Younger v. Wehr Constructors, Inc.

• Decision Date: 11 April 2014
• Docket Number: NO. 2009-CA-000405-MR,NO. 2009-CA-000572-MR,2009-CA-000405-MR,2009-CA-000572-MR
• Citation: Younger v. Wehr Constructors, Inc., NO. 2009-CA-000405-MR, NO. 2009-CA-000572-MR (Ky. Ct. App. Apr 11, 2014)
• Court: Kentucky Court of Appeals
• Parties: JANE COLLEEN YOUNGER APPELLANT v. WEHR CONSTRUCTORS, INC.; EVERGREEN GROUP, INC.; S.D. ENVIRONMENTAL, INC.; AND UNIVERSITY MEDICAL CENTER, INC. APPELLEES AND WEHR CONSTRUCTORS, INC. CROSS-APPELLANT v. EVERGREEN GROUP, INC.; S.D. ENVIRONMENTAL, INC; AND UNIVERSITY MEDICAL CENTER, INC. CROSS-APPELLEES

JANE COLLEEN YOUNGER APPELLANT v. WEHR CONSTRUCTORS, INC.; EVERGREEN GROUP, INC.;

S.D. ENVIRONMENTAL, INC.; AND UNIVERSITY MEDICAL CENTER, INC. APPELLEESAND WEHR CONSTRUCTORS, INC. CROSS-APPELLANT v. EVERGREEN GROUP, INC.; S.D. ENVIRONMENTAL, INC;AND UNIVERSITY MEDICAL CENTER, INC. CROSS-APPELLEES

NO. 2009-CA-000405-MR

NO. 2009-CA-000572-MR

Commonwealth of Kentucky Court of Appeals

RENDERED: APRIL 11, 2014

NOT TO BE PUBLISHED

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE GEOFFREY P. MORRIS, JUDGE

ACTION NO. 05-CI-01767

CROSS-APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE GEOFFREY P. MORRIS, JUDGE

ACTION NO. 05-CI-01767

OPINION

AFFIRMING IN PART, REVERSING IN PART,

AND REMANDING IN APPEAL NO. 2009-CA-000405;

DISMISSING IN APPEAL 2009-CA-000572

BEFORE: MAZE, STUMBO AND TAYLOR, JUDGES.

MAZE, JUDGE: Jane Colleen Younger (Younger) appeals from summary judgment orders by the Jefferson Circuit Court which dismissed her negligence claims against Wehr Constructors, Inc. (Wehr), Evergreen Group, Inc. (Evergreen), S.D. Environmental, Inc. (SDE), and University Medical Center, Inc. (UMC). Younger's appeal focuses on sufficiency of the evidence that her injuries were proximately caused by the alleged negligence of the Appellees. We first find that the trial court erred in holding that Younger was bound by judicial admissions which she made in a prior Workers' Compensation claim regarding the onset of her symptoms. Consequently, this issue is not dispositive of Younger's claims against the Appellees, and in particular against Wehr and UMC. Second, we conclude that Younger presented sufficient circumstantial evidence of causation to support her claims against Wehr. Third and finally, we conclude that Younger failed to present sufficient evidence of causation to support her negligence claims against Evergreen and SDE.

Wehr filed a protective cross-appeal from the trial court's summary judgments dismissing Evergreen, SDE and UMC. However, we conclude that Wehr lacks standing to appeal from the dismissal of these co-defendants.Therefore, we affirm the trial court's summary judgments dismissing Younger's claims against Evergreen and SDE, but we reverse the summary judgments dismissing her claims against Wehr and UMC and remand for additional proceedings.

I. Facts

UMC is a non-profit organization that owns the premises occupied by the University of Louisville Hospital. The Brown Cancer Center (BCC) occupies a portion of the Hospital premises. Younger was employed at the BCC as a program assistant to the grant coordinator beginning in July 2003, initially working on BCC's third floor. Beginning in late 2003 and early 2004, UMC began a renovation project on the third floor. In January of 2004, Younger's office was moved to the fourth floor.

On March 1, 2004, UMC hired Wehr as the general contractor for the renovation project. However, there was evidence that Wehr had performed some work in other areas of the BCC for several months preceding that date. After the date of the contract, Wehr subcontracted with Realm Construction to do demolition work. Wehr and Realm began this work on March 22, 2004.

UMC separately contracted with Evergreen to perform asbestos-abatement work. This work included the removal of floor tiles and mastic, an asbestos-containing substance used to adhere floor tiles to concrete. Evergreen subcontracted with SDE to remove the mastic. SDE worked on this project from March 23 through March 26, 2004.

In removing the mastic, SDE used a product known as "Attack! 2000" (Attack). The Material Safety Data Sheet for Attack states that the product has a "soapy" odor. The Material Safety Data Sheet further cautions that the product should be used only with "adequate ventilation;" is an eye and skin irritant, with excessive vapor inhalation causing irritation of the respiratory tract; and finally notes that persons with allergies or preexisting skin conditions should avoid contact with Attack.

Around the same time, Younger and several other employees who worked on the fourth floor began complaining of a strong, irritating odor. Younger and other employees also reported a significant amount of dust in their work areas. There were additional reports that the odor returned in April of 2004. A number of employees stated that they developed nausea, dizziness, burning eyes and respiratory irritation during this period

Younger reported similar symptoms at this time. However, in a separate Workers' Compensation claim, she alleged that she began to experience symptoms around the first week of February. In that action, Younger stated that she went to her doctor twice in February 2004 with a rash on her chest, arms and legs and with severe coughing. She also testified that she did not notice the irritating odor until mid-March of 2004. Younger stated that this later exposure caused additional symptoms, including burning eyes, rashes, nasal irritation, a bitter taste in her mouth, dizziness and labored breathing. She further alleged thatthis condition persisted for several months, culminating in a disabling fatigue in August 2004.

After receiving complaints in March and April, UMC conducted an investigation of the odor. UMC hired Environmental Safety Technologies to conduct air sampling in the BCC, but those samples were within normal limits for toxins. The Occupational Safety and Health Administration (OSHA) and the state Health Department were called anonymously and asked to test the air toxicity levels at the BCC. After testing, neither agency found hazardous levels of any chemical in the air on the third floor of the BCC. Younger takes issue with the sufficiency of that testing.

Although the use of Attack was suggested as a possible cause of the odor, the reported odor was not consistent with the smell of that product. In addition, discovery later revealed that Realm had broken several acid lines and traps on the third floor during its demolition work. There was also evidence that Realm had ruptured a gas line in early April. While the source of the odor on the fourth floor was never determined definitely, UMC concluded that it was likely caused by the broken acid lines. UMC also concluded that ductwork and ventilation issues contributed to the problem.

II. Procedural History

On February 23, 2005, Younger filed this action against UMC, Wehr, Evergreen and SDE. She alleged that she suffered permanent injury in the form of occupational extrinsic asthma contracted as a result of her exposure to fumes fromAttack. The parties engaged in discovery, including the taking of Younger's deposition in January of 2006. Shortly thereafter, Wehr moved for summary judgment. Wehr noted that the asbestos-abatement work was performed exclusively by Evergreen and SDE, and that it had no involvement in the use of Attack. The trial court agreed, granting Wehr's motion for summary judgment on July 20, 2006.

Following additional discovery, Younger moved to set aside the summary judgment for Wehr. Younger pointed to newly discovered evidence that the broken acid and gas lines could have been the source of the fumes and her injury. On October 10, 2007, the trial court set aside its prior summary judgment order and reinstated Wehr as a defendant. Wehr filed a motion to alter, amend or vacate, Kentucky Rules of Civil Procedure (CR) 59.05, which the trial court denied on March 17, 2008.

Wehr filed a renewed motion for summary judgment on September 10, 2008. In support of the motion, Wehr pointed to Younger's testimony in the Workers' Compensation action stating that her symptoms began in February of 2004. Wehr also submitted an affidavit by its Vice President, Scott Smith, stating that Wehr began demolition work on the third floor of the BCC on or about March 22, 2004. Since Younger's symptoms began before this date, Wehr argued that its actions could not have been the cause of Younger's injuries. In the alternative, Wehr argued that Younger had failed to establish that any exposure to fumes caused her injuries. In response, Younger pointed to evidence showing that Wehrbegan some renovation work at the BCC in December of 2003. Consequently, Younger contended that summary judgment was premature and requested an opportunity to depose several other witnesses.

Evergreen, SDE and UMC each had motions for summary judgment pending at the time Wehr was reinstated as a party. Like Wehr, all three pointed to Younger's statements in her Workers' Compensation action that her symptoms began in February of 2004. Evergreen and SDE also argued that Younger had failed to present any evidence showing either that she was exposed to Attack or that her symptoms were caused by that exposure. In its motion, UMC argued that it could not be held liable for the actions of independent contractors.

On June 10, 2008, the trial court entered an order addressing the motions for summary judgment by Evergreen, SDE and UMC. With respect to Evergreen and SDE, the court held that Younger judicially admitted in her Workers' Compensation claim that her symptoms began prior to these parties' presence at the BCC. The court further held that Younger had failed to present evidence showing that her symptoms were caused by either Attack or by any negligence in their use of that product. The trial court also granted UMC's motion for summary judgment, agreeing that it could not be held liable for the alleged negligence of any of the independent contractors.

In a separate order entered on October 18, 2008, the trial court denied Wehr's motion for summary judgment. However, the court directed any further discovery would be limited to the single issue of when Wehr actually beganrenovation work at the BCC. In response to this order, Wehr reiterated that it had begun work on the third floor renovation project on March 22, 2004. However, Wehr submitted an affidavit by another Vice President, Virgil Parish, stating that it was engaged in renovation work on the fourth floor of the BCC under two separate contracts. Wehr...