McElroy et al v. The W.W. Williams Company, Inc.

Filing 35

MEMORANDUM OPINION AND ORDER DENYING Williams' 28 MOTION for Summary Judgment, as further set out in order. Signed by Honorable Judge W. Harold Albritton, III on 3/8/17. (Attachments: # 1 civil appeals checklist)(djy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
KENNETH MCELROY,
DEBORAH MCELROY,
Plaintiff,
v.
THE W.W. WILLIAMS, COMPANY, INC.,
& W.W. WILLIAMS SOUTHEAST, INC.,
Defendants.

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CASE NO. 2:16-CV-275-WHA
(WO)

MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This case is before the court on a Motion for Summary Judgment, (Doc. # 28), and
accompanying brief in support, (Doc. # 29), filed by Defendants The W.W. Williams Company,
Inc. and W.W. Williams Southeast, Inc. (collectively, the “Williams”).
The Plaintiffs, Kenneth McElroy and Deborah McElroy (collectively, the “Plaintiffs”)
filed a Complaint in this case on March 28, 2016. 1 In their Complaint, Plaintiffs seek
compensatory and punitive damages for injuries allegedly suffered as a result of the Williams’
failure to warn Plaintiff Kenneth McElroy (“McElroy”) about the increased weight of three steel
grate coverings that had been welded together and placed over a “sludge pit” that McElroy was
required to lift as part of his job. (Doc. # 14).
On January 13, 2017, the Williams moved for summary judgment, arguing, principally,
that they did not owe a duty to warn McElroy about the increased weight of the grates. (Doc. # 28).
For reasons to be discussed, the Motion for Summary Judgment is due to be DENIED.
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Plaintiffs subsequently filed an Amended Complaint on September 9, 2016. (Doc. # 14). Any
reference to the Plaintiffs’ Complaint herein refers to the Amended Complaint.

II. SUMMARY JUDGMENT STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is proper if
“there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment
as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The party asking for summary judgment “always bears the initial responsibility of
informing the district court of the basis for its motion,” relying on submissions “which it believes
demonstrate the absence of a genuine issue of material fact.” Id. at 323. Once the moving party has
met its burden, the nonmoving party must “go beyond the pleadings” and show that there is a
genuine issue for trial. Id. at 324.
Both the party “asserting that a fact cannot be” and the party asserting that a fact “is
genuinely disputed” must support their assertions by “citing to particular parts of materials in the
record” or by “showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.”
Fed. R. Civ. P. 56 (c)(1)(A), (B). Acceptable materials under Rule 56(c)(1)(A) include:
“depositions, documents, electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions, interrogatory answers, or
other materials.”
To avoid summary judgment, the nonmoving party “must do more than show that there is
some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). On the other hand, the evidence of the nonmovant must be
believed and all justifiable inferences must be drawn in its favor. See Anderson v. Liberty Lobby,
477 U.S. 242, 255 (1986).
After the nonmoving party has responded to the motion for summary judgment, the court
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shall grant summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
III. FACTS
The submissions of the parties establish the following facts, construed in the light most
favorable to the Plaintiffs:
McElroy began working for Universal Environmental Services (“Universal”) in November
of 2011. (Doc. # 30-1, Exh. A, pp. 61:12–62:1).2 His job at Universal was to drive a large vacuum
truck, similar to those used to clean out septic tanks, and clean up oil spills and containment areas
at commercial job sites. (Doc. # 30-1, Exh. A, pp. 40:21–43:11). One of his assignments was to
clean out a “sludge pit” at the Williams’ Facility. (Doc. # 30-1, Exh. A, pp. 48:22–49:2).
The Williams’ Facility is a mechanics shop located in Montgomery, Alabama. (Doc. # 14,
p. 2, ¶ 8). In addition to repairing vehicles, the Williams’ Facility has a wash bay where Williams’
employees wash vehicles. (Doc. # 30-2, Exh. D, pp. 10:13–10:18). The run-off from washing the
vehicles funnels down into a pit, which is covered by five metal grates, the middle three weighing
approximately fifty (50) pounds each. (Doc. # 30-1, Exh. A, pp. 49:14–51:5; 71:8–71:23). A
water-oil separator then filters out the water from the oil and grease run-off, leaving behind a
residue of sludge; hence the name, “sludge pit.” (Doc. # 30-1, Exh. A, pp. 50:6–50:20).
During the course of his employment with Universal, McElroy had cleaned out the
Williams’ Facility’s sludge pit at least four times, the last time being approximately a year before
the accident. (Doc. # 30-1, Exh. A, pp. 52:3–53:6; 64:5–64:21; 65:4–65:7; 67:2–68:3). To clean
out the sludge pit, McElroy would back up his truck to the pit, lift one of the middle three metal
The court has referred to cited deposition testimony by the court’s CM/ECF document number,
but the internal page and line numbers from the depositions.
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grates, insert a vacuum tube, and remove the sludge. (Doc. # 30-1, Exh. A, pp. 53:13–53:20;
83:10–85:21). McElroy performed all of these duties by himself and without the assistance of
Williams’ employees, because Universal had a policy that prohibited him from obtaining
assistance. (Doc. # 30-1, Exh. A, pp. 68:4–69:22; 87:12–88:1). However, McElroy never had any
difficulty lifting one of the metal grates by himself. (Doc. # 30-1, Exh. A, pp. 73:14–73:15; 77:6–
77:15).
On October 7, 2014, McElroy, again, went to the Williams’ Facility to clean out the sludge
pit. (Doc. # 30-1, Exh. A, pp. 12:22–13:2). This was in response to an emergency call from
Williams. (Doc. # 30-1, Exh. A, pp. 52:17–53:6). It had been nearly a year since his last visit,
which was in October of 2013, because someone else from Universal had cleaned out the sludge
pit in the interim. (Doc. # 30-1, Exh. A, pp. 67:21–68:3). He backed up his truck to the doors
leading to the pit, went in the office to let them know he was there and what he was there to do.
(Doc. # 30-1, Exh. A, pp. 13–20).
When McElroy attempted to lift one of the middle metal grates, as he had always done in
the past, believing it weighed approximately fifty (50) pounds, at least one of the other metal grates
came with it, making its actual weight much heavier. (Doc. # 30-1, Exh. A, pp. 73:2–75:5; 79:16–
79:22).3
When Williams’ employees lifted the grates for any reason they did it with a forklift and
chains. In an attempt to make it easier to remove the grates and prevent someone from falling in
when removing the grates with the forklift, Williams’ employees had welded together the three
middle metal grates.4 (Doc. # 30-2, Exh. F, pp. 24:9–25:2).
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The parties are unclear about exactly how much the welded-together grates weighed.
There is a dispute as to when the metal grates were welded together, as later discussed.
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Although McElroy had cleaned out the sludge pit before the grates were welded together,
Williams’ employees did not inform McElroy that they had welded the grates together before he
attempted to lift them or that they used a forklift and chains to lift them. (Doc. # 30-1, Exh. A, pp.
69:16–69:22). Moreover, Williams’ employees had welded the grates together on the bottom side
with angle irons. Therefore, the fact that they had been welded was not visible from the top and
McElroy was not aware that the grates had been welded together when he attempted to lift them.
(Doc. # 30-1, Exh. A, pp. 117:3–117:13).
As a result of unknowingly attempting to simultaneously lift more than one of the grates,
McElroy suffered a severe back injury. (Doc. # 30-1, Exh. A, 73:13–73:21; 90:11–91:13). His
injuries have allegedly resulted in the need for surgery, a permanent physical impairment,
placement under lifting and other activity restrictions, loss of his job with Universal, limitations in
employment opportunities, reduced wages, the need for future medical treatment, and pain and
mental anguish. (Doc. # 14, p. 3–4, ¶ 16). Additionally, McElroy’s injuries have allegedly
negatively impacted his marriage and household. (Doc. # 14, p. 4, ¶ 17).
Accordingly, the Plaintiffs filed this suit against the Williams, asserting claims for
negligence and wantonness (Count 1) and Loss of Consortium (Count 2). (Doc. # 14). After
discovery, the Williams moved for summary judgment. (Doc. # 28).
IV. DISCUSSION
The Williams move for summary judgment on McElroy’s negligence and wantonness
claims, arguing in addition to factual disputes, that they did not owe a duty to warn McElroy about
the increased weight of the welded-together metal grates. (Doc. # 29). Specifically, the Williams
contend that they did not owe a duty to warn McElroy, an independent contractor, of the danger
of the increased weight of the welded-together metal grates when he was on their premises,
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because he either (1) knew or (2) had reason to know that the grates were welded together and
were heavy. Id.
Under Alabama law, “[a] premises owner’s legal duty to a party injured by a condition of
the premises depends upon the legal status of the injured party.” South Alabama Brick Co., Inc. v.
Carwie, __ So. 3d __, 2016 WL 1077265, at *5 (Ala. 2016). In this case, there is no dispute that
McElroy was an independent contractor, because the Williams did not have the right to control the
manner or method of his employment. See Dickinson v. City of Huntsville, 822 So. 2d 411, 416
(Ala. 2001). Accordingly, the Williams, as owners of the Williams’ Facility, owed McElroy, as an
independent contractor, only a duty to warn him of hidden defects and dangers that the Williams
knew about, but were hidden or unknown to McElroy. See Glenn v. U.S. Steel Corp., Inc., 423 So.
2d 152, 154 (Ala. 1982); see also Chance v. Dallas Cnty., Ala., 456 So. 2d 295, 299 (Ala. 1984)
(noting that an independent contractor is an invitee).
To prove liability for failure to warn, an injured independent contractor must show, at a
minimum, that a duty to warn existed. See Ex parte Meadowcraft Indus., Inc., 817 So. 2d 702, 706
(Ala. 2001). “A party claiming that a duty to warn existed must show: (1) that the defect or danger
was hidden; (2) that it was known to the owner; and (3) that it was neither known to the contractor,
nor such as he ought to know.” Roberts v. NASCO Equip. Co., Inc., 986 So. 2d 379, 384 (Ala.
2007) (internal citations and quotations omitted); see also Jones Food Co., Inc. v. Shipman, 981
So. 2d 355, 363 (Ala. 2006) (noting that liability rests upon the premises owner’s “superior
knowledge of the danger” which causes the independent contractor’s injuries).
On the other hand, a premises owner does not owe a duty to warn an independent
contractor about open and obvious defects or dangers. See General Motors Corp. v. Hill, 752 So.
2d 1186, 1187 (Ala. 1999). To prove that a defect or danger was open and obvious, a premises
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owner must show either that it was not hidden or that it was a defect or danger about which the
independent contractor knew, or ought to have known. See Roberts, 986 So. 2d at 384 (“The claim
that a dangerous condition is open and obvious is an assertion that the first and third requirements
of a duty-to-warn claim . . . cannot be satisfied because the danger was readily apparent.”) This is
because, where a defect or danger is open and obvious, the premises owner’s knowledge of the
danger cannot be said to have been superior to that of the independent contractor’s knowledge. See
Jones Food Co., 981 So. 2d at 363.
In this case, the Williams only dispute whether McElroy knew or should have known that
the grates were welded together. (Doc. # 29, p. 15). The Williams contend that the grates had been
welded together “sometime between April and June of 2012.” (Doc. # 29, p. 10). The Williams cite
McElroy’s deposition, in which he admits to having cleaned out the sludge pit at least four times
prior to the incident giving rise to his claims, including once in October of 2013. (Doc. # 30-1,
Exh. A, pp. 67:2–68:3). Therefore, the Williams argue that McElroy must have known that the
grates were welded together before he attempted to lift them in October of 2014, because he had
lifted the welded-together grates at least once before, when he cleaned out the Williams Facility’s
sludge pit in October of 2013.
McElroy responds with affirmative evidence that he did not know that the grates had been
welded together on the date of his injury. McElroy testified in his deposition that when he went to
clean out the sludge pit on October 7, 2014, he was not aware that the grates had been welded
together, (Doc. # 30-1, Exh. A, pp. 111:14–112:13; 117:21–118:10; 119:7–119:19), and no one at
the Williams’ Facility warned him that the grates were welded together. (Doc. # 30-1, Exh. A, pp.
69:16–69:22).
McElroy also argues that the Williams’ argument that McElroy knew or should have
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known that the grates were welded together on the date of his injury is based upon speculation. The
Plaintiffs submit:
Defendants’ argument that [McElroy] “knew” is based upon two
facts (1) there is a Sabel Steel invoice for the purchase of some angle
iron in April, 2012; and (2) angle iron is the material used to join the
grates together. From those two facts, Defendants then stack
inference upon assumption upon speculation upon conjecture to
conclude that (1) the Sabel angle iron must have been used for the
grates and not some other project; (2) the welding must have been
completed immediately after the purchase of the angle iron in April,
2012; (3) if the welding occurred in April, 2012, then Ken must have
experienced the welded-together grates one or more times before his
injury in October, 2014; and (4) if Ken had experienced the
welded-together grates before October, 2014, then he knew about
them and was not entitled to a warning.
(Doc. # 32, p. 14). The Plaintiffs conclude, then, that summary judgment on whether McElroy
should have known that the grates were welded together depends upon whether the Williams have
proven that the grates were welded together before McElroy cleaned out the Williams’ Facility’s
sludge pit in October of 2013. (Doc. # 32, pp. 14–15). If the grates had been welded together in
October of 2013, McElroy would have been on notice—and should have known—that the grates
were welded together on the date of his injury in October of 2014. Id.
The court agrees, and finds that, because there is a genuine dispute of fact concerning when
the grates were welded together, summary judgment is inappropriate at this stage. The Williams
argue in their brief that a receipt showing the purchase of a set of angle irons from Sabel Steel in
April of 2012, (Doc. # 30-2, Exh. F, Defs. Exh. 1), and testimony from one of the Williams’
employees, Steve Mason, that the angle irons would have been used to weld the metal grates
together within a few days of their purchase, (Doc. # 30-2, Exh. F, pp. 32:4–39:19), shows that the
grates were welded together sometime in the summer of 2012. But, McElroy testified in his
deposition that the metal grates were not welded together when he came to clean out the Williams
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Facility’s sludge pit in October of 2013. (Doc. # 30-1, Exh. A, pp. 111:14–112:13; 117:21–118:10;
119:7–119:19).
Moreover, the Williams have not put forward dispositive proof that the grates were welded
together before October of 2013. While the Williams’ argument that a receipt showing the
purchase of a set of angle irons in April of 2012, (Doc. # 30-2, Exh. F, Defs. Exh. 1), and testimony
from one of the Williams’ employees that the angle irons would have been installed within days of
their purchase, (Doc. # 30-2, Exh. F., pp. 32:4–39:19), may allow a jury to draw the conclusion
that the grates were welded together sometime in the summer of 2012, as mentioned previously, at
the summary judgment stage, in light of the Williams’ testimony that the grates were not welded
together, and accepting the evidence of the nonmovant, drawing all justifiable inferences in his
favor, the court must conclude there is a question of fact as to whether the grates were welded
together before October of 2013. See Anderson, 477 U.S. 242, 255 (1986).
From the evidence before the court at this stage, drawing all inferences in favor of the
Plaintiffs, a reasonable jury could conclude that the Williams welded the grates together after the
last time McElroy serviced the sludge pit, that the fact of their being welded was not open and
obvious, that their own employees used a forklift and chains to lift the grates after the welding
because of the added weight, and that they did not advise McElroy of the welding or that they used
a forklift and chains to do the lifting when he answered an emergency call to their premises, all
leading to the legal conclusion that the Defendants had a duty to warn McElroy of the hidden
danger. This may, of course, change based on the evidence actually presented at trial, with the
issue being submitted on a motion for judgment as a matter of law.
Accordingly, the Williams’ Motion for Summary Judgment on the negligence and
wantonness claims and on the derivative loss of consortium claim is due to be DENIED.
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V. CONCLUSION
For the reasons discussed, it is hereby ORDERED that the Williams’ Motion for Summary
Judgment (Doc. # 28) is DENIED.
Done this 8th day of March, 2017.
/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE

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