Rause v. Paperchine Inc.

Citation743 F.Supp.2d 1114
Decision Date30 September 2010
Docket NumberNo. CV–07–8076–PCT–SMM.,CV–07–8076–PCT–SMM.
PartiesDiana RAUSE, surviving natural mother of Johnny Mendoza, Jr., deceased, individually and on behalf of all wrongful death beneficiaries; Gabriel Rodriguez, a single man, Plaintiffs,v.PAPERCHINE, INC., a foreign corporation; Abitibi Consolidated Sales Corporation, a foreign corporation; Does I–X; Black Corporations I–X; and White Partnerships I–X, Defendants.
CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona

OPINION TEXT STARTS HERE

Thomas C. Hall, Hall & Bates LLP, San Antonio, TX, Keith Thomas Slack, Tracy A. Gromer, Beale Micheaels & Slack PC, Phoenix, AZ, for Plaintiffs.Matthew David Kleifield, Elliot H. Wernick, John Kristian Wittwer, Kunz Plitt Hyland Demlong Kleifield PC, Phoenix, AZ, Todd Arthur Rigby, Lewis Brisbois Bisgaard & Smith LLP, Phoenix, AZ, for Defendants.

MEMORANDUM OF DECISION AND ORDER

STEPHEN M. McNAMEE, District Judge.

Before the Court is Plaintiff Diana Rause's Motion for Partial Summary Judgment arguing that Defendants Paperchine, Inc. and Abitibi Consolidated Sales Corp. owed non-delegable duties to Plaintiff, and that Defendants retained sufficient control of safety on the worksite to lead to liability for decedent Johnny Mendoza, Jr.'s death (Doc. 135). Additionally, Paperchine and Abitibi each bring Cross–Motions for Partial Summary Judgment on the issues of premises liability and retained control (Doc. 148, 157). All the motions have been fully briefed, and oral argument was held on August 4, 2010 (Doc. 220). 1 Previously, the Court granted two motions to supplement the record (Docs. 199, 230), and the additional deposition testimony of David Young, Remi Turcotte, Richard Scullion, Christopher Davies, Dan Morris, David Lovaas, John McKee, and Johnny Mendoza, Sr. has been considered by the Court in reaching its ruling.2 Having reviewed the parties' contentions, the Court now issues this Memorandum of Decision and Order.

BACKGROUND 3

Plaintiff Diana Rause (Plaintiff) is the surviving mother of decedent Johnny Mendoza, Jr. and brings this action on behalf of herself and all wrongful death beneficiaries under A.R.S. § 12–611 et seq. Johnny Mendoza, Jr. was killed on August 16, 2006, as a result of falling more than thirty-seven feet to the floor of a paper mill (Doc. 136, Pl.'s Separate Statement of Facts (“PSSOF”) ¶ 1).

Abitibi Consolidated Sales Corporation (Abitibi) is the owner of the Snowflake paper mill where the accident occurred that led to the decedent's death. Paperchine, Inc. (Paperchine) is an engineering and service firm that specializes in the paper mill industry (Doc. 153, Def. Paperchine's Separate Statement of Facts (“DPSSOF”) ¶ G). Enerquin specializes in the design, fabrication, and installation of sheet metal hoods and exhaust systems for the paper industry ( Id. ¶ H).

Mill owner Abitibi contracted with Paperchine, a general contractor, to perform the work necessary to upgrade the # 3 machine at Abitibi's mill in Snowflake, Arizona (PSSOF ¶ 3). The Abitibi Purchase Order that finalized the parties' agreement incorporated by reference Abitibi's General Terms and Conditions, but not Paperchine's form terms and conditions (Doc. 222, Ex. A, Purchase Order). Abitibi also provided contractors such as Paperchine with its Contractor's Rules and Health and Safety Policy Manual (Doc. 136, Exs. G & H).

Paperchine, in turn, contracted with subcontractor Enerquin to remove the hoods during the upgrade of machine # 3 at the Abitibi paper mill (PSSOF ¶ 2). Decedent Johnny Mendoza, Jr. and co-worker Gabriel Rodriguez were employees of Enerquin ( Id.).4 Prior to Enerquin's work on the project, Paperchine provided Enerquin with hard copies of Abitibi's Contractor Rules and Health and Safety Policy Manual (DPSSOF ¶ O). Abitibi required each of Enerquin's employees to read the safety manual, and sign an acknowledgment that they understood the terms ( Id.) Additionally, Paperchine qualified Enerquin to assure it had adequate safety procedures ( Id. ¶¶ K–N).

At the Abitibi paper mill, Enerquin performed the duct work and hood removal in the dryer section, including supplying both its own equipment and employees for the work ( Id. ¶ AA). Between August 14, 2006, and August 15, 2006, Enerquin removed approximately twenty-one false ceiling panels above machine # 3 in order to install the cross machine duct work (PSSOF ¶ 6; DPSSOF ¶ EE).

At some point, Paperchine needed to remove at least one dryer can. After determining that it would be easier and more expeditious to use a Gantry crane to remove the dryer can(s), and since Enerquin had already removed twenty-one false ceiling panels, Paperchine requested that Enerquin remove two additional false ceiling panels to provide sufficient room for the crane (PSSOF ¶ 7; DPSSOF ¶ HH). Specifically, Paperchine asked Enerquin if Enerquin could remove two additional panels “when [Enerquin] had some people free.” (DPSSOF ¶ II)

On August 16, 2006, David Young, Enerquin's U.S. Operations Director, assigned the work to Enerquin's Field Supervisor, Johnny Mendoza, Sr.—the individual responsible for assigning work to the crew, supervising the crew, and training the crew with respect to safety and fall protection ( Id. ¶¶ JJ–KK). Johnny Mendoza, Sr. then assigned the job to remove the additional panels to his son, Johnny Mendoza, Jr., and Gabriel Rodriguez ( Id. ¶ LL).

On August 16, 2006, Johnny Mendoza, Jr., and Gabriel Rodriguez were provided with fall protection equipment, including full body harnesses, two-legged lanyards which allowed for a 100% tie-off, and retractable lanyards ( Id. ¶ NN). Johnny Mendoza, Sr., then instructed his son and Gabriel Rodriguez on the work to be completed, identified the tie-off points, reinforced the danger of working at elevation, and reminded them to make sure to tie-off ( Id. ¶ OO). In the area of fall protection, Enerquin required its employees to maintain a 100% tie off at all times ( Id. ¶ X).

For unknown reasons, Johnny Mendoza, Jr. (and Gabriel Rodriguez) disregarded Enerquin's safety requirements and the advice of their supervisor, Johnny Mendoza, Sr., by failing to maintain a 100% tie-off and, as a result, Johnny Mendoza, Jr., suffered a fatal head injury when he fell over thirty-seven feet ( Id. ¶ QQ).

STANDARD OF REVIEW

Upon motion at any time, a party defending against a claim may move for “partial summary judgment,” that is, “summary judgment on ... part of the claim.” Fed.R.Civ.P. 56(b). A court must grant summary judgment if the pleadings and supporting documents, viewed in the light most favorable to the nonmoving party, “show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2); see Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Jesinger v. Nev. Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994). Substantive law determines which facts are material. See Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Jesinger, 24 F.3d at 1130. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The dispute must also be genuine, that is, the evidence must be “such that a reasonable jury could return a verdict for the nonmoving party.” Id.

A principal purpose of summary judgment is “to isolate and dispose of factually unsupported claims.” Celotex, 477 U.S. at 323–24, 106 S.Ct. 2548. Summary judgment is appropriate 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.” Id. at 322, 106 S.Ct. 2548; see Citadel Holding Corp. v. Roven, 26 F.3d 960, 964 (9th Cir.1994). The moving party need not disprove matters on which the opponent has the burden of proof at trial. See Celotex, 477 U.S. at 323–24, 106 S.Ct. 2548. The party opposing summary judgment need not produce evidence “in a form that would be admissible at trial in order to avoid summary judgment.” Id. at 324, 106 S.Ct. 2548. However, the nonmovant “may not rest upon the mere allegations or denials of [the party's] pleadings, but ... must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e); see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585–88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir.1995).

DISCUSSION

As Plaintiff brings this claim under federal diversity jurisdiction, (Doc. 1, Compl.), the parties agree that the Court must apply Arizona substantive law. Martinez v. Asarco Inc. 918 F.2d 1467, 1470 (9th Cir.1990) (citing American Triticale, Inc. v. Nytco Servs., Inc., 664 F.2d 1136, 1141 (9th Cir.1981) ([i]t is well settled that a federal court exercising diversity jurisdiction must apply substantive state law”)). Procedural issues, however, are governed by federal law. Hanna v. Plumer, 380 U.S. 460, 470–74, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965). In the instant action, this includes the standard for reviewing entry of summary judgment. See Fed.R.Civ.P. 56(c); Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986).

In making determinations of Arizona law, the Court will follow the decisions of the Arizona Supreme Court. Decisions of Arizona's appellate courts serve as “dat[a] for ascertaining state law which [are] not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise.” Comm'r v. Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967).

In her motion for partial summary judgment, Plaintiff argues that Abitibi, as a property owner, owed non-delegable duties to Enerquin's employees to provide and maintain the premises/construction area in a safe condition and...

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