Himes v. United States
2011 U.S. App. LEXIS 14293
| 6th Cir. | 2011Background
- Himes injured August 1, 2007 at the Blue Grass Army Depot while mowing as an employee of Childers under a BGAD grounds maintenance contract.
- Childers contract required mowing in various base areas and provided workers’ compensation insurance for its employees.
- Army had contracted out grounds maintenance since 1988; some mowing historically done by Army personnel, others contracted.
- A deteriorating asbestos-insulated steam pipe near Platform 53 fell, injuring Himes with severe brain injury; no witnesses to the accident.
- Himes and wife filed FTCA complaint alleging premises negligence; district court granted summary judgment for the U.S. based on up-the-ladder immunity under Kentucky workers’ compensation law, finding mowing was a regular and recurrent part of BGAD’s business; discovery was limited accordingly.
- The Sixth Circuit affirmed, holding the U.S. qualifies as a “person” under state law and that mowing qualifies as regular and recurrent work, thereby upholding up-the-ladder immunity and the summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the United States can invoke up-the-ladder immunity under KY workers’ comp law. | Himes argues government entities cannot be contractors eligible for up-the-ladder protection. | U.S. contends it qualifies as a statutory employer and that Kentucky law treats the federal government as a private ‘person’ for WC purposes. | Yes; the U.S. is a “person” under KY WC law and entitled to up-the-ladder immunity if other criteria are met. |
| Whether the mowing work was a regular or recurrent part of BGAD’s business. | Mowing is not the BGAD’s regular business and could be done by Army personnel; discovery disputes show lack of regularity. | Mowing constitutes maintenance regularly performed and is necessary for base operations; prior practice supports regularity. | Yes; mowing was regular and recurrent maintenance work at BGAD, satisfying the statute. |
| Whether the district court properly limited discovery and denied a hearing. | Dispute over scope of discovery and right to a hearing on motions. | Discovery was properly scoped and the court did not abuse its discretion. | No abuse; discovery limits and denial of a hearing were appropriate under Rule 56 and local rules. |
Key Cases Cited
- Davis v. Hensley, 256 S.W.3d 16 (Ky. 2008) (governmental entities not within the private-person definition; up-the-ladder defense limited to contractors that would be liable if subs were not insured)
- Gen. Elec. Co. v. Cain, 236 S.W.3d 579 (Ky. 2007) (regular or recurrent maintenance can be a contractor’s regular work under KY WC Act; statutory up-the-ladder applies when maintenance is part of the business)
- Thompson v. The Budd Co., 199 F.3d 799 (6th Cir. 1999) (regular or recurrent maintenance work on a facility falls within KRS 342.610(2) and supports up-the-ladder immunity)