Gray v. L.B. Foster Company Inc

Filing 59

MEMORANDUM OPINION granting 47 MOTION for Summary Judgment; granting 52 Supplemental MOTION for Summary Judgment; denying 56 MOTION to Strike 53 Response in Opposition to Motion; As stated fully within consistent with this opinion, LB Foster's Motion for Summary Judgment, doc 47 and 52 , are due to be GRANTED; A separate order will be entered; Consistent with footnote 1 of this opinion, Gray's Motion to Strike 56 is DENIED. Signed by Judge Abdul K Kallon on 11/27/2017. (KBB)

FILED
2017 Nov-27 AM 09:34
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JOHN GRAY,
Plaintiff,

vs.
L.B. FOSTER COMPANY, INC.,
Defendant.

)
)
)
)
)
)
)
)
)

Civil Action Number
2:15-cv-01903-AKK

MEMORANDUM OPINION
John Gray was injured when he slipped and fell while servicing equipment
at LB Foster’s pipe-coating plant. He filed this lawsuit, alleging negligence and
wantonness, doc. 1, and LB Foster filed a motion for summary judgment, doc. 47.
The motion is fully briefed, docs. 48, 52, 53 & 54, and ripe for consideration.
After reading the briefs,1 viewing the evidence, and considering the relevant law,
the court grants the motion.
I.

LEGAL STANDARD FOR SUMMARY JUDGMENT
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary

judgment is proper “if the movant shows that there is no genuine dispute as to any
1

Gray correctly notes that, at a combined thirty-five pages, LB Foster’s initial brief in
support of its motion, docs. 48 & 52, exceeds the court’s thirty page limit. Doc. 11. The court
declines to strike the excess pages, however, as Gray requests. Instead, the court will make a
note internally, and places counsel on notice that it will strike entirely their next filing, if any, in
any case before the undersigned that exceeds the page limits.

material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56. “Rule 56[] mandates the entry of summary judgment, after adequate
time for discovery and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and
on which that party will bear the burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986) (alteration in original). The moving party bears
the initial burden of proving the absence of a genuine issue of material fact. Id. at
323. The burden then shifts to the nonmoving party, who is required to “go
beyond the pleadings” to establish that there is a “genuine issue for trial.” Id. at
324 (internal quotations omitted). A dispute about a material fact is genuine “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
At summary judgment, the court must construe the evidence and all
reasonable inferences arising from it in the light most favorable to the non-moving
party. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970); see also Anderson,
477 U.S. at 255. Any factual disputes will be resolved in the non-moving party’s
favor when sufficient competent evidence supports the non-moving party’s version
of the disputed facts. See Pace v. Capobianco, 283 F.3d 1275, 1276, 1278 (11th
Cir. 2002) (a court is not required to resolve disputes in the non-moving party’s
favor when that party’s version of events is supported by insufficient evidence).

2

However, “mere conclusions and unsupported factual allegations are legally
insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d
1321, 1326 (11th Cir. 2005) (per curiam) (citing Bald Mountain Park, Ltd. v.
Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a] mere ‘scintilla’ of
evidence supporting the opposing party’s position will not suffice; there must be
enough of a showing that the jury could reasonably find for that party.” Walker v.
Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252)).
II.

FACTUAL BACKGROUND
This case arises out of an accident that occurred at a pipe-coating plant. The

plaintiff, John Gray, is an electrician employed by the American Cast Iron Pipe
Company (ACIPCO), a pipe manufacturer with its principal facilities in
Birmingham, Alabama. Docs. 1 at 4; 48 at 2; 49-1 at 9, 221. The ACIPCO
property covers a wide swath of land, which is closed to the public, protected by
physical barriers, and patrolled by ACIPCO security guards twenty-four hours a
day. Doc. 49-1 at 10. ACIPCO leases a pipe-coating plant on its property to the
defendant, LB Foster, a construction equipment manufacturer. Docs. 1 at 3; 9 at 1;
49-1 at 3, 9-10.
At some point in 2013, ACIPCO contracted LB Foster to coat the pipes for
one of its manufacturing jobs. Docs. 48 at 3; 49-1 at 11-12, 241. Most of LB
Foster’s pipe-coating orders require the application of “fusion bonded epoxy”

3

coating onto the exterior of the pipes. Docs. 48 at 3-4; 49-1 at 3-5, 10. The 2013
order, however, required both exterior and interior coating. Docs. 48 at 3-4; 49-1
at 3-5, 12, 60. Before the order, LB Foster had performed interior coating, or
“inner diameter coating,” only three times, doc. 49-1 at 232, so it had to re-launch
its inner diameter blast line, or “ID blast line,” an area of the plant where highly
specialized machines clean the pipes before coating. Doc. 49-1 at 12.
One of these machines is a “blast head cart,” which moves on tracks and
sprays abrasive steel “blast shot” beads inside the pipe to clean out any dirt and
debris. Docs. 49-1 at 12; 55-3 at 2. The “rear blast cabinet,” or “dust catcher,”
then captures many of these beads and other debris. Doc. 49-1 at 12. A conveyor
belt, called the “reclaim conveyor,” runs between the blast head cart and the blast
cabinet and catches most of the remaining blast shot beads for reuse. Doc. 49-1 at
12. This conveyor belt is guarded by metal plates, painted yellow and positioned
directly above the belt.

Doc. 49-1 at 13.

The yellow guard plates tilt at a

downward angle so that the blast shot will fall onto the conveyor belt below. Docs.
49-1 at 13; 49-2 at 79-85. These devices are not capable of capturing all the blast
shot beads, however, so much of it remains on the floor. Doc. 48 at 8-11. The
beads are difficult to differentiate from dirt and dust and are therefore hard to see.
Doc. 53-1 at 29. Walking on the beads poses a hazard that is like “walking on
ice.” Doc. 49-1 at 38, 82. To reduce the risk of slipping, LB Foster keeps brooms

4

on the floor so that employees working on the ID blast line can periodically sweep
up any remaining discarded blast shot. Doc. 49-2 at 94.
LB Foster employs its own electricians to service its equipment, but, per an
agreement with ACIPCO, LB Foster can request that some of ACIPCO’s
electricians be “on call” during busier periods. Docs. 1 at 5; 48 at 2; 49-1 at 9-11,
59-63. ACIPCO’s on call electricians have free access to the LB Foster plant, but
generally sit in their trucks and wait for a call after clocking in at the electronics
department. Doc. 49-1 at 4, 63, 64, 103.
On June 21, 2014, Gray was working an on call shift and entered the LB
Foster plant, although it is not clear whether LB Foster actually requested an on
call electrician that day. Docs. 48 at 2; 49-1 at 6, 44; 53 at 3. According to
eyewitnesses and LB Foster’s incident report, Gray was inspecting one of the
machines on the blast line when he suddenly slipped and fell onto the yellow guard
plates above the conveyor belt. Docs. 48 at 2; 49-1 at 6, 44; 53 at 3; 53-1 at 1-7.
The fall knocked Gray unconscious, and first responders had to resuscitate him.
Docs. 49-1 at 6, 68, 98; 49-2 at 79. Gray has no recollection of what happened that
day, doc. 49-1 at 146, but the parties agree that he likely slipped on the blast shot
beads. See docs. 48, 52, 53, & 54. Witnesses give conflicting accounts as to
whether there was a caution sign warning of the danger of blast shot at the time of
the accident. Compare doc. 55-2 at 20 with docs. 53-1 at 74 and 49-1 at 106.

5

III.

ANALYSIS

Gray filed this lawsuit alleging that LB Foster is liable for negligence and
wantonness for failing to warn him of the danger of the ID blast line. Doc. 1. LB
Foster has moved for summary judgment on both claims. Doc. 48.
A. Negligence claim
To sustain a negligence claim under Alabama law, a plaintiff must establish
“a legal duty owed to the [plaintiff] or to a class of persons to which the plaintiff
belongs, and a breach of that duty, proximately resulting in the injury.” Graveman
v. Wind Drift Owners’ Ass’n, Inc., 607 So. 2d 199, 203 (Ala. 1992). In premises
liability cases, the defendant’s duty depends on whether the plaintiff was a
trespasser, a licensee, or an invitee. When a plaintiff has entered the defendant’s
property with “consent to bestow some material or commercial benefit,” she is an
“invitee,” and the property owner owes her the duty “to keep the premises in a
reasonably safe condition and, if the premises are unsafe, to warn of hidden defects
and dangers that are known to the landowner but that are hidden or unknown to the
invitee.” Galaxy Cable, Inc. v. Davis, 58 So. 3d 93, 98 (Ala. 2010). But where the
visitor is a “social guest . . . with no business purpose,” she is a “licensee,” and the
property owner owes her only a duty not to “willfully, wantonly, or negligently
injure” her. Id.

6

The parties here agree that, as an on call electrician, Gray was, at minimum,
a licensee.

The parties disagree, however, on whether Gray is an invitee.

According to LB Foster, Gray does not qualify as an invitee because “there is no
evidence LB Foster requested ACIPCO’s assistance on the day of the accident”
and “no management or supervising employee at LB Foster knew Gray was inside
the facility until after the accident.” Doc. 48 at 25. LB Foster further argues that,
even if Gray were expected to be on the premises, “[t]here is no evidence that LB
Foster either invited or expected Gray to walk on the blast line that afternoon.”
Doc. 48 at 26.
Even assuming that no one from LB Foster called Gray to the plant that day,
Gray was not a “social guest with no business purpose.” See Galaxy Cable, 58 So.
3d at 98. Gray was on the property to confer a commercial benefit, namely to be
present in the event that equipment broke down. Id. The record demonstrates that,
although the on call electricians generally stay in ACIPCO’s electrical department
or in their trucks until LB Foster requests their assistance, see doc. 49-1 at 76-77, it
is not unusual for them to check on things at the LB Foster plant, even before they
are summoned.2 Doc. 53 at 4-5. Accordingly, for this motion, the court must
assume that Gray was an invitee.

2

One of these electricians, Kenneth Smith, testified that, even when not called,
“sometimes [they] might get out and just walk in there and check and look.” Doc. 49-1 at 77.
7

LB Foster owes to invitees “the duty to keep the premises in a reasonably
safe condition and, if the premises are unsafe, to warn of hidden defects and
dangers that are known to the landowner but that are hidden or unknown to the
invitee.” See Galaxy Cable, 58 So. 3d at 98. Despite improving safety protocols,
it is axiomatic that industrial plants are generally not safe. Indeed, Gray admitted
as much when he testified that it is “obvious that working around heavy equipment
can be dangerous from time to time.” Doc. 49-1 at 139. Still, Gray argues that the
blast shot beads were a hidden defect and challenges LB Foster’s contention that
the danger of the blast shot was “open and obvious” and that he knew or should
have known of the danger. Docs. 1; 48 at 16-23; 52 at 1-6; 53 at 2-20. Though the
question of whether a defect is open and obvious is generally a question of fact for
the jury, see Breeden v. Hardy Corp., 562 So. 2d 159, 160–61 (Ala. 1990), LB
Foster urges the court to hold that “any hazard posed by the presence of blast shot
was open and obvious as a matter of law.” Doc. 48 at 20.
A claim that a premises defect was open and obvious is “an affirmative
defense on which [the defendant] bears the ultimate burden of proof.” Denmark v.
Mercantile Stores Co., 844 So. 2d 1189, 1194 (Ala. 2002). To prevail on an open
and obvious defense, the owner-invitor must establish that the invitee either knew
or should have known of the defect. Id. at 1195. Such a showing generally
requires one of three types evidence: 1) that the defect is “open and obvious to

8

anyone;” 2) that the owner has told the invitee or his employer “all it knows” about
the defect; or 3) that the owner reasonably expects the invitee to have “expertise
and previous experience on the premises.” S. Alabama Brick Co. v. Carwie, 214
So. 3d 1169, 1178-79 (Ala. 2016). The key question is whether it “was objectively
reasonable for the invitor to expect the invitee to know” of the risk. Id. at 1177.
However, “[t]here is no duty to warn an independent contractor who has equal or
superior knowledge of a potential danger.” Id. at 1176.
Here, it is undisputed that ACIPCO, the independent contractor and Gray’s
employer, has, at a minimum, equal knowledge of the potential danger of blast shot
beads. As LB Foster puts it in its brief, ACIPCO electricians have “the same, if
not greater, knowledge and expertise about LB Foster’s operations at the plant.”
Doc. 48 at 22. LB Foster’s statement is consistent with the record. Specifically,
James Morris Hyche, a foreman in the ACIPCO electrical department, stated that
he and other ACIPCO electricians were familiar with the LB Foster plant and did
not need any warnings to be cautious when working around blast shot areas. Docs.
48 at 21; 49-1 at 5. Two of Gray’s supervisors, William Garry Shirley and Marvin
Mize, testified to the same. Docs. 48 at 21. Shirely stated in an affidavit that “[a]ll
of the ‘on call’ electricians knew there was blast shot around the ID line at LB
Foster” and therefore knew to be careful when walking around it. Doc. 49-1 at 38.
Mize, in response to a question about whether “it was important for ACIPCO

9

electricians to understand the general process of the machines that they had to
repair,” answered that “[y]ou couldn’t fix it if you w[ere]n’t familiar with it. You
would have to know the operation of any and all machines, that was all part of the
process of learning.” Doc. 49-2 at 24. And in response to whether the blast shot
on the floor was a “known hazard,” Mize answered “yes,” explaining that it was
“common knowledge” to anyone that worked at ACIPCO. Doc. 49-2 at 34-35.
Under Alabama law, “the existence of a duty by a premises owner to a
business invitee, and particularly to an independent contractor, depends on
superiority of knowledge.” S. Alabama Brick Co., 214 So. 3d at 1178. The
testimony of ACIPCO’s foreman and supervisors establishes that LB Foster did not
have superiority of knowledge as to the danger posed by blast shot beads and that it
was reasonable for LB Foster to expect ACIPCO electricians to be familiar with
the dangers of this part of the plant. See id. Moreover, “when a premises owner is
found to owe a duty to warn, that duty is satisfied, as a matter of law, when the
contractor or supervisory personnel has knowledge of the dangerous condition.”
Id. at 1179. As the Alabama Supreme Court put it:
Where a premises owner can reasonably expect that its contractor
knows as much or more than the premises owner does regarding a
dangerous condition—whether this is so because the danger is open
and obvious to anyone, because the owner has told the contractor all it
knows, or because of the contractor’s expertise and previous
experience on the premises—the superiority-of-knowledge test is not
met and the premises owner has no further duty to warn the
contractor. By extension, in that circumstance, the premises owner has
10

no additional, direct duty to warn the contractor’s employees or any
subcontractors. To hold otherwise would be to say that a premises
owner, despite hiring a contractor whom the owner, for one of the
reasons stated above, reasonably expects knows as much of more
about the owner’s land, building, or fixtures as does the premises
owner, must somehow “pull aside” or otherwise communicate directly
with each and every employee of the contractor, subcontractor,
employee of any subcontractor, etc. Obviously, at the point at which
the contractor knows as much or more as does the premises owner
regarding the land, building, or fixtures, the responsibility for sharing
that information with its own employees or with subcontractors falls
to the contractor.
Id. at 1178-79. On this record, and in particular the testimony of ACIPCO’s
supervisory personnel, LB Foster has met its burden on the open and obvious
defense, and established that ACIPCO has the requisite expertise or experience on
LB Foster’s premises, that LB Foster did not have the superiority of knowledge,
and showing, as a result, that it satisfied the duty to warn as a matter of law. See
id.
In addition to satisfying the duty to warn, as a matter of law, through the
knowledge of the dangerous condition of ACIPCO’s supervisory personnel,
alternatively, LB Foster has also established that it reasonably believed that
ACIPCO’s electricians have expertise and previous experience with LB Foster’s
ID blast line such that they would know of the dangers of the ID blast line. Gray
disputes this, contending that he and other electricians “had little or no experience
with that particular machine in that particular part of the plant.” Doc. 53 at 6. In
support, he cites his own deposition testimony that, although he had entered LB
11

Foster’s plant before to repair printers in the office, he “doesn’t remember”
whether he had ever entered the part of the plant where blasting is performed.
Docs. 53 at 6; 49-1 at 149. It is evident that the head injury Gray suffered from the
accident at issue continues to impact his memory.

However, saying that he

“doesn’t remember” does not create a factual issue of dispute when the evidence,
including his own interrogatory answers, 3 refutes his contentions.

See, e.g.,

Morton v. Kirkwood, 707 F.3d 1276, 1284 (11th Cir. 2013) (“[W]hen documentary
evidence blatantly contradicts a plaintiff’s account . . . a court should not credit the
plaintiff’s version on summary judgment”) (internal quotations omitted).
Similarly, Gray’s reliance on his co-worker Kenneth Smith’s testimony that Smith
had “never seen [blasting] done externally before,” where the blasting is done “out
in the open” and where the blast shot beads “went everywhere,” docs. 49-1 at 5759, 85; 53 at 6, does not help create a factual dispute as to whether Gray had the
expertise and previous experience in the ID blast line.
Ultimately, even if Gray is correct that he was not aware of the danger of the
blast shot beads, his claim would still fail.

The question of openness and

obviousness “is measured by an objective standard, not the subjective state of the
invitee’s knowledge.” S. Alabama Brick Co., 214 So. 3d at 1176-77. The question
is thus whether it was objectively reasonable for LB Foster to expect ACIPCO
3

In Gray’s response to one of LB Foster’s interrogatories, Gray stated that he had visited
this part of the plant “five or more times” to check the limit switches. Doc. 49-2 at 130.
12

electricians to have “equal or superior knowledge” about the dangers of blast shot.
Id. The record is rife with testimony from ACIPCO supervisory employees that
they were familiar with this area of the plant, the open and obvious dangers, and
the need to exercise caution when working there. Docs. 49-1 at 5, 11-12, 38; 49-2
at 24, 34-35. Gray has failed to rebut LB Foster’s evidence, and saying that he
lacked subjective knowledge of the dangers of the ID blast line falls short of
creating a trial issue on whether it was reasonable for LB Foster to assume he did.
See S. Alabama Brick Co., 214 So. 3d at 1176-79. Based on this record, LB Foster
has shown that it was objectively reasonable for it to expect that ACIPCO
electricians had “equal or superior knowledge” of the danger of blast shot. See id.
Therefore, the negligence claim fails because LB Foster satisfied its duty to
warn, as a matter of law, through the undisputed evidence from ACIPCO
supervisory personnel that they knew as much as or more than LB Foster regarding
the dangerous condition. See id. at 1178-79. Alternatively, the claim fails because
it was reasonable for LB Foster to expect ACIPCO electricians to have equal or
superior knowledge about the dangers of blast shot. See id. at 1176-77.
B. Wantonness claim
Wantonness is “not merely a higher degree of culpability than negligence,”
but rather an independent cause of action under Alabama law. Ex parte Essary,
992 So. 2d 5, 9-10 (Ala. 2007). To maintain a wantonness claim, a plaintiff must
13

show “the conscious doing of some act or the omission of some duty while
knowing of the existing conditions and being conscious that, from doing or
omitting to do an act, injury will likely or probably result.” Id. The distinction
between negligence and wantonness is subtle, but important, as they are
“qualitatively different tort concepts of actionable culpability.”

Id.

Whereas

negligence involves careless inadvertence, wantonness involves a conscious
recklessness in either acting or failing to act. The plaintiff does not need to show,
however, that “the actor kn[ew] that a person is within the zone made dangerous by
his conduct” or that the actor “entertained a specific design or intent to injure the
plaintiff” to prove wantonness. Id. Rather, the plaintiff need only show that “the
actor is ‘conscious’ that injury will likely or probably result from his actions.” Id.
In support of his wantonness claim, Gray points to evidence that LB Foster
was not enforcing one of the procedures in its own safety manual requiring
contractors to first go to the main office so that an LB Foster employee could
escort them to where they were going. Doc. 53 at 14-20. But even assuming that
LB Foster failed to follow its own procedures, this does not rise to the level of
conscious disregard for the safety of visitors. See Ex parte Essary, 992 So. 2d at 910. More importantly, where a negligence claim fails because the defendant has no
duty to warn of an open and obvious danger, a “wantonness claim must also fail as
a matter of law.” Dolgencorp, Inc. v. Taylor, 28 So. 3d 737, 745-46 (Ala. 2009).

14

Therefore, because the danger of the blast shot was open and obvious to Gray, he
cannot assert a wantonness claim against LB Foster. See id.
CONCLUSION
Consistent with this opinion, LB Foster’s Motion for Summary Judgment,
docs. 47 and 52, is due to be granted.4 A separate order will be entered.
DONE the 27th day of November, 2017.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

4

Consistent with footnote 1 of this opinion, Gray’s motion to strike, doc. 56, is
DENIED.
15