Wright v. Arizona Chemical Company et al

Filing 116

ORDER denying 59 Motion for Summary Judgment; denying 92 Motion to Strike ; denying 115 Motion for Oral Hearing. Ordered by Judge Hugh Lawson on 3/4/2010. (nbp)

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF GEORGIA V AL D O S T A DIVISION W IL L IA M L. W R IG H T , P la in tiff, v. A R IZ O N A CHEMICAL COMPANY A n d ARIZONA CHEMICAL C O M P A N Y , LLC, D e fe n d a n ts . : : : : : : : : : : :

C a s e No. 7:08-CV-118 (HL)

ORDER T h is matter is before the Court on the Defendants' Motion for S u m m a ry Judgment (Doc. 59) (the "Motion") and Motion to Strike S ta te m e n t of Material Fact (Doc. 92) (the "Motion to Strike"), and the Joint M o tio n for Oral Hearing on Defendant's Motion for Summary Judgment (D o c . 115) (the "Hearing Motion"). For the following reasons, all motions a re denied. I.M O T IO N TO STRIKE T h is Court first must address the Defendants' Motion to Strike. Local R u le 56 states: T h e respondent to a motion for summary judgment shall attach to the re s p o n s e a separate and concise statement of material facts, n u m b e re d separately, to which the respondent contends there exists a genuine issue to be tried. Response shall be made to each of the m o v a n t's numbered material facts. All material facts contained in the m o v in g party's statement which are not specifically controverted by th e respondent in respondent's statement shall be deemed to have b e e n admitted, unless otherwise inappropriate.

The Defendants argue that, according to Local Rule 56, the Plaintiff vio la te d the local rule when he filed both a Statement of Material Facts as to W h ic h There Exist Genuine Issues to be Tried (Doc. 73) and a R e s p o n s e to the Defendants' Statement of Material Facts (Doc. 67). According to the Defendants' argument, the Plaintiff was only allowed to file a response wherein he responded to each of the Defendants' enumerated fa c ts , not to file his own statement of disputed facts. This argument is b a s e d on an incorrect reading of the local rule. L o c a l Rule 56 clearly allows the respondent to a motion for summary ju d g m e n t to file two documents: (1) a "separate and concise statement of m a te ria l facts," and (2) a "[r]esponse . . . to each of the movant's numbered m a te ria l facts." It would be inequitable to require a respondent to rely on a d e fe n d a n t's self-serving, carefully selected list of facts in responding to a m o tio n for summary judgment, and would undermine the spirit of the law of s u m m a ry judgment, which requires this Court to construe facts in favor of th e respondent. D e fe n d a n ts ' Motion to Strike (Doc. 92) is denied. This Court will not s trik e Plaintiff's Statement of Material Facts as to W h ic h There Exist G e n u in e Issues to be Tried (Doc. 73).

II.M O T IO N FOR SUMMARY JUDGMENT A. 2 F a c tu a l Background

The Arizona Chemical Company ("ACC") is the owner of a facility in V a ld o s ta , Georgia (the "Facility") that manufactures resins. Prior to the e ve n ts giving rise to this action, ACC's Facility used open conveyors (i.e., u n c o ve re d conveyors) to transport the resin through the Facility and into th e bagging room. In the process of transport along this conveyor, dust fro m the resin would dispense into the air and throughout the Facility. The d u s t from this resin was combustible. In May 2006, ACC decided to shut down the Facility to perform c le a n in g and maintenance, and also to replace the open conveyor with an e n c lo s e d conveyor. ACC hired contractors to help with various projects d u rin g the shut-down. In particular, ACC hired Tesecon to demolish the o ld , open conveyor. Tesecon was to use some of its own employees on th e project, but would need to hire others specifically for this project. The P la in tiff was one of the latter employees. O n the second day of the project, shortly after 5:00 p.m., a flash fire o c c u rre d above the Motor Control Center (the "MCC") room. The Plaintiff le a rn e d of this fire when he arrived for his 7:00 p.m. shift.1 Immediately a fte r the fire, ACC ordered Tesecon to halt all "hot" work while ACC e m p lo ye e s cleaned and inspected the area. After this work had been p e rfo rm e d , an ACC employee informed Tesecon that ACC had cleaned In order to perform the work in the amount of time required by ACC, Tesecon employees worked 24 hours a day. The Plaintiff in this case worked the night shift.
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and inspected the area, and had tested for explosion hazards. An ACC e m p lo ye e issued Tesecon a Hot W o rk Permit (an "HW P "), a document that m u s t be issued by an ACC employee before any work on the project that w o u ld cause a spark or a flame could be performed, thus allowing Tesecon e m p lo ye e s to return to work. A fte r receiving the HW P , the Plaintiff began working with other T e s e c o n employees in the area above the MCC room to remove a section o f the conveyor. The Plaintiff was using an oxygen acetylene torch to cut th e conveyor into sections. He would then maneuver the cut section to the flo o r. The Plaintiff was standing on a bank of conduit about four to five feet a b o ve the roof of the MCC room, but was not wearing a safety harness. After the Plaintiff had made the final cut on the section of the conveyor he w a s working on, the conveyor shifted and dust began to fall. The dust c a m e into contact with the flame of the Plaintiff's torch, causing another fla s h fire. The Plaintiff tried to escape the fire, but tripped and fell onto the ro o f of the MCC room and was injured as a result.

B. 1. 4

D is c u s s io n G e o rg ia Law Applies

The Court agrees with the parties that this Court should apply G e o rg ia substantive law in this case. See Cambridge Mut. Ins. Co. v. City o f Claxton, 720 f.2d 1230, 1232 (11th Cir. 1983). 2. S u m m a ry Judgment Standard S u m m a ry judgment must be granted if "the pleadings, the discovery a n d disclosure materials on file, and any affidavits show that there is no g e n u in e issue as to any material facts and that the movant is entitled to ju d g m e n t as a matter of law. Federal Rule of Civil Procedure 56(c). In ru lin g on a defendant's motion for summary judgment, the Court takes the fa c ts in the light most favorable to the plaintiff. Stanley v. City of Dalton, 2 1 9 F.3d 1280, 1287 (11th Cir. 2000). The Court may not, however, make c re d ib ility determinations or weigh the evidence. Anderson v. Liberty L o b b y, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513 (1986). 3 .. D e fe n d a n ts ' Duty to the Plaintiff T h e Defendants' main argument in favor of summary judgment is th a t ACC did not owe the duties of landowner to invitee to the Plaintiff b e c a u s e he was an independent contractor and ACC had relinquished p o s s e s s io n of the premises. For the below discussion, it is assumed that T e s e c o n was an independent contractor. A s the owner of the Facility, ACC "is liable in damages to invitees w h o come upon [its] land for injuries occasioned by [its] failure to exercise o rd in a ry care in keeping the premises safe." W e s t v. Briggs & Stratton 5

Corp., 244 Ga. App. 840, 844, 536 S.E.2d 828, 832 (2000). Ordinarily, b e c a u s e independent contractors are invitees, ACC would owe a duty to T e s e c o n and its employees. Id. If, however, ACC had surrendered "full p o s s e s s io n and complete control" over the facility, or even over the b a g g in g room where the Plaintiff was injured, then it would not be liable to th e Plaintiff because it would not have owed him the duties normally owed to invitees. Id. at 844-45, 536 S.E.2d at 832. As long as two conditions e xis t, ACC would not owe the duties of a landowner to invitee to the P la in tiff: (1) if ACC had "relinquished possession of the premises, in the w h o le or in part," and (2) if ACC did not have the right to control and direct th e work done, and did not actually control or direct the work. Id. at 845, 5 3 6 S.E.2d at 832. T h e first issue, then, is whether ACC relinquished possession of the p re m is e s to Tesecon. Possession means "having personal charge of or e xe rc is in g rights of management or control over the property in question." Id. at 845, 536 S.E.2d at 833. "[C]ustody and control are the commonly a c c e p te d and generally understood incidents of possession." Id. Particularly, "possession implies the ability to control access to the p re m is e s and to exclude others therefrom." Id. Reviewing the undisputed fa c ts , as set out by both parties in their statements of facts, it does not a p p e a r, to an extent sufficient to satisfy summary judgment standards, that A C C relinquished possession of the Facility or the bagging room. 6

Tesecon employees could only access the Facility through a locked g a te . The workers would have to use a telephone, located by the gate, to c a ll the ACC control room and ask to be admitted. Once admitted, the T e s e c o n employees had to sign in and out. According to its written p ro c e d u re s , ACC reserved the right to search Tesecon employees, and it s p e c ific a lly stated in the procedures that "[t]oolboxes and lunchboxes may b e checked at random, and will be checked prior to be[ing] allowed to leave th e site." W h ile working, Tesecon employess were confined to their a s s ig n e d areas. ACC's contention that "Tesecon employees could choose w h ic h area within the Bagging Room to be working on and were free to w o rk on any part of the area where the project was being worked on," is in s u ffic ie n t to prove that ACC relinquished possession. W h a t is more, and this point shows that ACC relinquished neither p o s s e s s io n nor control, Tesecon employees had to receive authorization fro m ACC's employees in order to do certain kinds of work. In order to do w o rk that would create a spark or a flame, which was a lot of what the P la in tiff's work involved as he was demolishing the conveyor with a torch, T e s e c o n 's employees had to secure a Hot W o rk Permit. The ACC e m p lo ye e s were in charge of issuing HW P s . The ACC employee issuing th e HW P answered a checklist of 19 questions and inspected the area prior to issuing the permit. The Tesecon employee was then required to sign the

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permit, acknowledging its contents, and encouraged to perform his own in s p e c tio n of the premises. C o n s id e rin g these facts in a light most favorable to the Plaintiff, the D e fe n d a n ts cannot show with the evidence available that ACC relinquished p o s s e s s io n and control of the premises. Thus, assuming for the sake of th e Motion that Tesecon was an independent contractor, ACC cannot show th a t the Plaintiff was not ACC's invitee to whom ACC owed certain duties. This issue, as well as others, particularly whether ACC breached any d u tie s it may have owed to the Plaintiff, must be await trial for d e te r m in a tio n . 4. D e m o litio n Work A C C also argues that the Plaintiff cannot recover against the D e fe n d a n ts because the Plaintiff was performing demolition work. But this a rg u m e n t is not properly made. It is true, as the Defendants argue, that there is an exception to the la n d o w n e r's duty to invitees that applies "`where the injured servant was h ire d for the express purpose of assisting in the repair, demolition, or a lte ra tio n of some instrumentality . . ., and the unsafe conditions from w h ic h the injury resulted arose from or were incidental to the work u n d e rta k e n by him." Long Leaf Indus., Inc. v. Mitchell, 252 Ga. App. 343, 3 4 4 , 556 S.E.2d 242, 243 (2001). But, as the court of appeals in Long Leaf w ro te , the exception ". . . presupposes that the involved risk is incidental to 8

the work performed and, therefore, is known to, and assumed by, the w o rk e r." Id. at 344, 556 S.E.2d at 244. For instance, in Howell v. Farmers Peanut Market of Sowega, Inc., 2 1 2 Ga. App. 610, 442 S.E.2d 904 (1994), the plaintiff was injured while in s ta llin g a motor on the top of a grain elevator. The plaintiff was injured by th e hoisting of the motor. The plaintiff arrived at the scene of the accident a s the motor was being hoisted and he shouted for the men moving the m o to r to stop because the motor was stuck. He knew that this presented a d a n g e r because the "strong arm" holding the motor might break and the m o to r might drop. The plaintiff climbed to adjust the motor and "when at [th e plaintiff's] direction the motor was being raised again, it fell and struck [th e plaintiff.]" Id. at 611, 442 S.E.2d at 904. In his deposition, the plaintiff s ta te d that he had removed over one-hundred motors and was aware of th e dangers inherent in the process. In other words, the plaintiff's injury "was received from a danger that w o u ld ordinarily and naturally exist in doing the work which [he] was e m p lo ye d to perform." Id. Such is not the case here, or at least, this is not w h a t the evidence would indicate. The critical distinction between Howell a n d this case is that the injury in Howell was caused in the ordinary p ro c e s s of installing the motor and was instigated by no outside factors, w h e re a s here, the demolition of the conveyor did not cause the Plaintiff's in ju rie s , it was the flash fire caused by settling dust, a condition that the 9

evidence indicates is unique, insofar as the Plaintiff is concerned, to the A C C project. A d d itio n a lly, the plaintiff in Howell was well aware of the risks of in s ta llin g motors; he knew the equipment and knew the likely c o n s e q u e n c e s of such a procedure gone wrong. Here, dust caught fire, w h ic h is outside of normal expectations. Aside from the other inequities of lim itin g the Defendants' liability due to the cause of the incident, the dust c a tc h in g fire is not a risk this Plaintiff would be aware of or should expect, n o matter how many conveyors the Plaintiff demolished. T h a t the Plaintiff's job involved an element of danger will not shield th e Defendants from liability in this case. 5. A s s u m p tio n of the risk T h e question of whether the Plaintiff "assumed the risk of his injury is a jury question that should not be decided by summary adjudication unless th e defense is conclusively established by plain, palpable and undisputed e vid e n c e ." Prillaman v. Sark, 255 Ga. App. 781, 782, 567 S.E.2d 76, 77 (2 0 0 2 ). W h e th e r the Plaintiff assumed the risk depends on his actual k n o w le d g e . Id. "The knowledge requirement does not refer to a c o m p re h e n s io n of general, non-specific risks. Rather, the knowledge that a plaintiff who assumes the risk must subjectively possess is that of the s p e c ific , particular risk of harm associated with the activity or condition that p ro xim a te ly causes injury." Id. The Defendants have not presented 10

sufficient evidence to allow the Court to make a determination, at summary ju d g m e n t, that they are entitled to this defense. III.H E AR IN G MOTION T h e Court notes that the parties have filed a Joint Motion for Oral H e a rin g . However, this motion was submitted to the Court at a time when th e Court had already concluded the disposition of the Motion for Summary J u d g m e n t. Therefore, the Hearing Motion is denied. IV .C O N C L U S IO N F o r the foregoing reasons, the Motion to Strike (Doc. 92), the Motion fo r Summary Judgment (Doc. 59) and the Hearing Motion (Doc. 115) are d e n ie d . S O ORDERED, this the 4 th day of March, 2010.

s / Hugh Lawson HUGH LAW S O N , SENIOR JUDGE jc h

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