Burrows v. 3M Co.

Decision Date29 March 2021
Docket NumberCase No. C19-1649RSL
Parties Grace BURROWS, et al., Plaintiffs, v. 3M COMPANY, Defendant.
CourtU.S. District Court — Western District of Washington

James E. MacPherson, Joseph R. Kopta, Kopta & MacPherson, Timothy G. Acker, Law Offices of Timothy Acker, Gig Harbor, WA, for Plaintiffs Grace Burrows, Randy Morrow, Denise Foy.

Debora A. Dunlap, McGaughey Bridges Dunlap, PLLC, Seattle, WA, for Plaintiffs Carrol Dobbins, Jennifer Sipes, Tina Radovich.

Deborah Elaine Lewis, Pro Hac Vice, Gerardo ALCazar, Pro Hac Vice, Blackwell Burke PA, Faris A. Rashid, Pro Hac Vice, Greene Espel PLLP, Virginia R. McCalmont, Pro Hac Vice, Forsgren Fisher McCalmont Demarea Tysver LLP, Minneapolis, MN, W. Greg Lockwood, Nancy M. Erfle, Gordon Rees Scully Mansukhani LLP, Portland, OR, for Defendant.


Robert S. Lasnik, United States District Judge


This matter comes before the Court on (1) "PlaintiffsMotion for Partial Summary Judgment" (Dkt. # 60) and (2) "3M Company's Motion for Summary Judgment" (Dkt. # 66). The Court, having reviewed the memoranda, declarations, and exhibits submitted by the parties,1 finds as follows:


On May 22, 2018, Walter Burrows was employed as a foreman by Kiewit-Hoffman East Link Constructors ("Kiewit-Hoffman") to work on the E360 project in King County, Washington. Dkt. # 67-38 (Deposition of Christopher Salimbene) at 14, 26, 128, 150. During the course of his work at the top of a column, referred to as a "pier cap," located approximately 35 feet off the ground, Mr. Burrows lost his balance and fell over the edge. Id. at 108, 111, 208; Dkt. # 67-39 (Deposition of James Wulf) at 9–10; Dkt. # 15 at ¶ 9. At the time of the fall, Mr. Burrows was wearing a Nano-Lok Self-Retracting Lifeline (the "Nano-Lok"), but the Nano-Lok severed after making contact with the pier cap's concrete edge. Dkt. # 67-39 (Deposition of James Wulf) at 10; Dkt. # 15 at ¶ 10. Mr. Burrows died as a result of injuries from his fall. Dkt. # 67-25 at 2; Dkt. # 67-44 (Deposition of Geoff Owen) at 174. Defendant 3M Company does not dispute that it manufactured the Nano-Lok product. See Dkts. # 66, # 68.

Plaintiff Grace Burrows is the widow of Mr. Burrows and is the Personal Representative of the Burrows Estate. Am. Compl. at ¶¶ 1–2. The statutory beneficiaries of the Estate consist of the following individuals: Grace Burrows; Mr. Burrows’ three adult daughters, Carrol Dobbins, Jennifer Sipes, and Tina Radovich; Mr. Burrows’ stepson, Randy Morrow; and Mr. Burrows’ stepdaughter, Denise Foy. Am. Compl. at ¶ 3. All of the statutory beneficiaries are also plaintiffs. Id. On September 13, 2019, Ms. Burrows initiated a wrongful death action in King County Superior Court. Dkt. # 1-1. Ms. Burrows filed the lawsuit on her own behalf and in her capacity as the Personal Representative of the State on behalf of the statutory beneficiaries listed above. Am. Compl. at ¶¶ 1–3.

Defendant removed this matter to federal court based on diversity jurisdiction. 28 U.S.C. § 1332(a) ; Dkt. # 1. On December 9, 2019, plaintiffs filed an amended complaint. Am. Compl. Plaintiffs assert claims for products liability, breach of warranty, and breach of implied warranty of merchantability. Am. Compl. at ¶¶ 23–45.


Plaintiffs filed a motion for partial summary judgment regarding three issues. Plaintiffs ask that the Court (1) strike defendant's affirmative defense regarding Kiewit-Hoffman's alleged negligence, (2) find as a matter of law that Kiewit-Hoffman's alleged negligence was not a superseding cause of Burrows’ death,2 and (3) find as a matter of law that plaintiffs prevail in their failure-to-warn claim. See Dkt. # 60 at 1–2.

A. Legal Standard for Summary Judgment

Summary judgment is appropriate when, viewing the evidence in the light most favorable to the nonmoving party, "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) ; Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d 1119, 1125 (9th Cir. 2014). The moving party "bears the initial responsibility of informing the district court of the basis for its motion." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the nonmoving party will bear the burden of proof at trial, the moving party need not "produce evidence showing the absence of a genuine issue of material fact," but instead may discharge its burden under Rule 56 by "pointing out ... that there is an absence of evidence to support the nonmoving party's case." Id. at 325, 106 S.Ct. 2548.

Once the moving party has satisfied its burden, it is entitled to summary judgment if the non-moving party fails to designate "specific facts showing that there is a genuine issue for trial." Id. at 324, 106 S.Ct. 2548. "The mere existence of a scintilla of evidence in support of the non-moving party's position is not sufficient." Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001) (internal citation omitted). "An issue is ‘genuine’ only if there is a sufficient evidentiary basis on which a reasonable fact finder could find for the nonmoving party." In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (internal citation omitted). On cross-motions for summary judgment, the Court evaluates the motions separately, "giving the nonmoving party in each instance the benefit of all reasonable inferences." Lenz v. Universal Music Corp., 801 F.3d 1126, 1130–31 (9th Cir. 2015) (citation omitted).

B. Issue One: Kiewit-Hoffman's Alleged Negligence and Immunity from Liability

Plaintiffs assert that partial summary judgment should be granted in their favor to strike 3M's affirmative defense of Kiewit-Hoffman's alleged negligence due to Kiewit-Hoffman's immunity as Burrows’ employer. The Court finds only partly in plaintiffs’ favor on this issue.

Plaintiffs argue that because Kiewit-Hoffman is immune from liability under Title 51 RCW, that defendant is precluded from raising Kiewit-Hoffman's alleged negligence as an affirmative defense and from arguing that this negligence constitutes a superseding cause. Both parties rely on Geurin v. Winston Industries, Inc., 316 F.3d 879 (9th Cir. 2002). Plaintiffs correctly observe that in Geurin, the Ninth Circuit acknowledged that an entity that is immune under Title 51 as an employer cannot have liability allocated to it under RCW 4.22.070(1). Geurin, 316 F.3d at 883–84. The parties agree that Kiewit-Hoffman is immune as an employer under RCW 4.22.070(1). Dkts. # 60 at 13, # 68 at 14. Defendant argues, however, that Kiewit-Hoffman's immunity does not preclude it from presenting evidence of Kiewit-Hoffman's negligence because Geurin held that evidence regarding an employer's negligence "would still have been admissible to negate an essential element of the plaintiff's case—proximate cause." Geurin, 316 F.3d at 884. The Court agrees with defendant on this point. Geurin holds that evidence of third-party negligence—even by an immune third-party such as an employer—could be used "not as proof of liability on the part of the employer," but as proof that defendant was not the proximate cause of the injury. Id. at 885.

Although plaintiffs do not identify specifically numbered affirmative defenses they seek to strike from defendant's Answer, to the extent defendant seeks to raise the affirmative defense that fault should be apportioned to Kiewit-Hoffman, the Court agrees that RCW 4.22.070(1) precludes such a defense because Kiewit-Hoffman is immune as an employer. Therefore, paragraph 5.a of the defenses listed in defendant's Answer will be stricken as it seeks to apportion fault to Kiewit-Hoffman pursuant to RCW 4.22.070. To the extent, however, defendant seeks to demonstrate that it was not the proximate cause of Burrows’ death, defendant may argue that Kiewit-Hoffman's alleged negligence negated the proximate cause element. Id. at 884–85.

Accordingly, plaintiffsmotion for summary judgment on issue one is GRANTED IN PART.

C. Issue Two: Kiewit-Hoffman's Conduct as a Superseding Cause

Plaintiffs contend that partial summary judgment should be granted in their favor to find as a matter of law that Kiewit-Hoffman's alleged negligence was not a superseding cause. The Court disagrees due to the existence of genuine issues of material fact.

Plaintiffs argue that Kiewit-Hoffman's actions cannot constitute a superseding cause as a matter of law, and they rely upon Campbell v. ITE Imperial Corp., 107 Wash.2d 807, 733 P.2d 969 (1987). In Campbell, the Washington Supreme Court considered whether an employer's failure to warn or otherwise protect its employee from the dangers of electrical switchgear could have constituted a superseding cause precluding attributing liability to the manufacturer of the switchgear, i.e., whether the employer's failure was foreseeable. 107 Wash.2d at 812–17, 733 P.2d 969. The switchgear was unreasonably unsafe when unaccompanied by an adequate warning, and the court concluded that the employer's negligence did not constitute a superseding cause where the circumstances demonstrated that the employer's negligence was foreseeable. Id. at 814–17, 733 P.2d 969.

In sum, we hold that an employer's failure to warn or protect an employee from a product which is unreasonably unsafe, unless accompanied by a warning, does not constitute a superseding cause, unless (1) the employer's intervening negligence created a different type of harm; or (2) the employer's intervening negligence operated independently of the danger created by the manufacturer; or (3) the employer had actual, specific knowledge that the product was unreasonably unsafe and failed to warn or protect. Because there is no such evidence in the record of this case, the trial court erred in giving a superseding cause instruction.

Id. at 817, 733 P.2d 969. In applying the first of the...

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