Opinion
No. 01-4121-SAC
December 30, 2002
MEMORANDUM AND ORDER
The case comes before the court on the defendant Siemen's Westinghouse Power Corporation's ("Siemens") motion for summary judgment (Dk. 26). The plaintiff Lynn Anderson brings this tort action to recover for injuries she sustained at Wolf Creek Nuclear Operating Plant when she tripped on temporary plywood flooring installed by Siemens while she was performing her duties as a temporary employee for Manpower. The plaintiff asserts two theories of recovery: negligence and premises liability. Siemen's motion seeks summary judgment on the negligence theory arguing the plaintiff has no evidence that Siemens breached a standard of care when it installed the flooring. Siemens argues the premises liability theory is subject to summary judgment as the plaintiff is unable to prove that Siemens had control of the premises or the area where the plaintiff was injured.
SUMMARY JUDGMENT STANDARDS
A court grants a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure if a genuine issue of material fact does not exist and if the movant is entitled to judgment as a matter of law. The court is to determine "whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will . . . preclude summary judgment." Id. There are no genuine issues for trial if the record taken as a whole would not persuade a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The initial burden is with the movant to "point to those portions of the record that demonstrate an absence of a genuine issue of material fact given the relevant substantive law." Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.), cert. denied, 506 U.S. 1013 (1992). If this burden is met, the nonmovant must "come forward with specific facts showing that there is a genuine issue for trial as to elements essential to" the nonmovant's claim or position. Martin v. Nannie and Newborns, Inc., 3 F.3d 1410, 1414 (10th Cir. 1993) (citations omitted). The nonmovant's burden is more than a simple showing of "some metaphysical doubt as to the material facts," Matsushita, 475 U.S. at 586; it requires "`present[ing] sufficient evidence in specific, factual form for a jury to return a verdict in that party's favor.'" Thomas v. International Business Machines, 48 F.3d 478, 484 (10th Cir. 1995) (quoting Bacchus Industries, Inc. v. Arvin Industries, Inc., 939 F.2d 887, 891 (10th Cir. 1991)).
The court views the evidence of record and draws all reasonable inferences in the light most favorable to the nonmovant. Id. At the same time, a party relying on only conclusory allegations cannot defeat a properly supported motion for summary judgment. White v. York Intern. Corp., 45 F.3d 357, 363 (10th Cir. 1995). "[I]t is not enough that the nonmovant's evidence be merely colorable or anything short of significantly probative." Revell v. Hoffman, 309 F.3d 1228, 1231 (10th Cir. 2002) (citations and quotations omitted).
STATEMENT OF UNCONTROVERTED FACTS
1. The plaintiff, Lynn Anderson, was a temporary employee of Manpower, and she was injured while working in the turbine building of the Wolf Creek Nuclear Operating Plant.
2. The defendant Siemens was a subcontractor for Wolf Creek Operating Corporation ("Wolf Creek"). Wolf Creek owned and controlled the power plant premises.
3. Siemens was performing work in Wolf Creek's turbin building which has a four-story deck with a grated floor. Wolf Creek instructed Siemens to use plywood owned by Wolf Creek to cover the deck floor to prevent items from dropping through the grates.
4. Siemens laid the temporary plywood flooring on which the plaintiff Anderson tripped. She stepped on the corner of a plywood sheet where it abutted another sheet. The corner of the sheet sagged down, and the plaintiff caught her boot on the adjacent sheet of plywood. This caused her to trip and fall to the ground on her left side and shoulder.
5. Prior to the plaintiff's fall, the plywood sheet flooring was not taped together where the sheets abutted each other. Nor was there a tarp covering the plywood or warning signs or flags placed in the area.
6. The plaintiff testified in her deposition that when this temporary flooring had been used in the past it had been covered with rolls of yellow, non-slip tarp, and hazard tape and signs had been used to warn those approaching to watch their step. The plaintiff also testified that the entity responsible for laying the floor had also been responsible for taking these safety precautions.
The court rejects as immaterial the defendant's proposed facts that the plaintiff did not know who owned or who laid the plywood flooring on which she tripped. Her lack of knowledge about these facts is not pertinent to the issues raised in this summary judgment motion. For that matter, the plaintiff's admitted lack of comprehensive knowledge about who controls what goes on in Wolf Creek's power plant only bears on her credibility in testifying about past practices at the plant. It does not disqualify her, however, from testifying on matters about which she reasonably could have personal knowledge as a temporary employee who has observed past practices in the plant. A summary judgment motion is not the time for evaluating the plaintiff's credibility. As for whether the defendant breached a standard of care when it installed the plywood flooring, this is controverted question of material fact.
ARGUMENTS
Common Law Negligence
In its initial memorandum, the defendant argues for summary judgment on the plaintiff's common law negligence claim because the plaintiff has not come forth with any evidence that the defendant breached any standard of care when it laid the plywood floor with Wolf Creek's plywood. The defendant insists that the plaintiff must present expert testimony to establish this duty as "[t]he way in which a contractor secures [temporarily] boards to the floor and to each other is technical matter requiring the testimony of experts or at least the testimony of individuals familiar with the industry custom and practice." (Dk. 27, pp. 5-6). The defendant argues the plaintiff cannot testify to this standard of care and, thus, has no proof of a breach.In response, the plaintiff points out that the defendant has not come forth with evidence of those relevant industry customs and practices or evidence of how its complied with the same. The plaintiff challenges the affidavit of Steve Douglas as conclusory on this matter. The plaintiff maintains that the defendant owed her a duty of due care in its method or practice of laying the plywood sheets and in taking certain precautions to prevent accidents to those walking on the sheets. The plaintiff says her testimony about past practices is evidence of what can be done and should have been done here and of what a reasonable person engaged in this industry would have done regardless of general industry custom and practice. Finally, the plaintiff insists expert testimony about the standard of care in laying temporary flooring is unnecessary, as the issue is one of due care and within the normal experience of jurors.
In its reply brief, the defendant asserts for the first time that the plaintiff cannot prove a duty to warn without proof that the defendant knew of the hazardous condition. The defendant submits new affidavits from one of its employees and from one of Wolf Creek's employees denying knowledge of a hazardous condition associated with the temporary plywood flooring. The defendant also asserts for the first time that Wolf Creek was the only entity with the duty to warn of safety hazards and that Siemens had no such duty as a mere subcontractor. The defendant also submits new affidavits in support of this argument. Generally, a party is prohibited from raising new arguments and issues in a reply brief. Boilermaker-Blacksmith Nat. Pension Fund v. Gendron, 67 F. Supp.2d 1250, 1257 n. 4 (D.Kan. 1999), and a court is not to consider issues first raised in a reply brief, Plotner v. AT T Corp., 224 F.3d 1161, 1175 (10th Cir. 2000). The court declines to address these argument first advanced in the defendant's reply brief. See United States ex rel. Hafter D.O. v. Spectrum Emergency Care, Inc., 190 F.3d 1156, 1160 n. 5 (10th Cir. 1999)
Premises Liability
The defendant seeks summary judgment as the plaintiff is unable to prove the defendant owned, occupied, controlled or possessed the premises on which the plaintiff was injured. The defendant asserts Wolf Creek had sole control of the premises and the plywood flooring. The plaintiff cites the case of Miller v. Zep Mfg. Co., 249 Kan. 34, 815 P.2d 506 (1991), for when a general contractor is the possessor of a premises and is liable for not keeping the premises in a reasonably safe condition.
ANALYSIS AND HOLDING
As set forth in the pretrial order, the plaintiff has two theories of recovery: common law negligence in creating a hazard and premises liability. In their summary judgment filings, the parties have focused on the same two theories of recovery. The court will address those issues that have been properly and fully briefed concerning these two theories.
Common Law Negligence
In the pretrial order, the plaintiff alleges under this theory that the defendant was negligent in the manner and method used in laying and joining the plywood sheets and in not marking the hazards created by laying the plywood floor as it did. The issues properly raised for summary judgment are whether the plaintiff has any proof that the defendant breached a standard of care in installing the plywood and whether the plaintiff must present expert testimony to establish the applicable standard. The defendant's challenge is not with the existence of a duty but with whether the plaintiff has any competent proof of what that duty is and how it was breached.
Kansas case law recognizes "the proposition that when plaintiffs are attempting to establish negligence based upon a departure from the reasonable standard of care in a particular profession, expert testimony is required to establish such a departure." Moore v. Associated Material Supply Co., 263 Kan. 226, 234-35, 948 P.2d 652 (1997) (italics added). On the other hand, "[h]oldings of an expert testimony requirement outside the area of professional liability, where breach of a standard of care must be proven, are not easily found." Id. at 235. The general rule is that: "`The basis for the admission of expert testimony is necessity arising out of the particular circumstances of the case. Where the normal experience and qualifications of jurors permit them to draw proper conclusions from given facts and circumstances, expert conclusions or opinions are not necessary.'" Id. (quoting Sterba v. Jay, 249 Kan. 270, 283, 816 P.2d 379 (1991) (holding that certain provisions within the Manual on Uniform Traffic Control Devices on how to sign a maintenance area and protect workers were not so complicated as to require an expert witness to assist the jury in reaching factual conclusions)). On the other hand, expert testimony is required "with respect to a question an ordinary person is not equipped by common knowledge and skill to judge," Bowman v. Doherty, 235 Kan. 870, 879, 686 P.2d 112 (1984), or "where normal experience and qualifications of lay persons serving as jurors does not permit them to draw proper conclusions from the facts and circumstances of the case," Pope v. Ransdell, 251 Kan. 112, 120, 833 P.2d 965 (1992) (citation omitted).
In Moore, homeowners sued the operator of an adjacent sand pit for constructing a pile of overburden that diverted floodwater onto the homeowners' properties. The Kansas Supreme Court held that expert testimony was not required to prove causation, as there was sufficient evidence from other sources, including the homeowners' own observations. 263 Kan. at 242.
The court finds that the plaintiff need not present the testimony of an expert witness to establish the defendant's liability under a theory of ordinary negligence for the manner and method it used in laying and joining plywood sheets as a temporary floor covering and for its decision not to mark the hazards created by laying the plywood sheets as it did. The use of reasonable care in installing sheets of wood as temporary flooring, the risks associated with not using reasonable care, and adequate warnings to others about those risks are not matters outside the normal experience and qualifications of jurors as to require expert testimony. The defendants have not demonstrated any concepts, methods or practices involved in using reasonable care to install sheets of wood as temporary flooring so as to be safe for others that even approach what an average person would consider technical or complex. The defendant has not cited any case law in Kansas that recognizes the need for expert testimony in any situation analogous here. Finally, the defendant's latest affidavits filed with its reply brief seem to refute any argument for requiring expert testimony on this simple negligence claim.
The defendant is not entitled to summary judgment simply because its own project manager has averred that the boards were laid and secured "consistent with industry custom and practice." (Dk. 36, ¶ 5). As argued by the plaintiff, this opinion is conclusory and lacking in factual foundation for this case. The plaintiff also is correct that compliance with industry custom and practice is not the controlling and exclusive test for negligence. Cerretti v. Flint Hills Rural Electric Co-op. Ass'n, 251 Kan. 347, 356-57, 837 P.2d 330 (1992) ("While it may be evidence of due care, compliance with industry standards, . . . does not preclude a finding of negligence where a reasonable person engaged in the industry would have taken additional precautions under the circumstances"). Nor does the defendant's project manager's opinion stand as uncontroverted about industry custom and practice or about what care a reasonable subcontractor would exercise in this situation, because the plaintiff is competent to testify about how this same plywood flooring had been installed and used on prior occasions at Wolf Creek. Therefore, on the arguments properly presented in the defendant's filings, the court finds there to be genuine issues of material fact that preclude an order of summary judgment on this claim of common law negligence.
Premises Liability
In the pretrial order, the plaintiff alleges the defendant as the general contractor failed to use reasonable care in laying the flooring and failed to use all reasonable safety precautions to address reasonably foreseeable harms caused by using warped sheets of plywood as flooring and by not properly marking and joining those sheets. The defendant seeks summary judgment on this claim arguing the plaintiff has not alleged and is unable to prove that the defendant owned, occupied, possessed or controlled the premises when the plaintiff tripped on the plywood sheeting and was injured. The plaintiff argues there is an issue of fact for the jury to decide whether the defendant controlled the premises by reason of being the general contractor.
"To hold a defendant liable for failure to keep premises in a reasonably safe condition, the defendant must be the owner, occupier, or possessor of the premises." Miller v. Zep Mfg. Co., 249 Kan. 34, 41-42, 815 P.2d 506 (1991) (citations omitted). The purpose and scope of this requirement is more evident after considering the following from Rogers v. Omega Concrete Systems, Inc., 20 Kan. App. 2d 1, 5, 883 P.2d 1204 (1994):
The plaintiffs first assert that Omega is liable under a theory of premises liability. That theory is satisfactorily explained in 62 Am. Jur.2d, Premises Liability § 6, p. 353 as follows:
" Occupation, or possession, and control is usually one of the attributes that must be shown as a basis for liability on the part of an owner or occupant of premises for injuries resulting from the condition of the premises. The liability of an occupant of real estate for injuries caused by a dangerous or defective condition of the premises depends generally upon his control of the property, whether or not he has title thereto and whether or not he has a superior right to possession of property which is in the possession and control of another." (Emphasis added).
Omega did not own any of the real estate on which the private road and crossing were located. The issue presented is one of control, not ownership. In a premises liability case, in order to be liable, the party charged must have had control over the premises in question. It is obvious that, without control, the responsibility for the dangerous or hazardous condition cannot exist. To put it another way, a party may not be held responsible for a condition which he or she did not cause and which he or she has no ability to remedy.
In Miller, the Kansas Supreme Court held that the general contractor exercised control over the building being constructed by having restricted access to the building, taken responsibility for the building until completed, and taken actions consistent with an intent to control the building. 249 Kan. at 42.
The parties stipulated in the pretrial order that the defendant laid the temporary plywood flooring. The issue presented by the plaintiff's premises liability claim is whether the defendant remained in control of the temporary flooring after its installation and was in control of the same at the time of the plaintiff's accident. The affidavit of its project manager Steve Douglas states that the defendant "had no control over" deciding when or if the plywood boards being used as flooring should be replaced and that Wolf Creek had "complete control" of "the premises and plywood at issue." (Dk. 36, ¶¶ 6 and 7). The plaintiff has not come forth with any evidence showing that the defendant Siemens continued to exercise control over the temporary plywood flooring after it was installed. There is no evidence that Siemens had a continuing responsibility to monitor the condition of the flooring following its installation or to take additional precautions thereafter. Thus, the court finds the defendant is entitled to summary judgment on the premises liability claim as the plaintiff has come forth with no proof that the defendant was exercising control over the temporary plywood flooring at the time of the plaintiff's accident.
IT IS THEREFORE ORDERED that the defendant Siemen's Westinghouse Power Corporation's motion for summary judgment (Dk. 26) is denied as to the plaintiff's claim under a theory of common law negligence but granted as to the plaintiff's claim under a theory of premises liability.