Camarena v. Superior Contracting Corp.
| Decision Date | 23 February 2023 |
| Docket Number | A-1-CA-39598 |
| Court | Court of Appeals of New Mexico |
| Parties | GILDARDO CAMARENA, by and through his Guardians, Rosa Cruz Camarena and Bianca Camarena, Plaintiff-Appellant, v. SUPERIOR CONTRACTING CORPORATION d/b/a AMERICAN NATIONAL INSULATION & SEALANTS (ANI); and JOHN DOE, SWG Foreman/Manager, Defendants-Appellees. |
GILDARDO CAMARENA, by and through his Guardians, Rosa Cruz Camarena and Bianca Camarena, Plaintiff-Appellant,
v.
SUPERIOR CONTRACTING CORPORATION d/b/a AMERICAN NATIONAL INSULATION & SEALANTS (ANI); and JOHN DOE, SWG Foreman/Manager, Defendants-Appellees.
No. A-1-CA-39598
Court of Appeals of New Mexico
February 23, 2023
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Benjamin Chavez, District Court Judge
Gorence & Oliveros PC Robert J. Gorence Albuquerque, NM
Durham, Pittard & Spalding, LLP Caren I. Friedman Justin R. Kaufman Rosalind B. Bienvenu Santa Fe, NM
Bowles Law Firm Jason Bowles Albuquerque, NM for Appellant
Modrall, Sperling, Roehl, Harris & Sisk, P.A. Earl E. DeBrine, Jr. Jeremy K. Harrison Elizabeth A. Martinez Bayard Roberts Albuquerque, NM for Appellees Superior Contracting Corporation d/b/a American National Insulation and Sealants
OPINION
MICHAEL D. BUSTAMANTE, JUDGE, 16 RETIRED, SITTING BY DESIGNATION.
{¶1} This case presents another opportunity for this Court to address the contours of a Delgado claim-the assertion that an employer willfully injured its employee, thus subjecting it to general tort liability rather than the exclusivity provision of the Workers' Compensation Act (WCA). Delgado v. Phelps Dodge Chino, Inc., 2001-NMSC-034, ¶ 1, 131 N.M. 272, 34 P.3d 1148. The claim before us involves a scaffolding that was ninety-five feet high and overloaded two to four times its capacity with sixteen tons of masonry block. The scaffolding collapsed and as a result, Gildardo Camarena, the plaintiff in this case, suffered permanent, serious bodily injury. The district court granted summary judgment in favor of Camarena's employer, after determining that Camarena failed to establish a genuine issue of material fact regarding the objective and subjective prongs of the Delgado test. We affirm.
BACKGROUND
Factual Background
{¶2} McCarthy Building Companies NM, Inc. (McCarthy) served as the general contractor for the construction of an addition to Rust Presbyterian Medical Center (the project). Defendant Superior Contracting Corporation, which was doing business as American National Insulation and Sealants (ANI) was a subcontractor
hired to provide insulation, waterproofing, and fireproofing for the project. Camarena worked for ANI on the project for two and a half months before the day of the incident that gave rise to this case. Les File Drywall, Inc. and its affiliate Les File LP (collectively, Les File) were hired to construct the walls of the building and provide scaffolding for McCarthy, ANI, and other subcontractors, including Little Enterprises, Inc. d/b/a Stone Cold Masonry (Stone Cold) that installed a block façade on the building and Southwest Glass & Glazing, Inc. (SGG) that installed windows.
{¶3} Les File owned, designed, and constructed the scaffolding for the project. Les File and McCarthy established a scaffold safety protocol, which required Les File to inspect the scaffold to ensure it met OSHA regulations and was safe for use. The protocol required Les File to affix a green tag to the scaffold ladder designating it as safe for use or to affix a red tag if it was not safe to use. The tag was required to include the date and time the scaffolding was inspected. The record reveals there was a green tag on the scaffolding the day of the incident.
{¶4} On the day in question, scaffolding was set up against a six-story building. The scaffolding was sixteen levels high, and the top level was approximately ninety-five feet above the ground. Stone Cold employees had loaded 31,783 pounds- almost sixteen tons and two to four times the scaffolding's capacity-of block onto the scaffolding several levels below where ANI employees were working. Camarena and four other ANI employees were on the fourteenth level of the scaffolding, while
two other ANI employees were on the ground level. The scaffolding collapsed, and Camarena sustained a permanent traumatic brain injury that left him incapacitated.
{¶5} The parties provided conflicting evidence regarding when the block was loaded onto the scaffolding. Camarena provided evidence from Stone Cold employees that testified the block was loaded onto the scaffolding two to three days before the incident in question. He also provided evidence that loading blocks onto the scaffolding was discussed each morning at safety meetings, which ANI's foremen were required to attend. ANI presented testimony from its supervisors, Paul Gomez and Jose Garcia, that they inspected the scaffolding a few hours before the incident and saw no significant amount of block on the scaffolding. It is undisputed that there was no block on the level Camarena was working on.
Procedural Background
{¶6} Camarena, through his guardians, filed an amended complaint in this case against SGG; John Doe, an SGG "Foreman/Manager"; ANI; Gomez, an ANI foreman; and Garcia, another ANI foreman, making claims for negligence against all the defendants and a Delgado claim against ANI, Gomez, and Garcia. Camarena voluntarily dismissed SGG, Gomez, and Garcia, leaving only its Delgado claim against ANI and negligence claims against John Doe.
{¶7} Both Camarena and ANI filed motions for summary judgment. ANI's motion advanced two main arguments. The first was that, as a matter of law, ANI's liability
was based on the actions of Gomez and Garcia, and by voluntarily dismissing with prejudice his claims against Gomez and Garcia, Camarena's claim against ANI was extinguished. The second was that the actions of Gomez and Garcia were not sufficient to meet the Delgado standard for willful and egregious conduct.
{¶8} Broadly, ANI argued that in order to sustain a Delgado claim, a plaintiff must present evidence that demonstrates a degree of egregiousness comparable to the facts in Delgado. That is, the employers' actions must include a combination of deadly conditions, profit-motivated disregard for easily implemented safety measures, complete lack of worker training or preparation, and outright denial of assistance to a worker in a terrifying situation. With regard to the subjective prong of the Delgado test, ANI argued that Camarena presented no evidence that ANI employees knew the scaffolding had been overloaded beyond its capacity and that the scaffolding was in danger of collapsing. ANI pointed to evidence that ANI employees had seen a green tag and that Camarena's expert testified that he was unable to determine the capacity of the scaffolding. With regard to the objective prong of the Delgado standard, ANI noted that Camarena was sent to do a routine task he had been doing for years, on a project he had been working on for two and a half months, he expressed no safety concerns, and, therefore, sending Camarena onto the scaffold was not sending him into a hazardous situation that was virtually certain to result in serious injury or death.
{¶9} Responding to ANI's factual presentation, Camarena objected to testimony from ANI employees saying they saw a green tag the day of the incident, arguing that it was inadmissible because it came from depositions taken in a different case. He also provided evidence that the block was loaded over a two- to three-day period before the collapse, despite ANI foremen Gomez and Garcia testifying they did not see the block the morning of the incident. Regarding ANI's Delgado argument, Camarena incorporated the arguments set forth in his motion for summary judgment to argue there was an issue of fact regarding whether the Delgado standard was met. Garcia, the ANI supervisor, testified that he would not have let workers onto the scaffold if there were more than five blocks on it, yet the ANI supervisors ordered their workers onto the scaffold even though it was loaded with almost 32,000 pounds of block. Camarena also argued that ANI's assertion that its foremen did not see the block was contradicted by multiple witnesses.
{¶10} The district court denied Camarena's motion and granted ANI's motion. Addressing Camarena's motion first, the district court noted that his argument that the facts conclusively showed that ANI was aware of the danger posed by the overloaded scaffold was predicated on "inferring that ANI supervisors testified untruthfully at their depositions." The district court refused to make this inference, citing the rule that inferences can only be made in favor of the nonmoving party. Thus, it ruled Camarena did not meet his burden.
{¶11}Addressing ANI's motion, the district court determined that, even if Camarena could establish that Gomez and Garcia saw the block on the scaffold, ANI's conduct did not exemplify a degree of egregiousness or conduct that approximated the employer's conduct in Delgado. The district court determined the objective prong was not met because ANI employees had been working on the project for several months and on the specific scaffolding for over two weeks. It pointed to evidence that employees testified the scaffolding was green tagged and did not think the scaffolding was unsafe. The district court also noted that Camarena was an experienced worker. For the subjective prong, it noted ANI employees saw a green tag on the scaffolding the day in question, and despite seeing the block on the scaffold, they did not think it was unsafe. It noted that Camarena presented no evidence that he lacked training or preparation to work on the scaffolding or that ANI denied him assistance in a terrifying situation. The district court determined that, to avoid summary judgment, Camarena had to demonstrate a combination of deadly conditions, profit-motivated disregard for easily implemented safety measures, complete lack of worker training or preparation, and outright denial of assistance to a worker in a terrifying situation. Finally, the district court determined that Camarena's Delgado claim was extinguished when Gomez and Garcia were dismissed with...
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