Villegas v. Alewelt, Inc.
| Citation | 524 F.Supp.2d 1138 |
| Decision Date | 04 May 2005 |
| Docket Number | No. 4:03-CV-30433.,4:03-CV-30433. |
| Parties | Dora L. VILLEGAS as the Administrator of the Estate of Cesar Villegas, and Dora L. Villegas, Individually, Plaintiff, v. ALEWELT, INC. and Pork-N-More Inc., and Joe and Sandy Nelson, Defendants. |
| Court | U.S. District Court — Southern District of Iowa |
Gary G. Mattson, Gregory W. Landry, Lamarca & Landry, Des Moines, IA, for Plaintiff.
Kris Holub Tilley, Steven L. Nelson, Davis Brown Koehn Shors & Roberts, Des Moines, IA, Mark L. Tripp, Bradshaw Fowler Proctor Fairgrave, Des Moines, IA, Michael J. Moreland, Harrison, Moreland & Webber PC, Ottumwa, IA, for Defendants.
RULING ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
Before the Court are motions for summary judgment filed by defendants Pork-N-More, Inc. [30] and Joe and Sandy Nelson [39]. This case involves the tragic death of Cesar Villegas in a construction accident. Mr. Villegas was killed on April 30, 2002 during the construction of a hog finishing building loading chute on the Nelson defendants' farm in Jefferson County, Iowa. Plaintiff, Mr. Villegas' surviving spouse, filed her complaint in this Court on August 6, 2003, making state law negligence claims against defendants Alewelt, Inc., Mr. Villegas' employer, and Pork-N-More, Inc., the general contractor for the project. On March 31, 2004, plaintiff was granted leave to amend her complaint to add the Nelson defendants as parties and to assert state law negligence claims against them.
The Court has diversity jurisdiction. 28 U.S.C. § 1332. The undersigned has been assigned the case pursuant to 28 U.S.C. § 636(c). Oral argument on the motions was held on March 7; 2005. The motions are fully submitted.
Defendant is entitled to summary judgment if the affidavits, pleadings, and discovery materials "show 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." Erenberg v. Methodist Hospital, 357 F.3d 787, 791 (8th Cir.2004) (quoting Fed.R.Civ.P. 56(c)). The Court must view the facts in the light most favorable to the nonmoving party, and give that party the benefit of all reasonable inferences which can be drawn from them, "that is, those inferences which may be drawn without resorting to speculation." Mathes v. Furniture Brands Inn, Inc., 266 F.3d 884, 885-86 (8th Cir.2001) (citing Sprenger v. Federal Home Loan Bank of Des Moines, 253 F.3d 1106, 1110 (8th Cir. 2001)); see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Erenberg, 357 F.3d at 791; Tademe v. St. Cloud State University, 328 F.3d 982, 987 (8th Cir.2003); Lambert v. City of Dumas, 187 F.3d 931, 934 (8th Cir.1999); Kopp v. Samaritan Health System, Inc., 13 F.3d 264, 269 (8th Cir.1993). An issue of material fact is genuine if it has a real basis in the record. Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir.1992) (citing Matsushita, 475 U.S. at 586-87, 106 S.Ct. 1348 (1986)). A genuine issue of fact is material if it "might affect the outcome of the suit under governing law." Hartnagel, 953 F.2d at 395 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)); see Hitt v. Harsco Corp., 356 F.3d 920, 923 (8th Cir. 2004); Rouse v. Benson, 193 F.3d 936, 939 (8th Cir.1999).
It is the non-moving party's obligation to "go beyond the pleadings and by affidavits, depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue of material fact." Rouse, 193 F.3d at 939; see Hitt, 356 F.3d at 923. In assessing a motion for summary judgment a court must determine whether a fair-minded trier of fact could reasonably find for the non-moving party based on the evidence presented. Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Herring v. Canada Life Assurance Co., 207 F.3d 1026, 1030 (8th Cir. 2000).
The background facts on which the summary judgment motions rest are essentially undisputed. The parties are in disagreement about the conclusions to be drawn from those facts.
Plaintiff is a citizen of New Mexico. The decedent was a citizen of New Mexico at the time of his death.
Defendants Joe and Sandy Nelson own a farm in Jefferson County, Iowa and are citizens of Iowa. As a part of his farming activities Joe Nelson operates a custom feeding hog finishing operation. He also works part-time as a heavy equipment operator for Diers Construction Company of Brighton, Iowa. A hog-finishing building was constructed on his farm in 1994.
Defendant Pork-N-More, Inc. ("PNM") is an Iowa corporation with its principal place of business in Iowa. It is owned and operated by Craig Jones. PNM is in the business of selling, building, repairing and remodeling hog confinement buildings. PNM performed service work for Joe Nelson on the original hog-finishing building.
In March 2002 Mr. Nelson contacted Jones about constructing a second hog-finishing building on the farm. Jones submitted a "proposal contract" or bid which summarized the work to be performed and the bid price. (Nelson App. 0045-0048). The parties agree the document was never signed, but that it provided the basis of the agreement between Nelson and PNM. The agreement provided that the farmer/owner would arrange for all excavation/backfilling work. PNM planned to subcontract the concrete and insulation work. (Id. 0017-18).
The proposal included a "loading shoot"1 which would connect the finishing building with transport trailers, facilitating the transfer of hogs to and from the building and the trailers. PNM's proposal contemplated the chute would come straight out from or perpendicular to the east wall of the new building.
PNM attempted unsuccessfully to hire a concrete subcontractor with which it had done business. Jones then contacted Alewelt, Inc., of Springfield, Illinois about performing the concrete work on the pit floor and pit walls of the finishing building. Alewelt was not hired to do the concrete work on the loading chute. (Nelson App. at 32). Jones viewed the loading chute as a smaller project. (Id. at 33). There was no written contract between PNM and Alewelt.
Mr. Nelson performed the excavation work by hiring it out to his employer, Diers Construction, and then performing the work himself with Diers' machinery. He completed the excavation work in four to five days. Alewelt then began its concrete work on the building based on plans and drawings Jones had prepared. (Nelson App. 0013-14, 0026-27, 0028-29).
Cesar Villegas was an employee of Alewelt. He worked on the crew which performed the concrete work on the Nelson project. Marc Alewelt is the president of Alewelt, Inc. and worked on the job with his crew.
When the building was almost done, Nelson approached Jones about changing the design of the loading chute. The chute had two end-of-ramp elevations to accommodate the two kinds of trailers which would transport hogs: one 18" and the other 42". The "lay of the land" where the new building was situated was such that the proposed perpendicular chute could not be accessed by a semitrailer. Nelson proposed to angle the chute. Nelson envisioned a three-walled configuration (two side walls and a middle "divider" wall to separate the two elevations). (Nelson App. 91-93, 106-07). Nelson also wanted a three- to five-foot gap between the chute and the building to enable him to enter the building and remove dead hogs without using the chute. (Pl./Nelson App. at 11).2
As Alewelt was finishing his work on the building, Jones and Nelson approached him and asked if his company could construct a loading chute while Alewelt was still there. (Nelson App. at 57). The three talked about Nelson's request to angle the chute. The change was not complicated. There is evidence they sketched the design in the dust on the hood of a pickup truck. (Pl./PNM App. at 101A). Alewelt recommended using one large footing instead of the post-hole anchors in the original proposal, a change which necessitated additional excavating. (Nelson App. at 60-61). Alewelt agreed to undertake the additional work, but again no written contract was signed with either PNM or Nelson.
Nelson did the additional excavating. Either the same day or the day after, Alewelt poured the footing. (Nelson App. at 61-62, 93-94). The next day, April 30, 2002, Alewelt's crew set 3' by 8' aluminum forms in place in preparation for pouring the walls of the chute. (Id. at 63-64). Nelson did not provide the forms or assist in setting them up. (Id. at 95, 101).
Alewelt and Nelson knew it was not possible to back up a cement truck and use. its chute to pour the concrete. (Pl./PNM App. at 87). Either a concrete pump truck or a concrete hopper bucket had to be used to elevate the concrete to pour into the forms. (Nelson App. at 66). Use of a hopper bucket was cheaper and Nelson told Alewelt he would use the excavator to lift the bucket to the top of the wall forms. (Pl./PNM App. at 87; PNM App. at 33). Alewelt asked Jones to rent the hopper bucket. Jones did so and brought it to the site. He left after delivering the bucket, within a few minutes time. (Pl./PNM App. at 19). Alewelt's crew poured the concrete from the bucket. (Nelson App. at, 65, 108-09). The concrete pours were finished by 11:00 a.m. or noon. Alewelt's crew then left the job site while the concrete "set up." (Id. at 110-11).
Nelson left his farm to attend his son's track meet. (Nelson App. at 96). Unknown to Nelson or Jones, Marc Alewelt told his crew they could return to the job site that evening to pull or strip the concrete forms from the chute walls. (Id. at 67, 96). At approximately 6:00 p.m. the crew, including Mr. Villegas, returned to Nelson's farm and began removing the aluminum forms from the chute walls. (Id. at 68). While the crew was removing the forms, the walls collapsed. Mr. Villegas was...
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Jones v. Schneider Nat'l Inc.
...concluded section 411 was not applicable because certain facts necessary to support such a claim were absent. Villegas v. Alewelt, Inc., 524 F.Supp.2d 1138, 1147 (S.D.Iowa 2005) (recognizing the Duggan court's refusal to adopt Restatement section 411). Section 411 requires proof that an emp......
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JONES v. SCHNEIDER Nat'l INC.
...section 411 was not applicable because certain facts necessary to support such a claim were absent. Villegas v. Alewelt, Inc., 524 F. Supp. 2d 1138, 1147 (S.D. Iowa 2005) (recognizing the Duggan court's refusal to adopt Restatement section 411). Section 411 requires proof that an employer w......