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Pettit v. Clarion Technologies8/26/2005
e area Pettit was required to repair. " ad Mr. Pettit used the forklift and basket combination on the day of the accident, he could have safely made any needed repair on the beam and/or robotic arm control box without having to crawl out of the basket onto the robotic arm of the press."
{ } In his deposition, Pettit testified that he received no specific instructions on how to go about repairing the No. 8 press. He further testified that at the time of his accident, Clarion offered no safety training for performing elevated repairs. Nor did they provide hard hats, safety harnesses or safety belts. Appellants' memorandum in opposition to Clarion's motion for summary judgment included the affidavit of Pettit wherein he testified that: (1) the forklift and basket provided by the company for repairs did not allow him to reach the area he was required to repair, (2) had he used the forklift and basket he still would have been forced to climb out of the basket and onto the beam in order to make the required repair, (3) a specific type of lift, a JLG lift, would have reached far enough for him to remain in the basket and make the required repair, (4) Clarion did not own a JLG lift, (4) Clarion's employees had previously informed Clarion of the need for a JLG lift for fall protection and, (5) despite knowing that a JLG lift was needed for fall protection, Clarion failed to provide a JLG lift for its employees.
{ } The purpose of summary judgment is not to try issues of fact, but is, rather, to determine whether triable issues of fact exist. Fuller v. German Motor Sales, Inc. (1988), 51 Ohio App.3d 101. Therefore, in determining a motion for summary judgment, a court does not try the issues of the credibility of the witnesses or weigh the evidence. Halley v. Grant Trucking, Inc. (1990), 67 Ohio App.3d 357, 364, Paul v. Uniroyal Plastics Co. (1988), 62 Ohio App.3d 277.
{ } In granting summary judgment to appellees, the trial court stated that " t is clear that [Pettit] chose to conduct the repair in a manner which resulted in his own injury and which was contrary to the practice of the employer." Given the conflicting evidence before the court regarding the sufficiency of the forklift and basket, we find this statement by the court to be an improper credibility determination.
{ } Upon a review of the deposition, affidavits, exhibits and, applying the standards of Fyffe v. Jeno's, Inc., we find that there exist material issues of fact as to whether or not the forklift and basket could safely reach elevated areas and whether or not Clarion provided appropriate fall-protection equipment for the repair Pettit was required to make. Accordingly, the judgment of the Williams County Court of Common Pleas is reversed, and this matter is remanded for further proceedings consistent with this decision and judgment entry. Appellees are ordered to pay the costs of this appeal for which sum judgment is rendered against appellees on behalf of Williams County and for which execution is awarded. See App.R. 24.
JUDGMENT REVERSED.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4, amended 1/1/98.
Mark L. Pietrykowski, J. JUDGE
Arlene Singer, P.J., Dennis M. Parish, J. CONCUR.
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