A judge has refused to dismiss a suit filed against Hermitage School District based on the available evidence.

Mercer County Common Pleas Court Judge Francis J. Fornelli said there are issues of fact in the suit filed by George Howze that are best decided by a jury.

Howze, 2047 Madison Ave., sued Aug. 10, 2006, on behalf of his daughter, Zoe, now 10.

Zoe was 6 and a first-grader at Artman Elementary School when she was playing on the “3-level chinning bars” on Oct. 13, 2005, according to the suit. She had climbed atop the five-foot pull-up bar when she slipped and fell. She suffered a broken elbow, muscle damage and other injuries. She underwent several surgeries to repair the elbow and muscle damage, and had a skin graft, the suit said.

Howze, represented by Robert B. Woomer of Pittsburgh, sued the school district; chinning bar manufacturer Recreation Creations Inc., Hillsdale, Mich.; and recreation consultant Baker Equipment for Athletics and Recreation, Valencia, Pa., charging negligence, liability and loss of services.

The district, represented by Michael L. Fitzpatrick, Carnegie, and Recreation Creations said in their motions for summary judgment that Howze has presented no “factual witnesses” to back his claims, and depositions from Howze, Zoe and Zoe’s mother, Brenda Lizzie, presented no information concerning the condition of the playground equipment, the mulch under it, or the district’s maintenance of the equipment.

The district also asserted it is immune to the lawsuit because Howze has not claimed any of the immunity exceptions allowed by law, he said.

After the motions for summary judgment were filed, Woomer released a report by Al Vangura Jr. of Keystone Engineering Consultants Inc., Gibsonia, Pa., in which he said that the district, RCI, BEAR and Seasonal Services Inc., Hermitage, which has not been sued, were at fault for Zoe’s injuries.

Among his conclusions, Vangura said the equipment was improperly installed, the mulch bed was not adequately maintained and the chin-up bars did not have proper warnings on them.

Fornelli, ruling Jan. 23, said Vangura’s report provides enough evidence to form a sufficient basis for most of the claims made by Howze. He added that credibility of the report and the evidentiary weight it should receive would best be determined by a jury.

On the immunity issue, Fornelli said the credibility of the district’s main witness on the issue, maintenance director Donald McClafferty, should be scrutinized by a jury.

Fornelli granted the request to remove the loss of services claim after Howze agreed to it.

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