Lewars v. Eftec N. Am., LLC
| Decision Date | 28 January 2016 |
| Docket Number | CIVIL ACTION No. 14-02891 |
| Parties | JIM LEWARS, Plaintiff, v. EFTEC NORTH AMERICA, LLC, Defendants. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Plaintiff Jim Lewars, a Pennsylvania resident and employee of Linden Bulk Transportation, filed a negligence action against Defendant EFTEC North America, LLC ("EFTEC"), a Michigan corporation, alleging he slipped and fell on a patch of ice on a truck ramp on EFTEC's property. Compl. (doc. 1). EFTEC seeks summary judgment, asserting that, under Michigan law, EFTEC owed no duty to Lewars to protect him from the ice patch—an open and obvious condition. Def.'s Mot. for S.J. Br. (doc. 28). Lewars argues summary judgment is not appropriate because even if Michigan substantive law applies, a genuine issue of material fact exists as to whether: 1) the ice was observable; and 2) EFTEC had actual and constructive notice of the ice. Compl. at 24-25. Because I agree that questions of material fact remain, EFTEC's motion is denied.
Summary judgment is appropriate where "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). An issue is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "material" if it "might affect the outcome of the suit under the governing law." Id.
Where there is only one reasonable conclusion from the record regarding the potential verdict under the governing law, summary judgment must be awarded to the moving party. See id. at 250. "If reasonable minds could differ as to the import of the evidence, however, a verdict should not be directed." Id. at 250-51. I must view the facts and any inferences from those facts in the light most favorable to the non-moving party. See Ray v. Warren, 626 F.3d 170, 173 (3d Cir. 2010).
In January 2014, Lewars picked up a trailer in Bensalem, Pennsylvania, and drove to EFTEC's facility in Taylor, Michigan. 12/2/14 Lewars Dep. at 177. It did not snow on that trip. Id. Upon arriving at the EFTEC facility at 7:30 a.m. on January 16, Lewars observed traces of snow on the grass. Id. at 169, 177. He did not observe any piles of snow, and did not know when it had last snowed in the area. Id. at 177; see also 12/4/14 Walden Dep. at 26 (). The sky was overcast but there was no active precipitation.1 12/2/14 Lewars Dep. at 169, 177. Lewars parked in EFTEC's parking lot to wait for another unloading truck. Id. at 171.
At 9:00 a.m., Lewars moved his truck to the offloading pad to deliver a liquid chemical, and did not notice any snow or ice on the pad. Id. at 173-74, 178. He backed the truck between the two retaining walls bordering the pad, leaving approximately five feet between thepassenger side and the wall, and no space between the driver side and the wall.2 Id. at 162-63, 180. He met Randy Sheardown, an EFTEC employee, at the front of the truck, and the two men walked along the passenger side of the truck to retrieve a liquid chemical sample from the valve that released the chemicals at the middle of the trailer. Id. at 158, 175. Lewars did not look down at the ground while walking along the truck, but looked at the ground next to the tank where the sample was taken and did not notice snow or ice. Id. at 176.
After providing a sample to Sheardown, the two men walked back toward the front of the truck. Id. at 178. Lewars observed Sheardown walk toward the warehouse to deliver the sample, and Sheardown had no trouble with his footing. Id. at 172. Lewars walked down the driver's side to the back of the tractor where the hoses were stored. Id. at 178-79. He did not look at the ground or feel anything slippery while walking. Id. at 179. Lewars climbed onto the back of the truck, removed a hose from the hose rack, and threw it on the ground on the passenger's side. Id. at 179. He then climbed down and walked around the front of the tractor to retrieve the hose. Id. After connecting the hose to the discharge port on the truck, he attempted to hook the other end of the hose to EFTEC's unloading port but discovered the hose was too short. Id. at 182. Lewars walked around the front of the trailer a third time to retrieve another hose from the passenger's side of his rig, and then a fourth time to retrieve the that second hose he had thrown to the ground. Id. at 17 8-8 3. As he walked around the front of the truck this fourth time, Lewars stepped on an area of ground he had not previously walked on, his right foot slipped, and he fell to the ground. Id. at 183-85. He was looking straight ahead at the time he fell. Id. at 186.
After falling, Lewars noticed a clear sheet of ice, approximately the size of a legal pad, on the ground that blended with the concrete. Id. at 187-88. That was the only patch of ice Lewars observed that morning. Id. at 188. There were no signs in the area warning about ice or slippery conditions, id. at 196, and Sheardown did not warn Lewars about slippery conditions, id. at 174-6. Lewars did not observe plowing or other contract work in the area.3 Id. at 196. When Sheardown walked from the warehouse toward Lewars after he fell, Lewars again observed that Sheardown had no trouble with his footing. Id. at 191-92.
Following Lewars's fall, Sheardown completed an accident report, noting "T-2 Tanker Pit" as the site of the accident, and "[w]ater leaking from the tank farm and freezing" as a "[d]escription of events leading to incident." Pl.'s Resp. Ex. 2, Sheardown's Supervisor's First Report of Accident/Incident. Roy Burgess, an EFTEC supervisor, also completed an accident report, in which he stated Lewars "was preparing to pull hoses to unload truck" at the time he fell and that "[i]ce alongside of truck well" was the "proximate cause" of the injury. Pl.'s Resp. Ex. 3, Burgess's Supervisor's First Report of Accident/Incident. Burgess identified the "root cause" of the accident as "[i]ce on pavement surface along joint between Tank Farm and truck well formed from surficial water leaking through joint." Id. He further stated the shipping attendant was instructed "to apply ice melter to ice forming along joint" as the "corrective actions" taken "to prevent reoccurrence." Id.
Before Lewars's fall, EFTEC employees had been aware of a persisting problem of water and ice accumulation in the area of the unloading ramp. At 6 a.m. on the day of Lewars's fall,Sheardown observed a four-foot area of ice at the bottom of the truck well, around the valve area, which was something he had observed throughout most of the winter. 12/4/14 Sheardown Dep. at 16-17. That ice formed because the pump that would otherwise remove water from the area was frozen. Id. at 18. After Lewars's fall, Sheardown also observed spotty patches of ice, approximately six inches wide, along the edge of the left retaining wall, a condition that he had observed on other occasions when the temperature was cold. Id. at 19-20. Sheardown testified the moisture along the wall of the tank farm, several feet away from where Lewars fell, was a "constant issue," id. at 20, and that it was caused by the collection of rainwater and snow near the tanks that seeped through the retaining wall, id. at 22.
Walden was aware that, shortly after the area containing the T2 truck well was built in 2009, water began leaking under the retaining wall and into the edge of the T2 truck well. 12/4/14 Walden Dep. at 13-14. A contractor applied caulk to the leaking joint, which reduced the leakage, but the wall continued to leak. Id. at 14-15. There were no additional repairs because EFTEC believed the leakage was reduced enough to resolve the issue. Id. at 17-18. Nevertheless, both before and after the accident, Walden observed a dampness that originated on the vertical surface of the wall, seeped down, and created dampness on the horizontal surface immediately adjacent to the retaining wall. Id. at 16, 18.
II. Discussion
EFTEC argues that Michigan law applies in this case, see Def.'s Mot. for S.J. at 3-4, and Lewars argues Pennsylvania law applies, see Pl.'s Resp. to Mot. for S.J. (doc. 29) at 13-15.
"It is well established that a district court in a diversity action will apply the choice of lawrules of the forum state in determining which state's law will be applied to the substantive issues before it." Shuder v. McDonald's Corp., 859 F.2d 266, 269 (3d Cir. 1988) (citing Klaxon v. Stentor Electric Manufacturing Co., 313 U.S. 487, 496 (1941)). In Pennsylvania, courts follow a "flexible rule" that considers state policies and interests underlying the legal issue by using the "Second Restatement of Conflict of Laws as a starting point, and then flesh[ing] out the issue using an interest analysis." Berg Chilling Systems, Inc. v. Hull Corp., 435 F.3d 455, 463 (3d Cir. 2006).
The Pennsylvania choice-of-law analysis involves two steps: 1) determining whether a true conflict exists;4 and 2) determining which state has the greater interest in the application of its law. LeJeune v. Bliss-Salem, Inc., 85 F.3d 1069, 1071 (3d Cir. 1996). If a "true" conflict exists, the courts weigh a state's interests by assessing the contacts each state has with the accident. The types of contacts establishing significant relationships include: (1) the place where the injury occurred; (2) the place where the conduct causing the injury occurred; (3) the domicile, residence, nationality, place of incorporation, and place of business of the parties; and (4) the place where the relationship, if any, between the parties is centered. Restatement (Second) of Conflict of Laws § 145; see Blakesley v. Wolford, 789 F.2d 236, 239 (3d Cir. 1986). Courts weigh those contacts "according to their...
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