COA: Hardware store had no duty to shocked customer

By January 28, 2019Personal Injury

A Crawfordsville hardware store that rented an aerial lift to a man who ultimately used it too close to some power lines did not have any duty to provide additional warnings, the Indiana Court of Appeals has ruled.

Rogelio Barcelata, Odilon Elias Cordova and Rutelio Gonzales were working together to paint the rear exterior wall of a restaurant in Crawfordsville. Before applying the fresh coat, the men decided to remove the old paint by using a pressure washer and an aerial lift.

They rented the equipment from Crawfordsville Town & Country Home Center, Inc. Corey Perigo, the rental department manager, assisted the men but the parties dispute how well the customers spoke English.

After the men got the lift to the worksite, they had to call Perigo to come and help with a problem they were having operating the equipment. Again, there is a dispute between the parties over whether the lift was in the parking lot away from the restaurant or had already been placed next to the building’s back wall. Barcelata testified he assumed Perigo “would have said something” if the aerial lift could not be operated where it had been positioned.

The following day, Cordova and Gonzales were in the basket of the lift using the power washer. Cordova said the lift did not touch the power lines but he was shocked and sustained severe injuries that required the amputation of his left hand.

Subsequently, Cordova and his wife, Jamie Busse, filed a complaint for damages against Town & Country and Do It Best Corp. They alleged the businesses were negligent in renting the aerial lift; negligent for failing to provide sufficient warnings, training, and instructions; and negligent because they knew or should have known the aerial lift created an unreasonable risk of harm when used in a manner reasonably foreseeable to Town & Country and Do It Best.

Town & Country countered with a motion for summary judgement, arguing that it did not have a duty to Cordova; its conduct was not the proximate cause of his injuries; and Cordova’s fault was greater than the fault of any other person who contributed to his damages.

The Allen Superior Court denied summary judgment but the Court of Appeals reversed and remanded in Crawfordsville Town & Country Home Center, Inc., v. Odilon Elias Cordova, Jamie Busse, and Do It Best Corp., 18A-CT-314.

Before the appellate panel, Town & Country asserted the aerial lift’s manufacturer’s warnings were sufficient, and it was not required to provide additional warnings to Cordova.

Cordova argued that the warnings were provided in English and that his English is limited. Also he contended that Town & Country had a duty because Perigo allegedly was aware of where Cordova was using the aerial lift.

Citing Ford Motor Co. v. Rushford, 868 N.E. 2d 806 (Ind. 2007), the Court of Appeals found Town & Country had no duty to provide additional warning to Cordova, despite his limited English skills.

“Further, under Rushford, we do not believe that Perigo’s visit to the jobsite changes the outcome,” Judge Elizabeth Tavitas wrote for the court. “We acknowledge that the parties have differing accounts of whether Perigo witnessed the aerial lift’s location between the restaurant’s back wall and the power lines. Even if Perigo did see the final location of the aerial lift, however, under Rushford, Town & Country was not required to provide additional warnings. Furthermore, both Cordova and Barcelata admitted during their depositions that they were aware of the dangers of the power lines.”

This article was first published by The Indiana Lawyer.

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