SMITH v. NORTH AMERICAN STAINLESS LIMITED PARTNERSHIP

JOSEPH HOOD, District Judge

This matter is before the Court on Defendant Siemens Energy Automation and Siemens Westinghouse Technical Services, Inc.'s (now known as Siemens Energy Automation, Inc.) ("SEA") motion for summary judgment [Record No. 61]. Plaintiff Smith, and Intervening Plaintiff Kentucky Employers' Mutual Insurance, have filed a joint brief in response [Record No. 68]. Defendant has replied to Plaintiffs' response [Record Nos. 72]. This matter is now ripe for decision.

On July 24, 2002, Decedent James Smith, an employee of Artisan Mechanical, Inc. ("Artisan"), was working as a welder on an electric arc furnace, which was manufactured and in the process of being installed by SMS DeMag, Inc. ("SMS") at the North American Stainless Limited Partnership ("NAS") plant in Ghent, Kentucky. Particularly, James Smith and other Artisan workers were working on an electrode arm located in the electrical arc furnace ("EAF"). At that same time, two engineers, Larry Hambrick and Wayne Warrick, employees of Siemens Technical Services, Inc. ("Siemens"), a division of Siemens Energy and Automation, Inc., were working on a vacuum breaker component located in an electrical/switchgear room at the NAS facility.

The electrode arm on which James Smith was working somehow became energized, moved, and then crushed him as he attempted to work. James Smith died several days later as a result of these injuries. Mr. Smith's wife, Tina Smith, brought this suit individually and as administrator of the estate of James Smith.

The EAF and the electrode arms are controlled by a computer system called a program logic controller (" PLC"), which was supplied by SMS as part of its contract with NAS. It is the plaintiff's position, that when Hambrick and Warrick operated the breaker in the electrical/switchgear room during their testing, this operation sent a signal or was detected by the PLC. In turn, the PLC directed the electrode arms to rise. Plaintiff claims that SEA was negligent in its activities on the day in question and that such negligence subsequently resulted in decedent's injuries and wrongful death. SEA has submitted a motion for summary judgment claiming that no duty was owed by them to the decedent and therefore the case against them should be dismissed.

Under Fed.R.Civ.P. 56(c), summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no issue as to any material fact, and that the moving party is entitled to judgment as a matter of law." The moving party may discharge its burden by showing "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Thereafter, the burden shifts to the nonmoving party, which is the plaintiff in this case. The nonmoving party "cannot rest on her pleadings," and must demonstrate to the Court that "there is a genuine issue for trial." Hall v. Tollett, 128 F.3d 418, 422 (6th Cir. 1997). In considering a motion for summary judgment the court must construe the facts in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

Plaintiff's claim against SEA is for wrongful death/negligence, and thus is governed by the state law of Kentucky. Under Kentucky law, a negligence action requires (1) a duty on the part of the defendant, (2) a breach of that duty, and (3)consequent injury. Pathways, Inc. v. Hammons, Ky., 113 S.W.Sd 85, 88 (2003)("Consequent injury," as an element of a negligence claim, consists of two distinct elements: actual injury or harm to the plaintiff and legal causation between the defendant's breach of duty and the plaintiff's injury.). For SEA to be entitled to judgment as a matter of law on the negligence claim, SEA must show that (1) it is impossible for Plaintiff to produce evidence in her favor on one or more of the issues of fact; or (2) under the undisputed facts of the case, SEA owed no duty to the plaintiff; or (3) as a matter of law, any breach of duty owed to Plaintiff was not the legal cause of her injuries. Id. at 89.

Defendant claims that Plaintiff is unable to establish the first of the three factors required to sustain a negligence action — that there was no duty of the part of the defendant. It is undisputed that under Kentucky law, the existence of a duty of care to the plaintiff, and its underlying foreseeability inquiry, is a pure question of law for the Court. James v. Meow Meida, Inc., 300 F.3d 683, 691 (6th Cir. 2002). Therefore, the question before the Court, is whether SEA owed the plaintiff a duty to prevent a foreseeable injury. For the reasons stated below, the Court is of the opinion that it did not.

Kentucky has a universal duty of care as stated by the Kentucky Supreme Court in Grayson Fraternal Order of Eagles v. Claywell, Ky., 736 S.W.2d 328 (1987). Under the universal duty of care, "every person owes a duty to every other person to exercise ordinary care in his activities to prevent foreseeable injury." Id. at 332. While this extremely broad "universal duty of care" standard has been called into question by the Sixth Circuit, Johnson v. S.O.S. Transport, Inc., 926 F.2d 516 (6th Cir. 1991) (holding that the continued viability of the universal duty concept under Kentucky law is questionable), it has not been expressly abandoned by the Kentucky Supreme Court. As such, this Court will apply the universal duty concept to the facts of this case.

The universal duty concept is circumstantially limited: the duty is to exercise ordinary care to prevent foreseeable harm. The foreseeability element has long been the law of Kentucky. Meow Media, 300 F.3d at 690. Thus, SEA can only be liable to the plaintiff for decedent's injuries if the harm to decedent was reasonably foreseeable. It is clear to the Court, that any risk posed to decedent, and any subsequent injury, was unforeseeable to SEA.

SMS hired SEA to test an electrical component in one area of the plant. Decedent's employer, Artisan, was also hired by SMS, but to perform welding work in a different area of the plant. Both Warrick and Hambrick stated in their affidavits, that they (SEA) knew nothing about the plant other than what they saw in the isolated electrical/switchgear room where they were working. They further stated, that SEA did not see any work schedules, plans, or layouts of the facility prior to beginning work. Hambrick and Warrick never saw the EAF before the accident, they never saw the electrode arms, and they had no idea anyone was working on the arms that day. Furthermore, Hambrick and Warrick knew nothing about the PLC and how it operated. They could not be expected to foresee that the operation of the breaker by control power (there was no actual power on the line at the time) would cause some type of reaction in a distant computer, which would, in turn, cause an electrode arm to move, thereby crushing a man who happened to be perched on top of the arm at that exact time, and who, by coincidence, had failed to lock out the hydraulics to the arm. This is too tenuous a connection for the Court to find reasonable foreseeability on the part of SEA.

To the extent SEA had a duty to lockout/tagout the equipment it was working on, it is the Court's determination that SEA satisfied that duty. Again, both Warrick and Habrick testified at length about the exact procedures they followed to be certain that the switchgear was locked out. These procedures were discussed with, and approved by, SMS DeMag, the general contractor who actually had knowledge about other work going on in the plant and about the operation of the PLC. SEA took the necessary precautions to protect against foreseeable injuries.

Finally, the existence of a duty of care is essentially a policy determination. See Meow Media, 300 F.3d at 691. The Court agrees with the defendant; in this type of situation, to impose liability on a contractor would amount to an untenable burden. Independent contractors like SEA, who enter different job sites each day in order to maintain, repair, and test equipment, must rely on their customers to provide necessary information about the facility and to coordinate the work. Imposing a duty in cases like this would place an onerous and unreasonable burden on independent subcontractors.

Having determined that the motion sub judice is well-made, IT IS ORDERED that Defendant Siemens Energy Automation, Inc. and Siemens Westinghouse Technical Services, Inc.'s motion for summary judgment [Record No. 61] be, and the same hereby is, GRANTED.