Owens v. Georgia-Pacific LLC et al

Filing 93

ORDER granting 76 Motion for Summary Judgment filed by Metso Paper USA, Inc.; granting 77 Motion for Partial Summary Judgment filed by Georgia-Pacific Brewton, LLC; and granting 78 Motion for Summary Judgment filed by Georgia-Pacific, LLC. The sole remaining claim to be tried is Owens' negligence claim against GP-Brewton. Signed by Judge Callie V. S. Granade on 4/16/2013. (mab)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
EDWARD WESLEY OWENS,

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Plaintiff,
vs.
GEORGIA-PACIFIC, LLC, et al.
Defendants.

Civil Action No. 11-0655-CG-C

ORDER ON SUMMARY JUDGMENT
This matter is before the court on multiple motions for summary
judgment and partial summary judgment filed by the defendants, GeorgiaPacific, LLC (“Georgia-Pacific”), Georgia-Pacific Brewton, LLC (“GPBrewton”), and Metso Paper USA, Inc. (“Metso”). Docs. 76, 77, and 78. The
court has reviewed the parties’ briefs in support and opposition, and the
matter is now ripe for review. For the reasons stated below, the court finds
that Georgia-Pacific’s motion for summary judgment is due to be GRANTED;
Metso’s motion for summary judgment is due to be GRANTED; and GPBrewton’s motion for partial summary judgment is due to be GRANTED.
I. FACTUAL BACKGROUND
The plaintiff, Edward Wesley Owens (“Owens”), was, at all pertinent
times, an employee of Phillips Services Corporation (“PSC”), a subcontractor
hired by Metso to chemically clean a steam-generating boiler at GPBrewton’s paper mill in Brewton, Alabama. Doc. 86 at 5; Doc. 76-1 at 2.
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Owens was a supervisor who had 20 years of industrial cleaning experience
and 5 years experience as PSC’s safety manager. Doc. 76-2 at 4-6, 11.
The GP-Brewton paper mill has three boilers which generate steam
that is used in the mill’s manufacturing process. Doc. 86 at 5. The boilers
are aligned in a row and are designated Power Boiler #1, Power Boiler #2,
and Power Boiler #3. Id. Over time, materials collect or deposit in the tubes
or piping of the boilers and decrease their efficiency, requiring periodic
chemical cleaning. Id.
In 2010, GP-Brewton hired Metso to design and oversee the chemical
cleaning of Boiler #3. Id.; Doc. 76-1 at 3. The Metso employee assigned to the
project was Richard Morris (“Morris”), who designed a plan for the cleaning
project which included the construction of temporary piping to gain access to
Boiler #3’s tubing. Doc. 86 at 6-7. Metso did not actually install the
temporary piping; instead, GP-Brewton contracted with RMR Mechanical,
Inc. (“RMR”) to do the installation. Id. at 8. Metso also did not perform the
cleaning operation itself, but rather subcontracted the job to PSC. Id. at 6.
Under the terms of the subcontract between Metso and PSC, PSC was to
supply the labor, equipment and chemicals for the project, with PSC
employees operating PSC’s equipment at all times. Id. at 8; Doc. 76-2 at 7376.
Owens arrived at the GP-Brewton mill on the evening of October 2,
2010, to supervise the evening shift. Doc. 76-1 at 4. By this point, PSC had

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completed most of the preparatory work for the project, and cleaning
operations were scheduled to begin that evening. Id. Owens met with the
PSC day shift supervisor to learn what work was still incomplete, and then
met with the evening shift crew to discuss remaining tasks that needed to be
completed and to conduct the crew safety meeting. Id. Owens also met with
Morris, and the two men walked around the vicinity of the project so that
Morris could show Owens tasks which needed to be completed before cleaning
operations commenced. Id. at 5. As part of this discussion, Owens and
Morris walked over to a demineralized water header (the “water header”),
which would serve as the water source for the cleaning project. Doc. 86 at 9.
The water header was comprised of piping in the shape of an inverted “ T ”
with two access points for water on either end. Id. Morris informed Owens
that GP-Brewton had failed to connect a hose (“Hose #1”) to the water header
as planned because the required connector was unavailable. Doc. 85-1 at 13.
Nevertheless, Morris told Owens that connecting the hose “needed to be
done” before cleaning operations could commence. Id. A second hose (“Hose
#2”) which was unrelated to the Boiler #3 project was connected to the
opposite access point on the other side of the water header. Doc. 76-2 at 25.
Although connecting Hose #1 to the water header was not within the scope of
PSC’s work on the project, see Doc. 85-1 at 17, Owens told Morris that he had
the necessary fitting in his truck, and that he would retrieve it and connect
the hose. Id.

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Owens went to his truck, retrieved the required fitting and
appurtenant equipment, and returned to the water header. Doc. 85-1 at 27.
Upon his return, Owens saw Hose #1 still lying on the ground next to the
water header, and saw that Hose #2 was still connected to the opposite side of
the water header with what appeared to be a closed valve. Id. at 25, 29.
Unbeknownst to Owens, Hose #2 was connected to Boiler #1, and a valve on
that boiler was not properly closed, causing Hose #2 to be pressurized. Doc.
76-1 at 7. As Owens screwed the fitting onto the water header, Hose #2
burst, causing pressurized water to escape, which in turn caused Hose #2 to
move around violently. Doc. 86 at 12. Hose #2 struck Owens on the leg and
injured him. Id.
Owens filed suit against all defendants on November 21, 2011, and
filed a second amended complaint on March 16, 2012. Docs. 1, 17. The
second amended complaint states claims against all three defendants for
negligence and wantonness, and demands punitive damages. Doc. 17 at 3-6.
The defendants each filed motions for summary judgment and/or partial
summary judgment on February 1, 2013. Docs. 76, 77, and 78.
II. SUMMARY JUDGMENT STANDARD
Federal Rule of Civil Procedure 56(a) provides that summary judgment
shall be granted “if the pleadings, the discovery and disclosure materials on
file, and any affidavits show that there is no genuine dispute as to any
material fact and that the movant is entitled to judgment as a matter of law.”

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The trial court’s function is not “to weigh the evidence and determine the
truth of the matter but to determine whether there is a genuine issue for
trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986). “The mere existence of some evidence to support the
non-moving party is not sufficient for denial of summary judgment; there
must be ‘sufficient evidence favoring the nonmoving party for a jury to return
a verdict for that party.’” Bailey v. Allgas, Inc., 284 F.3d 1237, 1243 (11th Cir.
2002) (quoting Anderson, 477 U.S. at 249). “If the evidence is merely
colorable, or is not significantly probative, summary judgment may be
granted.” Anderson, 477 U.S. at 249-250. (internal citations omitted).
The basic issue before the court on a motion for summary judgment is
“whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail
as a matter of law.” See Anderson, 477 U.S. at 251-252. The moving party
bears the burden of proving that no genuine issue of material fact exists.
O'Ferrell v. United States, 253 F.3d 1257, 1265 (11th Cir. 2001). In
evaluating the argument of the moving party, the court must view all
evidence in the light most favorable to the non-moving party, and resolve all
reasonable doubts about the facts in its favor. Burton v. City of Belle Glade,
178 F.3d 1175, 1187 (11th Cir. 1999). “If reasonable minds could differ on the
inferences arising from undisputed facts, then a court should deny summary
judgment.” Miranda v. B&B Cash Grocery Store, Inc., 975 F.2d 1518, 1534

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(11th Cir. 1992) (citing Mercantile Bank & Trust v. Fidelity & Deposit Co.,
750 F.2d 838, 841 (11th Cir. 1985)).
Once the movant satisfies his initial burden under Rule 56(c), the nonmoving party “must make a sufficient showing to establish the existence of
each essential element to that party's case, and on which that party will bear
the burden of proof at trial.” Howard v. BP Oil Company, 32 F.3d 520, 524
(11th Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).
Otherwise stated, the non-movant must “demonstrate that there is indeed a
material issue of fact that precludes summary judgment.” See Clark v. Coats
& Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The non-moving party
“may not rely merely on allegations or denials in [the non-moving party’s]
pleading; rather, its response .... must - by affidavits or as otherwise provided
in this rule - set out specific facts showing a genuine issue for trial.” FED. R.
CIV. P. 56(e). “A mere ‘scintilla’ of evidence supporting the [non-moving]
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) (citation omitted). “[T]he nonmoving party may avail
itself of all facts and justifiable inferences in the record taken as a whole.”
Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998 (11th Cir. 1992).
“Where the record taken as a whole could not lead a rational trier of fact to
find for the non-moving party, there is no genuine issue for trial.”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587,

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106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (internal quotation and citation
omitted).
III. METSO PAPER, USA, INC.’S MOTION FOR SUMMARY
JUDGMENT
A. NEGLIGENCE CLAIM
The parties do not dispute that the relationship between Metso and
PSC was a contractor-subcontractor relationship. It is a general rule of
Alabama law that “a contractor owes no duty to the subcontractor whom he
has employed.” Stovall v. Universal Construction Co., Inc., 893 So.2d 1090,
1096 (Ala. 2004) (citing Elder v. E.I. DuPont De Nemours & Co., 479 So.2d
1243, 248 (Ala. 1985); Knight v. Burns, Kirkley & Williams Construction Co.,
331 So.2d 651, 655 (Ala. 1976)). However, there are three recognized
exceptions to this general rule, including (1) liability for injuries to a
subcontractor’s employee caused by the contractor’s own negligence; id.
(citing Knight, 331 So.2d at 655); (2) liability for certain “intrinsically
dangerous” work which injures a third person; id. (additional citations
omitted); and (3) liability for the contractor’s non-delegable duties which are
done through an independent contractor. Id.
The first exception -- concerning the contractor’s negligence -- is the
one at issue in Owens’ claim against Metso, and therefore Owens must
establish the elements of a negligence claim. Under Alabama law, the
elements of a negligence claim are: a duty of care, breach of the duty of care,
cause in fact, proximate or legal cause, and damages. Ex parte Harold L.

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Martin Distrib. Co., 769 So.2d 313, 314 (Ala. 2000) (citations omitted).
(1.) ELEMENTS OF NEGLIGENCE – DUTY OF CARE
Whether or not a contractor owes a duty of care to a subcontractor
depends upon whether the contractor exercised control over the jobsite and/or
the manner in which work was performed. Stovall, 893 So.2d at 1097
(citation omitted); Proctor & Gamble Co. v. Staples, 551 So.2d 949, 953 (Ala.
1989) (“we have required that the plaintiff prove that the defendant exercised
control over the jobsite and control over the manner in which the work was to
be done ...”) (additional citations omitted). Thus, in order to establish the
first element of his negligence claim against Metso, Owens must point to
evidence in the record which tends to show that Metso exercised control over
the job site and/or controlled how the work was performed.
Rather than do this, however, Owens instead states general legal
propositions that are not really disputed by any party. For example, Owens
asserts that a contractor is not “immunized from legal accountability” if he
“negligently injures a sub-contractor’s employee.” Id. at 22. This is an
uncontested point which Metso itself stated in its brief. Doc. 76-1 at 17
(citing Stovall, 893 So.2d at 1096). Metso does not urge “immunization” for
its alleged negligence as Owens seems to suggest; instead, it argues that it
was not negligent in the first place because it owed no duty to Owens. See
Doc. 76-1 at 8-16. Owens also restates the three circumstances giving rise to
contractor liability discussed by the Stovall court. Doc. 86 at 23 (citing

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Stovall, 893 So.2d at 1096; Knight, 331 So.2d at 655). But again, Metso does
not dispute that this is the law and Owens’ restatement does not move the
discussion any further toward a conclusion about whether Metso owed a duty
of care to Owens, a threshold requirement for establishing negligence.
Owens also suggests that “[i]t is likely that the Stovall Court would
have ruled differently if evidence existed that the prime contractor was
involved in and/or participated in setting up [certain lighting equipment] to
be used by the workers and/or directed the workers on how to set-up and/or
utilize the lights,” adding that “[t]he demonstrated actions and/or conduct of
Morris are substantial and significant in terms of the injuries sustained by
Owens.” Doc. 86 at 23-24. Owens’ latter point is conclusory because it is
entirely without citation to the evidentiary record, providing no clue about
what Morris’ “demonstrated actions” were and how they establish that Metso
controlled the jobsite and/or how Owens performed his work. As for Owens
former point, speculating about what the Stovall court “would have” done if it
had been presented with different evidence tells the court nothing about the
evidence in this case and whether it indicates that Metso controlled the job
site or controlled how Owens’ work was done.
Owens also cites two inapposite Alabama Supreme Court cases,
Tennessee Coal, Iron, & R.R. Co. v. Burgess, 158 Ala. 519 (1908), and
Southern Minerals Co. v. Barrett, 281 Ala. 76 (1967), arguing that both
demonstrate that “a premises owner and a general contractor owe a duty to a

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subcontractor’s employee not to negligently injure him ...” Doc. 86 at 25.
Both cases are distinguishable, however. Burgess involved an injured coal
miner’s negligence claim against the operator of the coal mine where he was
injured. Burgess at 521. The Alabama Supreme Court noted that the
defendant coal mine operator had not “parted with the control of the part of
the mine operated by [plaintiff’s employer]…” Id. at 522. Thus, Burgess is
only relevant to Owens’ case if he can establish a genuine dispute of material
fact as to whether Metso controlled the jobsite as did the Burgess defendant.
Owens fails to do this.
Similarly, Southern Mineral involved an employee of a subcontractor
who was constructing a manhole in a ditch when one side of the ditch
collapsed, injuring him. Southern Mineral, 281 Ala. at 78. The Southern
Mineral court found that “[t]he defendant, as a general contractor, was in
control of and occupied the premises, so far as concerns any question here
presented, the same as if it were the owner.” Id. at 80. But Owens has not
even argued, much less pointed to any record evidence suggesting that Metso
was in control of the jobsite as was the Southern Mineral defendant. Thus,
Southern Mineral is also distinguishable from the instant case.
The “statement of pertinent facts” portion of Owens’ summary
judgment brief is the only portion in which Owens cites evidence from the
record to support his case. See Doc. 86 at 4-20. Yet none of Owens’ citations
to the record tend to establish that Metso controlled the jobsite or controlled

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how Owens’ work was done. For example, Owens testified that Morris
identified the water header that would serve as PSC’s water source for the
evening’s work, and quoted Morris as saying “This is the hose that we ran
earlier today and we didn’t have a connection to finish hooking it up. Can
you make sure this happens?” Doc. 76-2 at 20-21. See also Doc. 85-1 at 13
(“he stated that they laid it out today but did not have a fitting to connect it;
we need you to get that connected …”). Owens then told Morris that he had
the necessary connector/fitting in his truck, and offered to retrieve it and
connect the hose. Id. at 21; see also Doc. 85-1 at 19. While this testimony
does establish that Morris told Owens what to do, it does not establish that
he told Owens how to do it; i.e., it does not establish that Morris, as Metso’s
representative, controlled the manner of the work or the jobsite. In fact,
Owens’ testimony tends to suggest the opposite, as this exchange from his
deposition demonstrates:
Q:

OWENS:
Q:

OWENS:

So Metso through Morris might tell
you when to do something or what to
do.
Right.
But you as PSC decided how to do it
and analyzed the hazards associated
with doing it.
Right.

Doc. 78-1 at 10 (citing Doc. 76-2 at 33). The court cannot locate – and Owens
has not identified – other testimony or evidence which refutes or contradicts
this portion of Owens’ own testimony.

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Thus, the court finds that Owens has not established a genuine dispute
as to any material fact regarding whether Metso controlled the jobsite or the
manner in which Owens performed his work, and thus whether Metso owed
him a duty of care. Accordingly, the court finds that he has not established a
prima facie claim for negligence and summary judgment is due to be
GRANTED in favor of Metso as to this claim.
B. WANTONNESS CLAIM
In his summary judgment brief, Owens states that he does not oppose
granting Metso’s summary judgment motion with regard to his wantonness
claim and demand for punitive damages. Doc. 86 at 1. Accordingly, the court
finds that summary judgment is due to be GRANTED in favor of Metso as to
Owens’ wantonness claim and demand for punitive damages.
IV. GEORGIA-PACIFIC’S MOTION FOR SUMMARY JUDGMENT
Georgia-Pacific filed a separate motion for summary judgment on
Owens’ negligence claim (Doc. 78), arguing that the facility involved in the
case was owned by GP-Brewton, a subsidiary of Georgia-Pacific which is a
separate legal entity. Doc. 78-1 at 1. Georgia-Pacific further asserts that it
owed no duty of care to Owens because “[t]here is nothing in the PSC
subcontract that reserves to GP … a right to control the manner that PSC
carried out its work,” and that “[p]laintiff offers no testimony or other
evidence that the manner of his work was controlled [by] GP.” GeorgiaPacific also argues that “it appears GP is a defendant in this case only

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because the incident occurred on the premises of a subsidiary.” Id. at 4.
In response, Owens states that he does not oppose granting GeorgiaPacific a “summary dismissal” based upon the fact that Georgia-Pacific did
not own or operate the facility where he was injured. Doc. 83 at 2. Despite
his concession, Owens seems to want to reserve the question of whether
Georgia-Pacific owed him a duty of care. He argues that he “would have
proffered a response” on this point if it were not “moot” and asks the court to
enter an order “consistent with the statements” in his brief. Id. at 1, 3.
However, the court is not interested in what Owens would have argued if
circumstances were different, nor is it limited to the four corners of Owens’
brief in granting summary judgment to Georgia-Pacific.
What is germane to Georgia-Pacific’s summary judgment motion is
whether there is record evidence tending to establish a genuine dispute of
material fact as to whether Georgia-Pacific owed Owens a duty of care and
therefore whether Georgia-Pacific is liable for negligence. See Fed.R.Civ.P.
56(a). Owens’ response brief contains no references to such evidence; in fact,
he admits that “[i]n light of the completed discovery” Georgia-Pacific operates
as a separate legal entity from GP-Brewton and had “no control over the dayto-day operations of the facility” where he was injured. See Doc. 83 at 2.
Thus, based on Owens’ own statements, there can be no dispute, genuine or
otherwise, that Georgia-Pacific did not control the manner in which Owens
performed his work, did not control the jobsite, and therefore owed him no

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duty of care.
As a matter of law, then, Georgia-Pacific is not liable to Owens under a
negligence theory of tort. The court finds that Georgia-Pacific’s summary
judgment motion is due to be GRANTED.
V. GP-BREWTON’S MOTION FOR PARTIAL SUMMARY JUDGMENT
Owens does not dispute GP-Brewton’s motion for partial summary
judgment (Doc. 77) on his wantonness claim and demand for punitive
damages. Doc. 84 at 1-2 (“Owens acknowledges that Georgia-Pacific Brewton
is entitled to a partial summary judgment as to any cause of action
predicated on a claim of wanton conduct, and thus, that any claim for
punitive damages may not be presented to the jury.”). Accordingly, GPBrewton’s motion for partial summary judgment is GRANTED.
VI. CONCLUSION
For the foregoing reasons, summary judgment is GRANTED in favor
of Georgia-Pacific and Metso as to all counts, and partial summary judgment
is GRANTED to GP-Brewton as to Owens’ wantonness claim and demand for
punitive damages. The sole remaining claim to be tried is Owens’ negligence
claim against GP-Brewton.
DONE and ORDERED this 16th day of April 2013.
/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE

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