McCoy v. Gamesa Technology Corp. et al

Filing 349

MEMORANDUM OPINION signed by the Honorable Charles P. Kocoras on 8/7/2013: McCoy's motion for partial summary judgment is denied. Streator's motion for summary judgment is granted. Iberdrola's motion for partial summary judgment is granted with respect to: (i) intentional willful and wanton conduct; and (ii) punitive damages. A jury may consider Kreiser's conduct to determine whether it was recklessly willful and wanton. Status hearing set for 8/22/2013 at 9:30 a.m. to stand. (For further details see Memorandum Opinion.)Mailed notice(sct, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
AARON MCCOY,
Plaintiff,
vs.
IBERDROLA RENEWABLES, INCORPORATED
an Oregon corporation, STRATOR-CAYUGA
RIDGE WIND POWER, LLC a Delaware
corporation,

)
)
)
)
)
)
)
)
)

11 C 592

Defendants.
MEMORANDUM OPINION
CHARLES P. KOCORAS, District Judge:
This matter comes before the Court on the cross-motions for partial summary
judgment of Plaintiff Aaron McCoy (“McCoy”) and Defendants Iberdrola
Renewables, Inc. (“Iberdrola”) and Streator-Cayuga Ridge Wind Power, LLC
(“Streator”) (collectively “Defendants”) pursuant to Federal Rule of Civil Procedure
56.

For the following reasons, McCoy’s motion is denied, Streator’s motion is

granted, and Iberdrola’s motion is granted in part and denied in part.
BACKGROUND
I.

Facts
The following facts are taken from the parties’ respective statements and

exhibits filed pursuant to Northern District of Illinois Local Rule 56.1. The Court
reviews each Local Rule 56.1 statement and disregards any argument, conclusion, or
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assertion unsupported by the evidence in the record. 1

Iberdrola is an Oregon

corporation that operates wind farms, including the wind farm at Cayuga Ridge
(“Cayuga Ridge”) in Pontiac, Illinois. Streator is a Delaware corporation that is an
Iberdrola subsidiary and held title to Cayuga Ridge at the time of the events in
question. Outland Renewable Energy, LLC a/k/a Outland Energy Services, LLC
(“Outland”) was a Minnesota company that provided wind farm operation,
maintenance, and repair services to the wind energy industry in the United States and
abroad.

Gamesa Wind U.S., LLC and Gamesa Technology Corp. (“Gamesa”)

manufactures wind turbines (“turbines”).
Outland and Gamesa entered into an agreement whereby Outland would
perform services for Gamesa at Iberdrola wind farms, including Cayuga Ridge.
McCoy worked at Cayuga Ridge as a technician employed by Outland. Outland had
two supervisors at Cayuga Ridge: Mike Piper (“Piper”) and Alex Rice (“Rice”). Ross
Williamson (“Williamson”) was the Gamesa supervisor at Cayuga Ridge. Curtis
Radke (“Radke”) and Dale Thomas (“Thomas”) supervised the operation at Cayuga
Ridge for Iberdrola. Outland employees worked at the direction of Gamesa and did

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Defendants object to the form of McCoy’s statement of facts and memorandum of law.
Although McCoy does not strictly adhere to the requirements of Local Rule 56.1, the responses
do not amount to total non-compliance with Local Rule 56.1, which would be significant enough
to warrant ignoring McCoy’s statement of facts and memorandum of law in their entirety.
Defendants’ objection is overruled.

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not take orders from Iberdrola. If Outland employees had concerns, Williamson
served as the liaison to Iberdrola.
McCoy performed transformer maintenance on the turbines. Because no power
was available for the turbines, which were located 255 feet above ground, McCoy and
other employees could not use the elevator to descend from the transformer rooms.
Rather, the employees had to climb down by ladder. This could take as much as a
half hour to accomplish, though Outland employee Corey Hart (“Hart”) testified that
he made the descent in approximately ten minutes.
The Occupational Health and Safety Administration (“OSHA”) had strict
procedures for energizing the turbines (also referred to as towers). The turbines were
energized via the operation of a gear switch, which required a key to activate it.
Under the lock-out tag-out (“LOTO”) procedure, an Iberdrola employee would place
the key in a lockbox while an Outland employee was working on one of the
transformers. An Outland employee would place his own lock on the lockbox and
maintain possession of the key to that lock while he was up tower. As a final
precaution, the use of grounding straps was required. Grounding straps divert energy
from the tower in case of an erroneous energization to the ground.
In September 2010, Iberdrola employee Evan Bonell (“Bonell”), a senior
technician who did not supervise employees, suggested a way in which work could be
performed more efficiently. Rice and Piper agreed, and Rice instructed McCoy to
follow the modified LOTO procedure. Instead of maintaining possession of their lock
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keys, Outland employees now placed them on top of the gear switch.

Outland

employees radioed Iberdrola employees when work on a particular turbine had been
completed, and Iberdrola employees would energize that tower, as the Outland
employees would be safely below in a location called the yaw deck. The Outland
employees could then use the elevator to climb down to the ground, and this modified
LOTO procedure saved the time required to climb down via ladder.
On October 20, 2010, McCoy and Andrew Ehrhardt (“Ehrhardt”), a fellow
Outland employee, were working at Tower Q8. Meanwhile, Hart and fellow Outland
employee Alex Anderson (“Anderson”) were working at Tower L2. McCoy had
removed the grounding straps from the transformer at Tower Q8 because he viewed
them as a tripping hazard. Hart and Anderson finished their work on Tower L2 and
radioed this information to Iberdrola employee Andy Morrissey (“Morrissey”), who
informed fellow Iberdrola employee Clay Kreiser (“Kreiser”). Kreiser had been told
earlier that he would be energizing certain towers, not including Tower L2. Kreiser
mistakenly believed that he had been told to energize Tower Q8. Though Kreiser had
been trained on the LOTO procedure, he too was using the less safe modified LOTO
procedure. He took the key that should have been with McCoy or Ehrhardt and
opened the lockbox, removed the key to the gear switch and energized Tower Q8. An
electrical explosion called an arc flash then occurred, and McCoy was severely
burned.

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II.

Procedural History
The instant litigation has engendered a host of crossclaims and counterclaims,

so the Court will detail only the procedural history relevant to the motions now before
it. McCoy originally filed a complaint against Gamesa and Iberdrola in the Circuit
Court of Cook County, Illinois, and it was removed to this Court pursuant to 28
U.S.C. § 1441.

Streator and Outland became defendants due to third-party

complaints. McCoy then settled with Gamesa and Outland. In his four count third
amended complaint filed on May 10, 2013, McCoy has alleged one count of
negligence and one count of willful and wanton conduct against Streator and Iberdrola
separately. On May 7, 2013, pursuant to this Court’s scheduling order, McCoy
moved for partial summary judgment pursuant to Federal Rule of Civil Procedure 56.
On May 13, 2013, Defendants also moved for partial summary judgment pursuant to
Rule 56.
LEGAL STANDARD
Summary judgment is appropriate when the pleadings, discovery, disclosures,
and affidavits establish that there is no genuine issue of material fact, such that the
movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The movant
bears the initial burden of showing that no genuine issue of material fact exists.
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The burden then shifts to the nonmoving party to show through specific evidence that a triable issue of fact remains on
which the non-movant bears the burden of proof at trial. Id. at 325. The non-movant
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may not rest upon mere allegations in the pleadings or upon conclusory statements in
affidavits; he must go beyond the pleadings and support his contentions with
documentary evidence. Id. A genuine issue of material fact exists when, based on the
evidence, a reasonable jury could find in favor of the non-movant. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In considering a motion for summary
judgment, the court construes all facts and draws all reasonable inferences in favor of
the non-movant. Smith v. Hope Schs., 560 F.3d 694, 699 (7th Cir. 2010). When faced
with cross-motions for summary judgment, the court views all facts and draws all
reasonable inferences in favor of the party against whom the motion under
consideration is made. Edwards v. Briggs & Stratton Ret. Plan, 639 F.3d 355, 359
(7th Cir. 2011).
DISCUSSION
I.

Defendants’ Motions

A.

Streator’s Motion for Summary Judgment
McCoy has alleged both negligence and willful and wanton conduct on the part

of Streator. McCoy did not respond with respect to Streator’s motion for partial
summary judgment, however, instead confining his response to Iberdrola’s motion.
The Court thus views Streator’s motion as unopposed. A non-movant’s failure to
respond to a motion for summary judgment does not automatically result in a
judgment in favor of the movant. Raymond v. Ameritech Corp., 442 F.3d 600, 608

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(7th Cir. 2006). The ultimate burden of persuasion still remains with the movant to
show that it is entitled to judgment as a matter of law. Id. at 608.
In order to prevail in an action for negligence, the plaintiff must prove that:
(i) the defendant owed a duty to the plaintiff; (ii) the defendant breached that duty;
and (iii) the defendant’s breach was the proximate cause of the plaintiff’s injury. Bell
v. Hutsell, 955 N.E.2d 1099, 1104 (Ill. 2011).

Proximate cause contains two

elements: (i) legal cause; and (ii) cause in fact. Krywin v. Chi. Transit Auth., 938
N.E.2d 440, 446 (Ill. 2010). Under Illinois law, there is no separate and independent
tort of willful and wanton conduct. Doe-3 v. McLean Cnty. Unit Dist. No. 5 Bd. of
Dirs., 973 N.E.2d 880, 887 (Ill. 2012). “Rather, willful and wanton conduct is
regarded as an aggravated form of negligence.” Id. at 887 (citations omitted). In
order to obtain damages for willful and wanton conduct, a plaintiff must prove the
elements of negligence. Id. A plaintiff also must either allege “a deliberate intention
to harm or an utter indifference to or conscious disregard for the welfare of the
plaintiff.”

Doe v. Chi. Bd. of Educ., 820 N.E.2d 418, 424 (Ill. 2004) (citation

omitted). See also Ziarko v. Soo Line R.R., 641 N.E.2d 402, 408 (Ill. 1994) (further
detailing the distinction between intentional and reckless willful and wanton conduct).
Streator, an Iberdrola subsidiary, held title to Cayuga Ridge at the time of the
accident. Having thoroughly examined the record, the Court can discern no other
connection between Streator and the conduct that resulted in McCoy’s having
sustained injuries. McCoy’s complaint alleges that Kreiser was an employee of
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Streator; however, the record indicates that Kreiser was employed by Iberdrola.
McCoy’s motion and his response to Defendants’ motion focus solely on the actions
of Radke, Thomas, Bonell, Morrissey and Kreiser, all Iberdrola employees. Streator
claims to have no employees, and the Court has seen no evidence of activity on the
part of Streator at Cayuga Ridge. The alleged misconduct involves a deviation from
approved safety procedures and Kreiser’s having energized the turbine while McCoy
was working on the transformer. The facts do not show any conduct by Streator
pertaining to the events that led up to McCoy’s injuries, so no rational jury could find
either negligent or willful and wanton conduct on Streator’s part. Hence, Streator’s
motion for summary judgment is granted.
B.

Iberdrola’s Motion for Partial Summary Judgment

1.

Viability of Willful and Wanton Claim as Separate Count
Iberdrola first avers that McCoy’s willful and wanton claim should be

dismissed because Illinois does not recognize a separate and independent cause of
action for willful and wanton conduct. See Ziarko, 641 N.E.2d at 406. This Court
does not adopt the broad reading of Ziarko that Iberdrola requests. While it is true
that McCoy has pleaded his willful and wanton claim in a separate count, the claim is
no more than a supplemental allegation of negligence. In other words, McCoy’s
willful and wanton count is a “claim[] in name only.” See Dwyer v. Reeder, No. 10 C
1194, 2011 U.S. Dist. LEXIS 56979, at *3 (N.D. Ill. May 25, 2011) (rejecting
argument that pleading separate counts invalidated gross negligence, willful and
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wanton and punitive damages claims and striking motion to dismiss under Rule
12(b)(6) as moot). Iberdrola’s motion on this ground is therefore denied.
2.

Compensatory Damages
Iberdrola asks the Court to find as a matter of law that Kreiser’s actions were

not willful and wanton and to dismiss this count in its entirety for that reason. (The
Court shall address the issue of punitive damages in Subsection 3, infra.) McCoy
seeks to recover under a theory of respondeat superior. According to this doctrine, an
employer is liable for an employee’s misconduct if that misconduct is within the
scope of the employment. Bank of Am., N.A. v. Bird, 911 N.E.2d 1239, 1243 (Ill.
App. Ct. 2011). To satisfy the scope requirement, a plaintiff must show that: (i) the
conduct was of the kind the employee was employed to perform; (ii) it must have
occurred substantially within the authorized time and space limits; and (ii) the
employee perpetrated it at least in part to serve the employer. Bagent v. Blessing Care
Corp., 862 N.E.2d 985, 991-92 (Ill. 2007). Illinois courts have permitted recovery
under respondeat superior even for intentional torts. See generally Jones v. Patrick &
Assocs. Detective Agency, 442 F.3d 533, 535-56 (7th Cir. 2006) (detailing cases).
Iberdrola concedes that there is a question of fact with respect to McCoy’s
negligence count also based on respondeat superior. The Court thus deems the criteria
of respondeat superior to have been satisfied with respect to the willful and wanton
count, for Kreiser was an employee of Iberdrola who was performing his job when he

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energized Tower Q8, and Kreiser was not, according to the record before the Court,
acting solely in his personal interest but rather to serve Iberdrola.
The question of whether conduct is willful and wanton is a question of fact
reserved for the jury except in extraordinary circumstances. Prowell v. Loretto Hosp.,
791 N.E.2d 1261, 1265 (Ill. App. Ct. 2003). The Court does not view the instant case
as falling into this exception. Kreiser testified that he knew that the modified LOTO
procedure was dangerous. Iberdrola argues that Kreiser did not say that the procedure
was unsafe, but the Court fails to see the difference between these adjectives. Kreiser
had been trained in the proper procedure but did not follow it when he energized
Tower Q8. While the record is devoid of evidence that Kreiser had a deliberate intent
to harm McCoy or anyone else (the intentional form of willful and wanton conduct), a
reasonable jury could find that Kreiser showed a conscious disregard that harm could
occur, thus satisfying the reckless form of willful and wanton conduct.
Iberdrola correctly notes that Kreiser and McCoy both testified that Kreiser’s
actions were a mistake resulting from a miscommunication, as Kreiser should have
energized Tower L2 where Hart and Anderson had completed their work instead of
Tower Q8 where McCoy and Ehrhardt were still working on transformer
maintenance. However, given the hectic activity at Cayuga Ridge in that several
crews were working at different towers simultaneously, the Court is persuaded that a
reasonable jury could find that Kreiser should have known of the risk of a
miscommunication but consciously disregarded it when he did not follow the proper
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LOTO procedure. As such, the Court will permit a jury to decide whether Kreiser’s
act constituted reckless willful and wanton conduct. As no evidence exists that
Kreiser deliberately intended to harm anyone, however, the Court holds that Kreiser’s
conduct did not rise to the level of intentionally willful and wanton. McCoy argues
that the conduct did rise to this level because Kreiser deliberately flipped the gear
switch to energize Tower Q8, but this act alone does not demonstrate that Kreiser had
a deliberate intent to cause harm when he did so.
3.

Punitive Damages
Iberdrola asks the Court to find that there exists an insufficient factual basis

with respect to McCoy’s claim for punitive damages. In Illinois, punitive damages
“may be awarded when torts are committed with fraud, actual malice, deliberate
violence or oppression, or when the defendant acts willfully, or with such gross
negligence as to indicate a wanton disregard of the rights of others[.]” Kelsay v.
Motorola, Inc., 384 N.E.2d 353, 359 (Ill. 1978). While the amount of punitive
damages is a question of fact, the issue of whether the particular facts of a case justify
punitive damages is a question of law. Id. at 359. When a corporate defendant’s
liability “is predicated upon a theory of respondeat superior, the imposition of
punitive damages is narrowly circumscribed.” Kennan v. Checker Taxi Co., 620
N.E.2d 1208, 1212 (Ill. App. Ct. 1991) (citation omitted). In Mattyasovszky v. West
Towns Bus Co., 330 N.E.2d 509, 512 (Ill. 1975), the Illinois Supreme Court adopted
the position of the Restatement (Second) of Agency § 217C (1958) as to when
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punitive damages are proper against a corporate defendant on a theory of respondeat
superior: (i) if the defendant authorized the doing and the manner of the employee’s
conduct, (ii) if the employee was unfit and the defendant was reckless in employing
him, (iii) if the employee was a manager acting in the scope of his employment, or
(iv) if the defendant or a managerial agent of it ratified or approved the act.
McCoy argues that Iberdrola authorized and approved of Kreiser’s actions
through the ratification of Radke and Thomas. As his main support for this argument,
McCoy notes that Radke and Thomas had radios and thus could hear communications
between Outland and Iberdrola employees in which it was clear that the LOTO
procedure was not being followed. Since Radke and Thomas did not put a stop to the
cutting of corners, McCoy posits, they approved of it. Both McCoy and Hart testified,
however, that since several crews were working on different turbines simultaneously,
it would be very difficult to follow what was occurring with individual crews at the
turbines through the monitoring of radio communications.
McCoy also focuses on Bonell, who suggested that the employees implement
the modified LOTO procedure. Bonell was not a manager according to the record.
Rather, he was a senior technician who was not in charge of any employees. McCoy
was instructed by his supervisor Rice, an Outland employee, to follow the modified
LOTO procedure. Bonell did not testify that he had informed Radke, Thomas or any
other Iberdrola managerial personnel of his suggestion. The record does not contain
testimony from any witness aside from speculation that Radke, Thomas, or any other
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Iberdrola managerial personnel knew of the deviation from the LOTO procedure. If
any witness had testified based on firsthand knowledge that an Iberdrola manager had
been aware of the deviation before the accident, the Court would view this issue
differently, for the issue would then become one of credibility, and it would be
improper for the Court to decide the matter at this stage of the proceedings. See
Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003) (summary judgment is not the
appropriate forum for a court to make credibility determinations).
McCoy devotes a substantial portion of his argument to Iberdrola’s bonus
structure and suggests that it provides further evidence of Iberdrola’s having
authorized the deviation from the LOTO procedure. The bonus structure, however,
merely awarded potential bonuses for plant availability. This common type of reward
for productivity does not constitute a ratification of modified procedures that violated
OSHA regulations, and none of Iberdrola’s materials provided to the Court suggests
that safety should ever be disregarded to achieve more productivity. McCoy cites the
testimony of Robert Basarich (“Basarich”), an Iberdrola employee, regarding the
bonus issue; however, Basarich did not begin his work for Iberdrola until after the
accident, so the Court does not view his testimony as relevant to the issues at hand.
The Court also has examined the record with respect to Iberdrola’s conduct
after the accident, for a corporate defendant can ratify misconduct after it has
occurred. See Robinson v. Wieboldt Stores, Inc., 433 N.E.2d 1005 (Ill. App. Ct.
1982). Iberdrola employees were retrained and disciplined, so the Court does not find
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any evidence of ratification by Iberdrola after Kreiser’s alleged misconduct. Finally,
no argument is made that Kreiser was a manager or that he was unfit for the position
he held, so these avenues for obtaining punitive damages are also closed to McCoy.
In sum, the Court declines to permit the issue of punitive damages to be
decided by a jury when the only support in the record consists of speculative
testimony. As such, whether Kreiser’s actions amount to reckless willful and wanton
conduct will be left for a jury to decide, and McCoy may recover compensatory
damages against Iberdrola if a jury so finds; however, no punitive damages may be
recovered.
II.

McCoy’s Motion for Partial Summary Judgment
McCoy asks this Court to hold as a matter of law that Kreiser’s conduct was

willful and wanton and to bar three of Iberdrola’s affirmative defenses: (i) negligence;
(ii) McCoy as the sole proximate cause of the accident; and (iii) other parties (Outland
and Gamesa) as the sole proximate cause of the accident.
A.

Willful and Wanton
McCoy argues that Kreiser’s conduct was willful and wanton as a matter of law

because, knowing that deviating from the LOTO procedure was dangerous, Kreiser
did so anyway and either intentionally or recklessly endangered McCoy. The Court
has already determined that the record is devoid of evidence of Kreiser’s deliberate
intent to harm anyone but that a reasonable jury could find that his conduct was
reckless. To prevail on a claim of willful and wanton conduct, however, McCoy must
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establish that Kreiser was negligent; that is, Kreiser’s conduct must have proximately
caused McCoy’s injuries.
In a negligence action, proximate cause is generally an issue of material fact.
Abrams v. City of Chi., 811 N.E.2d 670, 674 (Ill. 2004). Proximate cause can also, in
rare circumstances, be decided as a matter of law. See id. at 674. McCoy contends
that his having failed to use grounding straps while in the transformer room was not
the proximate cause of the accident. Rather, Kreiser’s manipulation of the switch gear
was. To support this assertion, McCoy points to the testimony of Outland employee
Brian Arndt, who testified that the failure to use the grounding straps did not cause the
arc flash.

Williamson and Piper indicated, however, that the accident occurred

because of this failure; that is, had the grounding straps been worn, the energy that
was produced would have been directed to the ground.

The issue is further

complicated because McCoy and Ehrhardt had placed a wrench on top of the
transformer. The precise impact that this tool had is not clear to the Court. Iberdrola
has also supplied an affidavit from Ted Kitchen, an electrical engineer with Iberdrola,
asserting that the arc flash occurred due to the failure to use grounding straps.
The picture that emerges from the record is a nebulous one. The issues in
question are scientific in nature and well beyond the ken of common knowledge. A
jury would be in the best position after testimony from qualified experts to render a
more informed decision than can this Court at the present time. The Court cannot
hold as a matter of law that it was Kreiser’s act that caused McCoy’s injuries.
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The Court also is not persuaded by McCoy’s analogy that equates failing to use
grounding straps with neglecting to wear a seatbelt at the time of an automobile
accident. One can be seriously injured even with a seatbelt that is properly fastened
by, for instance, flying glass, other debris, or a fire caused by gasoline. In the instant
case, Iberdrola argues that no arc flash would have occurred but for McCoy’s having
removed the grounding straps, which he viewed as a tripping hazard even though their
use was required. The Court takes no position on what caused the accident, as this
case fits within the general rule that the issue is one of material fact on which a jury
should decide. A fortiori, the Court cannot hold as a matter of law that Kreiser’s
actions amounted to willful and wanton conduct if it has not been established that
Kreiser’s conduct was the proximate cause of McCoy’s injuries. The Court, therefore,
must decline McCoy’s invitation to grant summary judgment with respect to this
issue.
B.

Affirmative Defenses

1.

Contributory Negligence
McCoy argues that this affirmative defense should be barred as a matter of law

because Kreiser’s conduct, he alleges, was willful and wanton. In Ziarko, the Illinois
Supreme Court clarified that only intentionally willful and wanton conduct and not
reckless conduct would prevent the use of contributory negligence as an affirmative
defense. See 641 N.E.2d at 408. As this Court has already determined that only the
issue of recklessness may be brought before a jury, Iberdrola’s affirmative defense of
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contributory negligence is proper, and the Court denies McCoy’s motion for summary
judgment with respect to it.
2.

Proximate Cause
McCoy moves for summary judgment with respect to two proximate cause

affirmative defenses: (i) that McCoy was the sole proximate cause of the accident; and
(ii) that the actions of third parties, namely Outland and Gamesa, were the sole
proximate cause). The Court will not rehash its exegesis of the proximate cause issue
in Section A, supra. The matter involves difficult scientific issues that a jury and not
this Court should resolve after the parties present expert testimony on the relationship
between the energization, the failure to use grounding straps, the wrench, and the arc
flash. A jury may find that the actions of Outland and Gamesa, with whom McCoy
has already settled, contributed to the accident. As there may be more than one
proximate cause, a jury might find that all of the above-mentioned events contributed
to McCoy’s injuries. The Court views a jury as the proper arbiter of the degree of
fault to be borne by McCoy, Iberdrola, Outland, and Gamesa. Hence, McCoy’s
motion for summary judgment with respect to the proximate cause affirmative
defenses is denied.
CONCLUSION
In sum, McCoy’s motion for partial summary judgment is denied. Streator’s
motion for summary judgment is granted. Iberdrola’s motion for partial summary
judgment is granted with respect to: (i) intentional willful and wanton conduct; and
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(ii) punitive damages. A jury may consider Kreiser’s conduct to determine whether it
was recklessly willful and wanton.

_____________________________________
Charles P. Kocoras
United States District Judge

Dated: August 7, 2013

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