Flowers v. Lea Power Partners, LLC, 09-CV-569 JAP/SMV
| Decision Date | 05 April 2012 |
| Docket Number | 09-CV-569 JAP/SMV |
| 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 Plaintiff's, 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. |
| Court | U.S. District Court — District of New Mexico |
Defendant MMR Constructors, Inc. (MMR) asks the Court to grant summary judgment dismissing Plaintiff's claim against MMR for strict products liability asserted in PLAINTIFF'S SECOND AMENDED COMPLAINT (Doc. No. 165) (Complaint).1 Because MMR, as the electrical contractor that installed the conduit and the cable tray box at issue, is not part of the chain of supply of the conduit and the cable tray box, the Court will grant the Motion and will dismiss Plaintiff's Count I strict products liability claim against MMR.
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 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's third rung from the top. Plaintiff alleges that after he slipped, he was unable to stop his fall using the ladder's siderails constructed of angle iron. 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.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 the ladder, the 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 any obstruction behind the ladder shall be 7 inches." 29 CFR § 1926.1053(a)(13).3 The cable traybox abutted the ladder's right side rail and was also within the clearance area required by OSHA.
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 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 of the ladder for AFCO. AFCO contracted with General Iron & Steel to fabricate the ladder.4
For purposes of this Motion, MMR admits, as an undisputed fact, that as Plaintiff began to descend the ladder, his foot slipped on an electrical conduit (one-inch pipe) behind the ladder's third rung from the top. MMR also admits that some of the conduit that MMR installed was supplied by CEM, the general contractor, and MMR also purchased additional conduit from Cain Electric Supply. (Mot. Ex. 1, MMR Vice Pres. Tony Gibson Aff. ¶ 7.) Some of the cable tray box that MMR installed was supplied by CEM, and MMR also purchased additional cable tray from Summit Electric. (Id.) MMR also admits for purposes of this Motion that the position of the conduit and the cable tray violated OSHA standards because these items were located too close to the ladder. However, MMR maintains that despite these undisputed facts, Plaintiff's strict products liability claim against MMR fails as a matter of law.
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 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 this Motion, MMR asks for partial summary judgment on Plaintiff's Count I strict products liability claim based on four arguments:
1) as an electrical installer, MMR is not in the "chain of supply" of the conduit and the cable tray box;
2) Plaintiff has failed to prove that the conduit and cable tray box were themselves defective, but only asserts that their position in relation to the ladder was incorrect;
3) both the conduit and the cable tray box were structural improvements to a building, and are not "products" for purposes of strict liability; and
4) MMR did not design or manufacture the conduit and cable tray box.
First, MMR argues that its role was limited to installation of the conduit and the cable tray box. MMR cites several cases to support its argument that courts do not hold strictly liable a defendant who provides a professional service in which the transfer of a product is only incidental to that service. See, e.g., Jackson v. City of Franklin, 554 N.E.2d 932, 940 (Ohio Ct. App. 1988) (); Bruzga v. PMR Architects, 693 A.2d 401, 405-06 (N.H. 1997) (...
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