By Shelley Grieshop
WAPAKONETA -- A new judge has been assigned to preside over a civil lawsuit against Hoge Lumber Co. in New Knoxville stemming from a fatal silo explosion in October 2003.
Attorneys for Hoge Lumber requested the new trial judge "to avoid potential conflict and any appearance of impropriety." John Hoge, owner of the lumber yard, is currently a jury commissioner for the Auglaize court. The Supreme Court of Ohio assigned the Honorable Judson LaMoure Shattuck Jr., a retired judge from Greene County, to the case.
Although a trial date is still set for November, court documents indicate that delays in taking depositions, as well as the assignment of the new judge, may cause a trial date delay.
The lawsuit was filed against Hoge Lumber in September 2004 in Auglaize County Common Pleas Court by Midwest Claims Service Inc. of Dayton, an insurance agent for the village of New Bremen. The village's fire department sent manpower and equipment to fight the 2003 silo fire alongside New Knoxville firefighters.
The village's insurance company is suing the lumber yard to recoup more than $177,000 in damages. New Bremen village officials have said the funds to repair and replace the damaged village-owned equipment already were received from Midwest and new items were purchased. However, Midwest is pursuing negligence claims in the lawsuit to recover its losses.
Besides seeking reimbursement for firefighting equipment, Midwest claims Hoge Lumber Co. owner John Hoge and his employees also are responsible for the deaths of two New Bremen firefighters who were killed during the silo explosion.
Ken Jutte and John Garman, both longtime volunteer firefighters, perished when the concrete silo exploded as they tried to extinguish the burning structure from above.
Midwest alleges negligence by John Hoge and his employees including the possible discarding of cigarette butts into fuel within the silo, which they say may have contributed to the explosion. That claim was disputed by a state fire marshal investigator who spoke to The Daily Standard last fall.
In an amendment to the suit, Midwest recently filed a spoilation claim that alleges Hoge employee Joseph G. Kniekamp failed to keep proper maintenance records on the silos and "willfully destroyed evidence" to avoid potential future litigation.
Keener, Doucher, Curley & Patterson of Columbus, the legal firm representing Hoge Lumber, said the spoilation of evidence claim has no basis and asked the court to dismiss it. The defense attorneys seek fees related to the time spent on that particular claim.
The Columbus attorneys say Hoge Lumber is not liable for injuries or damages and base their claim on the results of the investigation by the State Fire Marshal's office. State fire officials ruled two months after the tragic event, saying it was "accidental in nature" and "no deliberate or intentional acts" by owners/employees of Hoge Lumber caused the fire or subsequent explosion.
State investigators said the fire was caused by a combination of backdraft and a rapid ignition of gaseous byproducts and dust particles. Fire investigators concluded, however, that "untimely introduction of air by the firefighters on the scene was instrumental in causing the explosion, which directly led to the damaged property and the deaths, court documents state.
Attorneys for Hoge Lumber stated in a memorandum filed in court, the Fireman's Rule must be abided in the case. According to that rule, Ohio's common-law doctrine, specific situations must have occurred before a property owner is liable for damages or injuries sustained by summoned firefighters or police officers. None of the instances apply in this case, they say.
The Fireman's Rule states property owners are only liable if: injury/damage is caused by the owner's willful or wanton conduct; injury/damage is the result of a hidden trap; injury/damage is caused due to the owner's violation of duty; or the owner is aware of the firefighters or police officers presence and fails to warn them about known danger.
Midwest claims Hoge Lumber employees may have failed to maintain pulleys within the silos "such that friction from pulleys caused heat to build or other action that resulted in the explosion."
Midwest also claims Hoge employees hid information about the explosive nature of the silo from firefighters "resulting in a hidden trap on the premises" and failed to maintain an adequate supply of inert gases on the premises to extinguish fires.
Records show company owner John Hoge built and designed the oxygen-limiting silo in question and was the 911 caller the day of the fire. Firefighters have been called to the New Knoxville business 16 times in 15 years, according to court documents.