Flowers v. LEA Power Partners, LLC
| Decision Date | 17 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 AFCO Steel, LLC (AFCO) asks the Court to grant summary judgment dismissing the claim for strict products liability against AFCO asserted in PLAINTIFF'S SECOND AMENDED COMPLAINT (Doc. No. 165) (Complaint).1 Because the ladder from which Plaintiff fell is a product that was manufactured by AFCO, the Court will deny the Motion as to Plaintiff's Count I strict products liability claim.
On May 8, 2008, during the construction of the Steam Turbine Building (STB) at the Hobbs Generating Facility (Facility), Plaintiff was working for subcontractor Turnaround Welding Services as a pipefitter on an elevated steel platform in the STB. 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 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's third rung. Plaintiff alleges that after he slipped, he was unable to stop his fall using the ladder's side rails, which were constructed ofangle iron. 2 Plaintiff also alleges that he was unable to grip the side rail because he hit his hand on the cable tray box abutting the north side rail of the ladder. 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 the ladder, the electrical conduit, and the cable tray box were unreasonably dangerous and defective as 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 cable tray box was abutting the north side rail of the ladder. (See Green Report Ex. A AFCO Mot. Part. Summ. J. Doc. No. 285.) The Occupational Health and Safety Administration (OSHA) has promulgated regulations for fixed ladders, which require that the "minimum perpendicular clearance between fixed ladder rungs, cleats, and steps, and any obstruction behind the ladder shall be 7 inches." 29 CFR § 1926.1053(a)(13).3 Thus, the conduit and the cable tray box were within the area required to be free from obstructions under OSHA standards. The ladder's side rails were constructed of angle iron with the dimensions of 2.5" x3" x 3/8". wide does not afford an adequate gripping surface. ( generally that 2" wide angle iron did not provide an adequate gripping surface). Thus, Plaintiff asserts that the Court can infer the angle iron 3" wide also does not afford an adequate gripping surface.
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 L.P.R. Construction Co. installed the fixed platform and the fixed ladder. Defendant MMR Constructors, Inc. (MMR) installed the electric conduit and the cable tray box. Defendant 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 of the ladder for AFCO. AFCO contracted with General Iron & Steel to fabricate the ladder.4
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 asa 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-moving party "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 in 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 (N.M. Ct. App.) (citations omitted), cert. denied, 106 N.M. 24, 738 P.2d 518 (1987). Under Section 402A, there are three types of product defects: manufacturing defects, design defects, and warning defects. Fernandez v. Ford Motor Co., 879 P.2d 101, 111 (N.M. Ct. App. 1994) (citing Jiminez v. Dreis & Krump Mfg. Co., 552 F. Supp. 301, 303-04 (S.D.N.Y. 1982), rev'd on other grounds, 736 F.2d 51 (2d Cir. 1984)). "Strict products liability does not, however, preclude liability against a retailer based upon the alternative ground of negligence of the seller where such negligence can be proved." Trujillo, 738 P.2d at 1333. "All parties in the chain of distribution of a defective product are strictly liable." Smith v. Bryco Arms, 2001-NMCA-090, ¶ 10, 131 N.M. 87, 33 P.3d 638.
In the Motion, AFCO asks the Court to dismiss Plaintiff's Count I strict products liability claim because the ladder at issue is not a "product" for which AFCO can be held strictly liable. The determination as to whether the ladder is a "product" is a question of law. Livingston v. Begay, 98 N.M. 712, 652 P.2d 734, 738 (N.M. 1982). However, "product" is not defined in New Mexico's products liability cases, or by the New Mexico uniform jury instructions. See NMRA, Civ. UJI Ch. 14 Products Liability Introduction ( that the committee has "attempted no definition of 'product.'"); Lay v. Vip's Big Boy Restaurant, Inc., 548 P.2d 117, 118-119 (N.M.Ct. App. 1976) (), and Ruiz v. Southern Pac. Co., 638 P.2d 406 (N.M. Ct. App. 1981) (). Cf. Kaneko v. Hilo Coast Processing, 654 P.2d 343, 344, 346-351 (Haw. 1982) (). In the comments to the Restatement (Second) of Torts, the authors gave some meaning to the term "product" when they noted that the term is not limited to the sale of food for human consumption or other products for intimate bodily use, but also extends to any item sold in the condition, or substantially...
To continue reading
Request your trial