Maysey v. Henkel Corporation et al
Filing
149
MEMORANDUM OPINION AND ORDER Signed by Chief Judge Greg N. Stivers on 12/16/2019 denying 134 Defendant Nemak USA Inc.'s Motion for Summary Judgment. cc: Counsel (CDF)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:17-CV-00108-GNS-HBB
NATHANIEL EDWARD MAYSEY
PLAINTIFF
v.
HENKEL CORPORATION;
HENKEL AG & CO. KGAA; and
NEMAK USA, INC.
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendant’s Motion for Summary Judgment (DN 134).
The motion is ripe for adjudication. For the reasons that follow, the motion is DENIED.
I.
BACKGROUND
Defendant Nemak USA Inc. (“Nemak”) die casts aluminum automobile parts. (Byrd Dep.
14:5, Oct. 30, 2018, DN 134-3; Pl.’s Mem. Supp. Resp. Def.’s Mot. Summ. J. 1, DN 136-1
[hereinafter Pl.’s Resp.]). Magna-Tech Manufacturing, LLC (“Magna-Tech”)1 impregnates diecasted aluminum automobile parts. (Byrd Dep. 14:5-6; Pl.’s Resp. 1). On or about August 5,
2014, Magna-Tech and Nemak entered into a Services Agreement whereby Magna-Tech would
“perform Impregnation Services” for Nemak from June 12, 2014, to December 31, 2019. (Def.’s
Mot. Summ. J. Ex. 2, ¶¶ 1.1-1.2, DN 134-2 [hereinafter Services Agreement]). The Services
Agreement allowed Magna-Tech to perform its services for Nemak by operating within Nemak’s
facility in Glasgow, Kentucky. (Services Agreement ¶ 2.1).
1
As Nemak notes in its motion, Henkel acquired Magna-Tech in 2015. (Def.’s Mem. Supp. Mot.
Summ. J. 2, DN 134-1).
1
Plaintiff Nathaniel Edward Maysey (“Maysey”), was employed by Express Services, Inc.
(“Express Services”), a temporary staffing company. (Pl.’s Resp. 3). He was assigned to work
for Magna-Tech on June 1, 2016. (Pl.’s Resp. 3). Maysey was injured when his arm was caught
in a rotating centrifuge. (Pl.’s Resp. 5).
Maysey brought suit against Defendants in Kentucky state court, claiming negligence and
strict liability, and Defendants subsequently removed this case to federal court. (Notice Removal
¶¶ 1-2, DN 1). Nemak now moves for summary judgment, disclaiming any liability for Maysey’s
injuries. (Def.’s Mot. Summ. J., DN 134).
II.
JURISDICTION
This Court has subject-matter jurisdiction of this matter based upon diversity jurisdiction.
See 28 U.S.C. § 1332(a)(1).
III.
STANDARD OF REVIEW
In ruling on a motion for summary judgment, the Court must determine whether there is
any genuine issue of material fact that would preclude entry of judgment for the moving party as
a matter of law. Fed. R. Civ. P. 56(a). The moving party bears the initial burden of stating the
basis for the motion and identifying the evidence demonstrating an absence of a genuine dispute
of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the moving party
satisfies its burden, the nonmoving party must then produce specific evidence proving the
existence of a genuine dispute of fact for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986).
While the Court must view the evidence in the light most favorable for the nonmoving
party, the nonmoving party must do more than merely show the existence of some “metaphysical
doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
2
586 (1986) (citation omitted). Rather, the nonmoving party must present facts proving that a
genuine factual dispute exists by “citing to particular parts of the materials in the record” or by
“showing that the materials cited do not establish the absence . . . of a genuine dispute . . . .” Fed.
R. Civ. P. 56(c)(1). “The mere existence of a scintilla of evidence in support of the [nonmoving
party’s] position will be insufficient” to overcome summary judgment. Anderson, 477 U.S. at 252.
IV.
DISCUSSION
Nemak asserts that Kentucky premises liability and workers’ compensation law absolve it
from any liability in this case. Kentucky state law forms the substantive law used to evaluate
Maysey’s claim. Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 417
(2010) (“[F]ederal courts sitting in diversity ‘apply state substantive law and federal procedural
law.’” (quoting Hanna v. Plumer, 380 U.S. 460, 465 (1965))).
Nemak owns the property on which Maysey suffered his injuries. (Services Agreement 1).
Nemak and Magna-Tech entered into an agreement whereby Magna-Tech was allowed to install
equipment at Nemak’s Glasgow facility and perform impregnation services for ladder frames
which Magna-Tech then sold to Nemak. (Services Agreement ¶ 1.2). Express Services assigned
Maysey to work for Magna-Tech at Nemak’s Glasgow facility. (Pl.’s Resp. 3).
A.
Premises Liability
Characterizing the relationship between itself and Magna-Tech as one of landlord-tenant,
Nemak argues that the following premises-liability rule applies to the facts of this case:
A possessor of land who leases a part thereof and retains in his own control any
other part which the lessee is entitled to use as appurtenant to the part leased to him,
is subject to liability to his lessee and others lawfully upon the land with the consent
of the lessee or a sublessee for physical harm caused by a dangerous condition upon
that part of the land retained in the lessor’s control, if the lessor by the exercise of
reasonable care could have discovered the condition and the unreasonable risk
involved therein and could have made the condition safe.
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Davis v. Coleman Mgmt. Co., 765 S.W.2d 37, 38-39 (Ky. App. 1989) (quoting Restatement
(Second) of Torts § 360). In arguing that Davis applies, Nemak’s premise is that it leased to
Magna-Tech the area where Maysey was injured and did not retain control of that area in any way;
thus, it is not liable for Maysey’s injuries.2 (Def.’s Mem. Supp. Mot. Summ. J. 4-9, DN 134-1;
Def.’s Reply Mot. Summ. J. 1-6, DN 137 [hereinafter Def.’s Reply]).
Nemak’s position is undermined by the terms of the Service Agreement. Nemak first
points to Paragraph 2.1 of the Services Agreement, which states “Magna-Tech will install, set-up
and maintain equipment in the Glasgow Facility,” for the proposition that that Magna-Tech
possessed all maintenance responsibilities and that Nemak lacked control over the area where
Maysey was injured. Nowhere in that contract, however, did Nemak convey to Magna-Tech a
leasehold interest in any specific portion of the Glasgow plant. Review of the Services Agreement
reveals no suggestion that Nemak relinquished its right as the owner of the premises to enter onto
the area where Magna-Tech was performing services. Rather, the Services Agreement is more
akin to the agreement at issue in Mercantile Realty where the court stated: “Section (b) of the
2
Nemak asserts that the relationship between itself and Magna-Tech is one of landlord-tenant,
presumably to prevent application of the seemingly greater duty applicable to landowner-licensee
or landowner-invitee relationships. See Scuddy Coal Co. v. Couch, 274 S.W.2d 388, 390 (Ky.
1954) (“The owner or occupant of premises owes a duty to the invitee to use ordinary care to have
the premises in reasonably safe condition . . . .”); Smith v. Smith, 563 S.W.3d 14, 18 n.2 (Ky. 2018)
(possessor of land liable to licensee if “possessor knows or has reason to known of the condition
and should realize that it involves an unreasonable risk of harm to such licensees, and should
expect that they will not discover or realize the danger, . . . fails to exercise reasonable care to
make the condition safe, or to warn the licensees of the condition and the risk involved, and . . .
the licensees do not know or have reason to know of the condition and the risk involved.”).
Maysey, as either an employee or independent contractor of Magna-Tech, could potentially be
characterized as either a licensee or invitee. See Auslander Props., LLC v. Nalley, 558 S.W.3d
457, 467 (Ky. 2018) (applying landowner-licensee duty owed to landowner-independent
contractor relationship); Brewster v. Colgate-Palmolive Co., 279 S.W.3d 142, 149-50 (Ky. 2009)
(applying landowner-invitee duty owed to duty owed by landowner to employee of independent
contractor).
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[contract] gives to the shoe company a right to occupy sufficient space with its shoes for their
proper exhibitions, but it does not say where this shall be or give the shoe company any right to
the possession or control of any part of this store. It was a mere license . . . .” Mercantile Realty,
92 S.W.2d at 839 (citations omitted). Similarly, the Services Agreement authorizes Magna-Tech
to enter onto Nemak’s property, to “install, set-up and maintain equipment,” and perform
impregnation services. (Services Agreement ¶¶ 1.1-2.7).
There is no language in the Services Agreement indicating that Nemak relinquished control
of the area it allowed Magna-Tech to use in performing its impregnation services. Instead, MagnaTech was merely allowed to install its machinery and to operate on Nemak’s premises. As such,
Nemak’s argument that Magna-Tech was its lessee by virtue of the Service Agreement is rejected.
See Waller v. Morgan, 57 Ky. 136, 142 (1857) (“To create the relation of landlord and tenant, no
particular words are necessary, but it is indispensable that it should appear to have been the
intention of one party to dispossess himself of the premises, and of the other to enter and occupy
as the former himself had a right to do, pursuant to the agreement between them.”). “When the
use or occupation of premises is given for a special purpose, in which the owner is concerned, the
owner retaining control and legal possession[,] . . . no tenancy is created.” Mercantile Realty Co.
v. Allen Edmonds Shoe Corp., 92 S.W.2d 837, 839 (Ky. 1936) (internal quotation marks omitted).
Nemak points only to the Services Agreement to evidence the existence of a landlordtenant relationship between itself and Magna-Tech. Kentucky law, however, does not appear to
confine the scope of evidence reviewed in determining whether a landlord-tenant relationship
exists between two parties to merely the written agreement between those parties—in other words,
the parties can create a landlord-tenant relationship through their actions. See Miracle v. Stewart,
128 S.W.2d 613, 616 (Ky. 1939) (stating that in the context of an employer providing housing to
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an employee, “[w]here it appears that the occupation of the premises is more than an incident to
service and the employer has parted with his control during the existence of the contract of
employment, . . . there is obviously created the landlord and tenant relationship.” (citation
omitted)); Pinnell v. Woods, 121 S.W.2d 679, 679-80 (Ky. 1938) (examining relationship between
the parties, with no mention of a written agreement, in concluding that landlord-tenant relationship
existed).
Whether Nemak manifested the intent to dispossess itself of the relevant area so as to
establish a landlord-tenant relationship and whether Magna-Tech possessed exclusive control over
the area where Maysey was injured depends upon the facts and circumstances surrounding MagnaTech’s supposed tenancy. Nemak points to the deposition testimony of Magna-Tech employee
Todd Troyer, who testified that he only requested assistance from Nemak for the robotics cell.
(Troyer Dep. 25:6-9, DN 134-5). The robotics cell is located on a different “line,” Line 76, from
the line where Maysey was injured, Line 46. (Troyer Dep. 25:13-14; Def.’s Mem. Supp. Mot.
Summ. J. 1; Pl.’s Resp. 3). Nemak additionally points to the deposition testimony of one of its
own employees, Tammy Byrd (“Byrd”), who stated she was not aware of maintenance performed
by Nemak in the pertinent area. (Byrd Dep. 12:24-13:3). Finally, Nemak points to a safety
assessment conducted by Henkel, which states that “Nemak provides facilities maintenance
resources for any work required which is not directly related to Magna-Tech equipment. For
instance, facility electrical maintenance is performed by Nemak. However, any repair or service
type work on Magna-Tech equipment is managed by Magna-Tech, typically through contracted
resources.” (Def.’s Mot. Summ. J. Ex. 5, at 2, DN 134-6).
Nemak does not articulate how the delegation of maintenance responsibilities to MagnaTech establishes Nemak’s intent to dispossess its property and create a landlord-tenant relationship
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for the disputed area. None of the evidence cited by Nemak establishes such a cessation of control.
The Services Agreement does not indicate an exclusive responsibility on the part of Magna-Tech
to maintain the area in question; neither does the Henkel safety report. Moreover, Troyer’s
statement that he only asked for maintenance assistance on an area unrelated to the area in question
does not necessarily mean that Nemak did not have the right to enter into the area where Maysey
was injured to perform maintenance. Likewise, Byrd’s lack of knowledge of maintenance
performed by Nemak in the relevant area is inconclusive, especially when she admitted that “it’s
not [her] responsibility” to review maintenance records. (Byrd Dep. 13:6-9). Finally, the parties
are apparently aware of Nemak’s maintenance logs, which presumably would reflect maintenance
performed by Nemak in the area but are not in the record. (Pl.’s Resp. 2; Def.’s Reply 2).
Nemak’s assertion that an Occupational Safety and Health Administration (“OSHA”)
report establishes that Nemak had no control over the relevant area suffers from the same defect.
An OSHA report generated shortly after Maysey’s accident states that the “contract agreements
between Nemak & Magna-Tech separated the areas of responsibility. . . . Nemak could not have
been aware of any volatile condition.” (Def.’s Mot. Summ. J. Ex. 10, at 3, DN 134-11). OSHA’s
characterization of the Services Agreement, or other agreements between Nemak and Magna-Tech
that have not been made part of the record, is not determinative of Nemak’s right of control over
the area where Maysey was injured. Even accepting OSHA’s interpretation of the relationship
between Nemak and Magna-Tech, OSHA did not determine that Nemak had no right to control
the area where Maysey was hurt.
Finally, Nemak generally points to other deposition testimony as supporting its assertion
that Nemak had no control over the relevant area. Nemak first points to other testimony from
Byrd:
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Q.
. . . Specifically, did Nemak provide utilities, space, plumbing, electric for
Magna-Tech to utilize?
A.
We did, but only in part that it benefited us in price, so it was an agreement
that was their area to work in, not ours, so we didn’t go in that area unless we
notified them.
Q.
What do you base that upon, that answer?
A.
Because that was the agreement that we had with them. It was their space
to operate within. We did not tell them how to operate. We’re die casters. We’re
not impregnators. So, the agreement was they would give us a benefit in the price
by us providing the space and the utilities, so we were compensated in the price for
that area that they used.
(Byrd Dep. 13:21-14:9). Nemak also points to the deposition of another Nemak employee, Barry
Brown (“Brown”), who indicated that he rarely visited the relevant area and when he did he was
escorted by a Magna-Tech employee. (Brown Dep. 27:7-25, Oct. 31, 2018, DN 134-12). Nemak’s
lack of control over the relevant area, however, is undermined by an email sent by Brown to a
Magna-Tech employee suggesting that Nemak could enter into the area used by Magna-Tech
whenever it wanted, particularly to address safety issues: “As I’ve stated previously, Nemak must
ensure that the line is now safe to run in our plant prior to your restart. Our first requirement is the
written safety risk assessment. If Sean is coming on Friday to assess the equipment for the report,
when can we expect the actual report? We want to ensure that Article 3.2 of our contract is being
met.” (Pl.’s Resp. Def.’s Mot. Summ. J. Ex. 3, at 1, DN 136-4). Viewing the email in the light
most favorable to the non-moving party—i.e., Maysey—Brown’s communication suggests that
Nemak may have exercised control over the area in question, particularly relating to Magna-Tech’s
compliance with safety standards.
Nemak’s use of deposition testimony from two other Nemak employees, Charles Burgess
(“Burgess”) and Alan Matthews (“Matthews”), is similarly unavailing. Burgess testified that
Magna-Tech prohibited him from speaking with Magna-Tech personnel after Maysey’s accident,
and Matthews testified that Magna-Tech’s lawyers prohibited him from entering into the relevant
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area during the OSHA investigation. (Burgess Dep. 32:15-17, Feb. 16, 2018, DN 137-8; Matthews
Dep. 10:1-7, Feb. 16, 2018, DN 137-9). This testimony does not conclusively establish Nemak’s
cessation of control over the relevant area during the critical timeframe—i.e., before the accident.
Control exerted by either party after Maysey’s injury could not conclusively establish control
leading up to the accident.
Whether the relationship between Nemak and Magna-Tech is one of landlord-tenant
depends upon disputed facts which preclude summary judgment in Nemak’s favor. Nemak has
not pointed to evidence of record to conclusively support its assertion that Magna-Tech possessed
“exclusive” control over the area where Maysey suffered injuries so as to defeat Maysey’s claims.
Summary judgment on this point is not warranted.
B.
Workers’ Compensation Liability
Nemak next argues that “up-the-ladder immunity” applies to absolve it from liability to
Maysey. “Up-the-ladder immunity” is a concept derived from the combination of two Kentucky
workers’ compensation statutes, KRS 342.690(1) and 342.610(2)(b), and explained by the
Kentucky Supreme Court in General Electric Co. v. Cain, 236 S.W.3d 579 (Ky. 2007):
If premises owners are “contractors” as defined in KRS 342.610(2)(b), they are
deemed to be the statutory, or “up-the-ladder,” employers of individual who are
injured while working on their premises and are liable for workers’ compensation
benefits unless the individuals’ immediate employers of the workers have provided
workers’ compensation coverage. If deemed to be “contractors,” the owners, like
any other employers, are immune from tort liability [exclusive remedy immunity]
with respect to work-related injuries whether or not the immediate employer
actually provided workers’ compensation coverage. Thus, whether an owner is
entitled to “exclusive remedy” immunity depends upon whether the worker was
injured while performing work that was “of a kind which is a regular or recurrent
part of the work of the trade, business, occupation, or profession” of the owner. If
so, the owner is immune; if not, the owner is subject to tort liability.
Id. at 585 (alterations in original) (emphasis added).
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The inquiry therefore turns upon whether Maysey was injured while performing work of a
kind which is a regular or recurrent part of the work of the trade, business, occupation, or
profession of Nemak. Compare Dunn v. Corning, Inc., 575 F. App’x 644, 650 (6th Cir. 2014)
(concluding that the premises owner had up-the-ladder immunity for an employee of an electrical
contractor who was performing work that was a regular part of the premise owner’s business at
the time the employee was injured), with Commonwealth, Uninsured Emp’rs’ Fund v. Old Taylor
Partners, LLC, No. 2011-SC-000694-WC, 2012 WL 6649227, at *1-2 (Ky. Dec. 20, 2012)
(rejecting the application of the up-the-ladder immunity to claim asserted by employee of
demolition company injured while demolishing warehouses for investment company which did
not perform demolition as a regular and recurrent part of its business). Without pointing to any
evidence of record to support its assertion, Nemak proclaims its die casting goes “hand-in-hand”
with Magna-Tech’s impregnation operation (in which Maysey was engaged), and further,
“[i]mpregnation of parts is clearly [a] regular aspect of production of complex aluminum
components which Nemak simply chooses to utilize contractors, like Magna-Tech, to perform at
their facilities.” (Def.’s Reply 7).
Simply put, the accuracy of Nemak’s assertions is a genuine issue of material fact
precluding the grant of summary judgment in Nemak’s favor. Not only does Nemak fail to point
to any evidence of record to support its contention, testimony from one of Nemak’s employees
indicates that impregnators do not perform work of a kind which is a regular or recurrent part of
the business of die casters like Nemak. As noted above, Byrd testified: “We’re die casters. We’re
not impregnators.” (Byrd Dep. 14:5-6). This testimony, viewed in the light most favorable to
Maysey, indicates that the work of impregnators is not of a kind which is a regular or recurrent
part of the work of die casters, but instead is a distinct line of work.
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Nemak finally argues that this Court should simply replicate its decision to dismiss MagnaTech from this lawsuit based on the same “up-the-ladder immunity” concept. As specified in the
prior ruling, however, Magna-Tech constitutes an “employer” of Maysey entitled to “up-the-ladder
immunity” because Maysey performed work of a kind which is a regular or recurrent part of
Magna-Tech’s business, impregnation. (Order Dismissing Magna-Tech 2-3, DN 124). As it
relates to the motion at hand however, whether Maysey and Magna-Tech’s impregnation work
constitutes work of a kind which is a regular or recurrent part of Nemak’s die-casting operation
presents a factual issue.
Viewing the evidence in the light most favorable to Maysey, the nonmoving party, whether
up-the-ladder immunity applies to absolve Nemak from any liability rests on a genuine issue of
material fact precluding summary judgment in Nemak’s favor.
V.
CONCLUSION
For the reasons set forth above, IT IS HEREBY ORDERED that Defendant Nemak USA
Inc.’s Motion for Summary Judgment (DN 134) is DENIED.
December 16, 2019
cc:
counsel of record
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