Omnisource Corp. v. M

• Decision Date: 29 May 2015
• Docket Number: No. 5:13-CV-772-D,5:13-CV-772-D
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: OMNISOURCE CORPORATION, Plaintiff, v. HEAT WAVE METAL PROCESSING, INC., Defendant.

OMNISOURCE CORPORATION, Plaintiff, v. HEAT WAVE METAL PROCESSING, INC., Defendant.

No. 5:13-CV-772-D

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION

May 29, 2015

ORDER

On November 4, 2013, OmniSource Corporation ("OmniSource" or "plaintiff") sued Heat Wave Metal Processing, Incorporated ("Heat Wave" or "defendant"), alleging negligence and negligent hiring, training, and supervision. See Compl. [D.E. 1]. On December 4, 2013, Heat Wave answered the complaint and asserted several defenses, including contributory negligence [D.E. 10]. On June 5, 2014, OmniSource moved to amend its complaint to respond to Heat Wave's contributory negligence defense [D.E. 17]. On June 16, 2014, the court granted that motion [D.E. 19], and OmniSource filed an amended complaint [D.E. 20]. On July 3, 2014, Heat Wave answered the amended complaint [D.E. 21]. On October 19, 2014, OmniSource moved to strike the testimony of Heat Wave's expert witness, Hart C. Kerlin [D.E. 28], and filed a supporting memorandum [D.E. 28-1]. On October 24, 2014, Heat Wave moved for summary judgment [D.E. 29] and filed a supporting memorandum [D.E. 31]. On November 10, 2014, Heat Wave responded to OmniSource's motion to strike [D.E. 35]. On November 13, 2014, OmniSource responded to Heat Wave's motion for summary judgment [D.E. 36]. On November 26, 2014, Heat Wave replied to OmniSource's response to the motion for summary judgment [D.E. 37]. As explained below, the court denies OmniSource's motion to strike and grants in part Heat Wave's motion for summary judgment.

I.

A.

OmniSource is an Indiana corporation with its principal place of business in Indiana. Am. Compl. [D.E. 20] ¶ 1. OmniSource "is a processor and distributor of scrap and secondary metals" and has "facilities in multiple states, including North Carolina." Id. Heat Wave is a South Carolina corporation that offers scrap metal processing services. Id. ¶ 2; Def.'s Answer Am. Compl. [D.E. 21] ¶ 2; Lowe Dep. [D.E. 31-6] 7 (deposition page 20). "Scrap metal processing" involves using a torch to cut heavy metals, cleaning the cut metal, and sending it to a foundry or mill. See Lowe Dep. [D.E. 31-6] 7-8 (deposition pages 20-22). Heat Wave typically performs its services on-site at a client's plant or scrap yard. See id. 7-8 (deposition pages 21-22).

In February 2012, Heat Wave sent two of its employees, Danny Lowe and Phillip Starnes ("Lowe" and "Starnes," respectively), to a processing job at OmniSource's scrap yard in Smithfield, North Carolina. Cf. id. 9 (deposition pages 28-29). The job for OmniSource was estimated to last "roughly four to six weeks." Id. 9 (deposition page 29). As part of his employment with Heat Wave, Lowe had worked with OmniSource at its Smithfield facility. Id. 9 (deposition pages 26-27). In February 2012, Lowe was one of Heat Wave's "most experienced" torchers, having been with Heat Wave for approximately fourteen years. Id. 6, 11 (deposition pages 15, 37). Starnes, however, had only been a Heat Wave employee for "about a year." Id. 13 (deposition page 43); see Starnes Dep. [D.E. 31-9] 5 (deposition page 11).

On March 7, 2012, "roughly three to five weeks" into the OmniSource job, Lowe and Starnes were processing steel rotors in OmniSource's scrap yard. Lowe Dep. [D.E. 31-6] 9 (deposition page 29)); Lowe Dep. Part II [D.E. 31-7] 19 (deposition pages 180-81). Lowe and Starnes used ESAB Oxweld 180 torches to cut the rotors. Lowe Dep. [D.E. 31-6] 16 (deposition page 57). Althoughthe rotors were mostly steel, they had manganese elements. See Lowe Dep. Part II [D.E. 31-7] 19 (deposition pages 180-81); [D.E. 31-14] 5. Lowe and Starnes were working in an area of the scrap yard known as the "bone yard." Zimmerman Dep. [D.E. 31-10] 8 (deposition page 24).

That afternoon, Ricky Zimmerman ("Zimmerman"), an OmniSource employee, assisted Lowe and Starnes by "cleaning the spread," which entails using a large machine with a grappling hook or magnet, known as a material handler, to either turn pieces of metal for cutting or move already-processed pieces aside. See Lowe Dep. [D.E. 31-6] 13 (deposition page 44); Lowe Dep. Part II [D.E. 31-7] 4 (deposition page 118); Zimmerman Dep. [D.E. 31-10] 8 (deposition pages 22-23). At all relevant times, the material handler was near where Lowe and Starnes were torching. See Lowe Dep. Part II [D.E. 31-7] 7 (deposition page 132); Zimmerman Dep. [D.E. 31-10] 19 (deposition pages 68-69).

After Zimmerman finished cleaning the spread, Zimmerman powered down the material handler. See Zimmerman Dep. [D.E. 31-10] 8, 28 (deposition pages 25, 104-05); Starnes Dep. [D.E. 31-9] 10 (deposition page 32); Def.'s Mem. Supp. Mot. Summ. J. [D.E. 31] 2; but see Lowe Dep. Part II [D.E. 31-7] 4-5 (deposition pages 121-22); Def.'s Answer Am. Compl. [D.E. 21] ¶¶ 7-8 (claiming the material handler was "left unattended and running"). Then, either Lowe or Starnes approached Zimmerman and asked about getting some water. See Lowe Dep. Part II [D.E. 31-7] 3 (deposition page 117); Zimmerman Dep. [D.E. 31-10] 8-9 (deposition pages 25-27). There are conflicting accounts of what happened next, but at some point Lowe and Starnes returned to work in the bone yard while Zimmerman remained in OmniSource's shop. Lowe Dep. Part II [D.E. 31-7] 8-10 (deposition pages 137-42); Zimmerman Dep. [D.E. 31-10] 20 (deposition pages 71-72).¹ Theshop was located about 50 feet from the bone yard and had a large open "shop area" and a separate office space. Zimmerman Dep. [D.E. 31-10] 10 (deposition pages 32-33). There were two "big bay" doors in the shop area that opened out onto the bone yard. Id. 10 (deposition page 33).

When Lowe and Starnes resumed torching, Lowe was 15 to 20 feet from the material handler and Starnes was about 40 feet away from the material handler. See Davis 30(b)(6) Dep. [D.E. 31-2] 6, 9 (deposition pages 14, 27); Lowe Dep. Part II [D.E. 31-7] 2-3, 28 (deposition pages 113-14, 217); Zimmerman Dep. [D.E.31-10]19 (deposition pages 68-69). Lowe had his back towards the material handler and was torching in the opposite direction. Lowe Dep. [D.E. 31-6] 29 (deposition page 106). Lowe was the closest person to the material handler. Lowe Dep. Part II [D.E. 31-7] 12-13, 28 (deposition pages 153-54, 217). Lowe did not ask Zimmerman to move the material handler before resuming torching. See Zimmerman Dep. [D.E. 31-10] 19-20 (deposition pages 69-70).

Zimmerman was not aware that Lowe and Starnes had resumed and could not see them because he was in the office, which does not have a window or door to the bone yard. Zimmerman Dep. [D.E. 31-10] 13, 26 (deposition pages 42, 97); but see Stallings Dep. [D.E. 31-8] 8 (deposition page 23) (suggesting that Zimmerman was in the shop). Chris Stallings, OmniSource's maintenance supervisor, was aware that Lowe and Starnes had resumed torching and could see them from his place in the shop. Stallings Dep. [D.E. 31-8] 5-6, 8 (deposition pages 13-14, 23).

At some point after resuming torching, Lowe noticed, "out of the corner of [his] right eye," thick, black smoke coming from the material handler. Lowe Dep. [D.E. 31-6] 29 (deposition pages107-08); Lowe Dep. Part II [D.E. 31-7] 11 (deposition pages 146-47). Lowe then "cut [his] torch off, ran to the shop and told" someone about the smoke. Lowe Dep. Part II [D.E. 31-7] 11 (deposition pages 148-49). Starnes also ran to the shop to inform OmniSource employees about the fire. Starnes Dep. [D.E. 31-9] 8, 12 (deposition pages 25, 39). Less than a minute later, Lowe and Starnes returned to the bone yard and saw flames coming out of the material handler's engine compartment. Lowe Dep. Part II [D.E. 31-7] 11, 12 (deposition pages 148-49, 151); cf. Starnes Dep. [D.E. 31-9] 15 (deposition page 51) (noting the fire was "blazing" when they returned to the yard); but see Starnes Dep. [D.E. 31-9] 12, 14 (deposition pages 38, 47) (claiming that the material handler was "already on fire" when he first looked up and before he went into the shop). At that point, Lowe "went straight to the water cannon" and began spraying the material handler. Lowe Dep. Part II [D.E. 31-7] 12 (deposition page 150); Starnes Dep. [D.E. 31-9] 12 (deposition page 39). OmniSource employees also tried to extinguish the fire. See Stallings Dep. [D.E. 31-8] 6 (deposition pages 16-17); Lowe Dep. Part II [D.E. 31-7] 12 (deposition page 151). The fire department arrived "roughly 15 to 30 minutes" later. Lowe Dep. Part II [D.E. 31-7] 12 (deposition page 151). Bythat time, the fire was out or "pretty much out." Starnes Dep. [D.E. 31-9] 14 (deposition page 47).

The Smithfield Fire Department conducted a preliminary investigation and determined that the fire started in the engine compartment of the material handler, but concluded that the cause of the fire was undetermined. See Kerlin Initial Report [D.E. 28-11] 2; Kerlin Dep. [D.E. 28-12] 97 (deposition page 98).

B.

March 7, 2012, was a windy day. See Starnes Dep. [D.E. 31-9] 12, 19-20 (deposition pages 40-41, 69-70) (noting that it was "pretty windy that day"); but see Lowe Dep. Part II [D.E. 31-7] 11 (deposition page 146) (noting that there was "very little wind"). That afternoon, "the wind gustedfrom the area of [Lowe's] torching towards the material handler with speeds of up to 18 miles per hour." Def's Mem. Supp. Mot. Summ. J. [D.E. 31] 3; but see Lowe Dep. Part II [D.E. 31-7] 11 (deposition page 146) (claiming that the wind was "coming from [his] back").

The material handler at issue was a 2009 Caterpillar model. Zimmerman Dep. [D.E. 31-10] 6 (deposition page 16). That particular model was equipped with warnings and alarms that alert when there are certain problems with the machine, such as overheating and low oil. Id. 23 (deposition pages 84-85); Stallings Dep. [D.E. 31-8] 10 (deposition page 30). On March 7, 2012, no alarms or warnings went off. See Zimmerman Dep. [D.E. 31-10] 23, 25 (deposition pages 85, 93). Zimmerman testified that he inspected the material...