Cazales v. Lecon, Inc., Civil Action No. H-96-3659.

• Citation: 994 F.Supp. 765
• Decision Date: 02 October 1997
• Docket Number: Civil Action No. H-96-3659.
• Parties: Irene CAZALES, Individually and as Next Friend of Rogelio Cazales, et al., Plaintiffs, v. LECON, INC., et al., Defendants, LECON, INC., Third-Party Plaintiff, v. UNITED STATES of America, Third-Party Defendant.
• Court: United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas

Page 765

994 F.Supp. 765

Irene CAZALES, Individually and as Next Friend of Rogelio Cazales, et al., Plaintiffs, v. LECON, INC., et al., Defendants, LECON, INC., Third-Party Plaintiff, v. UNITED STATES of America, Third-Party Defendant.

Civil Action No. H-96-3659.

United States District Court, S.D. Texas.

October 2, 1997.

Patricia A. Hill, Patricia Hill and Associates, Kyle Allen Frazier, Frazier & Frazier, Houston, TX, for Irene Cazales, Rogelio Cazales, Jr., Mayra S. Cazales, Felipe Cazales Gonzales, Rosa Maria Rosa Maria Fraire De Cazales.

Christopher C. Pappas, Dunn Kacal Adams Pappas and Law, Houston, TX, for Lecon, Inc.

James David Ebanks, Giessel Barker and Lyman, Houston, TX, for Landscape Construction Inc.

Gina Vaccaro Fulkerson, Thomas H. Padgett, Jr., Hudgins Hudgins & Warrick, Houston, TX, for Heights Electric, Inc., Associated Electrical Services Inc.

William K. Luyties, Lorance & Thompson, Houston, TX, for Huitt-Zollars Inc.

William Brad Howard, Office of U.S. Atty., Houston, TX, for Bob Clifton, U.S.

Joseph Alan Callier, Callier & Garza, Houston, TX, for U.S.

Craig Haworth Clendenin, Benckenstein Norvell & Nathan, Houston, TX, for O'Day Drilling Co.

Mark Travis Curry, Hughes Watters & Askanase, Houston, TX, for Valley Forge Ins. Co.

MEMORANDUM AND ORDER

CRONE, United States Magistrate Judge.

Pending before the court is Defendant and Third-Party Defendant United States Department of Veterans Affairs' ("the VA") motions to dismiss for lack of subject matter jurisdiction and for failing to state a claim upon which relief can be granted, or in the alternative for summary judgment (#'s 7, 85). The VA seeks to dismiss Plaintiffs Irene Cazales, Individually and as Next Friend of Rogelio Cazales and Mayra S. Cazales, Felipe Cazales Gonzales, and Rosa Maria Fraire de Cazales's ("the Cazaleses") wrongful death and survival action and Lecon, Inc.'s ("Lecon") third-party claim seeking contribution or indemnification.

Having reviewed the pending motions, the submissions of the parties, the pleadings, and the applicable law, this court is of the opinion that the United States' motions for summary judgment should be GRANTED.

I. Background

The present case arises from the death of Rogelio Cazales ("Rogelio"), who was electrocuted while excavating at the Houston National Veteran's Administration Cemetery ("the cemetery"). In 1995, the VA awarded a contract to Lecon to serve as the general contractor in the expansion of the cemetery. Lecon, in turn, subcontracted work to: (1) Associated Electrical ("Associated"), the electrical subcontractor; (2) Huitt-Zollars ("Huitt"), the engineering subcontractor; and (3) Landscape Construction ("Landscape"), the landscaping subcontractor. This project included the development of 130 acres of land to hold 20,000 grave sites and other improvements, including refurbishing two well houses and related electrical equipment. One of the wells, Number Two, was located in an area in which a fence topped by barbed wire surrounded the perimeter. Before the project commenced, padlocks secured the gate to this area as well as the metal cabinet containing the live electrical switch. Signs were posted on both the front and rear doors to the enclosure containing the electrical switch with the warning "Danger/High Voltage" printed in large letters. When the project began, Lecon asked the VA to remove its padlocks to permit Lecon to substitute its own padlocks. Clyde Rowney, the Cemetery Director, complied with Lecon's request.

On January 3, 1996, Charles Winward ("Winward"), the foreman of the electrical subcontractor, Associated, went to Bob Clifton ("Clifton"), the VA Resident Engineer, in an attempt to determine whether the area around Well Number Two was electrified, or "hot." Although he was not performing his weekly safety check at the time, Clifton accompanied Winward to the switch of Well Number Two, but Winward did not have the appropriate equipment with him to test the switch. After securing a voltage tester later in the day, Winward tested the switch and determined that it was "hot." Winward informed Clifton that the switch was electrified, but they were unable to ascertain the manner in which the power could be turned off. Winward told his boss, the electrical subcontractor's superintendent, that the switch was "hot." Clifton contends that on the same day he also told Dan Montana ("Montana"), the project manager for Lecon, that the switch was "hot," and requested that Montana provide him with the "as built" plans so that it could be determined how to shut off the switch. Montana denies this. Nevertheless, a few days later, Montana provided the "as built" plans to Clifton, who passed them on to Winward. In his declaration, Winward stated that he informed Montana on January 4, 1996, as well as on other occasions, that the switch was energized.

On January 23, 1996, Rogelio, an employee of Landscape, was operating a backhoe in an attempt to excavate for a water line at the site of the cemetery expansion. In his excavation, Rogelio uncovered a gray electrical conduit. Rogelio then went to his supervisor at Landscape to determine if the wires within the conduit were "hot." After checking with Associated, Lecon, and Huitt, Rogelio's supervisor advised him that the wiring had been de-energized years ago. As a result, Rogelio continued his excavation duties. When the excavation took him near the transformer at Well Number Two, he got off the backhoe to see whether the transformer was connected. Despite two warning signs cautioning "Danger/High Voltage," Rogelio touched the transformer and was immediately electrocuted.

The underlying contract between Lecon and the VA contains several provisions addressing the respective duties and responsibilities of Lecon and the VA. At least one of these provisions transfers the primary duty of ensuring the safety of employees and other persons during the project to Lecon. Under clauses 1.42(d) and 1.43 of the contract, the VA retains an "oversight" or "policing" role with regard to safety on the job site. These and other provisions mandate that the VA's Contracting Officer conduct regular inspections of the work site to ensure the safety of government personnel and the public.¹ The Contracting Officer is also required to inform the contractor in writing of any imminent dangers to the public or government personnel that he discovers.

Notably, Clifton was the only VA employee assigned to the 130-acre site, while the contractors often had in excess of thirty employees on the job at various locations performing different functions, making it impossible for Clifton to monitor all safety hazards constantly. In determining which areas warranted the greatest attention, Clifton gave priority to areas where VA employees or visitors were likely to be found, as his spot checks were to be performed for the government's benefit, not for that of its contractors or subcontractors. In his declaration, Clifton stated that he did not expect to find VA visitors or employees around the transformer. Clifton further indicated that he had no reason to believe that any imminent danger existed at or around the transformer.

The Cazaleses initially filed suit in probate court in Harris County, Texas, against Lecon and others, asserting negligence, wrongful death, and survival claims. Lecon, in turn, filed a third-party claim against Clifton seeking contribution and/or indemnification for his alleged negligence in causing the electrocution of Rogelio. The case was removed to federal court on October 25, 1996. On December 3, 1996, the VA was substituted for Clifton as a third-party defendant, and on May 1, 1997, the Cazaleses amended their complaint to name the VA as an additional defendant.

II. Analysis

A. Summary Judgment Standard

Rule 56(c) provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Williams v. Adams, 836 F.2d 958, 960 (5th Cir.1988). The moving party, however, need not negate the elements of the nonmovants' case. See Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996) (citing Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994)).

Once a proper motion has been made, the nonmoving parties may not rest upon mere allegations or denials in the pleadings, but must set forth specific facts showing the existence of a genuine issue for trial. See Celotex Corp., 477 U.S. at 322-23; Anderson, 477 U.S. at 257; Wallace, 80 F.3d at 1047; Little, 37 F.3d at 1075. The controverted evidence must be viewed in the light most favorable to the nonmovants, and all reasonable doubts must be resolved against the moving party. See Palmer v. BRG of Ga., Inc., 498 U.S. 46, 49 n. 5, 111 S.Ct. 401, 112 L.Ed.2d 349 (1990); Anderson, 477 U.S. at 255; Judwin Properties, Inc. v. United States Fire Ins. Co., 973 F.2d 432, 435 (5th Cir.1992). Nevertheless, "conclusory allegations, speculation, and unsubstantiated assertions are inadequate to satisfy the nonmovant's burden." Douglass v. United Serv. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir.1996) (citing Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871, 115 S.Ct. 195, 130 L.Ed.2d 127 (1994)); see Wallace, 80 F.3d...