New v. Blackwell Wind LLC et al
ORDER granting in part and denying in part 72 defendant Blackwell Wind, LLC's Motion for Summary Judgment (as more fully set out). Signed by Honorable Vicki Miles-LaGrange on 6/2/2017. (ks)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
THOMAS W. NEW,
BLACKWELL WIND, LLC, a Delaware
WIND ENERGY CONSTRUCTORS,
INC., a California Corporation,
Case No. CIV-14-1132-M
This case is scheduled for trial on the Court’s December 2017 trial docket.
Before the Court is defendant Blackwell Wind, LLC’s (“Blackwell Wind”) Motion for
Summary Judgment, filed December 10, 2016. On January 9, 2017, plaintiff filed his response,
and on January 23, 2017, Blackwell Wind filed its reply. Based upon the parties’ submissions, the
Court makes its determination.
Blackwell Wind is the owner of the twenty-six wind tower installation located in
The tower installation was constructed, pursuant to a construction
agreement between Blackwell Wind and defendant Wind Energy Constructors (“WEC”). The
installation of the climb assists1 were performed by Milco Constructors, a subcontractor of WEC.
During the construction phase of the project, Blackwell Wind contracted with Bartech, a company
A climb assist is a motorized harness device that assists the service personnel in climbing from
the base of 300-foot wind turbine generator towers to higher areas, including the top mechanical
that provides qualified project personnel to staff wind farms with construction project personnel.
Plaintiff was employed by Bartech.
Plaintiff alleges that on December 3, 2012, his knee was injured while working as an
inspector on the Blackwell wind tower installation. Specifically, plaintiff alleges that when he was
inspecting the installation of the climb assists, he was forcibly dragged upward unexpectedly and
his knee was injured when it repeatedly and forcefully hit metal ladder rungs. Plaintiff further
alleges the climb assist was dangerously modified by exceeding the manufacturer’s maximum
On September 5, 2014, plaintiff filed the instant action in the District Court of Kay County,
State of Oklahoma. On October 15, 2014, this case was removed to this Court. Blackwell Wind
now moves this Court for summary judgment in its favor.2
Summary Judgment Standard
“Summary judgment is appropriate if the record shows that there is no genuine issue as to
any material fact and that the moving party is entitled to judgment as a matter of law. The moving
party is entitled to summary judgment where the record taken as a whole could not lead a rational
trier of fact to find for the non-moving party. When applying this standard, [the Court] examines
the record and reasonable inferences drawn therefrom in the light most favorable to the nonmoving party.” 19 Solid Waste Dep’t Mechs. v. City of Albuquerque, 156 F.3d 1068, 1071-72
(10th Cir. 1998) (internal citations and quotations omitted).
In its motion for summary judgment, Blackwell Wind moves for summary judgment as to a
product liability claim and a premises liability claim. In his response, plaintiff states that he has
not, and does not, assert either a product liability claim or a premises liability claim. Accordingly,
the Court finds that Blackwell Wind’s arguments regarding these claims are moot.
“Only disputes over facts that might affect the outcome of the suit under the governing law
will properly preclude the entry of summary judgment. Furthermore, the non-movant has a burden
of doing more than simply showing there is some metaphysical doubt as to the material facts.
Rather, the relevant inquiry is whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”
Neustrom v. Union Pac. R.R. Co., 156 F.3d 1057, 1066 (10th Cir. 1998) (internal citations and
Agency-based vicarious liability
Plaintiff asserts, in part, that Blackwell Wind is liable based on agency-based vicarious
liability. Blackwell Wind contends that plaintiff’s agency-based vicarious liability claim is
directly contradicted by the facts and the parties’ express contractual agreement. Specifically,
Blackwell Wind contends that WEC and Milco contractually assumed the duty of proper care in
the installation of the climb assists and cannot be held to be Blackwell Wind’s agent for purposes
of any negligence in the performance of their construction duties. Further, Blackwell Wind relies
upon the March 21, 2012 Engineering, Procurement and Construction Agreement for Blackwell
Wind Project, which provides, in part, as follows:
Contractor shall be an independent contractor with respect to any
and all Work performed and to be performed under the Agreement.
The Agreement shall not be interpreted or construed to create an
association, joint venture or partnership relationship among or
between the Parties or any similar relationship, obligations or
liabilities. Neither party shall have any right, power or authority to
enter into any agreement or undertaking for, act on behalf of, or to
act as or be an agent or representative of, or to otherwise bind or
obligate the other party.
Engineering, Procurement and Construction Agreement, attached as Exhibit 1 to Defendant
Blackwell Wind, LLC’s Motion for Summary Judgment and Brief in Support, at Section 2.2.1. In
response, plaintiff asserts that the relationship of principal and agent is clearly established based
on the facts of this case. Specifically, plaintiff asserts that Blackwell Wind, in fact, had the ability
to control the work of WEC and Milco, to select and “validate” the workers retained, and to
determine when and how tasks would be done.
“The burden of proving the existence, nature and extent of the agency relationship rests
ordinarily upon the party who asserts it.” Enter. Mgmt. Consultants, Inc. v. State of Okla. ex rel.
Okla. Tax Comm’n, 768 P.2d 359, 362 (Okla. 1988). “[O]ne of the prime elements of an agency
relationship is the existence of some degree of control by the principal over the conduct and
activities of the agent.” Agee v. Gant, 412 P.2d 155, 160 (Okla. 1966) (internal citation omitted).
[w]hen the alleged principal and agent have a written contract, as
here, the question whether they have created an agency relationship
is determined by the intent and effect of the contract language and
the evidence of their actual conduct. If the facts show actual control
by the principal, an agency is established regardless of the contract
Thornton v. Ford Motor Co., 297 P.3d 413, 419 (Okla. Civ. App. 2012) (internal citations omitted).
The Court has carefully reviewed the parties’ briefs and evidentiary submissions. Viewing
the evidence in the light most favorable to plaintiff and viewing all reasonable inferences in
plaintiff’s favor, the Court finds that Blackwell Wind cannot be held liable under an agency-based
vicarious liability theory. Specifically, the Court finds it is undisputed that Blackwell Wind’s
contract with WEC expressly provided that WEC was not an agent of Blackwell Wind. Further,
the Court finds that the evidence submitted by plaintiff does not show that Blackwell Wind actually
controlled the conduct and activities of WEC and/or Milco to such a degree as to establish an
agency relationship. Accordingly, the Court finds that Blackwell Wind is entitled to summary
judgment as to plaintiff’s agency-based vicarious liability theory.
Plaintiff also asserts Blackwell Wind is liable to plaintiff under direct negligence
principles. Specifically, plaintiff alleges that Blackwell Wind is directly negligent based upon its
approval of an unsafe nonconformity modification of the climb assist and its failure to warn
plaintiff of the unsafe modification made. Blackwell Wind contends that it did not approve,
specify, or recommend the nonconformity modification of the climb assists. Blackwell Wind
further contends that it had no duty to warn because there were warning stickers installed at the
base of the climb assist.
Having carefully reviewed the parties’ submissions, and viewing the evidence in the light
most favorable to plaintiff and viewing all reasonable inferences in plaintiff’s favor, the Court
finds that plaintiff has submitted sufficient evidence to create a genuine issue of material fact as to
whether Blackwell Wind approved the nonconformity modification of the climb assists, whether
Blackwell Wind warned plaintiff of the unsafe modification made, and whether there were in fact
any warning stickers installed at the base of the climb assist at the time of the accident.
Accordingly, the Court finds that Blackwell Wind is not entitled to summary judgment as to
plaintiff’s direct negligence theory.
For the reasons set forth above, the Court GRANTS IN PART and DENIES IN PART
Blackwell Wind’s Motion for Summary Judgment [docket no. 72] as follows:
The Court GRANTS the motion for summary judgment as to plaintiff’s agencybased vicarious liability theory, and
The Court DENIES the motion for summary judgment as to plaintiff’s direct
IT IS SO ORDERED this 2nd day of June, 2017.
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