Teska v. Potlatch Corp.

• Decision Date: 02 January 2002
• Docket Number: No. Civ.00-418(RLE).,Civ.00-418(RLE).
• Parties: George M. TESKA and Darlene Teska, husband and wife, Plaintiffs, v. POTLATCH CORPORATION, a foreign corporation, and Oscar J. Boldt Construction Co., a foreign corporation, Defendants.
• Court: U.S. District Court — District of Minnesota

184 F.Supp.2d 913

George M. TESKA and Darlene Teska, husband and wife, Plaintiffs, v. POTLATCH CORPORATION, a foreign corporation, and Oscar J. Boldt Construction Co., a foreign corporation, Defendants.

No. Civ.00-418(RLE).

United States District Court, D. Minnesota.

January 2, 2002.

COPYRIGHT MATERIAL OMITTED

Willard Lester Converse, Robert Charles Bell, Jensen Bell Converse & Erickson, St. Paul, MN, for Plaintiffs.

Frank Barry Yetka, Rudy Prevost Gassert & Yetka, Cloquet, MN, Steven Wayne Schneider, Anthony Sullivan Downs, Halverson Watters Downs Reyelts & Bateman, Duluth, MN, for Defendants.

MEMORANDUM ORDER

ERICKSON, United States Magistrate Judge.

I. Introduction

This matter came before the undersigned United States Magistrate Judge pursuant to the consent of the parties, as authorized by Title 28 U.S.C. § 636(c), upon the Defendant's Motion in limine, and its Motion for Summary Judgment. A Hearing on the Motions was conducted on July 26, 2001, at which time the Plaintiffs George M. Teska, and Darlene Teska, appeared by Robert C. Bell, Esq., and the Defendant Oscar J. Boldt Construction Co. ("Boldt") appeared by Steven W. Schneider, Esq.

For reasons which follow, we grant the Defendant's Motion in limine, as well as its Motion for Summary Judgment.

II. Factual and Procedural History

The Plaintiffs commenced this action after George M. Teska ("Teska") was injured, at work, on October 28, 1999. At that time, Teska was working as a boiler-maker foreman on a project for the Potlatch Corporation ("Potlatch").¹ Potlatch was modernizing its oriented strand board facility, which is located in Cook, Minnesota, and it had hired Boldt as the general contractor. Boldt then subcontracted with The Jamar Company ("Jamar") for certain mechanical installations. See, Exhibit 1 to Affidavit of Steven W. Schneider (subcontract agreement between Boldt and Jamar). Teska was employed by Jamar.²

On October 28, 1999, a column was to be installed in the heat source area of the project. The column was a seventeen foot I-beam, and the installation of the column was Jamar's responsibility. See, Deposition of Robert Larson, at 14, Exhibit 2 to Affidavit of Steven Schneider ("Larson Deposition"). As the column was to be positioned vertically, it was necessary to employ a crane so as to move the column into place. For that purpose, Jamar requested the use of a large crane that had been maintained on the site by Boldt. Pursuant to the subcontract agreement, Boldt also provided the crane operator, who was Richard A. Fuglie ("Fuglie"), in conjunction with the crane. See, Exhibit 1 to Affidavit of Steven W. Schneider.

The process of securing the column, so that it might be lifted by the crane, is known as "rigging," and it was the boiler-makers' responsibility to rig the column at issue here. See, Larson Deposition, at 14. According to Robert Larson ("Larson"), who was Jamar's superintendent on the site, it was his responsibility, as well as that of Teska, to ensure that the rigging was performed properly, and he had discussed the safest way to rig the column, with Teska, at some time prior to October 28, 1999. Id. at 8-9. Larson believed that it would be "advantageous" to rig the column with a shackle inserted in a hole at the top of the beam, and Teska apparently agreed. Id.

Although Teska generally recalls his conversation with Larson, he does not recall communicating Larson's instruction, concerning the use of a shackle, to the remaining members of the boilermaker crew. See, Deposition of George M. Teska, at 155-56, Exhibit 4 to Affidavit of Steven W. Schneider ("Teska Deposition, Exhibit 4"). Moreover, the boilermaker crew, which was comprised of Timothy Sauter ("Sauter"), and David Kangas ("Kangas"), have testified that they had received no instructions as to how to rig the column. See, Deposition of David Kangas, at 13-14, Exhibit 5 to Affidavit of Steven W. Schneider ("Kangas Deposition"); Deposition of Timothy Sauter, at 15, Exhibit 6 to Affidavit of Steven W. Schneider ("Sauter Deposition").

Kangas eventually rigged the column for the lift, using a two-inch nylon sling as his primary rigging device. See, Kangas Deposition, at 13. Initially, he attempted to rig the column using a "double-wrap," but after the nylon sling was extended, it became apparent that the top of the column would come into contact with the "headache ball," which is a part of the cranelifting mechanism, id. at 14-15, and would cause problems in placing the column as the column would not hang perpendicular to the ground. He then rigged the column with a "single wrap." Id. After rigging the column, Kangas consulted Sauter about when they would be ready for the lift, and Sauter questioned whether a shackle should be used for the rigging. See, Sauter Deposition, at 15. The two men then decided, however, that a shackle was not necessary. Id. at 17. Teska has described both Kangas, and Sauter, as well as himself, as being "all experienced journeymen," Teska Deposition, at 35, who would have known the proper way to rig the column on account of their experience as boilermakers. Id. at 56.

After the column was rigged, Fuglie was called upon to operate the crane so as to lift the column into place. A portion of the lift, that Fuglie had to make, was a "blind lift." See, Deposition of Richard Fuglie, at 16, Exhibit 7 to Affidavit of Steven W. Schneider ("Fuglie Deposition"). In other words, there was a period of time during the lift when Fuglie was unable to see the column. Id. This "blind" period came at the end of the lift, when he was to position, and place, the column in its designated location. Id. To compensate for Fuglie's inability to observe the column during the "blind" portion of the lift, the boilermakers, who were Jamar employees, used hand signals to direct Fuglie. Id. Teska located himself at the point where the column was to be positioned, and secured, into place.

Once the column was close to Teska, he then relayed signals to Sauter, see, Deposition of George Teska, at 43, Exhibit 3 to Affidavit Steven W. Schneider ("Teska Deposition, Exhibit 3"), who had positioned himself where he could see both Teska and Kangas. See, Sauter Deposition, at 20. Sauter and Fuglie could not see each other, however. Id.; Fuglie Deposition, at 17. As a consequence, Sauter relayed his signals to Kangas, who then passed those signals on to Fuglie. See, Sauter Deposition, at 20. Neither Kangas nor Fuglie could see Teska. See, Kangas Deposition, at 21; Fuglie Deposition, at 17. As the column was brought into position above Teska, and just before Fuglie began to lower the column into position, the column slid through the nylon sling, and fell to the ground. In the process of falling, the column caused the scaffolding, on which Teska was standing, to collapse. During the course of that collapse, Teska suffered numerous injuries, for which he initiated this action.

Teska claims that the rigging of the column, with the "single wrap" nylon sling, was inappropriate for this particular load, and that Fuglie had a duty to challenge the rigging procedure employed by the Jamar boilermakers. Consequently, Teska contends that Fuglie's action, in lifting the column, constituted a negligent act. Accordingly, Teska is suing Boldt on the basis of vicarious liability for the acts of Fuglie. As part of his claim, Teska offers the expert opinion of Gerald Sundboom ("Sundboom"), who expresses the opinion that a reasonably prudent crane operator would not have made the lift, under the circumstances here, because the rigging was not safe. In contrast, Boldt challenges the admissibility of Sundboom's testimony, and also seeks the entry of Summary Judgment, denying any liability, on its part, as a matter of law.

III. Discussion

As noted, in its Motion in limine, Boldt challenges the admissibility of Sundboom's expert opinion, under Rule 702, Federal Rules of Evidence, and it also seeks Summary Judgment on two separate legal theories. First, if we grant Boldt's Motion in limine, and exclude the testimony of Sundboom, then Boldt argues that we must grant it Summary Judgment, as the Plaintiffs will be unable to demonstrate that Fuglie owed any duty to Teska, much less that he breached that duty. Second, Boldt urges that Fuglie's work, as a crane operator under the circumstances of this case, falls within the Loaned Servant Doctrine, so as to render him an employee of Jamar, who was also Teska's employer. Should the Loaned Servant Doctrine be found to apply, then, Boldt argues, Teska's claim would be barred by the Minnesota Worker's Compensation Act. See, Minnesota Statutes Section 176.001 et seq. Since they invoke distinct legal precepts, and analyses, we separately address Boldt's Motions.

A. The Defendant's Motion in Limine to Exclude the Testimony of Sundboom.

The Plaintiff has identified the following as the opinions that Sundboom would express at Trial, were he called to testify:

1. A crane operator should reject a rigging by a nylon sling;

2. The proper way to rig the steel column would have been with a shackle;

3. The crane operator should not have lifted the steel column the way it was rigged.

Plaintiffs' Responsive Memorandum, at 5. According to Boldt, however, Sundboom's opinions do not satisfy the requisites of Rule 702, Federal Rules of Evidence, and they are, therefore, inadmissible.

1. Standard of Review. The admissibility of expert testimony is governed, in large part, by Rule 702, Federal Rules of Evidence, which provides as follows:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3)...