Flowers v. Lea Power Partners, LLC
| Decision Date | 08 April 2012 |
| Docket Number | 09-CV-569 JAP/SMV |
| Court | U.S. District Court — District of New Mexico |
| Parties | GERALD FLOWERS, Plaintiff, v. LEA POWER PARTNERS, LLC, COLORADO ENERGY MANAGEMENT, LLC J.A. FREE, JR. & COMPANY, AFCO STEEL, LLC, BURNS & ROE ENTERPRISES, INC., MMR CONSTRUCTORS, INC., L.P.R. CONSTRUCTION CO., Defendants. and LEA POWER PARTNERS, LLC, and COLORADO ENERGY MANAGEMENT, LLC, Third-Party Plaintiffs, v. L.P.R. CONSTRUCTION CO. and MMR CONSTRUCTORS, INC. Third-Party Defendants. and AFCO STEEL, LLC, Third-Party Plaintiff, v. J.A. FREE, JR. & COMPANY, MMR CONSTRUCTORS, INC., L.P.R. CONSTRUCTION CO. and BURNS & ROE ENTERPRISES, INC. Third-Party Defendants. |
Defendant L.P.R. Construction Co. (LPR) asks the Court to grant summary judgment dismissing all of the claims brought in PLAINTIFF'S SECOND AMENDED COMPLAINT (Doc. No. 165) (Complaint). Plaintiff Gerald Flowers (Plaintiff) and Defendant MMR Constructors, Inc. (MMR) oppose LPR's motion for summary judgment.1
In the Complaint, Plaintiff has asserted two claims: Count I for strict products liability and Count II for negligence in connection with an accident in which Plaintiff fell from a fixed ladder located in the Steam Turbine Building (STB) at the Hobbs Generating Facility (Facility). Because LPR has conceded that there are disputed fact issues as to when the ladder was installed, the Court will deny LPR's motion for summary judgment on Plaintiff's negligence claim. However, LPR, as the installer of the ladder, is not part of the chain of supply of the ladder; hence, the Court will grant the Motion in part and will dismiss Plaintiff's Count I claim against LPR for strict products liability.
On May 8, 2008, during the construction of the STB, Plaintiff was working for subcontractor Turnaround Welding Services as a pipefitter on an elevated steel platform in theSTB. Plaintiff alleges that after ascending the stairs to the platform, he discovered that he had forgotten a tool below. Instead of using the stairs, Plaintiff used the nearby fixed step-through ladder attached to the platform to descend to the lower level. As Plaintiff began to descend the ladder, his foot allegedly slipped on an electrical conduit (one-inch pipe) behind the ladder. Plaintiff alleges that after he slipped, he was unable to stop his fall using the ladder's side rails constructed of angle iron. Plaintiff also alleges that he was unable to grip the side rail because he hit his hand on a cable tray box abutting the north side rail of the ladder.2 Plaintiff fell approximately 15 to 20 feet to the concrete floor, broke his right calcaneus (heel bone), and allegedly suffered back and neck injuries.
In Count I of the Complaint, Plaintiff asserts a claim for strict liability for the defective design and manufacture of the fixed ladder, the electrical conduit, and the cable tray box. Plaintiff claims that ladder, electrical conduit, and the cable tray box were unreasonably dangerous and defective when they were designed, manufactured, purchased, and installed. In Count II, Plaintiff asserts a claim for the negligent design, manufacture, and installation of the ladder, the electrical conduit, and the cable tray box. The evidence shows that the conduit was located 5.75" from the center of the ladder's third rung from the top. The Occupational Health and Safety Administration (OSHA) has promulgated regulations for fixed ladders, which require the "minimum perpendicular clearance between fixed ladder rungs, cleats, and steps, and anyobstruction behind the ladder shall be 7 inches." 29 CFR § 1926.1053(a)(13).3
Plaintiff's claims are asserted against several Defendants. Defendant Lea Power Partners, LLC (LPP) is the owner of the Facility. Defendant Colorado Energy Management, LLC (CEM) was the Engineering Procurement and Construction Contractor for the construction of the Facility. Defendant LPR installed the fixed platform and the fixed ladder. Defendant MMR Constructors (MMR) installed the electric conduit and the cable tray box. Defendant AFCO Steel, LLC (AFCO) supplied the fixed ladder. Defendant Burns & Roe Enterprises, Inc. (Burns & Roe) designed the ladder. Defendant J.A. Free & Company, Inc. (Free), provided the shop drawings for AFCO. AFCO contracted with General Iron & Steel to fabricate the ladder.4
It is undisputed that LPR entered into a contract with CEM to erect the structural steel, including the ladder, within the STB, and CEM supplied the ladder to LPR for installation. It is also undisputed that CEM supplied LPR with the installation drawings and specifications for the ladder and that LPR's scope of work on the ladder was limited to installation of the ladder. Finally, it is undisputed that LPR and CEM performed a "walk through" of LPR's work, and CEM accepted LPR's work on the ladder and the platform.
However, the timing of the ladder's installation vis a vis the conduit and cable tray box is disputed. LPR alleges that in late January 2008, it assembled the fixed platform on the ground floor and then used chain falls to lift the platform into place. After the platform was secured, LPR attached the fixed ladder. LPR alleges that at the time it installed the ladder, the conduit and the cable tray box had not been installed. However, MMR contends that it installed the conduit and the cable tray box before the ladder was installed. In its Response, MMR contends that four witnesses, three MMR employees and one CEM employee, testified that MMR installed the conduit and the cable tray box prior to LPR's installation of the ladder. (See Rios Dep. 50:12-25; 51:1-25; 53:1-20; Hathaway Dep. 32:25--33:11; Mason Dep. 24:3-11; Bell Dep. 72:2-7.) MMR employee, Juan Rios, also testified that in order to install the ladder, LPR had to cut a notch in the cable tray so that the ladder would fit. (Resp. Ex. A, Rios Dep. 52:1-11; 53:9-20.) LPR's employee, Matt Meisenbach, testified that when he left the construction site in early February 2008, all of the ladders had been installed and that no conduit and no cable tray boxes were installed at that time. (Mot. Ex. M Meisenbach Dep 18:22-19:5; 48:24-49:2.)
LPR seeks summary judgment on both the strict liability and negligence claims against it because: 1) Plaintiff failed to establish that LPR negligently installed the ladder; 2) LPR as a matter of law cannot be held strictly liable as the installer of the ladder; and 3) Plaintiff failed to show that LPR breached any duty to Plaintiff. However, in its Reply, LPR conceded that disputed fact issues preclude summary judgment on the negligence claim; therefore, the Court will deny summary judgment on Plaintiff's Count II negligence claim against LPR. In this MEMORANDUM OPINION AND ORDER, the Court will only address the propriety of summary judgment on Plaintiff's strict products liability claim against LPR. The issue before the Court is whether, as a matter of law, LPR, as the installer of the ladder, is subject to strictproducts liability for Plaintiff's injuries caused by the allegedly defective ladder.
Under Fed. R. Civ. P. 56, the Court "shall grant summary judgment if the movant shows that 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) (). The movant may meet its Rule 56 burden by pointing out to the court that the non-movant "fail[ed] 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, 322-23 (1986). Once the movant has met its Rule 56 burden, the burden shifts to the non-moving party to establish the existence of a genuine issue for trial. Anderson v. Liberty Lobby, 477 U.S. 242, 256 (1986).
Because the Court's jurisdiction over this case is based on diversity of citizenship, the Court will apply New Mexico substantive law. Butt v. Bank of America, N.A., 477 F.3d 1171, 1179 (10th Cir. 2007). If the state's highest court has not addressed a dispositive legal issue, a federal court must determine what decision the state court would make if faced with the same facts and issues by considering state intermediate appellate court decisions, decisions of other states, federal decisions, and the general weight and trend of authority. Armijo v. Ex Cam, Inc., 843 F.2d 406, 407 (10th Cir.1988).
New Mexico adopted the principle of strict products liability based on the Restatement (Second) of Torts Section 402A (1965) in Stang v. Hertz Corp., 83 N.M. 730, 732, 497 P.2d 732, 734 (1972). As set out in Stang, Section 402A provides:
Trujillo v. Berry, 106 N.M. 86, 88, 738 P.2d 1331, 1333 (...
To continue reading
Request your trial