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A man who lost parts of his fingers and was partially blinded while assisting during a fireworks show will be able to continue his suit against the show’s lead technician, the state Superior Court has ruled.

A three-judge panel ruled May 13 to overturn a trial court’s decision that tossed the case based in part on finding that the plaintiff had assumed the risk and an expert report the plaintiff submitted was invalid. Writing for the Superior Court, Judge Christine L. Donohue said that questions of fact remained regarding whether the expert report was adequate.

Robert J. Thompson, the plaintiff in Thompson v. Ginkel, had submitted an expert report by Mark A. Sokalski positing that defendant Eugene P. Ginkel had used firework shells that were too small for the mortar tubes.

“Because an issue of material fact exists with respect to whether Thompson was injured during the main event by a 3-inch diameter shell or by a 2.5-inch diameter shell during the grand finale, and because the conclusions set forth in Sokalski’s expert report are adequately supported by the summary judgment record, it was not within the trial court’s province to give it no weight in granting summary judgment to Ginkel,” Donohue said. “The adequacy of Sokalski’s expert report must be left to the jury.”

The trial court had found that the report was based upon an unreasonable assumption and had rejected it, according to Donohue.

In a footnote, Donohue also said the court agreed with Ginkel’s contention that the trial court should not have considered the expert report because it was not a part of the summary judgment record. However, she found that the defendant had waived that argument.

“Because Ginkel did not object to the trial court’s consideration of Sokalski’s expert report while the motion for summary judgment was pending, the argument has not been preserved for appellate review,” Donohue said in a footnote.

According to Donohue, in 2008, Ginkel was the lead technician for a fireworks display, which consisted of a main event and a grand finale. During the show, Mike Boedecker assisted Ginkel by reloading mortar tubes with shells, Donohue said.

Thompson volunteered to assist Ginkel by watching the display and counting every shell that launched to verify it exploded. He wore protective goggles and earplugs and positioned himself about 50 feet from the staging area, Donohue said.

During the show, Thompson was injured by a “low break,” which occurs when a shell fails to launch and explode as intended, Donohue said. Thompson sustained burns, the loss of digits and partial blindness in one eye.

Thompson sued Ginkel, alleging that the preparation and execution were negligent. After discovery, Ginkel made a motion for summary judgment, arguing that Thompson’s case should be barred because he had assumed the risk of injury.

Ginkel noted that Thompson had participated in more than 20 displays, and that, prior to the injury, Thompson had witnessed two or three low breaks, but had not moved farther from the staging area. Ginkel also noted that after Boedecker had yelled that a rack of mortar tubes had fallen or was broken, Thompson moved closer to the staging area.

In a brief in opposition to the motion, Thompson included Sokalski’s report. The report referenced a purchase order, which Sokalski said indicated that Ginkel loaded shells with 2.5-inch diameters into mortar tubes with 3-inch diameters during the finale. The report further attributed the low breaks with placing the shells in oversized tubes. Thompson argued that while he knew of the risks generally, he did not assume the risks of the higher probability of low breaks.

The McKean County Court of Common Pleas, however, said that all of the information in the record indicated that Thompson was injured by a 3-inch shell coming out of a 3-inch tube, and rejected the report. The court additionally found that Thompson had assumed the risk, and tossed the case.

Donohue noted that Sokalski’s report and testimony from Ginkel and Thompson were not conclusive about the timing of the incident and what size of shells caused the injury.

“We conclude that the trial court erred in its determination that no genuine issue of material fact exists regarding whether Thompson was injured by a 2.5-inch or 3-inch diameter shell,” Donohue said. “As a result, we likewise conclude that the trial court also erred in its rejection of Sokalski’s expert report.”

Donohue also noted that while dicta in the state Supreme Court’s 2000 ruling in Hughes v. Seven Springs Farm suggested that the assumption of risk doctrine has been supplanted by the comparative fault system of recovery, questions about the assumption of risk typically remained for a jury to determine.

Thompson, Donohue noted, had testified that the previous low breaks had traveled some 60 feet into the air before exploding and that there was no “clear evidence” that approaching the staging area after the mortar rack broke increased his risk of being injured by a low break, and, therefore, she determined that questions existed for a jury.

“In our view, it is for the jury to decide whether Ginkel was negligent, whether his alleged negligence increase the probability of ‘low breaks,’ and, if so, whether Thompson assumed the greater risks of the increased probability of danger,” Donohue said.

Peter D. Friday, of Friday & Cox in Pittsburgh, said he was “elated” for Thompson.

“The facts of the case demonstrated that this fireworks operation was poorly planned and not properly supervised,” Friday said. “Unfortunately, safety was only a secondary concern.”

Ginkel’s attorney, Craig Markham of the Elderkin Law Firm in Erie, said he was reviewing the opinion with his client regarding a possible appeal.

Max Mitchell can be contacted at 215-557-2354 or mmitchell@alm.com. Follow him on Twitter @MMitchellTLI.

(Copies of the 14-page opinion in Thompson v. Ginkel, PICS No. 14-0813, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •