Construction companies seek dismissal in collapsed scaffolding lawsuit

By Heather Isringhausen Gvillo | Dec 13, 2013

Construction companies accused of providing faulty scaffolding have moved to dismiss a Madison County personal injury lawsuit.

According to the complaint filed Oct. 8, Autumn Swarringin claims she was working as a subcontractor on a painting project at a home in Troy for defendant Davis Reliable Drywall and Painting. She alleges the defendant instructed her to paint a portion of the home using the scaffolding it provided.

Then on May 31, 2012, Swarringin claims the scaffolding collapsed beneath her while she was painting.

She blames Davis Reliable Drywall and Painting for failing to properly supervise her work, failing to instruct her on how to properly perform her work, failing to provide a scaffold that was safe and requiring her to work more than six feet above the ground without access to guardrails.

She also names Robert Davis individually and doing business as Davis Reliable Drywall and Painting.

She names P&A Drywall Supply a defendant for selling the scaffolding to Davis Reliable.

Michael Reed is named a defendant for building the scaffolding and other equipment used in the construction activities.

Defendant Davis answered the complaint on Nov. 20 denying the allegations against him and demanding a trial by jury.

Davis, represented by Robert J. Bassett and Ross S. Titzer of Williams Venker & Sanders in St. Louis, filed 13 affirmative defenses claiming the scaffolding conditions “may be the result of an unauthorized modification, abuse, misuse, unintended use, or other alteration” of the equipment.

He also blames the plaintiff’s damages on her own negligence, specifically since the plaintiff allegedly failed to give timely notice regarding any defects or safety concerns, the defendants claim.

Davis argues that any injuries sustained were the result of those other than him, because his company, Davis Reliable, did not design or manufacture the scaffolding.

Davis filed a motion to dismiss counts II and III of the seven-count complaint, pertaining to him and his company.

Count II claims a res ipsa loquitur, count, or negligence regarding a duty of care and breach of that duty whether there is direct evidence of behavior or not.

Davis claims the doctrine requires “that the occurrence is one that ordinarily does not occur in the absence of negligence, and the defendant had exclusive control over the instrumentality that caused the injury.”

In response to these requirements, Davis argues the equipment at issue was operated by the plaintiff and out of the control of Davis.

Count III alleges negligent actions against Davis in the event “that plaintiff is found to have been an employee of Davis Reliable.”

Davis argues that for Swarringin to obtain workers’ compensation insurance, the case must be presented to the Illinois Workers’ Compensation Commission for a hearing.

Defendant P&A Drywall also filed a motion to dismiss on Nov. 26 through attorney Anne Elizabeth Bode of SmithAmundsen LLC in St. Louis, arguing that the plaintiff fails to meet the “established pleading requirements” in each of the three counts in the complaint.

It claims the plaintiff must establish a duty of care owed by the defendant and breach of that duty as well as prove that an unreasonably dangerous condition of the product existed, in order to be blamed for product liability.

“Plaintiff does not allege in Count VI that she was injured in an occurrence that ordinarily does not happen in the absence of negligence, nor does she allege that the scaffolding was within P&A’s exclusive control,” the defendant states.

Madison County Circuit Judge Andreas Matoesian presides over the case.

Edward J. Szewczyk of Callis, Papa, Hale and Szewczyk in Granite City and Philip J. Rarick of Granite City is representing Swarringin.

Madison County Circuit Court case number 13-L-1687

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