Hardison, as Personal Representative of the Estate of SAMUEL WAYNE LERCH, JR., Deceased v. Asplundh Construction Corporation et al
OPINION and ORDER granting Defendants' 33 Motion for Summary Judgment. Signed by District Judge Bernard A. Friedman. (JCur)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
ANNE HARDISON, as personal representative
of the estate of Samuel Wayne Lerch Jr.,
Civil Action No. 19-CV-13503
HON. BERNARD A. FRIEDMAN
CORPORATION, et al.,
OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
This matter is presently before the Court on defendants’ motion for summary
judgment [docket entry 33]. Plaintiff has responded and defendants have replied. Pursuant to E.D.
Mich. LR 7.1(f)(2), the Court shall decide the motion without a hearing.
This is a worker’s compensation and intentional tort case. Plaintiff, the widow of
decedent Samuel Wayne Lerch Jr., filed suit against UtiliCon Solutions, LLC (“UtiliCon”) and its
subsidiary Asplundh Construction, LLC (“Asplundh”) (collectively, “defendants”), as the personal
representative and administratrix of decedent’s estate. See Second Am. Compl. (“SAC”) ¶¶ 1-3.
Plaintiff alleges that decedent was employed as a journeyman lineman by Asplundh,
which had a contract with DTE Energy “to perform construction and maintenance activities
associated with DTE Energy’s electrical circuits, including the construction and deconstruction of
overhead power lines.” Id. ¶¶ 6-7. Pursuant to this contract, on July 19, 2017, “decedent was
assigned the task of removing an existing pole transformer and re-installing it on [a] new utility
pole.” Id. ¶ 8. Plaintiff states that after removing the transformer from the old pole, decedent
noticed that “the span guy wire he was installing [on the new pole] was on the wrong side of the
high voltage secondary wire.” Id. ¶¶ 11-10. Plaintiff goes on to allege that
decedent immediately boomed down and notified his foreman, Dave
Edgerton, of the situation he discovered with the span guy wire. At
this point, decedent’s supervisor devised the manner and method by
which to fish the span guy wire over existing phone drops.
Tragically, the plan devised by Asplundh Construction LLC
a. Required decedent to perform his assigned tasks
without required personal protective equipment
b. Required decedent to perform his assigned tasks in
close proximity to energized conductors without use
of required insulation devices over and around these
c. Required decedent to perform his assigned tasks
operating a bucket for which he lacked the required
permit and training;
d. Required decedent to perform his assigned tasks
operating a bucket in close proximity to energized
conductors without a spotter assigned to monitor the
clearance between the bucket and the energized
e. Required decedent to perform his assigned tasks in
direct contravention of industry, federal and state
workplace safety rules and regulations specifically
applicable to those tasks; and,
f. Required decedent to perform his assigned tasks in
direct contravention of the safe workplace policies
and procedures of the SafeProduction® program
promulgated by the defendant Utilicon and made
applicable to its subsidiaries, including Asplundh
Id. ¶ 11. Because of these missteps, plaintiff alleges, decedent was fatally electrocuted when his
right shoulder “made contact with a completely unprotected 7,620 volt distribution line” while
performing the assigned task. See id. ¶¶ 13-16.
Plaintiff’s SAC raises two claims: (1) an intentional tort claim against Asplundh for
knowing and/or intentional acts or omissions that allegedly led to decedent’s death, see id. ¶¶ 17-20;
and (2) a negligence claim against UtiliCon for allegedly failing to uphold its duty “to monitor the
implementation and compliance of its subsidiaries with its SafeProduction® program in such a
manner that no supervisor with any subsidiary would be either poorly trained enough or would
exhibit such disregard for workplace safety as to direct the activities which caused decedent’s
death.” Id. ¶¶ 22.
In the instant motion, defendants seek summary judgment on both claims and argue
that “[t]his unfortunate incident is an isolated one, caused by Decedent[’]s own actions.” Defs.’ Br.
at 1. Defendants contend that plaintiff’s claims fail for four reasons:
• First, Plaintiff cannot establish an exception to the exclusive remedy
under the Worker’s Compensation Disability Act (“WCDA”);
• Second, there is no evidence that [Asplundh] had actual knowledge
that an injury was certain to occur and that it willfully disregarded
• Third, UtiliCon is a holding company that does not exert any
control over [Asplundh]; and
• Fourth, there is no evidence that UtiliCon negligently supervised
Summary judgment is appropriate when “there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the
burden of showing “that there is an absence of evidence to support the
nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986). A genuine dispute of material fact exists if “there is sufficient
evidence favoring the nonmoving party for a jury to return a verdict for
that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
In applying the summary judgment standard, the court must review all
materials supplied, including pleadings, in the light most favorable to
the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986).
United States v. White, No. 17-6022, 2018 WL 4215614, at *2 (6th Cir. July 11, 2018). Having
reviewed the parties’ briefs and exhibits, the Court concludes that defendants are entitled to summary
judgment for the reasons stated below.
I. Intentional Tort Claim against Defendant Asplundh
Defendants state that following decedent’s death, “Plaintiff appropriately submitted
a claim for benefits under the WCDA,” which was approved. Defs.’ Br. at 10-11, see Defs.’ Ex. T
(“Plaintiff’s Application for WCDA Benefits”). Defendants note that as a result of the WCDA
claim, “Plaintiff continues to receive benefits in the amount of $482.81 weekly. She will receive
these benefits of a total of 500 weeks.” Defs.’ Br. at 11. Additionally, plaintiff “received a
$6,000.00 funeral benefit . . . and any Beaumont Hospital bills related to the incident were paid as
well.” Id. Defendants argue that “the benefits provided by the WCDA are the sole remedy for
employees to recover from their employers when the employee sustains work-related injuries . . .
[unless] the employee can show that the employer committed an intentional tort.” Id. at 13 (citing
MICH. COMP. LAWS § 418.131(1)). Defendants add that “to recover under the intentional tort
exception of the WCDA, a plaintiff must prove that his injury was the result of the employer’s
deliberate act or omission and that the employer specifically intended an injury.” Id. at 14 (citing
§ 418.131(1)). The employer’s intention can be established via direct evidence of intent to injure
or circumstantial evidence that the employer had “actual knowledge that an injury [was] certain to
occur” and willfully disregarded that knowledge. Id. (citing Travis v. Dreis & Krump Mfg. Co.,
551 N.W.2d 132, 143 (Mich. 1996)).
Defendants contend that “Plaintiff cannot establish that Decedent’s death was the
result of [Asplundh’s] deliberate act or conscious failure to act,” id. at 16, nor can she “establish that
[Asplundh] had actual knowledge that an injury was certain to occur and willfully disregarded that
knowledge.” Id. Defendants first note that decedent had “approximately thirteen (13) years of
experience as a lineman at the time of the incident,” id. at 3, and that as a member of the
International Brotherhood of Electrical Workers (“IBEW”) Local Union 17, he was provided
relevant training that supplemented the standard apprenticeship and examination requirements. See
id. at 3-5. Decedent’s training allegedly included an “education course titled ‘Insulate & Isolate’ .
. . on best practices for each individual to insulate and isolate himself from electrical hazards,” as
well as a training course “specifically on personal protection equipment, safety, and line of fire.”
Id. (citing Defs.’ Exs. H, F).
Defendants add that “[i]n addition to his extensive training, Decedent was also
required to follow [Asplundh’s] safety policies,” contained in the company’s 200-page Safe Work
Practices Manual. Id. at 5 (citing Defs.’ Ex. I (“Safe Work Practices Manual” excerpts)).
Defendants state that the safety manual provides specific guidance as to PPE and that “it is
uncontested that Decedent was issued the following PPE by [Asplundh]: Eye and Face Protection;
Head Protection; Hand Protection; Hearing Protection; Foot Protection; [Flame Resistant] Apparel;
Rubber Personal Protective Equipment; [and] Rubber Goods (Rubber Blankets and Line Hose).”
Id. at 6-7 (citing Defs.’ Ex. J (“Email Confirming List of PPE”)). Further, an investigation
conducted by the Michigan Occupational Safety and Health Administration (“MIOSHA”) found that
“there was proper employer-furnished PPE at the scene of the incident,” including that which was
in decedent’s possession. See id. at 7 (citing Defs.’ Exs. K (“Photographs Depicting Decedent’s
PPE”), L (“George Pushies Oct. 17, 2018 Dep. Tr.”). Finally, defendants contend that Asplundh’s
safety measures, including frequent on-site job observations and PPE policies, go above and beyond
those required by MIOSHA or IBEW Local Union 17. See id. at 7-8.
As to the safety measures on the date of the incident, defendants state that crew leader
Edgerton “led a ten- to fifteen-minute job briefing,” “[t]he crew discussed the plans for installing
the pole and how they would go about the installation,” “Decedent had previously attached the guy
wire to the new wooden pole without incident,” and “no designated ground observer should have
been necessary” if the task had been completed in accord with Edgerton’s instructions. Id. at 9.
However, defendants argue that
Decedent exercised his own discretion in the minutes leading up to
his electrocution. Immediately before the incident, the crew
discussed how to move the guy wire for proper installation. After the
guy wire was secure, the conductor, wires, and transformer would be
set on the new pole. The ground wire would have been the final . . .
step of installation. However, Decedent inexplicably took the ground
wire in his bare left hand and raised his bucket into the primary zone.
Neither [Asplundh] nor its management could have known
that Decedent would disregard the instructions from his crew leader.
Instead of working on the guy wire, Decedent unilaterally decided to
take the ground wire up the pole. He unilaterally decided to take the
ground wire up the pole without his PPE on.1 He unilaterally decided
to raise the bucket into the primary zone without a designated ground
observer. Decedent was not directed to do any of these things. No
one could predict that Decedent would exercise his discretion in this
manner and disregarding his crew leader’s instructions.
Defendants state that “[h]ad Decedent not had the ground wire in his hand, he would
have been like a ‘bird on a wire’ and the electrical contact would not have killed him.” Defs.’
Br. at 20 n.3 (citing Defs.’ Ex. V (“David Edgerton Dep. Tr.”)).
Id. at 19-20 (citations and original footnotes omitted).
In response, plaintiff argues that decedent was following crew leader Edgerton’s
instructions, that “injury or death was certain to occur when an energized 13,200/7,600 V power line
was worked on without insulated rubber gloves and sleeves or without insulated rubber gloves and
insulated line hose,” and that “[d]espite having all of this knowledge and being aware of exactly
what Sam Lerch was doing, Edgerton made a knowing and conscious decision to allow work to be
performed and work to carry on without the required protective barriers with nobody watching him.”
Pl.’s Resp. Br. at 8 (internal quotation marks and citations omitted). Plaintiff contends that
Asplundh is ultimately to blame because it “allowed [Edgerton] to be in a position without giving
[him] the training and education, the knowledge [he] needed to make sure all the laws were
complied with and all the members of [his] crew were safe.” Id. at 9 (internal quotation marks
omitted) (quoting Pl.’s Ex. V (“David Edgerton Dep. Tr.”)).
Plaintiff argues that the Court should deny defendants’ motion for summary judgment
as to this claim because “there are a plethora of questions of material fact outstanding.” Id. at 15.
This includes questions as to Asplundh’s knowledge or intent, the likelihood of injury under the
circumstances, “[w]hether Edgerton knew that Sam Lerch was not wearing appropriate PPE,” and
“[w]hether Edgerton conducted a daily job briefing on July 19, 2017.” Id. at 15, 18-23.
Viewing the evidence in the light most favorable to plaintiff, the Court concludes that
Asplundh did not commit an intentional tort as defined by § 418.131(1). Plaintiff is thus barred from
seeking a remedy beyond that which was already provided under the WCDA.
Section 418.131(1) states:
The right to the recovery of benefits as provided in this act shall be
the employee’s exclusive remedy against the employer for a personal
injury or occupational disease. The only exception to this exclusive
remedy is an intentional tort. An intentional tort shall exist only
when an employee is injured as a result of a deliberate act of the
employer and the employer specifically intended an injury. An
employer shall be deemed to have intended to injure if the employer
had actual knowledge that an injury was certain to occur and willfully
disregarded that knowledge. The issue of whether an act was an
intentional tort shall be a question of law for the court.
The facts of this case fail to demonstrate that defendants possessed “actual
knowledge” that decedent’s injury was certain to occur.2 The Michigan Supreme Court has
explained that § 418.131(1)’s “actual knowledge” standard was codified in order to fill a gap in
Michigan’s workers compensation framework regarding intentional tort liability. Travis, 551
N.W.2d at 138. This gap was brought to the fore by Beauchamp v. Dow Chem. Co., 427 N.W.2d
882 (Mich. 1986), in which plaintiff “was exposed at work to the chemical agent orange and, as a
result, suffered physical and mental injuries. He sued his employer, alleging in part that his
employer intentionally misrepresented and fraudulently concealed potential danger.” Travis, 551
N.W.2d at 138 (internal quotation marks omitted).
The Beauchamp court determined that
intentional torts should not fall within the WCDA’s exclusivity provision and adopted a definition
of intentionality that included acts taken with “substantial certainty” that injury would occur as a
result. Id. Recognizing the need to allow for civil damages in cases of intentional tort, and seeking
to clarify and narrow the court-created exception to the WCDA, the state legislature adopted the
statute’s current language through a 1987 amendment. See id. at 139-40. Regarding the newly
codified exclusivity exception,
[t]he Senate Fiscal Agency Analysis explained that the bill not only
Plaintiff does not contend that Asplundh injured decedent deliberately. Consequently,
the Court focuses its analysis on the “actual knowledge” standard under § 418.131(1).
would allow the pursuit of civil claims as an alternative to the
workers’ compensation system in extreme cases (i.e., intentional
injury), but also would ensure the workability and usefulness of the
system by specifying that the Act would be an exclusive remedy in
all other situations.
Id. at 140 (emphasis in original) (internal quotation marks omitted).
The Michigan Supreme Court has held that the amendment’s “actual knowledge”
language amounts to
a legislative recognition of a limited class of cases in which liability
is possible despite the absence of a classic intentional tort and as a
means of inferring an employer’s intent to injure from the
surrounding circumstances in those cases. In other words, the [actual
knowledge standard] will be employed when there is no direct
evidence of intent to injure, and intent must be proved with
circumstantial evidence. . . .
Because the Legislature was careful to use the term “actual
knowledge,” and not the less specific word “knowledge,” we
determine that the Legislature meant that constructive, implied, or
imputed knowledge is not enough. Nor is it sufficient to allege that
the employer should have known, or had reason to believe, that injury
was certain to occur. A plaintiff may establish a corporate
employer’s actual knowledge by showing that a supervisory or
managerial employee had actual knowledge that an injury would
follow from what the employer deliberately did or did not do.
Id. at 143 (internal citations omitted).
As to how “certain” the injury must be under § 418.131(1), the Michigan Supreme
Court has explained that “[t]he legislative history requires us to interpret ‘certain to occur’ as setting
forth an extremely high standard. When an injury is ‘certain’ to occur, no doubt exists with regard
to whether it will occur.” Id. “Moreover, conclusory statements by experts are insufficient to allege
the certainty of injury contemplated by the Legislature.” Id. Further, “the employer [must] be aware
that injury is certain to occur from what the actor does.” Id. at 144. Employer-initiated
precautionary measures, such as warnings, training, or repairs, further remove injury from the “realm
of certainty.”3 Id.
The Michigan Supreme Court has applied the “actual knowledge” and “certain
injury” standards of § 418.131(1) on various occasions. Plaintiff likens the instant case to Golec v.
Metal Exch. Corp., 208 N.W.2d 756 (Mich. Ct. App. 1995), while defendants liken it to Bagby v.
Detroit Edison Co., 865 N.W.2d 59 (Mich. Ct. App. 2014). The plaintiff in Golec was a furnace
operator at an aluminum smelting factory who did not have access to and/or was not supplied with
adequate protective equipment. Travis, 551 N.W.2d at 136 (noting that plaintiff was allegedly only
provided a helmet and a mask).4 On the day of the incident, plaintiff, plaintiff’s shift leader, and the
shift leader’s supervisor were all aware of certain hazardous conditions that caused the furnace to
emit minor explosions, including one that burned plaintiff’s hand that very day. Id. at 137. After
raising the issue of the explosions with his superiors, plaintiff was ordered to return to work only
to be severely burned by a “huge explosion from the furnace.” Id. The Michigan Supreme Court
held that Golec’s employer could not prevail in its motion for summary judgment because “plaintiff
The Michigan Supreme Court has stated that
[w]hen an employer subjects an employee to a continuously operative
dangerous condition that it knows will cause an injury, yet refrains
from informing the employee about the dangerous condition so that
he is unable to take steps to keep from being injured, a factfinder may
conclude that the employer had knowledge that an injury is certain to
Travis, 551 N.W.2d at 145. Under such circumstances, informing the employee about the dangerous
condition would reduce the likelihood of injury.
On appeal to the Michigan Supreme Court, Golec was consolidated with Travis v. Dreis
& Krump Mfg. Co., 523 N.W.2d 818 (Mich. Ct. App. 1994).
had established a genuine issue of material fact with respect to whether defendant . . . committed an
intentional tort.” Id. at 147. In reaching this conclusion, the court noted that if the cause of the
explosion was “plaintiff’s loading technique” or if defendant had instructed plaintiff regarding the
proper method for loading scrap metal so as to avoid an explosion, “then defendant must prevail.”
Id. at 148.
A different outcome was reached in Bagby. In that case, plaintiff was fatally
electrocuted during the course of employment. The Michigan Court of Appeals upheld the trial
court’s decision to grant summary disposition for the employer, stating that “[e]ven assuming
arguendo that plaintiff established a deliberate act or conscious failure to act, she has failed to
provide evidence that defendant had actual knowledge that an injury was certain to occur and
willfully disregarded that knowledge.” Bagby, 865 N.W.2d at 62. The court found that it would be
“speculation to conclude that the failure to conduct [a prejob] briefing would result in Bagby’s
death[, and] [i]t is even more speculative to conclude that . . . [decedent’s] supervisor knew that
the failure to conduct the prejob briefing would result in certain injury.” Id. at 63 (reaching the same
conclusion as to decedent’s allegedly inadequate qualifications for the task at issue). Further, the
court emphasized that
plaintiff cannot show that defendant had actual knowledge that an
injury was certain to occur because Bagby had many opportunities to
exercise his own discretion. To be known and certain, an injury must
spring directly from the employee’s duties and the employee cannot
have had the chance to exercise individual volition. An employer
cannot know that an injury is certain to occur when the employee
makes a decision to act or not act in the presence of a known risk
because the employer cannot know in advance what the employee’s
reaction will be and what steps he will take.
Id. at 63-64 (internal quotation marks and citation omitted).
The instant case is far more akin to Bagby than it is to Golec. Plaintiff does not
dispute that decedent had years of experience as a journeyman lineman, that Asplundh provided
employees with clear safety protocols and various items of PPE, or that it was decedent’s own,
discretionary decision to not wear his PPE on the day of the incident.5 Further, as in Bagby, the link
between decedent’s fatal injury and the allegedly inadequate prejob briefing and/or his allegedly
inadequate qualifications for the task he was assigned is too speculative to satisfy the WCDA’s
rigorous causation requirement. Plaintiff emphasizes the dangers inherent in working on energized
wires, see Pl.’s Resp. Br. at 6, but “[a]n employer’s knowledge of general risks is insufficient to
establish an intentional tort.” Herman v. City of Detroit, 690 N.W.2d 71, 77 (Mich. Ct. App. 2004).
Additionally, given decedent’s training and experience in this field, he plainly was aware of the
dangers. Plaintiff essentially contends that Edgerton should have intervened, and arguably it was
negligent for Edgerton not to have done so under the circumstances. Nonetheless, the facts alleged
The parties disagree as to the dangerousness and/or discretionary nature of some of
decedent’s actions on the day of the incident. For example, plaintiff states that
Asplundh makes much of Mr. Lerch holding a ground wire in his
hand when the incident occurred, as Egerton purportedly did not
instruct Mr. Lerch to do so. However, the ground wire is a red
herring; Mr. Lerch was instructed to elevate his bucket by Edgerton
with no IPE or PPE in place, facts Edgerton knew when he made the
order. Edgerton also readily admits that placement of the ground
wire was a routine part of the job they were doing. As testified to by
MIOSHA’s George Pushies, it would not matter whether Sam
Lerch had a “ground wire or a ham sandwich in his hand” if the
proper PPE and IPE were in place.
Pl.’s Resp. Br. at 19 n.4. There is also some ambiguity as to Edgerton’s exact instructions and
whether it was decedent’s own decision to raise the bucket into the more dangerous “minimum
approach distance” (or “primary zone”). See id. at 7 n.2; Defs.’ Reply Br. at 4-5. However, the
parties do not dispute that serious injury would have been avoided had decedent decided to wear his
employer-provided PPE. See Pl.’s Resp. Br. at 8; Defs.’ Reply Br. at 4.
fail to meet the very demanding standard of the § 418.131(1) exception to the WCDA’s otherwise
exclusive remedy. See Barnes v. Sun Chem. Corp., 657 F. App’x 469, 475 (6th Cir. 2016) (holding
“that some supervisors may have known employees were ‘bypassing’ the safety measures . . . does
not suffice to establish an intentional tort”). Decedent was equipped with the skills, knowledge, and
equipment to conduct his job safely on July 19, 2017. The facts of this case fail to demonstrate that
defendant “had actual knowledge that an injury was certain to occur and willfully disregarded that
knowledge.”6 Section 418.131(1). Rather, as in Herman, “[t]he facts demonstrate that decedent’s
death was the result of decedent’s momentary and tragic lapse in judgment.” Herman, 690 N.W.2d
at 77. For these reasons, defendants’ motion for summary judgment as to this claim is granted.
II. Negligence Claim against Defendant UtiliCon
As to plaintiff’s claim that UtiliCon’s negligent implementation and oversight of its
SafeProduction® program caused decedent’s injuries, defendants contend that (1) “because Plaintiff
cannot establish an intentional tort under which [Asplundh] would be liable, UtilitCon cannot be
held vicariously liable under any legal theory; and (2) “UtiliCon is a holding company that does not
exert any control over [Asplundh] or its policies or procedures.” Defs.’ Br. at 22. In support of this
latter argument, defendants state that
Gregory Holman, a Senior Vice President of UtiliCon, testified that
the SafeProduction® policies are developed by UtiliCon’s
subsidiaries as a group. Then the subsidiaries have the option to
utilize that “slogan” and the developed policies. It is within the
subsidiaries’ sole discretion whether to adopt those policies. As such,
UtiliCon cannot have a duty to ensure [Asplundh] enforces the
policies it elects to adopt.
Because the Court finds that the facts of this case do not support the conclusion that
Asplundh had actual knowledge that certain injury would result from its acts or omissions, there
is no need to address whether defendant wilfully disregarded this knowledge.
Id. (citations omitted) (citing Defs.’ Ex. W (“ Gregory Holman Dep. Tr.”)).
In response, plaintiff argues that UtiliCon is not “some amorphous ‘holding
company,’” rather, “[i]t has officers, office space and is based specifically out of Willow Grove,
Pennsylvania.” Pl.’s Resp. Br. at 24. Plaintiff contends that
UtiliCon is a support company which offers services to Asplundh and
its sister companies . . . specifically includ[ing] safety consulting. . .
. It also developed, with input from subsidiaries, the Safe Work
Practices Manual that Asplundh adopted and adhered to. Utilicon
immersed itself in the minutia of the safety procedures of Asplundh
and its sister entities. Utilicon mandated adherence to those policies.
Id. at 23 (emphasis in original) (citations omitted). Plaintiff adds that “when a company undertakes
the responsibility of developing, implementing and enforcing a safety program, society has an
interest in that company being held to reasonably prudent standards in order to protect the
individuals relying on that program to keep them safe.” Id. at 26.
“Under Michigan law, a plaintiff must prove the following four elements in order to
establish a prima facie case of negligence: 1) a duty owed by the defendant to the plaintiff; 2) a
breach of that duty; 3) causation; and 4) damages.” Phillips v. Nw. Airlines Corp., 99 F. App’x 862,
864 (6th Cir. 2004). Having reviewed the briefs and exhibits, the Court concludes that plaintiff has
failed to present a prima facie case of negligence as to UtiliCon.
In support of this claim, plaintiff cites former Asplundh Tree Services, LLC employee
Anthony Mangabat’s deposition testimony confirming that “Asplundh or UtiliCon . . . have more
stringent safety policies” than those required by certain unions and that supervisors are required to
enforce these policies. Pl.’s Ex. C, at 52-53. Plaintiff also cites the deposition testimony of Robert
Maryyanek, Director of Safety for Asplundh, who agreed that UtiliCon “has a role in putting [the
safety program] together and giving it out to [their subsidiaries] for consistency’s sake,” Pl.’s Ex.
B, at 15-16, and that UtiliCon had to be consulted before Asplundh could make changes to its safety
manual. Id. at 17. However, the evidence presented does not support plaintiff’s claims that UtiliCon
“developed” the relevant safety procedures, see Pl.’s Resp. Br. at 25, “mandated adherence” to these
procedures, or “immersed itself in the minutia” of its subsidiaries’ implementation of these
procedures. See id. at 23. While, based on this evidence, UtiliCon was clearly aware of its
subsidiaries’ safety policies, plaintiff has failed to show that UtiliCon had a duty to enforce the
safety policies of its subsidiaries or that such a duty was owed to subsidiary employees, including
decedent. The Court shall thus grant defendants’ motion for summary judgment as to this claim.
IT IS ORDERED that defendants’ motion for summary judgment is granted..
Dated: April 27, 2021
s/Bernard A. Friedman
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE
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