Brien opened by writing that the mere happening of an accident is not negligence by itself.

She further stated the plaintiff entered no admissible evidence to establish that the defendant's negligence contributed to the dumpster falling.

O'Brien argued that Ziemba provided expert testimony that he was not qualified to share, and the trial court's reliance on that testimony was improper.

Without Ziemba's testimony, O'Brien wrote that the trial court should have granted a directed verdict to the defendant.

Attorney's comments

Koselka addressed the issue of whether Ziemba's testimony should have been allowed.

"It didn't really come up during trial, but they did a post-trial brief and in the appeal they said he was not an expert, he would be at best a layman," Koselka said. "The COA had to decide whether he was an expert or not, and the majority agreed with us and said it doesn't really matter, the court relied on it, and we'll consider it to be lay testimony."

Koselka added that the defendant argued much more of a criminal standard to qualify someone as an expert and have them accepted by the court.

"Nobody moved for any expert to be accepted by the court in this case, but I think that's what their goal was," Koselka said.

Regarding the evidence relating to the dumpster, Koselka said he argued that there were three possible faults.

"Something was wrong with the garbage can or with the way it's placed, or there was something else," Koselka said. "We presented evidence on the first two, and they really never presented any evidence to explain something else."

"Their expert conceded that had this been more of a conventional box shape, this never would have happened."

Defense attorney Caryn Ford did not return requests for comment on this case.

If you would like to comment on this story, email Thomas Franz at tfranz@mi.lawyersweekly.com.

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Title Annotation:Michigan Court of Appeals
Author:Franz, Thomas
Publication:Michigan Lawyers Weekly
Date:Dec 26, 2018
Words:938
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