Saul v. Ecolab Inc.

• Docket Number: Civil Action 21-cv-01717-NYW-SP
• Decision Date: 09 June 2023
• Parties: GREGORY SAUL and TAMMY TUCKER SAUL, Plaintiffs, v. ECOLAB INC., Defendant. and XL SPECIALTY INSURANCE COMPANY, Plaintiff-Intervenor,
• Court: U.S. District Court — District of Colorado

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GREGORY SAUL and TAMMY TUCKER SAUL, Plaintiffs, and XL SPECIALTY INSURANCE COMPANY, Plaintiff-Intervenor, v. ECOLAB INC., Defendant.

Civil Action No. 21-cv-01717-NYW-SP

United States District Court, D. Colorado

June 9, 2023

MEMORANDUM OPINION AND ORDER

Nina Y. Wang United States District Judge

This matter is before the Court on Defendant's Motion for Summary Judgment (the “Motion” or “Motion for Summary Judgment”) [Doc. 62]. Upon review of the Motion and the related briefing, the applicable case law, and the record before the Court, the Court concludes that oral argument will not materially assist in the resolution of this matter. For the reasons set forth below, the Motion for Summary Judgment is respectfully GRANTED.

BACKGROUND

This products liability action arose out of injuries allegedly caused by a chemical cleaning product on April 4, 2019. See generally [Doc. 7 at ¶¶ 4-9]. Broadly Plaintiff Gregory Saul (“Mr. Saul”) alleges that he was seriously injured when a product manufactured by Defendant Ecolab Inc. (“Defendant” or “Ecolab”) made contact with his skin while he was at work. [Id. at ¶¶ 5, 7-9].

Mr. Saul and his wife, Tammy Tucker Saul (“Ms Saul,” and collectively with Mr. Saul “Plaintiffs”), initiated this civil action in the District Court for the City and County of Denver on March 31 2021 and filed an Amended Complaint on May 27, 2021. See [Doc. 1-8 at 5; Doc. 7]. Defendant removed the case to federal court on June 23, 2021, invoking this Court's diversity jurisdiction pursuant to 28 U.S.C. § 1332(a)(1). [Doc. 1 at ¶ 2]. Then, on September 8, 2022, XL Specialty Insurance Company (“Plaintiff-Intervenor” or “XL Specialty”), the workers' compensation insurer for Mr. Saul's employer, filed an Amended Unopposed Motion to Intervene, which this Court granted. [Doc. 46; Doc. 47; Doc. 48 at ¶ 1].

Plaintiffs assert three claims for relief against Ecolab: (1) strict products liability, asserted by Mr. Saul; (2) negligence, asserted by Mr. Saul; and (3) loss of consortium, asserted by Ms. Saul. [Doc. 7 at 4-11].^[1] And Plaintiff-Intervenor asserts two claims against Defendant: strict products liability and negligence. [Doc. 48 at 3-11].

Defendant filed its Motion for Summary Judgment on December 9, 2022, seeking judgment in its favor on each of Plaintiffs' and Plaintiff-Intervenor's claims. See [Doc. 62]. The matter is fully briefed, see [Doc. 66; Doc. 68; Doc. 71], and is ripe for resolution.

LEGAL STANDARD

Under Federal Rule of Civil Procedure 56, summary judgment is warranted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A dispute is genuine if there is sufficient evidence so that a rational trier of fact could resolve the issue either way. A fact is material if under the substantive law it is essential to the proper disposition of the claim.” Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1194 (10th Cir. 2011) (internal citations and quotation omitted).

“[I]t is not the party opposing summary judgment that has the burden of justifying its claim; the movant must establish the lack of merit.” Alpine Bank v. Hubbell, 555 F.3d 1097, 1110 (10th Cir. 2009). In attempting to meet this standard, a movant that does not bear the ultimate burden of persuasion at trial does not need to disprove the other party's claim; rather, the movant must only point the Court to a lack of evidence for the other party on an essential element of that party's claim. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). Once the movant has met its initial burden, the burden then shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). To satisfy this burden, the nonmovant must point to competent summary judgment evidence creating a genuine dispute of material fact; conclusory statements based on speculation, conjecture, or subjective belief are insufficient. See Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004); see also 10B Charles Alan Wright et al., Federal Practice and Procedure § 2738 (4th ed. 2022) (explaining that the nonmovant cannot rely on “mere reargument of his case or a denial of an opponent's allegation” to defeat summary judgment). In considering the evidence, the Court cannot and does not weigh the evidence or determine the credibility of witnesses. See Fogarty v. Gallegos, 523 F.3d 1147, 1165 (10th Cir. 2008). At all times, the Court will “view the factual record and draw all reasonable inferences therefrom most favorably to the nonmovant.” Adler, 144 F.3d at 670.

UNDISPUTED MATERIAL FACTS

The below material facts are drawn from the Parties' briefing and the record before the Court and are undisputed unless otherwise noted.^[2]

1. Ecolab manufactures and distributes a chemical product called “Victory,” which is used in a diluted form to wash fruits and vegetables. [Doc. 62 at ¶¶ 3-4; Doc. 66 at 3, ¶¶ 3-4;^[3]Doc. 62-6 at 5].^[4]

2. At the time of the incident giving rise to this lawsuit, Mr. Saul was employed by Crossmark, Inc. and was assigned to work at a Sam's Club store in Colorado Springs, Colorado. [Doc. 62 at ¶¶ 1, 2, 10; Doc. 66 at 2-3, ¶ 1, 2, 10; Doc. 62-1 at 2; Doc. 62-3 at 8].

3. Ecolab conducted periodic food safety audits at Mr. Saul's workplace. [Doc. 62 at ¶ 9; Doc. 66 at 3, ¶ 9; Doc. 62-7 at 23:4-17]. On April 4, 2019, an Ecolab employee named Joe Tina (“Mr. Tina”) was conducting an audit at the Sam's Club. [Doc. 62 at ¶¶ 1, 10; Doc. 66 at 2- 3, ¶ 1, 10; Doc. 62-1 at 2, 4].

4. During the audit, Mr. Tina told Mr. Saul that there was a container of Victory that was expired, such that it needed to be disposed of. [Doc. 62 at ¶ 11; Doc. 66 at 3, ¶ 11; Doc. 62-4 at 97:17-23].

5. Mr. Saul did not know how to dispose of the Victory product because he had never previously disposed of it. [Doc. 66 at 6, ¶ 14; Doc. 71 at 5, ¶ 14; Doc. 66-2 at 141:13-23].^[5] Mr. Saul asked Mr. Tina how to dispose of the Victory product. [Doc. 62 at ¶ 15; Doc. 66 at 4, ¶ 15; Doc. 62-4 at 106:1-3].

6. Mr. Tina told Mr. Saul that the Victory product could be disposed of in the sink drain. [Doc. 62 at ¶ 16; Doc. 66 at 4, ¶ 16; Doc. 62-4 at 106:25-107:1].^[6] 7. Mr. Tina did not offer to dispose of the Victory product himself, as that is “not [his] place.” [Doc. 62 at ¶ 12; Doc. 66 at 3, ¶ 12; Doc. 62-7 at 75:14:-20, 79:7-12].^[7]

8. Mr. Saul had previously disposed of empty Victory containers by depositing them in the designated hazardous waste area. [Doc. 62 at ¶ 14; Doc. 66 at 4, ¶ 14; Doc. 62-4 at 142:1- 11].

9. Mr. Saul did not read the Victory container label prior to his attempt to dispose of the product. [Doc. 62 at ¶ 8; Doc. 66 at 3, ¶ 8; Doc. 62-4 at 70:21-71:13, 117:17-23, 143:16-19].

10. After putting on goggles and gloves, Mr. Saul used a ten-inch butcher knife to cut a hole in the Victory container, which resulted in the release of strong fumes. [Doc. 62 at ¶ 17; Doc. 66 at 4, ¶ 17; id. at 9, ¶ 40; Doc. 71 at 7, ¶ 40; Doc. 62-4 at 108:14-21, 120:12-17].

11. After smelling the fumes, Mr. Saul changed course and put the Victory container into a garbage bag for disposal in a trash bin. [Doc. 62 at ¶ 18; Doc. 66 at 4, ¶ 18; Doc. 62-4 at 121:4-24].

12. As Mr. Saul tried to place the garbage bag into a trash can, some of the Victory product spilled onto Mr. Saul's leg, causing a chemical burn. [Doc. 62 at ¶ 19; Doc. 66 at 4, ¶ 19; id. at 9, ¶ 44; Doc. 71 at 7, ¶ 44; Doc. 62-4 at 121:18-21, 122:15-21; Doc. 66-2 at 138:13-25].

ANALYSIS

Ecolab seeks summary judgment in its favor on each of Plaintiffs' and Plaintiff-Intervenor's claims arguing that they cannot meet their prima facie burden with respect to any of their asserted theories of liability. See [Doc. 62 at 8]. After first outlining the apparent parameters of the strict liability claim, see [id. at 8-10], Ecolab asserts that Mr. Saul cannot succeed on either his strict liability or negligence claims, insofar as these claims are based on an alleged failure to warn, due to a lack of evidence establishing causation. [Id. at 10-15]. Next, Ecolab argues that to the extent Mr. Saul's negligence claim is not based on an alleged failure to warn, Ecolab is entitled to summary judgment on that portion of the claim because Plaintiffs cannot establish that Ecolab owed any legal duty to Mr. Saul. [Id. at 15-19]. And finally, Defendant contends that because Mr. Saul's claims fail, then Ms. Saul's loss of consortium claim and XL Specialty's subrogation claims are not viable, either. [Id. at 20]. The Court addresses these arguments below.

I. The Scope of Mr. Saul's Strict Liability Claim

The court exercises jurisdiction over Plaintiffs' claims pursuant to 28 U.S.C. § 1332, and thus applies Colorado law. See, e.g., Clark v. State Farm Mut. Auto. Ins Co., 319 F.3d 1234, 1240 (10th Cir. 2003) (applying the substantive law of the state the parties agree controls); Bullock v. Wayne, 623 F.Supp.2d 1247, 1252 (D. Colo. 2009) (a federal court exercising diversity jurisdiction applies the law of the forum state). Colorado law recognizes strict products liability claims based on a manufacturing defect, a design defect, or a failure to warn. Walker v. Ford Motor Co., 406 P.3d 845, 849 (Colo. 2017). The Amended Complaint invokes all three theories of relief. See, e.g., [Doc. 7 at ¶ 24 (“Ecolab knew or should have known at the time the Subject Product left Ecolab's possession, that said product was defective in its warnings, design and manufacture[.]”); id. at ¶ 43 (“Ecolab[] breached its duty to the public and Plaintiff Gregory Saul by failing to design,...