Cobos et al v. Stillwater Mining Company
Filing
37
ORDER granting in part and denying in part 22 Defendant's Motion for Summary Judgment; granting in part and denying in part 25 Plaintiffs' Motion for Summary Judgment. Signed by Judge Richard F. Cebull on 12/3/2012. (EMA)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
MICHAEL COBOS AND LINDA
COBOS, husband and wife
)
)
)
Plaintiffs,
)
)
vs.
)
)
STILLWATER MINING
)
COMPANY, a Delaware Corp.
)
)
Defendant.
)
______________________________)
CV 11-18-BLG-RFC
ORDER
Presently before the Court are (1) Defendant Stillwater Mining Company’s
Motion for Summary Judgment and (2) Plaintiffs’ cross-motion for Summary
Judgment. The crux of the issue for both parties is whether Defendant owed
Plaintiff a duty, as a matter of law, to provide a safe workplace environment.
FACTUAL BACKGROUND
Defendant Stillwater Mine is a palladium and platinum mining company
located near Nye, Montana. Thyssen Mining company is an independent
Page 1 of 22
contractor that was providing contract mining services to Defendant at the Nye
facility. Plaintiff Michael Cobos was directly employed by Thyssen Mining to
work as an underground miner at Defendant’s Nye facility. Plaintiff Cobos
worked at Defendant’s mine for seven (7) months, from September 2000 through
April 2001. Prior to being employed at the Stillwater mine, Plaintiff worked for
25 years as an underground miner at the Magma Copper Mining company in San
Manuel, Arizona.
As part of his duties at the Stillwater mine, Plaintiff and an assistant would
drill holes into the cave face, load them with explosives and detonated the
explosives. After waiting for the blast smoke to clear, Plaintiff would “muck” the
broken rock out. Plaintiff alleges that the underground atmosphere was filled with
airborne dust and particles that were generated from the mine blasting operations.
Thyssen Mining had its own project superintendents, managers and safety
managers onsite at Stillwater mine. Thyssen Mining received bonus payments
based on the amount of palladium or platinum ore that was mined. Due to this
bonus structure, Plaintiff alleges instances where his supervisors directed him to
engage in mucking before the newly blasted area had been properly ventilated.1
1
DEFENDANT’S STATEMENT OF UNDISPUTED FACTS (Doc. # 24), ¶ ¶ 13,15.
Page 2 of 22
Beginning in late 2008, Plaintiff began experiencing frequent nosebleeds
and difficulty breathing through his nose. In March, 2009, he was diagnosed with
squamos cell carcinoma of the nasal septum, pharynx, sinuses, with metastasis of
the skull base and frontal lobe of the brain.2 Plaintiff alleges that his medical
providers have linked his squamous cell carcinoma with his alleged exposure to
platinum and palladium of the type encountered in Defendant’s mine.3
In September 2000, Defendant contracted with Thyssen Mining to perform
stope preparation, mining and backfilling at the mine (“Production Contract”).4
Through various change orders, the Production Contract was extended through
early 2002. As part of the contracting agreement between Defendant and Thyssen,
the two parties agreed that Thyssen was to act as an independent contractor and
not as an agent of Defendant.5 In addition, the Production Contract stated that
Thyssen would be solely responsible for avoiding the risk of harm to the health
and safety of persons and property and that Thyssen would assume all
responsibility and liability with respect to all matters regarding the safety and
2
PLAINTIFFS’ COMBINED STATEMENT OF GENUINE ISSUES/STATEMENT OF
UNDISPUTED FACTS (Doc. # 27), ¶ 3.
3
Id.
4
DEFENDANT’S STATEMENT OF UNDISPUTED FACTS (Doc. # 24), Exhibit A.
5
Id., ¶ 2.
Page 3 of 22
health of its employees, suppliers and subcontractors.6 The Production Contract
stated that Thyssen is solely responsible for complying with all applicable laws
and regulations including the Mine Safety and Health Act and the Occupational
Safety and Health Act.7 The Production Contract also stated that Thyssen was
responsible for providing, requiring and training its employees on the use of
appropriate respiratory protective equipment that met international safety
standards.8
Regarding day-to-day activities, Thyssen Mining would have pre-shift
safety meetings for its employees and would supply its employees with safety
equipment.9 At times when Thyssen Mining ran out of safety equipment, Plaintiff
would request and was given safety equipment from Defendant Stillwater.10
STANDARD OF REVIEW
Summary judgment is proper when “the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue
6
Id. at ¶¶ 3-4.
7
Id. at ¶ 5.
8
Id. at ¶ 6.
9
Id. at ¶ 10.
10
Id. at ¶ 11.
Page 4 of 22
as to any material fact and that the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(c). An issue is “genuine” only if there is a sufficient
evidentiary basis on which a reasonable fact finder could find for the nonmoving
party and a dispute is “material” only if it could affect the outcome of the suit
under the governing law. Anderson, v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
The party moving for summary judgment has the initial burden of showing
the absence of a genuine issue of material fact. Anderson, 477 U.S. at 256-57.
Once the moving party has done so, the burden shifts to the opposing party to set
forth specific facts showing there is a genuine issue for trial. In re Barboza, 545
F.3d 702, 707 (9th Cir. 2008). The nonmoving party “may not rely on denials in
the pleadings but must produce specific evidence, through affidavits or admissible
discovery material, to show that the dispute exists.” Id.
On summary judgment, the evidence must be viewed in the light most
favorable to the non-moving party. Id. The court should not weigh the evidence
and determine the truth of the matter, but determine whether there is a genuine
issue for trial. Anderson, 477 U.S. at 249.
The standard of review is the same for cross-motions as individual motions
for summary judgment in that “the court must rule on each party's motion on an
Page 5 of 22
individual and separate basis, determining, for each side, whether a judgment may
be entered in accordance with the Rule 56 standard.” Fair Housing Council of
Riverside County v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001). In
fulfilling its duty to review each cross-motion separately, the court must review
the evidence submitted in support of each cross-motion. Id.
DISCUSSION
Plaintiff claims that Defendant Stillwater Mining Company failed to provide
a safe work environment that resulted in his work-related injury and asserts the
following claims:
Count I - Negligence in maintaining a premises in a reasonably
safe condition
Count II - Violation of the Montana Safety Act
Count III - Strict liability for abnormally dangerous activity
Count IV - Loss of Consortium - Plaintiff Linda Cobos.
Amended Complaint.
The parties’ summary judgment motions on Counts I, II and IV turn on
whether there exists a non-delegable duty on Defendant Stillwater’s part to
maintain a reasonably safe workplace. As well established, in order to prevail on a
Page 6 of 22
negligence action, a plaintiff must establish a legal duty on the part of the
defendant, a breach of that duty, causation and damages. Poole ex rel. Meyer v.
Poole, 1 P.3d 936, 939 (Mont. 2000). The existence of a legal duty and the scope
of any duty are questions of law. Dukes v. City of Missoula, 119 P.3d 61, 63
(Mont. 2005).
As a general rule, a general contractor owes no duty to independent
contractors and therefore cannot be held liable for injuries incurred by their
employees. Fabich v. PPL Montana, LLC, 170 P.3d 943, 947 (Mont. 2007); see
also Beckman v. Butte-Silver Bow County, 1 P.3d 348, 350 (Mont. 2000). Relying
on this, Defendant Stillwater contends that it owed no duty to Plaintiff who was, at
the time of the alleged injury, employed by subcontractor Thyssen mining.
Montana recognizes three exceptions to this general rule: (1) where there is a nondelegable duty based on contract; (2) where the subcontractor is engaged in an
inherently or intrinsically dangerous activity; or (3) where the general contractor
has negligently exercised control over the subcontractor’s work. Id.
Non-delegable duty based on contract
Plaintiff contends that Defendant was contractually responsible for the
ventilation system that was in place at the mine. Plaintiff contends that because
the case “solely concerns Mr. Cobos’ exposure to airborne contaminants” and
Page 7 of 22
because Defendant was “exclusively responsible under the contract for providing
adequate ventilation, it owed Mr. Cobos a non-delegable duty to provide
breathable air free of cancer-causing contaminants.”11
In support, Plaintiffs refer the Court to the “Utilities” provision of the
Production Contract wherein it states that the owner shall provide “[a]dequate
ventilation through ducting to the work place.”12 Also, Plaintiffs cite to the
Deposition of Stillwater Mine’s ventilation engineer Mike Brottem and his
statements that Stillwater mine provided fresh air ventilation in the mine by means
of fresh air intakes and exhausts, ventilation shafts and tubing, and ventilation
measurement equipment and software.13 To bolster their argument, Plaintiffs note
that in the time since Plaintiff Cobos was employed at the mine, Defendant has
extensively upgraded its mine ventilation systems such that the carbon presence in
the air is 1/8th the level it was at when Plaintiff was employed.14
The Production Contract contains language prior to the “adequate
ventilation provision,” and states that Defendant would furnish utilities (like
11
PLAINTIFFS’ COMBINED BRIEF (Doc. # 26) at 6.
12
DEFENDANT’S STATEMENT OF UNCONTROVERTED FACT (Doc. # 24), Exhibit A
- Production Contract at 34.
13
PLAINTIFFS’ STATEMENTS OF GENUINE ISSUES (Doc. # 27), Exhibit A Deposition of Mike Brottem.
14
Id. at ¶ 4.
Page 8 of 22
adequate ventilation) at “outlets existing on the Jobsite and CONTRACTOR shall,
at its expense, extend such utilities from said outlets to the points of use.”15
Plaintiff Cobos’ claims his injury arose from the smoke/air coming from the blast
sites after a blast. Since it is reasonable to conclude that blast sites constitute the
“point of use,” under the Production Contract, the contractual responsibility lies
with Thyssen and not Defendant. This provision negates any contractual
responsibility that Defendant provide direct adequate ventilation to the point of
use. Because there was no contractual assumption of workplace safety obligations
by Defendant Stillwater Mine as the contracting owner, they cannot be held liable.
Crane v. Conoco, Inc., 41 F.3d 547, 551 (9th Cir. 1994) (applying Montana law).
Next, Plaintiff contends that Defendant contractually retained supervisory
control over Thyssen and was responsible for mine safety. In support, Plaintiff
refers to the Production Contract provision of “Conduct of the Work.” Under that
heading, the cited language states that “SMC will exercise the absolute right to
direct the immediate cessation or correction of any unsafe or unhealthy act of any
individual on the work site.”16
15
DEFENDANT’S STATEMENT OF UNCONTROVERTED FACTS (Doc. # 24), Exhibit
A - Production Contract at 34.
16
PLAINTIFFS’ STATEMENTS OF GENUINE ISSUES (Doc. # 27), ¶ 5.
Page 9 of 22
Relying on this language, Plaintiffs contend that Defendant had ultimate
authority and control over Thyssen regarding any unsafe or unhealthy actions. In
support, Plaintiffs cite to Fabich v. PPL Montana, 170 P.3d 943, 949 (2007),
which holds that liability “may be based on a nondelegable duty of the owner only
when a contractual provision establishes that the owner has assumed responsibility
for initiating, maintaining, and supervising safety precautions.” Id.
Plaintiffs’ reliance on Fabich is misplaced. Notably absent from Plaintiffs’
discussion is the subsequent paragraph of the Fabich opinion which stated that
“[a]s indicated in . . . the contract . . . PPL’s responsibility for safety . . . was
secondary and totally discretionary.” Id. It follows that the Fabich Court held that
plaintiff did not establish a nondelegable duty on the part of PPL. Id.
The contract language in the instant case is of the same character as that in
Fabich. As noted above, specific contract provisions exist stating that Thyssen
would be solely responsible for avoiding the risk of harm to the health and safety
of persons and property and that Thyssen would assume all responsibility and
liability with respect to all matters regarding the safety and health of its
employees, suppliers and subcontractors.17 Further, the agreement stated that
Thyssen is solely responsible for complying with all applicable laws and
17
DEFENDANT’S STATEMENT OF UNDISPUTED FACTS (Doc. # 24), ¶¶ 3-4.
Page 10 of 22
regulations including the Mine Safety and Health Act and the Occupational Safety
and Health Act.18 The agreement also stated that Thyssen was responsible for
providing, requiring and training its employees on the use of appropriate
respiratory protective equipment that met international safety standards.19
As reflected in Comment (c) of Restatement (Second) of Torts § 414
regarding contractor liability, “[i]t is not enough that he has merely a general right
to order the work stopped or resumed . . (s)uch a general right is usually reserved
to employers, but it does not mean that the contractor is controlled as to his
methods of work, or as to operative detail.”20
Therefore, like the contract language in Fabich, this Court concludes that
Defendant Stillwater’s responsibility for safety under the “Conduct of the Work”
provision was “secondary and totally discretionary” and as such, does not establish
a nondelegable duty on the part of Defendant.
Finally, Plaintiffs assert that Defendant’s alleged attempt to have Thyssen
contractually assume liability for the safety and health of its employees is preempted by federal law. Plaintiffs contend that the Federal Mine Safety and Health
18
Id. at ¶ 5.
19
Id. at ¶ 6.
20
Comment (c) of Restatement (Second) of Torts § 414 has been adopted in Montana.
Beckman, 1 P.3d at 355.
Page 11 of 22
Act of 1977 places the primary responsibility of preventing the existence of unsafe
and unhealthful conditions and practices on the mine owner. In support, Plaintiffs
direct the Court to Section 2 of the Federal Mine Safety and Health Act which
states that the “first priority and concern of all in the coal or other mining industry
must be the health and safety of its most precious resource- the miner.” Further,
regarding issues relating to concerns about unsafe and unhealthful conditions,
Section 2(e) of that same Act states that “the operators of such mines with the
assistance of the miners have the primary responsibility to prevent the existence of
such conditions and practices in such mines.” Id.
Plaintiffs also rely on the Mine Safety and Health Administration Program
Policy Manual, Volume III, Part 45-1, which states in pertinent part:
MSHA’s enforcement policy regarding independent contractors
does not change production-operators’ basic compliance
responsibilities. Production-operators are subject to all
provisions of the Act, and to all standards and regulations
applicable to their mining operations. This overall compliance
responsibility includes assuring compliance by independent
contractors with the Act and with applicable standards
and regulations. As a result, both independent contractors and
production-operators are responsible for compliance with all
applicable provisions of the Act, standards and regulations. Id.
Page 12 of 22
Based on this statutory and policy language, Plaintiffs allege that
Defendant, as the operator of the Stillwater mine, cannot delegate safety
regulations to an independent contractor, such as Thyssen.
However, as noted by Defendant, other than citation to the statute and its
supporting language, Plaintiffs do not direct the Court to any case law that can
support this conclusion. To the contrary, the existing body of case law recognizes
that the Mine Safety and Health Act cannot be a basis to confer a private right of
action, contractually or otherwise, to private individuals. Price v. Brody Mining,
LLC, 2010 WL 2486343 at 1 (S.D.W.Va. 2010); see also King v. Island Creak
Coal Co., 399 F.Supp,2d 735 (W.D.Va. 2004); Parke v. Bethenergy Mines, Inc.,
732 F.Supp. 587, 589 (W.D.Pa. 1990).
For the foregoing reasons, this Court concludes that Defendant Stillwater
mine did not have a non-delegable duty based on contract to provide a safe
workplace. Defendant’s Motion for Summary Judgment on this ground is
GRANTED.
Nondelegable duty based on inherently dangerous activity
In the alternative, Plaintiffs argue that the second exception to the general
rule that a general contractor owes no duty to independent contractors applies and
Defendant Stillwater mine owed a duty because Plaintiff was engaged in an
Page 13 of 22
inherently or intrinsically dangerous activity. Fabich v. PPL Montana, LLC, 170
P.3d at 947 (Mont. 2007). Plaintiffs contend that mining and its associated
activities are inherently dangerous and therefore non-delegable.
Although Defendant acknowledges that there are mining activities that can
pose an inherently dangerous activity, it distinguishes the present situation by
arguing that “only standard safety precautions were required to avoid what the
Plaintiff alleges was his inhalation of air-borne platinum ‘contaminates.’”21
The seminal Montana case discussing whether a certain activity is
inherently dangerous is Beckman v. Butte-Silver Bow County, 1 P.3d 348 (Mont.
2000). In Beckman the plaintiff was employed by a company that was excavating
and constructing a water pipe line for Butte–Silver Bow County. The plaintiff was
injured when the trench where he was working collapsed. Beckman sued the
County, which contended that it was not liable for Beckman's injuries under the
general rule that contractors are not liable for torts of their independent
contractors. The Beckman Court ultimately concluded that because
trenching/excavation operations required “special precautions” and thus was
inherently dangerous as a matter of law, Butte–Silver Bow County could be liable
for torts committed by its independent contractor. Id. at 398-399.
21
DEFENDANT’S REPLY BRIEF (Doc. # 28) at 10.
Page 14 of 22
In the instant case, it is undisputed that there is a contractor-independent
contractor relationship between Defendant Stillwater Mine and Thyssen.
Defendant asks this Court to narrowly focus its analysis on the inhalation of
airborne contaminants and conclude that such activity is not necessarily inherently
dangerous and only requires standard safety precautions. The same type of narrow
view was rejected by the Montana Supreme Court in Paull v. Park County, 218
P.3d 1198 (Mont. 2009). Paull involved Defendant Park County contracting with
a private prisoner transportation service to transport a prisoner to Montana. In
rejecting Park County’s argument that driving was not an inherently dangerous
activity, the Paull Court looked at broader aspects of the inherently dangerous
activity rather the specific allegation that allegedly caused the plaintiff’s injury. In
so doing, the Paull Court concluded the transportation of prisoners, as a whole,
was an inherently dangerous activity. Id., at 1204.
Like the Paull and Beckman Court, this Court holds that mining is an
activity that has significant safety risks that involve more than just the inhalation
of airborne contaminants. Moreover, in interpreting Beckman, the Montana
Supreme Court, in Chambers v. City of Helena, 49 P.3d 587, 591 (Mont. 2002)
(overruled on other grounds), held “that the determination of inherent danger
Page 15 of 22
should not rest only on the difficulty of the safety measures, but also on the nature
of the activity itself.” Id.
Since mining, to a large degree, is analogous to excavation, it is reasonable
to conclude that it should be recognized as an inherently dangerous activity. This
conclusion is buttressed by the fact that Congress has noted that underground
mining is an inherently dangerous industry. 30 U.S.C. § 801 (1983); see also
McColgan v. United Mine Workers of America, 464 N.E.2d 1166, 1169 (Ill.,
1984). Due to the enclosed nature of mining and its inherent dangers, special
precautions regarding proper ventilation and the use of respirators to prevent
inhalation of airborne contaminants would be necessary to protect miners from
unreasonable risks. Beckman, at 23-24.
Although this Court concludes that mining is an inherently dangerous
activity as a matter of law and Defendant Stillwater has a nondelegable duty to
Plaintiffs, any claims raised in Plaintiffs’ Amended Complaint must still be
established under the ordinary rules of negligence, requiring proof of the existence
of a legal duty, breach of duty, causation and damages, on the part of the
contractor. Paull, at 1204 (citing Cusenbary v. Mortensen, P.2d 351 (Mont.
1999)).
Page 16 of 22
For purposes of summary judgment, this Court further finds that Plaintiffs
have presented sufficient facts to show that there are genuine issues of material
fact on Counts I, II and IV that would preclude summary judgment in favor of
Defendant. Specifically, Plaintiff Michael Cobos has presented evidence that he
worked at Defendant’s mine; that he was exposed to some type of airborne
contaminants; and that he suffered damages. Ultimately, whether Defendant
breached its duty to provide a safe workplace or was the cause of Plaintiff Cobos’
damages is a question for the jury. For the foregoing reasons, Defendant’s Motion
for Summary Judgment on this ground is DENIED.
Negligent Exercise of Control
Plaintiffs allege that the last Beckman exception applies in that
Defendant negligently exercised control over subcontractor Thyssen's work.
Specifically, Plaintiffs contend that because Defendant “incentivized Thyssen
under the contract to make a bonus based on how quickly its employees could
blast.”22 Plaintiffs allege that Defendant knew or should have known that Thyssen
was “cutting corners on worker safety” by virtue of the “bonus” contract.23
Further, Plaintiffs rely on the “Conduct of Work” provision as referenced above.
22
PLAINTIFFS’ COMBINED BRIEF (Doc. # 26) at 12.
23
Id. at 12-13.
Page 17 of 22
Regarding the “Conduct of Work” provision, this Court’s analysis and
conclusion for this third Beckman exception is the same as that stated in its
discussion in the first Beckman exception. Defendant Stillwater’s responsibility
for safety under the “Conduct of the Work” provision is “secondary and totally
discretionary” and as such, does not establish a nondelegable duty on the part of
Defendant. Fabich,170 P.3d at 949-50. Moreover, as reflected in Comment (c)
of Restatement (Second) of Torts § 414 and discussed above, Defendant’s general
right to order the work stopped or resumed does not confer control over the
manner and methods of Thyssen’s operation.
To the extent Plaintiffs argue that Defendant knew or should of known of
Thyssen’s allegedly negligent conduct because it “incentivized” the conduct by
way of the “bonus” contract, Plaintiffs’ allegations are conclusory and fail to cite
to any evidence that would create an issue of fact as to preclude summary
judgment on this issue. For the foregoing reasons, Defendant’s Motion for
Summary Judgment on this ground is GRANTED.
Count III - strict liability
Lastly, the Parties have filed cross-motions for summary judgment on
Plaintiffs’ claim that Defendant is strictly liable for Plaintiff Michael Cobos’
Page 18 of 22
injuries. In support, Plaintiffs contend that his injuries were allegedly caused by
the kind of harm that Defendant Stillwater should reasonably have anticipated.
In determining whether an activity is abnormally dangerous and thus subject
to strict liability, Montana has adopted Restatement (Second) of Torts §§ 519 and
520. Matkovic v. Shell Oil Co., 707 P.2d 2, 3-4 (1985).24 Whether an activity is
an abnormally dangerous activity is a question of law. Chambers v. City of
Helena, 49 P.3d at 590-591.
§ 519, in pertinent part, reads:
(1) One who carries on an abnormally dangerous activity is
subject to liability for harm to the person, land or chattels of
another resulting from the activity, although he has exercised
the utmost care to prevent the harm.
(2) This strict liability is limited to the kind of harm, the
possibility of which makes the activity abnormally dangerous.
Restatement (Second) of Torts § 519 (1976).
§ 520 lists the factors to be considered in determining whether an activity is
abnormally dangerous:
(a) existence of a high degree of risk of some harm to the
person, land or chattels of others;
(b) likelihood that the harm that results from it will be great;
24
The Court notes the legal distinction between its earlier discussion of “inherently
dangerous” in the contractor-subcontractor non-delegable duty context and its present discussion
of “abnormally dangerous” in the strict liability context. These terms are terms of art and are not
intended to be used interchangeably. See Fabich, 170 P.3d at 949 (Noting the legal difference in
“inherently dangerous” and “abnormally dangerous” for purposes of establishing strict liability).
Page 19 of 22
(c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is
carried on; and
(f) extent to which its value to the community is outweighed by
its dangerous attributes.
Restatement (Second) of Torts § 520 (1976).
While one factor “may end up weighing more heavily than the others, a trial
court’s consideration of whether an activity is abnormally dangerous must at least
explicitly consider all the factors listed in Restatement § 520.” Chambers, 49 P.3d
at 592. In doing so,
[t]he essential question is whether the risk created is so unusual,
either because of its magnitude or because of the circumstances
surrounding it, as to justify the imposition of strict liability for the
harm that results from it, even though it is carried on with all
reasonable care. In other words, are its dangers and inappropriateness
for the locality so great that, despite any usefulness it may have for
the community, it should be required as a matter of law to pay for any
harm it causes, without the need of a finding of negligence.
Restatement (Second) of Torts § 520, comment f.
In the instant case, Plaintiffs narrowly define the abnormally dangerous
activity as the exposure that a miner allegedly suffers from the release of
“colorless, invisible airborne carcinogen” into the air.25 When considering §
519(2), it is of note that Plaintiffs do not argue, nor does the evidence support, that
25
PLAINTIFFS’ COMBINED BRIEF (Doc. # 26) at 13-14.
Page 20 of 22
this kind of harm is normally associated with underground mining operations and
is what makes the activity abnormally dangerous. Specifically, Plaintiffs present
no evidence to support cases of significant risk from mining operations of airborne
carcinogens that cause nasal carcinoma.26
Moreover, in Chambers, the Montana Court directs the trial court, in
considering whether an activity is abnormally dangerous, to explicitly consider all
the factors listed in Restatement § 520. In the instant case, other than citing the
§ 520 factors for the Court’s consideration, Plaintiffs do not analyze nor provide
support for how Plaintiff Cobos’ present injuries fall within the purview of the §
520 factors. More importantly, it is not for this Court to sua sponte determine nor
analyze the application of these factors to Plaintiffs’ present claim in support of
strict liability.
Therefore, this Court concludes that Plaintiffs have not presented sufficient
evidentiary materials to establish a genuine dispute that Defendant Stillwater’s
alleged activity of exposing miners to airborne contaminants was abnormally
dangerous. Therefore, Plaintiffs' claim of strict liability fails, and Defendant’s
Motion for Summary Judgment on this ground is GRANTED.
26
This is not to say that such evidence does not exist. Only that Plaintiffs have presented
no evidence to support their argument.
Page 21 of 22
CONCLUSION
For the above-stated reasons, on Counts I, II and IV, this Court concludes
that Defendant Stillwater mine has a nondelegable duty, due to the inherently
dangerous nature of mining, to provide a safe workplace. This conclusion is
limited to duty only and the viability of Plaintiffs’ claims are still subject to the
remaining elements of their negligence claims. As to Count III - strict liability,
this Court finds that Plaintiffs have failed to present sufficient evidence to
establish a material issue of fact as to preclude summary judgment in favor of
Defendant Stillwater mine.
For the foregoing reasons, IT IS HEREBY ORDERED:
1.
Plaintiffs’ Cross-motion for Summary Judgment (Doc. # 25) is
GRANTED IN PART and DENIED IN PART;
2.
Defendant’s Motion for Summary Judgment (Doc. # 22) is
GRANTED IN PART and DENIED IN PART.
DATED this 3rd day of December, 2012.
/s/ Richard F. Cebull
RICHARD F. CEBULL
U.S. DISTRICT JUDGE
Page 22 of 22
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