Walker v. George Koch Sons, Inc., Civil Action No. 2:07cv274-KS-MTP.

• Citation: 610 F.Supp.2d 551
• Decision Date: 27 March 2009
• Docket Number: Civil Action No. 2:07cv274-KS-MTP.
• Parties: Joseph R. WALKER and Donna Walker, Plaintiffs v. GEORGE KOCH SONS, INC. and John Does 1 through 10, Defendants.
• Court: U.S. District Court — Southern District of Mississippi

610 F.Supp.2d 551

Joseph R. WALKER and Donna Walker, Plaintiffs v. GEORGE KOCH SONS, INC. and John Does 1 through 10, Defendants.

Civil Action No. 2:07cv274-KS-MTP.

United States District Court, S.D. Mississippi, Hattiesburg Division.

March 27, 2009.

COPYRIGHT MATERIAL OMITTED

Samuel S. Mchard, McHard & Associates, PLLC, Hattiesburg, MS, for Plaintiffs.

Michael D. Simmons, Cosmich & Simmons, PLLC, Jackson, MS, Christopher D. Lee-PHV, Todd C. Barsumian-PHV, Kahn, Dees, Donovan & Kahn, LLP, Evansville, IN, for Defendants.

MEMORANDUM OPINION AND ORDER

KEITH STARRETT, District Judge.

This cause is before the Court on the motion for summary judgment [Doc. # 107] filed by Defendant George Koch Sons, Inc. ("Koch"). The motion is opposed by Plaintiffs Joseph and Donna Walker. For reasons set forth below, the motion should be granted in part and denied in part.

I. FACTUAL BACKGROUND¹

Plaintiff Joseph Walker alleges that he sustained injuries at his place of employment (Howard Industries' Laurel, Mississippi plant) while standing on a fixed ladder manufactured and designed by Koch in 1998. [Doc. # 1-3 at ¶ 12] (October 23, 2007); Pl.s' Br. at ¶ 4 [Doc. # 122] (January 15, 2009). Koch designed the ladder to provide access to a transformer washer, also known as a surface preparation machine ("SPM") at Howard Industries. Walker alleges that he slipped and fell while exiting the SPM on October 5, 2004. Pl.s' Br. at ¶ 1. Walker alleges that he was standing with both feet on the top rung of the ladder when he slipped. Walker Dep. I at 124 [Doc. # 122-28] (January 15, 2009). Just before falling, Walker had attempted to close the door to the SPM, which required that he lean backward on the ladder to avoid the swinging door. Id. While closing the door—with his right hand on the door and his left on the safety rail attached to the ladder—he slipped and fell. Id. Walker alleges that he caught himself by wrapping his left elbow around the safety rail and that this caused him to sustain injuries to his arm. Id.

Prior to the fall, Walker had worked on the SPM for five years. Id. at 127. He had entered and exited the SPM via the ladder thousands of times. Id. Walker had never previously been injured using the ladder and, it seems, no other Howard Industries employee has been injured using the ladder. Page Dep. at 180 [Doc. # 107-2] (December 15, 2008). Walker had, however, realized that the act of closing the door while standing on the ladder was "awkward" and had previously slipped while standing on the ladder. [Doc. # 107-16]. Walker knew that his shoes would be "exposed to and moistened by" the liquids in the SPM. Id. Walker had complained to a maintenance supervisor at Howard Industries, David Walters, about the awkward nature of using the ladder. Walters Aff. at ¶ 15 [Doc. # 107-22]. Although Walters instructed Walker to report his complaint to Jason Page, who was the manufacturing engineer at Howard Industries in charge of the SPM project, Walker neglected to do so. Walker Dep. I at 111 [Doc. # 107-3].

Koch designs, manufactures, installs, and services SPMs throughout the United States. Pl.s' Br. at ¶ 3. Koch designed and engineered the SPM and components to be used at Howard Industries. The ladder from which Walker fell was one of several designed and manufactured by Koch to be used to access the SPM at Howard Industries' plant. The ladder allows Howard Industries' employees to access an elevated door that leads into the SPM. The door is 64 and one-half inches above the ground and swings out above the ladder. Pl.s' Br. at ¶ 6. The SPM door is equipped with two hinges, two latches, a door handle located 96 inches above the floor, and gasketing to prevent chemical leaks. Id. The top rung of the ladder is approximately four feet above the ground. Id.

Koch provided a conditional warranty for the SPM, warranting that the SPM would be "free from defects." [Doc. # 107-9 at 20] (December 15, 2008). The contract stated that the equipment would "be designed to comply with [Koch's] interpretations of current OSHA regulations." Id. at 12. After Walker's injury, an OSHA investigator inspected the ladder and cited Howard Industries due to the spacing of the rungs. [Doc. # 107-24] (December 15, 2008). Howard never made a warranty claim and did not express any concerns regarding the ladder to Koch. Page Dep. at 174-76 [Doc. # 107-2]. Multiple Howard Industries employees had reported difficulty using the ladder, however. Id. at 63-64.

The Plaintiffs filed suit on September 19, 2007, alleging a number of Mississippi Product Liability Act ("MPLA") claims, negligence claims, and breach of warranty claims. Donna Walker's claims are derivative of Joseph Walker's and therefore survive only to the extent that his do. McCoy v. Colonial Baking Co., 572 So.2d 850, 853-54 (Miss.1990). Koch removed the case to federal court. [Doc. # 1] (October 23, 2007).

The Plaintiffs' primary theory of recovery is that the fixed ladder was defective and unreasonably dangerous under the provisions of the MPLA. The Plaintiffs argue that the SPM should have had a platform and/or fixed stairs providing access to it or should have contained a notice warning of the danger posed. Howard Industries did not request a platform or stairs on the SPM though Koch has provided access via stairs and platforms on other machines in the past. [Doc. # 122-5 at 149] (January 15, 2009); Def.'s Br. at 4 [Doc. # 108] (December 15, 2008); Uhde Dep. at 102 [Doc. # 107-6]. Koch concedes that stairs or a platform could have been part of the design for the SPM at Howard Industries, but contends that there were space limitations involved.² Def.'s Reply Br. at 5 [Doc. # 128] (January 30, 2009). Koch asserts several affirmative defenses, including comparative negligence, assumption of risk, and that the danger was open and obvious. Koch also alleges that the rungs of the ladder had been repainted biannually since its installation and that the ladder had therefore been modified after leaving Koch's control.

II. STANDARD OF REVIEW

"Under the Erie doctrine, federal courts sitting in diversity apply state substantive law and federal procedural law." Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996); see also Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The parties agree that Mississippi substantive law governs this claim. See, e.g., Pl.'s Br. at ¶ 37; Def.'s Br. at 2 n. 2 [Doc. # 108]; see generally In re Katrina Canal Breaches Litig., 495 F.3d 191, 206 (5th Cir.2007), cert. denied by ___ U.S. ___, 128 S.Ct. 1230, 170 L.Ed.2d 63 (deferring to the parties' agreement on which state's substantive law controlled).

Summary judgment is appropriate when the evidence before the Court shows "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." FED R. CIV. P. 56(b). A fact is "material" if proof of its existence or nonexistence would affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute about a material fact is "genuine" if the evidence is such that a reasonable fact finder could render a verdict for the nonmoving party. Id. There can be no genuine issue as to a material fact when a party 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." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). This is true "since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323, 106 S.Ct. 2548.

"[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Anderson, 477 U.S. at 247, 106 S.Ct. 2505, 91 L.Ed.2d 202). "[I]f the movant bears the burden of proof on an issue, either because he is the plaintiff or as a defendant he is asserting an affirmative defense, he must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in his favor." Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir.1986).

If the moving party fails to meet its "initial burden, the motion must be denied, regardless of the nonmovant's response." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994). If the moving party can meet the initial burden, the burden then shifts to the nonmoving party to establish the existence of a genuine issue of material fact for trial. The nonmoving party must show more than "some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and cannot satisfy its burden with "conclusory allegations [or] unsubstantiated assertions." Little, 37 F.3d at 1075. "[T]he nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial." Id.

In evaluating the evidence tendered by the parties, the court must accept the evidence of the nonmovant as credible and draw all justifiable inferences in its favor. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. While courts will "resolve factual controversies in favor of the nonmoving party," an actual controversy exists only "when both parties have submitted evidence of contradictory facts." Little, 37 F.3d at 1075.

III. APPLICATION AND ANALYSIS

At issue in the pending motion are several claims...