Ricci v. Alternative Energy Inc.

• Decision Date: 07 March 2000
• Docket Number: No. 99-1919,99-1919
• Citation: 211 F.3d 157
• Parties: (1st Cir. 2000) THOMAS R. RICCI, ETC., PLAINTIFF, APPELLANT, v. ALTERNATIVE ENERGY INC., BEAVER PLANT OPERATIONS, INC., ZURN EPC SERVICES, INC., AND ZURN INDUSTRIES, INC., DEFENDANTS, APPELLEES. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 157

211 F.3d 157 (1st Cir. 2000)

THOMAS R. RICCI, ETC., PLAINTIFF, APPELLANT, v. ALTERNATIVE ENERGY INC., BEAVER PLANT OPERATIONS, INC., ZURN EPC SERVICES, INC., AND ZURN INDUSTRIES, INC., DEFENDANTS, APPELLEES.

No. 99-1919

United States Court of Appeals For the First Circuit

Heard March 7, 2000

Decided May 2, 2000

Kevin J. McAllister, with whom Brennan, Recupero, Cascione, Scungio & McAllister and E. James Hamilton were on brief, for appellant.

Daniel R. Mawhinney, with whom Michael R. Bosse and Thompson & Bowie were on brief, for appellees Zurn Epc Services, Inc. and Zurn Industries, Inc.

Phillip D. Buckley, Paul W. Chaiken, and Rudman & Winchell, Llc on brief for appellees Alternative Energy, Inc. and Beaver Plant Operations, Inc.

Before Boudin, Circuit Judge, Bownes, Senior Circuit Judge, and Lynch, Circuit Judge.

Lynch, Circuit Judge.

A fall of some 80 feet from a tall biomass stack at a power plant in Livermore Falls, Maine, killed David Ricci, a young environmental worker sent to do emissions testing on the stack. This tort action by Ricci's father, Thomas Ricci, was brought against the company whose stack was involved, Alternative Energy, Inc., and its predecessor ("the AEI defendants") and the design/build contractor of the power plant, Zurn EPC Services, Inc., and its parent corporation ("the Zurn defendants").

The primary question in this case is whether, on the materials submitted on summary judgment, a factfinder could find only that the competing inferences explaining Ricci's cause of death are equally probable, or whether the evidence would permit the factfinder to infer that one explanation, on which plaintiff's negligence claim rests, is the more probable cause of Ricci's falling to his death. Specifically, the question is whether the inferences (for there were no witnesses to the accident) permit the conclusion that it is more likely that Ricci inadvertently fell into a ladderway opening while moving about the high platform where his work tools and gloves were found than it is that he fell as he was about to descend the ladder. The question is important to plaintiff's negligence and other tort theories because the platform next to the ladderway opening was admittedly missing safety guards called for in the design plans. The district court found the one inference no more likely than the other and, because the plaintiff could not prevail if the inferences were evenly balanced, entered summary judgment dismissing plaintiff's claim.

On appeal, plaintiff argues that the grant of summary judgment was in error for two reasons. Only a jury, and never the judge in a jury-claimed case, can weigh the probabilities of different inferences, he says, and so it was improper to resolve this question on summary judgment. The plaintiff also urges that the inference that Ricci fell through the unguarded hole is both rational and more probable or, alternatively, that the res ipsa loquitur doctrine applies to this case, entitling plaintiff to get to the jury.¹ The plaintiff is wrong on the first point, but we conclude that it was error for the district court to grant summary judgment for the defendants.

I.

Our review of the entry of summary judgment is de novo, and we resolve all reasonable inferences in favor of the non-movant in describing the undisputed material facts. See Sheehan v. Marr, 207 F.3d 35, 39-40 (1st Cir. 2000).

On August 26, 1996, Ricci was sent by his employer, Eastmount Environmental, Inc. of Rhode Island, to the Livermore Falls, Maine, power plant to conduct emissions testing on the biomass smoke stack.

The stack was housed in a structure adjacent to the "precipitator." The precipitator and the stack housing were approximately one to two feet apart. Ricci was to perform his testing high up the stack, on a platform approximately four feet wide that encircled the stack. Access to the platform was from a ladder attached to the stack that passed through a twenty-eight inch by thirty inch rectangular opening in the platform. The ladder was accessible from the precipitator roof via a catwalk approximately two to three feet wide that spanned the distance between the precipitator roof and the ladder. The platform was approximately seventy feet above the precipitator roof.

Ricci, who had never been to the Livermore Falls facility, arrived there at approximately 1:40 p.m. He spoke only briefly to the plant engineer. Ricci and a co-worker, Paul Lynch, were intended to work together. Lynch, however, had initially gone to the wrong plant. Discovering his mistake, Lynch then went to the Livermore Falls facility and found Ricci's body there. At approximately 3:30 p.m., Lynch notified Dale Dyer, the plant engineer, that he had found Ricci and requested rescue personnel. Ricci's body was in the narrow crevice between the precipitator and the stack housing, approximately two to three feet to the left of a point directly underneath the platform ladderway opening.

There were no eyewitnesses to Ricci's fall. Hair and tissue specimens and blood splatters were observed at a number of locations above, on, and below the precipitator roof level, close to the base of the ladder, and near Ricci's body. Two wrenches and an apparently unused Saf-T-Climb² were found on the precipitator roof a few feet to the right of the catwalk that accessed the ladder. Gloves and a tool box were found on the platform. One estimate is that the gloves were approximately two to four feet from the ladderway opening. The tool box was approximately eight feet away from the ladderway opening. Another Saf-T-Climb was found attached to the center rail of the ladder, at waist height, above the platform. There is no evidence that the Saf-T-Climb was damaged or defective. There is no evidence that the Saf-T-Climb device found there was used or left by anyone other than Ricci. Rope and conduit were coiled at the base of the ladder. Ricci's safety belt was still around his waist, and attached to it was a D-ring that would be used to attach to a Saf-T-Climb. There is no evidence that Ricci's safety belt or D-ring were damaged or defective. The weather had been relatively calm with no evidence of rain prior to the discovery of Ricci's body.

There are only five to six inches of slack in the Saf-T-Climb when it is attached to a climber on the ladder. Other climbers sometimes also use a six foot lanyard, attached to their harness or safety belt and with a clip on the end, to secure themselves before attaching to or detaching from the Saf-T-Climb when getting on or off a ladder. There is no evidence that Ricci wore such a lanyard. There was a rope attached to his harness, but it had a taped end instead of a hook or clipping device. Lynch, Ricci's co-worker, stated that Ricci did not appear to have a safety lanyard on his harness when he found him. There is evidence that gloves, even when worn for climbing, are not always worn when attaching to or detaching from the Saf-T-Climb. There was testimony, the admissibility of which was unresolved, that Ricci always wore his gloves when climbing. There is evidence that some of Ricci's co-workers told OSHA that Ricci went through a ritual of putting on his gloves before ascending or descending ladders. There was also a statement from one of Ricci's supervisors that Ricci was "highly safety-conscious in his work."

The evidence suggests that if Ricci were alone and wanted to do the assigned work, at some point he would have needed to descend the ladder to get the rope and conduit found at the base of the ladder. Lynch testified that all of the necessary testing materials were not on the platform when he found Ricci's body.

Plaintiff supported his theory of how the accident happened with a report and testimony from an expert witness. Defendants did not move to strike the testimony, but objected to it in their reply to plaintiff's opposition to the motion for summary judgment. The district court did not rule on this evidentiary matter, however.³

II.

A. Res Ipsa Loquitur

Under Maine law, application of the res ipsa loquitur doctrine may affect plaintiff's burden of proof. See Sheltra v. Rochefort, 667 A.2d 868, 870 (Me. 1995). Thus, we turn to that contention first.

We recently described the doctrine in Varano v. Jabar, 197 F.3d 1 (1st Cir. 1999):

Under Maine law, the res ipsa loquitur doctrine permits a finding of negligence in connection with an unexplained event if the plaintiff can show (1) the event was of a kind which ordinarily does not occur in the absence of negligence; (2) other responsible causes are sufficiently eliminated by the evidence; and (3) the indicated negligence is within the scope of the defendant's duty to the plaintiff. See Poulin v Aquaboggan Waterslide, 567 A.2d 925, 926 (Me. 1989); Ginn v. Penobscot Co., 334 A.2d 874, 878, 880 (Me. 1975). According to the Restatement (Second) of Torts, 'It is the function of the court to determine whether the inference may reasonably be drawn by the jury, or whether it must necessarily be drawn.' Section 328D(2) (1965).

Id. at 5. As in Jabar, there are reasonable alternative explanations for the proximate cause of Ricci's accident, and so the res ipsa doctrine does not, on this evidence, apply. See Wellington Assocs., Inc. v. Capital Fire Protection Co., 594 A.2d 1089, 1092 (Me. 1991).

B. Sufficient Evidence to Prove Causation

1. Role of Judge and Jury

Plaintiff argues that a judge, on summary judgment, may not "make assessments of factual possibilities and probabilities" and uses that premise to attack the court's ruling that "[i]f the probabilities are evenly matched, the Plaintiff[] cannot prevail." Plaintiff's argument confuses the question of the proper role of the judge on summary judgment with the question of plaintiff's burden of proof.

It is the role of the judge on summary judgment to determine whether a particular inference is reasonable. See Mullin v. Raytheon Co., 164 F.3d 696, 698 (1st Cir. 1999); Greenburg...