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Waste & Recycling February 18, 2019 02:30:04 AM

Court Sides with Young Boy Injured by MWS Dumpster

Waste Advantage
ScrapMonster Author
After a three-day trial without a jury, the circuit judge ruled in favor of Shawn, finding that the design and placement of the dumpster rendered it inherently dangerous.

Court Sides with Young Boy Injured by MWS Dumpster

SEATTLE (Waste 360): Only 8 years old and yet trying to impress a girl. Shawn Eichler managed to pull a dumpster down on himself while doing his best to perform a pull-up on a bar attached to the front of the bin. His grandmother, Brenda Baker, had rented the dumpster from Modern Waste Systems, Inc. (MWS). Shawn and his mother, Mindy Baker, lived next door to Brenda, and Shawn spent a lot of his time at her house.

Being a minor, Shawn could not take any formal action on his own. Mindy, as his legal representative, filed suit against MWS in the Circuit Court for Lenawee County, Mich., to recover for his injuries. Their claim was based on the contention that the dumpster, which was a "slant-type" with a long overhang, was inherently dangerous if an 80-pound boy could pull it over so easily. In addition, they charged that MWS was negligent for placing such a dumpster on a grass surface and not on a concrete slab.

Tort liability in Michigan is similar to what exists in most other states. To establish a presumptive case of negligence, a plaintiff must prove the following: (1) the defendant owed the plaintiff a legal duty; (2) the defendant breached the legal duty; (3) the plaintiff suffered damages; and (4) the defendant's breach was a proximate cause of the plaintiff’s damages.

As a baseline, however, Michigan courts accept the premise that every person engaged in the performance of an undertaking is obliged to use due care so as not to cause personal injuries or property damage. Thus, the key issue was whether MWS used ordinary care to avoid harming Shawn, whose presence on and around the dumpster was foreseeable.

MWS countered that it owed Shawn no duty. But even if a duty existed, MWS argued that there was no breach of duty because Brenda was the one who chose the location for the dumpster. In addition, MWS claimed that Shawn himself was negligent as were Brenda and Mindy in failing to properly supervise him.

After a three-day trial without a jury, the circuit judge ruled in favor of Shawn, finding that the design and placement of the dumpster rendered it inherently dangerous and that MWS’ negligence was the proximate cause of Shawn’s injuries. A three-judge panel of the state court of appeals, by a 2 to 1 margin, upheld the decision.

There were no eyewitnesses to the mishap itself, only its aftermath. Although Brenda and Mindy testified that the dumpster had been there for a number of years without a problem, the fact that there were no incidents did not necessarily prove that the dumpster was safe.

The plaintiff’s key witness was Steven Ziemba, who described himself as a "safety consultant." A graduate of Wayne State University with a degree in chemical engineering, Ziemba worked as a safety engineer with various insurance companies and conducted accident investigations. The work included looking for fire hazards, liability hazards and inspecting equipment.

On appeal, MWS focused entirely on whether the trial court properly considered Ziemba's testimony when it concluded that MWS breached its duty to Shawn. MWS maintained that, had the trial judge acted properly and refused to consider Ziemba's testimony, no basis would have existed for finding the company negligent. Appeals courts look for “clear error,” that is, obvious indications that the trial judge made a mistake. At the same time, appellate judges routinely defer to a trial court's superior ability to assess the credibility of the witnesses who appeared before it.

Ziemba was asked to determine the safety of the type of dumpster involved in the accident. He testified that the Consumer Product Safety Commission (CPSC) had been looking into the dangers of "slant-side" dumpsters since the 1970s. He testified that these dumpsters could be unstable and were banned in 1978.

However, owners could enhance stability by retrofitting these dumpsters with bracing extensions. Ziemba also pointed to a 1984 CPSC product sheet that cited a number of studies showing there had been 13 deaths of young children due to lack of stability. He opined that an 80-pound child should not be able to tip over a properly stable dumpster. 

Courtesy: https://waste360.com

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