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IN THE COURT OF COMMON PLEAS LAKE COUNTY, OHIO


DENISE EUSTACE

7310 Lauren J Drive Mentor, Ohio 44060 and


PATRICK EUSTACE

12CV002169 EUGENE A. LUCCI

7310 Lauren J Drive Mentor, Ohio 44060 and


KATHLEEN EUSTACE

7310 Lauren J Drive Mentor, Ohio 44060 Plaintiffs


vs.
ANDERSON HEATING

COMPLAINT WITH DISCOVERY REQUESTS


JURY DEMAND ENDORSED HEREON

& COOLING,

INC.

c/o Geoffrey C. Hanahan, Statutory Agent 270 E. Main Street Painesville, Ohio 44077

Defendant

Now come Plaintiffs Denise, Patrick, and Kathleen Eustace, through counsel, and for their complaint against Defendant Anderson Heating and Cooling, Inc., state and allege as follows:

PARTIES
1. Denise and Patrick Eustace are a married couple who reside in a singleThe Eustace home is located at the

family home with their daughter Kathleen Eustace. captioned address in Lake County.
2.

Defendant Anderson Heating and Cooling, Inc. ("Anderson"), is an Ohio in Lake County with a statutory agent at the captioned address.

corporation headquartered

FACTS
3. On February 22, 2011, Anderson sold the Eustace family a new Lennox G61 The company sought and obtained a

MPV energy efficient furnace (the "furnace").

building permit from the City of Mentor to install the furnace in the Eustace home and did so. 4. Prior to the sale and installation, Anderson knew that a gas-fired furnace like

that at issue presents a risk of accidental carbon monoxide exposure which can cause injury or death to the occupants or visitors of a home or building. 5. It is well known in the furnace installation industry that gas-fired furnaces

like that at issue must be properly installed or the combustion dynamics can be upset, resulting in incomplete combustion and the production of abnormally high levels of carbon

monoxide, which can be released anywhere there is a perforation or leak in the furnace combustion chamber or flue-gas pathway. 6. The furnace's manufacturer, Lennox, issued an installation and service

manual to Anderson with specific installation procedures to follow in order to prevent the release of carbon monoxide from the combustion chamber and/or flue-gas pathways.

Lennox's manual warned Anderson that failure to follow the installation procedures could create a carbon monoxide hazard and a risk of carbon monoxide poisoning to residents. 7. In this instance, Anderson did not properly install the furnace and the

combustion dynamics were upset, resulting in the production of high levels of carbon monoxide which were leaked through the combustion chamber and/or flue-gas pathway. 8. On February 23, 2011, water began leaking from the furnace. The Plaintiffs The next day,

reported the leak to Anderson and requested an inspection and repair.

Anderson performed an inspection and identified a pipe fitting as the source of the water leak. 9. 10. The furnace was also leaking carbon monoxide. At this time, Anderson should have recognized that the furnace was leaking Anderson should have warned the Eustace family of this leakage of

carbon monoxide.

harmful gas. But Anderson failed even to appreciate that carbon monoxide was leaking from the furnace.

11.

In the weeks following the installation of the furnace, Denise Eustace began

to suffer severe headaches, nausea, loss of balance and coordination, fatigue, memory loss, confusion, and twitching of her facial muscles-all 12. on a daily basis.

On March 2, 2011, a building inspector from the City of Mentor performed an

inspection on the new furnace and detected a natural gas odor, which he reported to Anderson. Later that day, Anderson inspected the furnace again and assured the Eustace

family that the furnace was operating properly. This assurance was reduced to writing. 13. On March 9, 2011, Anderson performed service on the furnace, installing a

cap on the air intake box. During this service, Anderson determined that the furnace was malfunctioning: the furnace's natural gas pressure was unsteady and out of the normal range when the furnace was in its high-fire combustion mode. At that time, Anderson also determined that the carbon monoxide level in the furnace flue was at a dangerously high level. Anderson was only able to reduce the carbon monoxide level below 100 parts per million by dropping the gas pressure. Lennox's manuals had previously warned Anderson that the maximum carbon monoxide reading should never exceed 100 parts per million, and that the "gas valve is factory set and should not require adjustment." 14. Despite these problems, Anderson again assured the Eustace family that

there was no carbon monoxide in their home on March 9,2011. In truth, carbon monoxide continued to leak from the furnace into the Eustace home. 15. On March 29,2011, Anderson inspected the furnace again in order to resolve

the fluctuating gas pressure problem it had identified during the prior service call. During
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this inspection, Anderson found once again that the carbon monoxide level in the furnace flue was still at a dangerously high level. Anderson made extensive repairs to the furnace, including the replacement brackets. of the manifold, burner, four orifices, and several burner And carbon

Nevertheless, Anderson was unable to stabilize the gas pressure.

monoxide continued to leak from the furnace into the Eustace home. 16. On March 31, 2011, Anderson inspected the furnace yet again in order to try

once more to resolve the fluctuating gas pressure problem it had found during the March 9 service call, and which it had failed to resolve during the March 29 repair call. During this inspection, Anderson confirmed for a third time that the carbon monoxide level in the furnace flue was still at a dangerously high level. Anderson assured the Eustace family, however, that there was no carbon monoxide in their home. 17. That day, Denise Eustace sought medical attention for the neurological After

symptoms she had been suffering since the new furnace had been installed.

laboratory tests were conducted at Lake Health Medical Center, Denise was diagnosed with carbon monoxide poisoning. 18. Between February 22 and April 1, Denise, Patrick, and Kathleen Eustace were

each continuously exposed to dangerous levels of carbon monoxide leaking from the Anderson furnace. They were each poisoned by the carbon monoxide leaking from the

furnace. Patrick and Kathleen Eustace have experienced chronic physical symptoms caused by their exposure to carbon monoxide.

19.

Board-certified

neurologist

Gary

Kutsikovich,

M.D., diagnosed

Denise

Eustace with toxic metabolic encephalopathy on April IS, 2011. The next week, an MRI of Denise's brain revealed "nonspecific white matter changes." This brain injury is permanent and was caused by the carbon monoxide poisoning. 20. Denise continues to experience cognitive impairment, headaches, confusion,

memory loss, and headaches caused by the carbon monoxide poisoning. These symptoms are chronic and permanent. Denise also continues to experience a deterioration of her poisoning. This decreased visual acuity is

vision caused by the carbon monoxide permanent.

FIRST CAUSE OF ACTION CLAIMS UNDER THE OHIO PRODUCT LIABILITY ACT 21. This cause of action is a "product liability claim" under the Ohio Product damages from

Liability Act, see RC. 2307.71(A)(13). It seeks to recover compensatory

Anderson for physical injury to persons, emotional distress, and physical damage to property other than the furnace itself, as a result of the assembly of the furnace, a lack of warning about the furnace, and the failure of the furnace to conform to Anderson's representations of safety. 22. Each of the plaintiffs is a "claimant" under the Act, see RC. 2307.71(A)(1)(a);

and Anderson is the "supplier" of the furnace because, in the course of its business, it sold, installed, and attempted to repair the furnace, see RC. 2307.71(A)(lS)(a)(i)-(ii).

23. negligence, incorporated

As a supplier,

Anderson

is liable

for compensatory

damages

for its

see RC 2307.78(A)(I), which is set forth in the Second Cause of Action and
herein by reference, see Civil Rule IO(C). As for all other product liability

claims, Anderson is strictly liable under the Act. 24. Anderson is liable as if it were the manufacturer of the furnace because it control, and it

altered, modified, or failed to maintain the furnace while it was in Anderson's it was that alteration, modification, or failure to maintain

the furnace that rendered

defective, see RC 2307.78(B)(6). To wit, Anderson leading into the furnace's combustion

installed foil tape to cover an opening instruction that a

system, despite the manufacturer's

vent plug be glued into place in this location; this modification combustion process, which resulted in abnormally

of the furnace upset the

high levels of carbon monoxide.

Failure to Conform to Representations


25. the furnace As a supplier, Anderson is strictly liable for compensatory did not conform, when it left Anderson's that it was safe, see RC 2307.78(A)(2). Anderson made the following "representations" of material facts concerning damages because repeated

control, to Anderson's

representations 26.

the character, quality, or safety of the furnace, see RC 2307.71(A)(14): a. b. monoxide" ; The furnace was "not defective"; The furnace would "not produce dangerous levels of carbon

c.

The furnace "would not release dangerous levels of carbon monoxide"

into the Eustace home; and d. 27. The furnace was "safe." representations. To wit, the

The furnace did not conform to Anderson's

furnace was not safe; to the contrary, a defect in the furnace resulted in the production of dangerous levels of carbon monoxide that were released into the Eustace home. Defect in Manufacture or Construction 28. The furnace was defective because, when it left Anderson's control, it see R'C.

deviated in a material way from the design specifications of the manufacturer,


2307.74; see also RC. 2307.77. To wit, Anderson

installed foil tape to cover an opening

leading into the furnace's combustion system, despite the manufacturer's instruction that a vent plug be glued into place in this location; this modification of the furnace upset the combustion process, which resulted in abnormally high levels of carbon monoxide. 29. The furnace also deviated from the design specifications in that the intake

and exhaust pipes were not properly installed for pitch, nor were they correctly supported. 30. The furnace also deviated from the design specifications in that the return air

filter slot was not sealed. 31. The furnace also deviated from the design specifications in that the external

static pressure drop was higher than that allowed by the manufacturer.
32. The furnace also deviated from the design specifications because the exhaust

vent pipe leaked flue gases. 8

33.

Each of the foregoing deviations,

taken individually

or in combination,

resulted in the furnace's defective condition, which produced and emitted dangerously high levels of carbon monoxide into the Eustace home.

Defect in Design or Formulation


34. The furnace was defective because, at the time it left Anderson's control, the

foreseeable risks associated with its design or formulation exceeded the benefits associated with that design or formulation, see RC 2307.75(A). That is, it is patently unacceptable that any furnace intended for home use emit dangerously high levels of carbon monoxide. 35. The foreseeable risks of the furnace's design included harm of a great and

serious danger, including carbon monoxide poisoning. This danger is largely undetectable since carbon monoxide is colorless and odorless; thus, the likely awareness of the furnace's buyer is extremely low, which results in longer exposure. Here, the furnace did not

conform to the design standard, since it emitted dangerous levels of carbon monoxide, far more dangerous than an ordinary and prudent consumer would expect, see RC 2307.75(B). 36. There were no benefits to the defective design of the furnace versus the

design of a safe and properly functioning furnace as intended by its manufacturer, see RC 2307.75(C).

Causation & Damages


37. As a direct and proximate result of the defective furnace or Anderson's representations, each (but

failure to warn of the furnace's failure to conform to Anderson's

plaintiff suffered injuries of a personal, pecuniary, and permanent nature, induding


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not limited to), physical injury, loss of enjoyment of life, property damage and such other harms, losses, and damages as will be proven at the trial of this matter, see R.C

2307.73(A)(2). 38. In addition to any economic losses suffered by the plaintiffs as a result of the including physical injury, serious

defective furnace, they each also suffered "harm,"

emotional distress, and physical damage to property other than the furnace itself, see R.C 2307.71(A)(7).
39.

The imposition of punitive or exemplary damages is warranted given that

Anderson's misconduct manifested a flagrant disregard for the safety of the Eustace family, see R'C, 2307.80(A). To wit, Anderson knew that the likelihood of harm from carbon monoxide poisoning was high and the nature of the harm serious, see R.C 2307.80(B)(I)-(2). SECOND CAUSE OF ACTION NEGLIGENCE

Ordinary Negligence
40. Anderson owed a duty to the Eustace family to install the furnace in a

manner which prevented the release of dangerous carbon monoxide into their home. 41. manner-or Anderson breached its duty by failing to install the furnace in a proper in failing to train its employees on how to properly install the furnace.

Anderson's installation failed to comply with the manufacturer's

installation specifications

and resulted in the release of dangerous levels of carbon monoxide gas in the Eustace home.

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42.

Anderson also owed a duty to warn the Eustace family of the danger of

leaking carbon monoxide from the furnace, about which Anderson knew or should have known. 43. Anderson breached its duty to warn by failing to inform the Eustace family of

the danger created by the unstable gas pressures and dangerously high carbon monoxide levels which Anderson had documented during repeated service calls. 44. As a direct and proximate result of Anderson's negligence, negligent hiring,

negligent failure to train, or negligent failure to warn, the plaintiffs each suffered injuries of a personal, pecuniary, and permanent nature, as set forth throughout this complaint and as will be proven at the trial of this matter.

Gross Negligence, Recklessness, and Punitive Damages


45. Given Anderson's knowledge of the substantial risk of serious physical harm repeated

posed by the carbon monoxide being emitted by the furnace, and Anderson's

failure to detect, repair, or warn of the emissions over the course of several weeks - despite ample opportunity to perform an adequate inspection-Anderson' s conduct constitutes

something beyond mere negligence.

Anderson's conduct was grossly negligent, reckless,

wanton or willful, evincing actual malice or a conscious disregard for the safety of the Eustace family and other foreseeable persons, such as visitors to their home, as well as the substantial danger posed to all occupants and invitees by carbon monoxide poisoning.

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46.

Indeed, on the date of sale, Anderson

employee Roy Anderson knew of the

risks of carbon monoxide poisoning and discussed them with the Eustace family, but falsely assured them that the furnace he was selling them would pose "no risk." 47. To punish this reckless conduct, and to deter others from such conduct in the

future, the imposition of punitive or exemplary damages is warranted. THIRD CAUSE OF ACTION BREACH OF WARRANTIES Express Written Warranty 48. Anderson issued an express written warranty over the furnace heat

exchanger for a period of 20 years. See Exhibit 1. 49. Anderson's As set forth throughout written express warranty. this complaint, the furnace has failed to conform to

Other Express Warranties 50. warranted Moreover, a. On the date of sale, Anderson employee Roy Anderson told the During the service calls described in paragraphs that the furnace was safe and non-defective, 11-16, Anderson repeatedly 26.

as set forth in paragraph

Eustace family that he recommended

the high-efficiency and

furnace model because

there was 'no risk of illness from carbon monoxide';

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b.

During the March 31 service visit, Anderson employees assured the

Eustace family that the furnace was a high-efficiency model that released carbon monoxide through a pipe leading outside the house and not inside the house. 51. As set forth throughout this complaint, the furnace has failed to conform to

Anderson's express warranties. Implied Warranty of Merchantability 52. Anderson breached the implied warranty of merchantability in that the

furnace was defective and not fit for the ordinary purpose for which such a device is used; that is, to provide safe heating of a residential structure. dangerous The furnace was unreasonably Anderson knew of the

for the use to which it would ordinarily be put.

dangerous condition, which existed at the time the furnace left Anderson's hands. Implied Warranty of Fitness for a Particular Purpose 53. Anderson breached the implied warranty of fitness for a particular purpose

in that the furnace was defective and not fit for the ordinary purpose for which such a device is used; that is, to provide safe heating of a residential structure. Anderson was

aware of the intended purpose to which the Eustace family would put the furnace, and the Eustace family relied upon Anderson's skill, judgment, and reputation to furnish them with a furnace.

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Causation & Damages 54. As a direct and proximate result of Anderson's breach of its express or each member of the Eustace family suffered damages as set forth

implied warranties,

throughout this complaint.

PRAYER FOR RELIEF


WHEREFORE, each plaintiff demands judgment against the defendant in an amount in excess of $25,000 on his or her complaint for compensatory damages and an amount in excess of $25,000 on his or her complaint for punitive damages, as well as fees, expenses, pre- and post-judgment appropriate. interest, and such other relief as this Court finds just and

IURYDEMAND
Plaintiffs demand a trial by jury.

Paul Grieco (0064729) Torn Merriman (0040906)


LANDSKRONER
th

GRIECO

MERRIMAN,

LLC

1360 West 9 Street, Suite 200 Cleveland, Ohio 44113 P: 216/522-9000 F: 216/522-9007 E: paul@lgmlegal.com tom@lgmlegal.com

Counsel for Plaintiffs

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