Ramirez v. Alabama Power Co., Civ. No. 94-D-1095-S.

• Citation: 898 F. Supp. 1537
• Decision Date: 22 August 1995
• Docket Number: Civ. No. 94-D-1095-S.
• Parties: Leonardo RAMIREZ, Plaintiff, v. ALABAMA POWER COMPANY, Defendant.
• Court: U.S. District Court — Middle District of Alabama

898 F. Supp. 1537

Leonardo RAMIREZ, Plaintiff, v. ALABAMA POWER COMPANY, Defendant.

Civ. No. 94-D-1095-S.

United States District Court, M.D. Alabama, Southern Division.

August 22, 1995.

COPYRIGHT MATERIAL OMITTED

Edward M. Price, Jr., Elizabeth B. Glasgow, Dothan, AL, for plaintiff.

Donald R. Jones, Jr., Walter J. McCorkle, Jr., Montgomery, AL, for defendant.

MEMORANDUM OPINION

DE MENT, District Judge.

Before the court is defendant Alabama Power Company's motion for summary judgment filed March 31, 1995. The plaintiff responded in opposition on June 15, 1995, to which the defendant replied on June 26, 1995. After careful consideration of the arguments of counsel, the relevant case law and the record as a whole, the court finds that the defendant's motion is due to be granted.

JURISDICTION AND VENUE

This court has subject-matter jurisdiction under the diversity jurisdiction statute, 28 U.S.C. § 1332, as there exists complete diversity between the parties and the amount in controversy exceeds $50,000. Venue is proper under 28 U.S.C. § 1391, and the parties do not contest personal jurisdiction.

SUMMARY JUDGMENT STANDARD

On a motion for summary judgment, the court is to construe the evidence and factual inferences arising from it in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). Summary judgment can be entered on a claim only if it is shown "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The Supreme Court has stated:

The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails 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. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

In further elaboration on the summary judgment standard, the court has said that "there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986) (citations omitted). Summary judgment is improper "if the dispute about a material fact is `genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248, 106 S.Ct. at 2510. See Barfield v. Brierton, 883 F.2d 923, 933 (11th Cir.1989).

FINDINGS OF FACT

This is a premises liability action. The issue is whether defendant Alabama Power Company ("APCo"), as a premises owner, is liable for injuries sustained by plaintiff Leonardo Ramirez ("plaintiff"), who worked for an independent contractor hired by APCo. The plaintiff was preparing to paint a steel transmission tower owned by APCo when he received an electric shock from an energized wire, causing him to fall approximately sixty feet to the ground.

At all material times to this lawsuit, the plaintiff was employed by Public Utilities Maintenance, Inc. ("PUMI"), a New York-based corporation whose business includes maintaining and painting various structures and equipment for electric utility companies. PUMI performs its services as an independent contractor throughout North America and South America.

On December 1, 1993, APCo hired PUMI to paint its steel transmission towers. The steel transmission towers specified in the contract are approximately sixty-feet high and support transmission lines running from Pinckard, Alabama to the Alabama-Florida border. The transmission lines consist of two overhead shield wires and three 115,000-volt power lines. The overhead shield wires are on insulators for telecommunications use and also act as lightning protection.

Under the contract, PUMI agreed to conduct all necessary safety inspections and to provide tools, equipment and qualified workers. APCo relinquished "any right to control the methods or manner of performance of the work by the Contractor." Contract at ¶ 14 (attached to APCo's Mot. Summ. J.). The contract further provided that all APCo's "equipment and structures ... upon which work is to be performed may be energized with electric power at all times up to a maximum voltage of 500,000 volts." Id. at ¶ 5. In an affidavit submitted by APCo, PUMI's president (Emmanuel Bortolis) states that he knew all APCo's electrical lines would "remain energized" during the performance of the contract. Bortolis' Aff. at 1 (attached to APCo's Mot. Summ. J.).

Bortolis further assured APCo that his employees "were skilled and trained in working around energized electrical equipment and that they frequently painted transmission towers while the lines were energized." Id. at 2. For example, the plaintiff testified that at the time of the accident, he had painted "electrical towers, bridges and antennas" for five years and had painted many towers while the lines were energized. Pl.'s Dep. at 44-45. APCo states that it selected the services of PUMI based on Bortolis' assurances. Water's Aff. at 1 (attached to APCo's Mot. Summ. J.). According to APCo, representatives of PUMI also said that they would warn the employees of the hazards of working near energized lines and would provide the necessary safety equipment. Id.

On December 6, 1993, PUMI commenced work under the contract. That morning, the plaintiff and other employees of PUMI met with one of APCo's employees, Wayne Gilmore ("Gilmore"), who showed them the location of the transmission towers. Gilmore's Dep. at 14-15 (attached to APCo's Mot. Summ. J.). The plaintiff did not take orders from any APCo employee but received instructions from John Andres ("Andres"), PUMI's ground foreman.¹ The plaintiff stated that when he arrived at the jobsite,

there was several people waiting—I believe from Alabama Power Company. While John Andres ... was talking to them, we start to get everything ready to paint the towers. When we had everything ready, John Andres separated us in groups of three or four persons for each tower. He gave us instructions about the job, he asked us to do a good job, nice and clean, he never said anything about the ground wire could have electricity.

Pl.'s Answer to Interrog. No. 49 (attached to APCo's Mot. Summ. J.). The plaintiff and two of the three PUMI employees in his group are from Paraguay, speak primarily Spanish and understand very little English. Andres is Greek and is not fluent in Spanish.

As the plaintiff climbed the first transmission tower and positioned himself to begin painting, he unintentionally touched one of the overshield wires, received an electrical shock and fell from the tower.² The plaintiff sustained injuries including multiple broken bones, internal damage and cerebral concussion. It is undisputed that the overshield wires carried voltage that day and were not grounded and/or insulated to prevent an electrical shock upon contact. Thereafter, the plaintiff commenced this diversity action seeking recovery from APCo on theories of negligence and wanton misconduct. After conducting discovery, APCo filed its motion for summary judgment as to all claims in the complaint.

In opposing summary judgment, the plaintiff has submitted the affidavit of his expert, Roy Martin ("Martin"), who is experienced in the field of electrical engineering. Martin gave his opinion that the "insulated static wires" should have been grounded and that APCo did not comply with industry standards, in part, because it failed to have "qualified electrical persons to ensure the safety of the painters." Martin's Aff. at VII. Martin further asserts that due to the language barrier between PUMI's workers and APCo's employees, "it is substantially impossible for the painters to have been adequately warned about the insulated static wires." Id. at VIII and IX. Martin concludes with this statement:

Based on my review of the materials ..., together with my experience, it is my opinion that the fall and the injuries sustained by the plaintiff were the foreseeable result of APCo's failure to provide adequate supervision, failure to ground the static wires, failure to adequately warn of the danger of static wires that were not grounded, failure to ensure that PUMI employees were adequately trained and given adequate safety equipment, and failure to abide by industry standards in asking the plaintiff to work under such inherently dangerous conditions.

Id. at XI (brackets supplied).

At the time of the accident, there were two APCo employees nearby, Sammy Nolan ("Nolan") and Gilmore.³ They were present to ensure contract compliance, to show the painters the location of the transmission towers, to act as a liaison between the painters and the adjoining landowners, and to show the painters the route to take across adjacent lands when moving from tower to tower. See Nolan's Dep. at 12; Gilmore's Dep. at 10. Furthermore, it is undisputed that APCo's personnel did not supervise the painters, instruct them on how to paint or give any safety instructions such as the proper method to ascend or descend a tower or how they should position themselves when painting the towers. Moreover, APCo had no control over the number of painters present, the number of days to be worked or the number of hours to be worked each day.

DISCUSSION

The plaintiff has sued APCo for negligence and wanton misconduct claiming that APCo (1) breached its duty to provide him a safe work place, (2)...