Breedlove v. Csx Transp. Corp.

• Decision Date: 17 August 2009
• Docket Number: Civil Action No. 09-cv-75120.
• Citation: 643 F.Supp.2d 721
• Parties: William BREEDLOVE, Plaintiff, v. CSX TRANSP. CORP., Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

643 F.Supp.2d 721

William BREEDLOVE, Plaintiff, v. CSX TRANSP. CORP., Defendant.

Civil Action No. 09-cv-75120.

United States District Court, E.D. Pennsylvania.

August 17, 2009.

Clinton W. Sitton, Office of Clinton W. Sitton, Atlanta, GA, Edmund Spencer Parris, H. Forest Horne, Jr., Jones, Martin, Parris & Tessener Law Offices, PLLC, Raleigh, NC, for Plaintiff.

Christopher R. Jordan, Grant C. Buckley, Janna Blasinghame Custer, Karen Jenkins Young, Randall A. Jordan, The Jordan Firm, St. Simons Island, GA, for Defendant.

MEMORANDUM

EDUARDO C. ROBRENO, District Judge.

Plaintiff William Breedlove ("Breedlove") brought this lawsuit against Defendant CSX Transportation, Inc. ("CSX"), after he was diagnosed with mesothelioma in February 2008. Breedlove's complaint comprised a single tort claim, sounding in premises liability,¹ in which Breedlove alleged that he had been exposed to asbestos while on CSX property; that this exposure was an actual and proximate cause of his mesothelioma; and that he had been an invitee of CSX, to whom CSX breached its duty of ordinary care.

CSX now moves for summary judgment, arguing that Breedlove was a licensee to whom it owed only a duty to refrain from willful or wanton conduct; that as a matter of law, it did not violate any duty if in fact Breedlove was exposed to asbestos on CSX property; and that, in any event, Breedlove failed to produce evidence sufficient to survive summary judgment on the question of whether he was exposed to asbestos while on CSX's property.

This Court will deny CSX's motion for summary judgment because, for the reasons set forth below, it finds that CSX has failed to show that Breedlove was a licensee as a matter of law, and that questions remain for the jury as to whether Breedlove was exposed to asbestos during his visits to CSX property and, if he was, whether CSX breached its duty of ordinary care.

I. BACKGROUND

William Breedlove ("Breedlove") worked as an insurance agent from 1957 until 1995. In 1962, when he joined Provident Insurance ("Provident"),² Breedlove began selling insurance to railroad employees, including employees of defendant CSX Transportation ("CSX").³ The policies that Breedlove sold—mostly disability, life and dependant insurance—were supplemental to the basic insurance coverage that CSX was contractually obliged to provide to its employees. CSX allowed its employees to pay for the coverage that they purchased through payroll deductions. Breedlove received commissions, from Provident, on the sales that he made.⁴

Breedlove solicited sales from CSX employees primarily at two of CSX's mechanical shops. Beginning in the 1960s, Breedlove traveled to a shop in Atlanta, Georgia ("Tilford"), which he visited two or three days per month. Starting in the 1980s, Breedlove also solicited business from a shop located in Waycross, Georgia ("Waycross"), which he visited two or three times per year. At both shops, Breedlove witnessed employees working on locomotives and other railroad equipment, though he never himself performed any type of mechanical work. Breedlove believes that he saw workers using asbestos-containing insulation, brake shoes, gloves, and rope.⁵ (Breedlove Dep. 41:11-44:21, July 11, 2008). At both Tilford and Waycross, Breedlove noticed accumulations of dust in the air, though he testified that Waycross was dustier than Tilford.⁶ Id. at 34:23-24. Because Breedlove preferred not to stray from the employees' work area when he sold insurance, he generally conducted business "on top of a drum or ... somewhere around the equipment."⁷ Id. at 38:1-14.

To enter and conduct business in the Waycross and Tilford shops, Breedlove sought out and secured permission from CSX's managers.⁸ Breedlove regularly would "chat" with the managerial staff, as he believed that a good relationship with management was necessary for his continued ability to sell insurance to CSX employees. (Breedlove Dep. 37:6-11, July 11, 2008). The managers initially provided escorts for Breedlove, though, and as he became more familiar with Tilford and Waycross, they allowed him to solicit sales without an escort. Perhaps because Breedlove's visits became so regular, CSX issued him safety equipment, including a hard hat (but not a respirator or mask). (Breedlove Dep. 39:1-6, July 11, 2008).

Breedlove was diagnosed with mesothelioma in February, 2008, and he died six months later, in August. Breedlove's wife, Eva, maintains the present action as the executrix of his estate.

II. LEGAL STANDARD—MOTION FOR SUMMARY JUDGMENT

A court may grant summary judgment when "the pleadings, the discovery and the disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law."⁹ Fed.R.Civ.P. 56(c). A fact is "material" if its existence or nonexistence would affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue of fact is "genuine" when there is "sufficient evidence from which a reasonable jury could find in favor of the nonmoving party." El v. Se. Pa. Transp. Auth., 479 F.3d 232, 238 (3d Cir.2007). All reasonable inferences arising from the undisputed facts should be made in favor of the nonmovant. Disabled in Action of Pa. v. Se. Pa. Transp. Auth., 539 F.3d 199, 201 (3d Cir.2008). The Court is not permitted to make inferences based on speculation. Lexington Ins. Co. v. Western Pa. Hosp., 423 F.3d 318, 333 (3d Cir.2005). So long as at least one reasonable inference may be drawn in favor of the non moving party, summary judgment is inappropriate, and the fact finder will have to determine which inference is correct. Ideal Dairy Farms v. John Labatt, 90 F.3d 737, 744 (3d Cir.1996) (citing Nathanson v. Medical College of Pa., 926 F.2d 1368, 1380 (3d Cir.1991)).

Further, while the moving party bears the initial burden of showing the absence of a genuine issue of material fact, the nonmoving party "may not rely merely on allegations or denials in its own pleading; rather its response must—by affidavits or as otherwise provided in [Rule 56]—set out specific facts showing a genuine issue for trial." Fed.R.Civ.P. 56(e)(2). Summary judgment is also proper "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

III. DISCUSSION

A. Breedlove's status as an invitee or licensee under Georgia law

CSX argues that Breedlove was a licensee because CSX "did not invite, induce, or lead him to CSX's premises." (Def.'s Mot. for Summ. J., doc. no 21, at 11). CSX contends that, since Mr. Breedlove was a licensee, CSX would be liable only for willful or wanton injuries. Id. at 13. Therefore, even if Mr. Breedlove was exposed to asbestos on CSX property, CSX claims that their conduct did not rise to the level of willful and wanton misconduct and thus, it is entitled to summary judgment. Id. at 17-18.

The parties agree that Georgia substantive law applies. The Georgia legislature has codified the common law definitions relative to invitees and licensees. Specifically, O.C.G.A. Section 51-3-1 defines, and sets forth the duties owed to, an invitee:¹⁰

Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.¹¹

With regard to licensees, Section 51-3-2(a) defines a licensee as "a person who (1) is neither a customer, a servant, nor a trespasser; (2) does not stand in any contractual relation with the owner of the premises; and (3) is permitted, expressly or impliedly, to go on the premises merely for his own interests, convenience or gratification." O.C.G.A. Section 51-3-2(a). With respect to a licensee, the landowner or occupier is liable only for its willful or wanton conduct. O.C.G.A. 51-3-2(b). See also Ballenger Paving Co. v. Gaines, 231 Ga.App. 565, 499 S.E.2d 722, 728 (1998) (citing Lee v. Myers, 189 Ga.App. 87, 374 S.E.2d 797 (1988)). If the owner has actual or constructive knowledge that a licensee is "within the range of a dangerous act being done or a hidden peril ...," it is willful or wanton not to exercise ordinary care to warn the licensee. Aldridge v. Tillman, 237 Ga.App. 600, 516 S.E.2d 303, 307 (1999) (citing Wade v. Mitchell, 206 Ga.App. 265, 424 S.E.2d 810, 813 (1992)).

The determination of a visitor's status has posed a "perennial" challenge¹² for Georgia courts, which apply a "mutuality of interest" test to distinguish between invitees and licensees.¹³ Chatham v. Larkins, 134 Ga.App. 856, 216 S.E.2d 677, 678 (1975). A person is deemed an invitee if he has been induced, expressly or impliedly, to come upon the premises for any lawful purpose and his presence on the premises "is of mutual benefit to both him and the landowner." Matlack v. Cobb Elec. M'ship Corp., 289 Ga.App. 632, 658 S.E.2d 137, 139 (2008).

Two cases illustrate the application of the mutuality of interest test. In Findley v. Lipsitz, 106 Ga.App. 24, 126 S.E.2d 299, 301 (1962), an electrical appliance salesman who entered defendant's store to sell light bulbs had a mutual interest with the owner when he replaced defendant's burnt out bulbs, using defendant's stock, in the hope of encouraging defendant to buy new bulbs. The Court found a mutuality of interest because defendant "benefitted by having his store better lighted," and plaintiff "derived a potential benefit by making his product and services known to the defendant, a prospective customer."¹⁴ Id. On the other hand, in Todd v. Byrd, 283 Ga.App. 37, 640 S.E.2d 652, 657 (2006), the court held that an...