Loredo v. Solvay America, Inc.

• Decision Date: 28 July 2009
• Docket Number: No. S-08-0031.,No. S-08-0030.,No. S-08-0032.,S-08-0030.,S-08-0031.,S-08-0032.
• Citation: 2009 WY 93,212 P.3d 614
• Parties: Jose LOREDO and Yolanda Loredo, and Alexander Loredo, a minor, by and through his next friend, Yolanda Loredo, Appellants (Plaintiffs), v. SOLVAY AMERICA, INC., a Delaware corporation, Appellee (Defendant)., Jose Loredo and Yolanda Loredo, and Alexander Loredo, a minor, by and through his next friend, Yolanda Loredo, Appellants (Plaintiffs), v. Gilbert A. Pacheco, Appellee (Defendant)., Jose Loredo and Yoland Loredo, and Alexander Loredo, a minor, by and through his next friend, Yolanda Loredo, Appellants (Plaintiffs), v. Joy Technologies, Inc., a Delaware corporation, Appellee (Defendant).
• Court: Wyoming Supreme Court

212 P.3d 614

2009 WY 93

Jose LOREDO and Yolanda Loredo, and Alexander Loredo, a minor, by and through his next friend, Yolanda Loredo, Appellants (Plaintiffs), v. SOLVAY AMERICA, INC., a Delaware corporation, Appellee (Defendant)., Jose Loredo and Yolanda Loredo, and Alexander Loredo, a minor, by and through his next friend, Yolanda Loredo, Appellants (Plaintiffs), v. Gilbert A. Pacheco, Appellee (Defendant)., Jose Loredo and Yoland Loredo, and Alexander Loredo, a minor, by and through his next friend, Yolanda Loredo, Appellants (Plaintiffs), v. Joy Technologies, Inc., a Delaware corporation, Appellee (Defendant).

No. S-08-0030.

No. S-08-0031.

No. S-08-0032.

Supreme Court of Wyoming.

July 28, 2009.

Representing Appellants: P. Richard Meyer and Pamela T. Harvey, of Meyer & Williams, P.C.; and Heather Noble; Jackson, Wyoming. Argument by Mr. Meyer.

Representing Appellees: Joe M. Tieg, Paula A. Fleck, and Susan L. Lyndrup of Holland & Hart, LLP, Jackson, Wyoming, for Appellees Solvay America, Inc. and Gilbert Pacheco; and Richard A. Mincer, Richard G. Schneebeck, and Lindsay A. Woznick of Hirst Applegate, P.C., Cheyenne, Wyoming,

for Appellee Joy Technologies, Inc. Argument by Messrs. Tieg and Mincer.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

HILL, Justice.

[¶ 1] In this appeal, we are called upon to consider three interrelated aspects of this case. All three matters arise out of the same set of factual circumstances which, in brief, are that Jose Loredo was seriously injured on August 14, 2002, when tons of rock fell on him in a Sweetwater County trona mine. At the time of the incident, Loredo was operating a roof bolting machine manufactured by Joy Technologies, Inc. Such a machine is used to secure the roof/top of the mine so that miners would not be subjected to potential injury from falling rock as the mine shaft work-areas progressed. During his work effort, the roof of the mine did collapse in the area in which he was operating (an area where the mine roof had not yet been bolted), and Loredo was rendered a quadriplegic by the injuries he suffered.

[¶ 2] In Case No. S-08-0030, Appellants, Jose Loredo, Yolanda Loredo (wife of Jose) and Alexander Loredo (Jose's minor child) (collectively, Loredo), seek review of an order of the district court that granted summary judgment dismissing Loredo's claims against Solvay America, Inc. (Solvay America), the parent company of Jose Loredo's immediate employer, Solvay Chemicals, Inc. (Solvay Chemicals).¹ The essence of Loredo's claim against Solvay America was that it exercised such a significant degree of control over safety at its subsidiary, Solvay Chemicals, as to be responsible for the lack of adequate safety in the trona mine.

[¶ 3] In Case No. S-08-0031, Loredo seeks review of an order of the district court which granted summary judgment to his co-employee/supervisor, Gilbert Pacheco (Pacheco). Loredo contended that Pacheco's supervision (or lack thereof) of safety at the work site just prior to the accident was willful, wanton and reckless (intentional) and ultimately led to Loredo's disabling injuries.

[¶ 4] In Case No. S-08-0032, Loredo seeks review of an order of the district court granting summary judgment in favor of Joy Technologies, Inc. (Joy Technologies), the manufacturer of the piece of equipment that Loredo was using at the time of his injuries. Loredo raised claims of product liability and negligent design against Joy Technologies. These claims focused on the failure of Joy Technologies to equip the roof bolter with a protective canopy so as to eliminate or reduce the possibility of serious injury from falling rock, such as that which occurred in this case.

[¶ 5] We will affirm.

ISSUES

[¶ 6] In Case No. S-08-0030, Loredo articulates this issue:

Did the district court err in granting summary judgment dismissing [Loredo's] personal injury and loss of consortium claims against Solvay America, Inc., the parent company of ... Loredo's employer?

Solvay America responds thus:

Did Solvay America exercise sufficient control over the roof bolting operations of Solvay Chemicals such that it assumed a legal duty of care towards ... Loredo, an employee of Solvay Chemicals?

In his reply brief, Loredo asserts that Solvay America broached these additional issues in its brief:

1. Does a genuine issue of material fact exist as to whether Solvay America, Inc. exercised sufficient control over relevant safety issues at the mine operated by its corporate subsidiary, Solvay Chemicals, Inc. so that summary judgment for Solvay America must be denied?

2. Does W.R.E. 407 bar considering evidence of Solvay America's involvement in subsequent remedial measures such as the purchase of new roof bolting machines equipped with canopies to show Solvay America's control over such decisions?

3. Should this Court reach the issue of whether [Loredo's] expert's opinion is admissible when the district court did not rule on this issue, and the issue is not necessary in reviewing the district court's grant of summary judgment?

In Case No. S-08-0031, Loredo raises this issue:

Whether the district [court] erred in granting summary judgment dismissing Loredo's claim against his co-employee supervisor, Gilbert Pacheco.

Pacheco restates the issue like this:

Did the district court correctly hold that [Loredo] failed to raise a genuine issue of material fact as to whether Pacheco intentionally or willfully and wantonly acted to cause Loredo harm or injury?

In his reply brief, Loredo asserts that Pacheco broached these additional issues in his brief:

1. Should this Court disregard much of the evidence in [Pacheco's] Brief as improper under the standard of review applicable when reviewing a grant of summary judgment?

2. How does this Court's recent decision in Hannifan v. American National Bank of Cheyenne, 2008 WY 65, 185 P.3d 679 (Wyo.2008) impact this case?

3. Is a co-employee defendant's violation of company policy, or the co-employee's absence from the scene prior to the accident, relevant in determining whether that co-employee acted in reckless disregard of the consequences?

4. Under all the circumstances of this case, including that [Loredo's] co-employee supervisor knew that [Loredo] was not protected from rock fall by any canopy, knew that [Loredo] was operating his roof bolting machine in an area of the mine with unstable roof conditions, and knew that [Loredo] was having difficulties with the steering mechanism of his machine, but the supervisor failed to take any action, does a genuine issue of material fact exist as to whether [Pacheco] acted with willful and wanton misconduct, as that term is interpreted by Wyoming law?

In Case No. S-08-0032, Loredo raises these issues:

1. When Loredo was severely injured in an underground trona mine by rock falling from the roof while [he] was operating a roof bolting machine designed and sold by Joy Technologies, Inc. that lacked a canopy to protect the operator from falling rocks, did the district court err in granting summary judgment dismissing [Loredo's] product liability and negligent design claims against Joy on the basis that [Loredo] was not injured by Joy's product?

2. On the record in this case, could the district court have granted [Joy Technologies] summary judgment on the ground that the roof bolting machine was not unreasonably dangerous?

3. On the record in this case, was a genuine issue of material fact presented as to whether the risk posed by [Joy Technologies'] roof bolting machine was open and obvious?

4. Was [Joy Technologies] under a non-delegable duty to install safety features such as a canopy to protect miners from falling rock on its roof bolting machine?

Joy Technologies, Inc. responds with this terse capsule of the issues:

Is summary judgment in a products liability case appropriate where the undisputed facts show the product is not unreasonably dangerous?

FACTS AND PROCEEDINGS

General Overview

[¶ 7] The instant proceedings were initiated in the district court on October 17, 2005. Loredo was employed by Solvay Chemicals. Solvay America is the parent corporation of Solvay Chemicals, Inc. As articulated by Solvay America's Chief Financial Officer:

Solvay America is a holding company that does not engage in business in its own name. Instead, [it] administers, on behalf of its subsidiaries, certain company-wide functions, including benefits plans, national contracts, travel, use of the Solvay corporate logos, taxation, treasury, insurance, auditing, and health, safety and environmental reviews for manufacturing plants and other facilities. [Id.]

[¶ 8] On the day of his injuries, August 14, 2002, Loredo was operating a "bolting machine," as he had done for many years. The bolting machine was manufactured by Joy Technologies. A roof bolter is a piece of mobile equipment used to install bolts in an underground mine to secure the roof of the mine and prevent collapse after ore is extracted by the mining process. On August 9, 2002, the machine Loredo was using on the day of his injury had undergone repairs. The bolting machine did not have a protective canopy to guard its users from falling rock and debris.

[¶ 9] Loredo was injured when a slab of rock from an unbolted portion of the roof of the mine fell on him. Loredo began his work shift on August 14, 2002, at 6:00 a.m., and the incident at issue here occurred at about 2:45 p.m. Pacheco was Loredo's immediate supervisor that day. As Loredo was moving his roof bolter from one area of the mine to another, he noticed that the left tram of the vehicle was not spinning at the same speed as the right tram, making the machine difficult to steer. Loredo detected it to be a hydraulic problem. By adjusting the speed of one of the trams, to a different speed than the other, he was able to keep it running straight. In addition to the steering difficulties, Loredo's path of progress was impeded by other operations and he drove...