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A Philadelphia Court of Common Pleas jury has returned a defense verdict in favor of a manufacturer that, the plaintiff claimed, made scaffolding that was defective because the product did not come with guardrails. Judge Mark I. Bernstein’s allowance of OSHA regulations into the trial was imperative in securing the defense verdict, according to defense attorney John P. Penders of Philadelphia-based Marshall, Dennehey, Warner, Coleman & Goggin. Plaintiff Stanley Bialek was injured when he fell from scaffolding manufactured by Sonny Scaffolds. At the time of the accident, he was working on a platform approximately 3 feet tall. His injury could have been prevented, he said, if Sonny Scaffolds packaged its product with guardrails. The OSHA regulation at issue does not require guardrails to be used on scaffolding that is less than 10 feet tall. Penders asserted that OSHA requirements were relevant to the case to establish that the scaffolds were not sold in a defective state. “Unlike industry standards that are created by the industry and are therefore not admissible, OSHA regulations are issued by the federal government � and are not the creation of the industry but of safety officials from the federal government,” Penders said. But, he said, judges don’t always rule in favor of admitting OSHA regulations, and that the context in which the regulations will be used is frequently the basis for judges’ decisions. “Sometimes people try to introduce that an employer was required to do something under an OSHA regulation,” Pender said. “But that is not admissible because the responsibility to provide a safe workplace is non-delegable.” Bialek’s attorney, Peter M. Patton of Philadelphia’s Galfand Berger said that the admittance of the OSHA regulation hurt. “There were definitely arguments made that, in my view, were not part of a products liability case,” Patton said. Bialek was a foreman for R.E. Builders. At the time of his accident, Bialek was renovating commercial office space with Richard Lind, another R.E. employee. The pair were working on scaffolding on top of a level concrete floor, attaching 10-foot sections of track to the office’s cinderblock wall. The scaffolding’s work platform could be extended to a maximum height of 6 feet. However, at the time of the accident, the platform was three feet off the ground. Bialek and Lind attached the track using a method they had used on previous jobs. Bialek stood on the scaffolding platform and attached the tracks to the wall, first attaching one end of the 10-foot track section while Lind held up the other end. Bialek would then attach the other end of the track. To move along the wall while attaching the track, the brakes on the scaffolding’s wheels were intentionally left unlocked, Penders said. Bialek would then jostle the scaffolding to the next location while standing on the work platform. As Bialek began to jostle the scaffolding, he fell backward over the back end of the scaffolding and landed on his head and shoulder. According to Bialek’s attorney, his injuries included bleeding in the brain and cerebral contusions that have left him permanently unable to return to work as a construction worker. Bialek then filed suit against scaffolding manufacturer Sonny Scaffolds and Specialty Products & Insulation Co. that sold the scaffolding to Bialek’s employer. Specialty Products settled for $750,000 prior to trial. In his strict liability action against Sonny Scaffolds, Bialek claimed that the scaffolding should have been sold with guardrails that would have prevented his fall. According to Penders, however, Sonny Scaffolds did offer guardrails for use with the scaffolding model at use at the time of the accident. OSHA guidelines did not require guardrails at the height Bialek was working on. According to OSHA, guardrails are required when two scaffolding units are stacked together and the height of the work platform is higher than 10 feet. OSHA guidelines also allow guardrails to be built out of materials found on the job site. Bialek argued that in order for the scaffolding to be safe for its intended use, guardrails should not be optional and all scaffolding units should be sold with the railings. Sonny Scaffolds countered that no manufacturer of adjustable scaffolding frames includes guardrails as standard equipment and that Bialek was misusing the scaffolding at the time he was injured. The scaffolding system, the manufacturer asserted, was not defective as a matter of law. Requiring scaffolding manufacturers to include guardrails with each unit, Sonny Scaffolding said, would be impractical because only one set of guardrails can be used at a time, even when more than one scaffolding unit are vertically stacked. “Plaintiff’s contention that Sonny’s failure to insist that its customers purchase a set of guardrails with every scaffold does not support the conclusion that Sonny Scaffolds supplied a defective product,” the defendant’s brief states. Adjustable frame scaffolds can be, and frequently are, stacked on top of each other to increase the height of the work platform, Penders asserted. When the scaffolding is stacked, only one set of guardrails would be used at a time, rendering the other sets useless. In fact, Sonny Scaffolds argued, supplying guardrails with every scaffolding unit would be impractical because only one set of guardrails can be used at a time. “You should not have to purchase a guardrail with each unit,” Penders said. “We were trying to explain why a customer would not necessarily want to buy a guardrail with each scaffolding. � We have a financial incentive to sell steel guardrails to make a profit. � We can’t force people to buy what they don’t want.” Patton said that post-trial motions would be filed.

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