ROBERT J. THOMPSON, Appellant
EUGENE P. GINKEL, LISA D. GINKEL, GLENN J. KRESS, DONALD KRESS, BRANDY KRESS, KRESS BROTHERS BUILDERS, INC., KRESS BROTHERS BUILDERS, L.P., SANDRA F. DOBLER, Appellees
Submitted March 10, 2014.
Appeal from the Order of the Court of Common Pleas, McKean County, Civil Division, 849 CD 2010. Before HAUSER, J.
Peter D. Friday, Pittsburgh, for appellant.
Craig A. Markham, Erie, for Ginkel, appellees.
Paul K. Geer, Pittsburgh, for Kress Brothers Builders, Inc., appellee.
BEFORE: GANTMAN, P.J., DONOHUE and FITZGERALD [*], JJ. OPINION BY DONOHUE, J.
Appellant, Robert J. Thompson (" Thompson" ), appeals from the trial court's order granting summary judgment in favor of Appellee, Eugene P. Ginkel (" Ginkel" ). For the reasons that follow, we reverse the trial court's order and remand the case for trial.
On June 26, 2008, Ginkel served as the lead technician for a fireworks display consisting of two parts, a main event and a grand finale. For the main event, a rack of ten 3" diameter mortar tubes were loaded with 10 shells, with Ginkel lighting one fuse every thirty to forty seconds. As they were fired, another individual, Mike Boedecker, assisted Ginkel by reloading the tubes with new shells. The main event lasted approximately 12 to 14 minutes. The set up for the grand finale was separate from the main event, and consisted of three sets of 10 shells, each fused to a common lighting point, also loaded into 3" diameter mortar tubes. Ginkel lit these three sets of mortars every four seconds, and the grand finale was thus completed in approximately 12 seconds.
Thompson volunteered to assist Ginkel by observing the display and counting every shell upon launch to verify that it exploded. To perform this task, Thompson positioned himself approximately 50 feet away from the staging area where Ginkel and Boedecker were lighting the fuses and reloading the mortar tubes. He wore protective goggles and earplugs provided by Ginkel. At some point near the end of the fireworks display, Thompson was injured by a " low break," where a shell does not go up and explode as intended. The " low break" resulted in a shell landing and exploding close to Thompson, causing various injuries including burns, the loss of parts of his digits, and partial blindness in one eye.
On June 24, 2010, Thompson filed a complaint against, inter alia, Ginkel, alleging negligence in the preparation and execution of the fireworks display. After the completion of discovery, Ginkel filed a motion for summary judgment, contending that Thompson's claims should be barred because he assumed the risk of injury. According to Ginkel, discovery showed that Thompson had participated in more than 20 fireworks displays, had repeatedly performed tasks like loading mortar tubes, and had attended fireworks safety seminars. As a result of Thompson's formal training and extensive work experience, Ginkel contended that Thompson was well aware of the dangers of being within 50 feet of the launching area in general, and of the risks of " low breaks" in particular. Ginkel further indicated that prior to the " low break" that injured him, Thompson had already witnessed two or three other " low breaks" in the fireworks display and had not moved to safer ground. In fact, upon hearing Boedecker yell that a rack of mortar tubes had fallen or was broken,
Thompson was actually moving closer to the staging area at the ...