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Fry v. Diamond Const.

June 1, 1995

ROBERT LEE FRY, II, APPELLANT,
v.
DIAMOND CONSTRUCTION, INC., APPELLEE.



Appeal from the Superior Court of the District of Columbia. (Hon. John H. Suda, Trial Judge).

Before Ferren, Terry, and Schwelb, Associate Judges.

The opinion of the court was delivered by: Schwelb

SCHWELB, Associate Judge: Robert L. Fry II (Fry, Jr.) appeals from an order of the trial court granting Diamond Construction Company's motion for summary judgment in Fry, Jr.'s action for personal injuries. We conclude that there were genuine issues of material fact precluding entry of summary judgment. Accordingly, we reverse the judgment and remand the case for further proceedings.

I.

Fry, Jr. suffered severe and disabling injuries when a ladder and scaffolding on which he was working collapsed, causing him to fall some thirty-two feet to the asphalt pavement below. At the time of the accident, Fry, Jr. was painting the exterior of a building at the Turner Elementary School in southeast Washington, D.C., as part of a project to replace windows at the school. Diamond was the general contractor retained by the District of Columbia for the project. Diamond had engaged Arlyn Construction Company, a sole proprietorship operated by Robert L. Fry, Sr., Fry, Jr.'s father, as the painting subcontractor for the work. Arlyn was to be compensated for its time and materials.

Under its agreement with Diamond, Arlyn was to paint the exterior structural columns which were located near the windows to be replaced. The Frys brought scaffolding to the site. After they had begun to set it up, they determined that the scaffolding was not high enough to enable Fry, Jr. to reach some of the windows.

Fry, Sr. testified at his deposition that on May 29, 1991, he went to see Bengt Barnas, Diamond's safety officer, to explain the situation. He informed Barnas that the top windows were too high to reach with the available scaffolding, and requested that he be authorized to use a "scissors lift." Barnas asked how much such a device would cost, and Fry, Sr. estimated that it would run about $200 to $250. According to Fry, Sr., Barnas rejected this option as too expensive. Fry, Sr. explained that without a scissors lift, he would have to place a ladder on top of the scaffolding, and Barnas directed him to do so. Although Diamond claims that Fry, Sr.'s testimony on this point was equivocal, the record does not bear out this contention:

Q Are you saying now you've got a recollection that he told you it was okay to use a ladder on top of the scaffolding?

A I didn't say I didn't have a recollection before. He told me to use the scaffold and the ladder. . .

Q Who originally suggested a ladder?

A I probably did. I told him that's the only way I could get up there. I couldn't run scaffolding any higher, but I told him I'd rather use the lift.

Q Is it possible he told you that he didn't want you to use the scaffolding and the ladder?

A It is not possible.

Q It's not possible? A No.

Q I'm trying to find out if you have a definitive and specific recollection that he said it was okay to use the scaffolding and ladder or if that's what you're assuming now?

A I'm not assuming anything. I can take a directive. I was given a directive. Now, how he made this directive, I don't know. I don't recall. All I know is when I left there, I had presented the problem, I told him the solution, what I wanted to do, and he told me it's too costly, to continue on as I was with the ladder and the scaffolding.

Barnas denied at his deposition that he had directed Fry to place a ladder on top of the scaffolding or that he had agreed to such a procedure. In fact, Barnas testified that such an arrangement would violate federal safety regulations and would increase "a thousand-fold" the risk that the worker would fall. *fn1

The work proceeded on May 30, 1991. The dangerous situation created by the use of the ladder on the scaffold was compounded, according to Fry, Sr., by the fact that the scaffold was not "tied off" (i.e., secured to the building). *fn2 Fry, Jr. was on ...


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