Gibson v. The Selinksy Force, LLC
| Decision Date | 07 January 2022 |
| Docket Number | 1:19-cv-00283-MWM |
| Court | U.S. District Court — Southern District of Ohio |
| Parties | LEVI GIBSON, Plaintiff, v. THE SELINKSKY FORCE, LLC, et al. Defendants. |
ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT (DOCS. 40, 41)
This matter is before the Court on Defendant Dynegy Zimmer LLC's ("Dynegy") Motion for Summary Judgment (Doc. 40) and Defendant The Selinsky Force, LLC's ("Selinsky") Motion for Summary Judgment (Doc. 41). Plaintiff filed his Responses in Opposition (Docs. 47, 48 respectively), to which each Defendant filed a Reply (Docs 49, 50). Subsequently, Dynegy filed a Notice of Supplemental Authority (Doc. 52) for the Court's consideration. Thus this matter is ripe for the Court's review. For the reasons below, Defendants' Motions are GRANTED.
This lawsuit arises from an accident at the William H. Zimmer Power Station ("Zimmer Station"), then owned and operated by Dynegy, which resulted in injuries to Plaintiff. (Dynegy Statement of Proposed Undisputed Facts, Doc. 40-1, at ¶ 1.) At that time, Plaintiff was employed by Defcon Force LLC ("Defcon"), and Selinsky was the parent company of Defcon. (Id. at ¶ ¶ 2-3.) Defcon specialized in performing work on pulverizers at coal power plants. (Id. at ¶ 4.) A pulverizer is a large piece of machinery that crushes coal into dust. (Id. at ¶ 5.)
In 2010, Selinsky purchased Defcon. (Selinsky Statement of Proposed Undisputed Facts, Doc. 41-2, at ¶ 17). Selinsky contends that, thereafter, the companies continued to run separately and independently, as they had prior to the acquisition, except that Selinsky handled Defcon's accounting. (Id. at ¶ 18.) According to Selinsky, Defcon continued to use its own standard operating procedures in furtherance of its business, including how work was performed on pulverizers. (Id. at ¶ 21.) Indeed, Selinsky indicates that its safety director was not tasked with responsibility over, or enforcement of, Defcon's safety program. (Id. at ¶¶ 23; 27.) Nor did Selinsky provide or implement its safety policies to Defcon, train Defcon on its safety policies, nor enforce its safety policies on Defcon. (Id. at ¶ 28.)
Plaintiff describes the relationship between Defcon and Selinsky differently, especially as it pertains to safety, relying almost entirely on the deposition of Joseph Dimel, Defcon's division manager. According to Plaintiff, Defcon did not have its own safety program and instead, Defcon employees relied on Selinsky's safety program. (Deposition of Joseph Dimel ("Dimel Dep."), Doc. 37, at Pg. ID 512, 30:22-31:8). Mr. Dimel described the Selinsky program as "a health and wellness safety program." (Id. at Pg. ID 512, 31:22-23.) When asked about the training Selinsky provided, Mr. Dimel explained that Selinsky's safety director "would come down and do the manager safety orientation, . . . twice a year." (Id. at Pg. ID 513, 35:19-36:3.) Seiinsky would also periodically receive signed job safety sheets from Defcon employees. (Id. at Pg. ID 514, 38:24-39:13.)
Since he began working for Defcon, Plaintiff performed pulverizer rebuilds or preventative maintenance on pulverizers at several different coal plants, including Zimmer Station. (Dynegy Statement of Proposed Undisputed Facts, Doc. 40-1, at ¶ 7.) Plaintiff did not receive any formal training from Defcon at any time prior to the accident. (Id. at ¶ 8.) Instead, any training Plaintiff received was from the local millwright union or on-the-job training from the Defcon foreman. (Id. at ¶ 10.) In fact, Plaintiff learned how to perform pulverizer preventative maintenance and rebuilds by watching other Defcon employees perform the work and from instructions provided by the Defcon foreman. (Id. at ¶ 11.) Plaintiff never saw any Selinsky safety policies nor did he communicate with anyone from Selinsky prior to his accident. (Selinsky Statement of Proposed Undisputed Facts, Doc. 41-2, at ¶ 4, 8.)
Beginning in March of 2017, and continuing into April, Defcon performed preventative maintenance on the pulverizers at Zimmer Station. (Dynegy Statement of Proposed Undisputed Facts, Doc. 40-1, at ¶ 17.) Pulverizer preventative maintenance consists of performing general inspections, oil changes, welding, and repairs on the inside of the pulverizer mill. (Id. at ¶ 12.) When performing the preventative, the worker must work from an elevated position to open the maintenance door on the side of the pulverizer and access the inside. (Id.)
Defcon's method for accessing a pulverizer door was to elevate the employee in a man basket that it made. (Id. at ¶ 13.) So, to do that, Defcon's practice was to attach the man basket to a forklift using a metal rope threaded through an eye bolt on the man basket and wrapped around the mast of the forklift. (Id. at ¶ 14.) When elevating employees in the man basket, to act as fall protection, Defcon would attach a six-foot lanyard to an eyelet on the inside of the man basket itself and the worker would wear a harness. (Id. at ¶¶ 15-16.)
Defcon, through its foreman, Mr. Johnson, performed a job safety analysis every morning, which involved Mr. Johnson reviewing with the Defcon crew the work they would be doing each day and the potential risks and hazards. (Selinsky Statement of Proposed Undisputed Facts, Doc. 41-2, at ¶ 11.) These meetings usually lasted five to ten minutes and occurred in Defcon's trailer. (Dynegy Statement of Proposed Undisputed Facts, Doc. 40-1, at ¶¶ 23-25.) Mr. Johnson would complete a Selinsky job safety analysis form and submit the form, signed by the crew, to Selinsky. (Id. at ¶¶ 26-27.) Occasionally, Dynegy's contractor liaison or on-site safety specialist would attend the job safety analysis meetings. (Id. at ¶¶ 29-31.)
Dynegy did not have a policy regarding how contractors should open pulverizer doors, including how the contractors should be elevated. (Id. at ¶ 18.) Nor did Dynegy approve Defcon's use of equipment that Defcon used to perform its work at Zimmer Station or instruct Plaintiff how to perform his work. (Id. at ¶ ¶ 20, 33.) Carolyn Burch, Dynegy's on-site safety specialist, had the authority to stop work if she observed a contractor engaging in an unsafe practice, but she never saw Defcon use a man basket attached to a forklift. (Id. at ¶¶ 35-36.)
Similarly, Selinsky did not inspect the man basket nor provide any training relating to it. (Selinsky Statement of Proposed Undisputed Facts, Doc. 41-2, at ¶ 30.) In fact, Selinsky's safety director did not know the man basket existed. (Id. at ¶ 47.)
Furthermore, Selinsky was not involved in the Zimmer Station project at all prior to the accident. It did not visit Zimmer Station during the project, and Selinsky's safety director was not aware that Defcon was even working at Zimmer Station, let alone what work Defcon was performing there. (Id. at ¶¶ 39, 43-44.) Thus, Selinsky's safety director never inspected Defcon's work at Zimmer Station, nor did he perform a worksite hazard assessment for Defcon's work there. (Id. at ¶¶ 45-46.) In fact, Selinksy never conducted a safety audit of Defcon. (Id. at ¶ 35.)
The accident precipitating this lawsuit occurred on April 19, 2017. By this date, Defcon had already performed preventative maintenance on nine pulverizers, and Plaintiff had been on the project for three or four weeks. (Id. at ¶¶ 9-10.) On this morning, Mr. Johnson performed a job safety analysis, on which Plaintiff signed off. (Id. at ¶¶ 12.)
Plaintiff admits he did not check to make sure that the man basket was attached to the forklift with the metal cable prior to Mr. Johnson elevating the basket. (Id. at ¶ 13.) After Mr. Johnson lifted Plaintiff in the man basket, the basket slid off the tines of the forklift. (Id. at ¶ 14.) The man basket, along with Plaintiff, fell to the ground resulting in Plaintiff's injuries. (Id.)
When there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law, the court shall grant summary judgment. Fed.R.Civ.P. 56(a). The moving party has the burden to conclusively show that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994). If the moving party meets that burden, then it becomes the nonmoving party's responsibility to point out specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The court is under no obligation to search the record for genuine issues of material fact. Betkerur v. Aultman Hosp. Ass'n, 78 F.3d 1079, 1087 (6th Cir. 1996). A "mere scintilla" of evidence in support of the nonmoving party's position is not enough to avoid summary judgment. Daniels v. Woodside, 396 F.3d 730, 734 (6th Cir. 2005). Rather, to preclude summary judgment, the nonmoving party must put forward probative evidence on which a jury could reasonably reach a verdict in that party's favor. Anderson, 477 U.S. at 251-52; Lansing Dairy, 39 F.3d at 1347. If the nonmoving party fails to make the necessary showing for an element upon which it has the burden of proof, then the moving party is entitled to summary judgment. Celotex, 477 U.S. at 323.
Dynegy (the coal power plant owner) and Selinsky (the parent company of Plaintiff's employer) each filed a motion for summary judgment on the negligence claims Plaintiff asserted against each of them. To prevail on a claim for negligence, Plaintiff must prove the following elements: (1) the existence of a duty owed by the defendant to the plaintiff, (2) the breach of duty, (3) causation, and (4) damages. Hudzik v. Boulevard Ctr. Co., 103 N.E.3d 131, 135 (Ohio Ct. App. 2017).
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