Opinion
No. 00-4110-SAC
June 6, 2002
MEMORANDUM AND ORDER
This slip and fall case comes before the court on plaintiff's motion to preclude defendant from comparing the fault of plaintiff's employer, the USDA, as a phantom party at trial. Defendant has indicated in the pretrial order its intent to compare the fault of the USDA.
The relevant facts are few and undisputed. Plaintiff is employed by the USDA as a meat inspector. At the time of the event giving rise to this lawsuit, she was assigned to work as an inspector in defendant's plant in Holcomb, Kansas. While working on April 22, 1999, she allegedly stepped onto a loose or improperly fitted grate covering a floor drain hole, which grate moved or flipped, causing her foot to drop into the hole and injuring her.
Plaintiff recovered workers' compensation under the Federal Workers Compensation Act, 5 U.S.C. § 8101, et seq., for this injury, which benefit is plaintiff's exclusive remedy against her employer. Therefore, the USDA cannot be made an actual party to this negligence action or be held liable for any proportionate fault attributed to it.
Nonetheless, under Kansas law, the fault of some parties immune to suit may be compared, having the effect of reducing the percentages of negligence attributable to the actual parties. Defendant contends that USDA is a necessary party for the purpose of considering and allocating proportionate fault.
Kansas's comparative negligence statute provides:
On motion of any party against whom a claim is asserted for negligence resulting in death, personal injury or property damage, any other person whose causal negligence is claimed to have contributed to such death, personal injury or property damages shall be joined as an additional party to the action.
K.S.A. 60-258a(c). Under this provision, USDA, although an immune employer, may be joined by the defendant as a "phantom party" for comparison purposes. Brown v. Keill, 224 Kan. 195 (1978). This is true even where, as here, the immunity arises by reason of a workers' compensation exclusive remedy provision. See Forsythe v. Coats Co. Inc., 230 Kan. 553 (1982).
Plaintiff, hoping to place the entire fault upon the defendant, seeks a ruling that no duty of care existed on the part of the USDA to protect her from the dangerous condition which caused her injury. Defendant, seeking to spread the liability, counters that although the USDA was not the owner of IBP's premises, it had sufficient control over plaintiff's work site to warrant the imposition of a legal duty to protect her from harm.
An analysis of the USDA's potential liability for negligence begins and ends with duty.
A tort is a breach of duty imposed by law. [Citation omitted.] In order to be liable for negligence, a defendant must owe a duty of care to the injured plaintiff. . . . Where there is no duty, there can be no breach.Kennedy v. Kansas Dept. of Social and Rehabilitation Servies, 26 Kan. App. 2d 98, 100 (1999). The existence of a duty is a question of law. See Calwell v. Hassan, 260 Kan. 769, 777 (1996).
Both parties agree that an employer generally has a duty to provide to its employees a reasonably safe working environment. See Dk. 67, p. 2; Dk. 68, p. 2. Kansas law fully supports that proposition. See Howard v. TMW Enterprises, Inc., 32 F. Supp.2d 1244 (D.Kan. 1998); Smith v. Massey-Ferguson, Inc., 256 Kan. 90, 111 (1994) ("The rule is simply that an employer has the duty not to expose his employees to perils which the employer may guard against by the exercise of reasonable care."); Crouch v. Missouri Pac. R. Co., 124 Kan. 305, 308 (1927). That rule was developed, however, and has been applied in the context of employees who work on the premises of their employers. The issue here is whether that same duty extends to protect one's employees working on the premises of another from hazards posed by the premises of another.
Defendant does not challenge plaintiff's assertion that an employer generally has no duty to maintain the premises of a location that it does not own, possess, or control. See e.g., Chadwell v. Clements, 18 Kan. App. 2d 84 (1993) (employer has no duty to control public street between its parking lot and its plant); Howard v. TMW Enterprises, Inc., 32 F. Supp.2d 1244 (D.Kan. 1998) (no duty of prior premises owner to employee injured by machine two months after new owner took possession) ; compare Shenker v. Baltimore and Ohio Railroad Co., 374 U.S. 1 (1963) (railroad has the nondelegable duty under FELA and common law to provide its employees with a safe place to work even when they are required to go onto the premises of a third party over which the railroad has no control).
Instead, defendant contends that the USDA had a sufficient degree of control over safety in the IBP plant to warrant imposition of a duty toward plaintiff. Defendant attempts to support this contention by reference to the deposition testimony which the court sets forth below.
Carl Zink, a veterinarian who worked for the USDA in the Holcomb plant, testified that the USDA is a third party which is in IBP's facility for purposes of inspection. (P. 27). He stated that USDA employees working in defendant's plant have the authority to shut down the line if the USDA inspector or veterinarian believes "it's a serious enough problem." (Dk. 67, Zink depo. p. 36).
Defendant asserts that this authority to shut down the line extends to problems other than food safety, apparently based upon the following colloquy:
Q. . . . if there's a safety problem with the food product that's gone by, and there's not time to get it corrected, that would be a time you might shut down the line?
A. Yes.
Q. If there's a problem in the plant that would have an effect on the safety of the inspectors, can the inspector shut down the line?
A. Yes.
Q. And once that line is shut down, if there was a safety problem, what would happen then?
A. They would get hold of their supervisor . . .
. . .
Q. So you would have a problem corrected before the line started up again, if everyone thought it was severe enough?
A. Yes.
Q. And the USDA can force IBP to fix that problem by holding over the fact that the line is shut down, right?
A. Yes, that would be possible.
(Dk. 67, Zink depo., p. 36-37).
Joseph Rainman, another USDA veterinarian assigned to the IBP plant in Holcomb, testified that IBP supervisors have no control over the USDA inspectors who are on the premises, that IBP has the responsibility for fixing the plant facility when it needs repair, and that the USDA has no authority to make changes in the plant facility. When asked whether the USDA could shut down the line if something in the operation were not sufficient to meet USDA standards, Dr. Rainman replied:
A. It depends on what you are talking about. Safety factors, I will have the inspectors leave; if it's something very, very dangerous, they are to leave.
The record additionally contains plaintiff's testimony that if a person came into her area, she would stop the line. (Plaintiff's depo., p. 57.)
From this testimony, defendant contends that USDA had the power to control the conditions of the plant, that such power was not limited to conditions affecting the safety of food, and that USDA had control over the safety of the plant. The court finds no support for defendant's broad conclusions in the narrow testimony above. Dr. Zink's testimony that a USDA inspector or veterinarian could shut down IBP's line if a food or other safety problem were serious enough fails to show the court that USDA had any power, or more importantly, any duty to inspect the floor at IBP for loose or misfitting drain coverings or to protect anyone from a hazard posed by its condition.
The same is true for Dr. Rainman's response that he would have inspectors leave the plant for "very, very dangerous" situations, when he was asked if the USDA could shut down the line if something in the operation were not sufficient to meet USDA standards. Nothing in Dr. Rainman's testimony shows the court either that the USDA's standards somehow encompassed the shape, size, strength, or other attribute of floor drain coverings, or that a loose, broken, improperly fitted or otherwise deficient floor drain covering would constitute one of those "very, very dangerous" conditions which would warrant evacuation of the plant by USDA employees. Defendant's position that USDA had sufficient control over the safety conditions at IBP to warrant imposition of a duty to control a dangerous condition posed by a floor drain covering is wholly unsupported by the facts.
Considering the relationship of the parties, the nature of the attendant risk, the USDA's lack of opportunity and ability to exercise care at another party's remote location, and the public interest in the matter, the court finds that USDA's duty to provide a reasonably safe working environment does not extend to the present circumstances. The peril of stepping into a hole not properly protected by a secure grate, at an off-site location to which defendant's employees are assigned, but which is owned, possessed, and maintained by another, is not a peril against which an employer may guard by the exercise of reasonable care. To impose such a duty upon employers who had no more control over the remote premises than the USDA did over the Holcomb IBP plant would be tantamount to making such employers responsible for inspecting, discovering and correcting every potential hazard to their employees at every off-site location at which their employees are required to be in the performance of their duties. Such an extension of law is not required by law, regulation, or contractual agreement between the parties and affronts public policy. Because the USDA owed plaintiff no duty to protect her from any hazard posed by the deficient drain cover, plaintiff's motion shall be granted.
IT IS THEREFORE ORDERED that plaintiff's motion to determine comparative fault issues (Dk. 63) is granted, and that the USDA shall not be included as a phantom party.