Winningham v. North American Resources Corp.

• Decision Date: 09 April 1992
• Docket Number: No. C-1-91-447.,C-1-91-447.
• Citation: 809 F. Supp. 546
• Parties: Dale WINNINGHAM, Plaintiff, v. NORTH AMERICAN RESOURCES CORPORATION, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

809 F. Supp. 546

Dale WINNINGHAM, Plaintiff, v. NORTH AMERICAN RESOURCES CORPORATION, et al., Defendants.

No. C-1-91-447.

United States District Court, S.D. Ohio W.D.

April 9, 1992.

COPYRIGHT MATERIAL OMITTED

James Burdette Helmer, Jr., Helmer, Lugbill & Whitman Co., Cincinnati, OH, Meredith Lynn Lawrence, Lawrence & Schletker, Covington, KY, for plaintiff.

Frederick Mason Morgan, Jr., Montgomery, Rennie & Jonson, Arthur Herbert Schlemmer, Barron, Peck & Bennie, John Charles Scott, Faulkner & Tepe, Cincinnati, OH, for defendants Robert B. Sexton and North American Resources Corp.

Philip John Marsick, Jr., McCaslin, Imbus & McCaslin, Cincinnati, OH, for defendant I Deutch & Sons Inc.

Todd Matthew Powers Rendigs, Fry, Kiely & Dennis, Cincinnati, OH, for defendant Mose Cohen & Sons, Inc.

ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

SPIEGEL, District Judge.

This matter is before the Court on the Defendant Mose Cohen & Sons, Inc's ("Mose Cohen") supplemental memorandum in support of its motion for summary judgment (doc. 49), the Defendant North American Resource Corporation's ("NARC") memorandum in support of its motion for summary judgment (doc. 50), the Plaintiff's supplemental response to the Defendants' motion for summary judgment (doc. 56), the Defendant Mose Cohen's motion in support of its motion for summary judgment (doc. 57), the Defendant I. Deutch & Sons, Inc. d/b/a Cincinnati Auto Shredders' ("Deutch") motion for summary judgment (doc. 70), the Plaintiff's response (doc. 76), the Defendant Mose Cohen's motion for summary judgment (doc. 78), the Plaintiff's response (doc. 85), the Defendant Mose Cohen's reply (doc. 90) and supplemental reply (doc. 99), the Defendants' joint motion for summary judgment (doc. 104), and the Plaintiff's response (doc. 106).

The basic issues before this Court are whether we have subject matter jurisdiction, and if we do have jurisdiction, whether the Defendants owed a duty to the Plaintiff.

BACKGROUND

The Plaintiff, Dale Winningham, worked at North American Terminal ("NAT")¹ as a laborer unloading cargo from barges and rail cars. On April 28, 1988, Mr. Winningham was electrocuted, resulting in the loss of his hands and forearms, as well as other injuries. The accident occurred at 3291 Southside Avenue. 3291 Southside Avenue is industrial property with three docks on the Ohio River in Cincinnati. The property extends northward from the Ohio river and is bisected east to west by Southside Avenue, a road running parallel to the river. Railroad tracks parallel Southside Avenue on the northern border of the property.

On the day of his injury, Mr. Winningham was working on unloading coal cargo from barge C-330, that was docked at 3291 Southside Avenue. In unloading the barges, workers used a conveyor along Southside Avenue. The conveyor had been moved across Southside Avenue between 150 and 200 times during the last year in order to aid in unloading material from the barges that had docked at 3291 Southside Avenue. Sometimes, the conveyor would become entangled in the quadraplex line, an electrical powerline. When the conveyor became entangled in the quadraplex line, the quadraplex line power was turned off. The quadraplex line then had to be moved manually over the conveyor in order to allow the conveyor to pass.

At approximately 7:45 on April 28th, Mr. Winningham, along with other employees of NAT, were moving the conveyor across Southside Avenue when the top of the conveyor became entangled in the quadraplex powerline. As a result, Mr. Winningham's supervisor, Mark Wetterich, instructed Mr. Winningham and his fellow employee, Robert Johnson, to shimmy up the conveyor and free the quadraplex line. As always, the quadraplex line had been shut off.

Mr. Winningham climbed up the conveyor and positioned himself above the quadraplex line while standing on the conveyor. Located 5'2" above the quadraplex line was a 27,000 volt Cincinnati Gas & Electric transmission line. As Mr. Winningham began to lift the quadraplex line to free it from the conveyor, he straightened his body and came into contact with the Cincinnati Gas & Electric transmission line. As a result, he received a high voltage electric shock and was thrown approximately 25 to 30 feet to the ground.

Mr. Winningham was severely injured. As a result, his forearms and hands were amputated, and he suffered severe burns to his body.

At the time of Mr. Winningham's injury, Cincinnati Auto Shredders ("CAS") owned the property where the accident occurred. CAS is an Ohio partnership, consisting of general partners Mose Cohen and Deutch. In 1985, CAS entered into an installment land contract with NARC to sell the property it owned at 3291 Southside Avenue. The contract provided that title would pass from CAS to NARC when NARC made its final payment on the purchase price, which was anticipated to be in 1987.

In addition, under the terms of the installment land contract, CAS retained several rights over the property: (1) CAS kept the right to mortgage the property; (2) NARC was prohibited from incumbering the property in any manner without the written consent of CAS; (3) NARC had to maintain the insurance, subject to approval by CAS, for all liability related to the use of the docks for loading and unloading; (4) NARC had to maintain worker's compensation for those working on the property; (5) CAS retained the right to enter and inspect the property; (6) NARC was required to make all repairs to the property as specified by CAS; (7) NARC was prohibited from assigning its rights under the contract without the written consent of CAS; and, (8) CAS retained an easement to load, unload, and use any of the docks on the property without charge until two years after NARC made its final payment to CAS under the installment land contract. Although CAS held these rights, NARC was the primary user of the property.

After signing the installment land contract with CAS, NARC began to experience financial difficulties. NARC consequently defaulted on its obligations under the contract. On February 10, 1987, CAS filed a complaint for eviction and money damages in the Hamilton County Court of Common Pleas. On April 1, 1988, NARC declared Chapter 11 bankruptcy. Subsequently, CAS asked the bankruptcy court for relief from the automatic stay so that it could continue its eviction against NARC. In the bankruptcy hearing, CAS argued that whatever rights NARC may have had in 3291 Southside Avenue, those rights terminated upon the filing of an order of eviction and an accompanying quit-claim deed. U.S. Bankruptcy Judge Perlman held that no meeting of the minds existed as to the material provisions in the installment land contract, and therefore the contract was unenforceable. North American Resources, Inc. v. Cincinnati Auto Shredder, Case No. 1-88-00170 (Sept. 7, 1988).

In addition, several other facts indicate the extent of CAS's control over 3291 Southside Avenue:

1. Before Mr. Winningham's accident, John Wetterich, Chief Executive Officer of NARC, made electrical wiring improvements at 3291 Southside Avenue. Subsequently, a truck had knocked down the quadraplex powerline. As a result, John Wetterich had restrung personally the quadraplex powerline to prevent trucks from knocking down the wires again. As restrung, the quadraplex powerline ran diagonally across Southside Avenue. Tomme Schwab, a principal of Mose Cohen, knew that Mr. Wetterich had restrung the quadraplex line.

2. CAS used the electricity from the quadraplex line installed by John Wetterich.

3. CAS used the property as a drop facility for stockpiling its metal products and loading them onto barges.

4. Mose Cohen used the property on a monthly basis to load and unload barges.

5. CAS trucks came onto the property daily.

6. Laborers for CAS worked on the property.

7. On approximately March 28, 1988, principals of Deutch inspected the property.

8. Deutch had a key to the premises. When NARC tried to lock the gates to the property without providing keys to the CAS general partners, CAS cut the locks off the gates.

STANDARD OF REVIEW

The narrow question that we must decide on a motion for summary judgment is whether there exists a "... genuine issue as to any material fact and whether the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The Court cannot try issues of fact on a Rule 56 motion, but is empowered to determine only whether issues exist that should be tried. In re Atlas Concrete Pipe, Inc., 668 F.2d 905, 908 (6th Cir.1982).

The moving party "has the burden of showing conclusively that there exists no genuine issues as to a material fact and the evidence together with all inferences to be drawn therefrom must be read in the light most favorable to the party opposing the motion." Smith v. Hudson, 600 F.2d 60, 63 (6th Cir.) (emphasis in original), cert. denied, 444 U.S. 986, 100 S.Ct. 495, 62 L.Ed.2d 415 (1979). Moreover, "while the movant's papers are to be closely scrutinized, those of the opponent are to be viewed indulgently." Id. at 63. "The District Court is obligated to consider not only the materials specifically offered in support of the motion, but also all `pleadings, depositions, answers to interrogatories, and admissions' properly on file and thus properly before the court." Id. (quoting Rule 56(c), Fed.R.Civ.P.).

Summary judgment "must be used only with extreme caution for it operates to deny a litigant his day in court." Id. The Supreme Court elaborated upon this standard, in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), as follows:

The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who 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....

Id. at 322, 106 S.Ct. at 2552....