MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendant Covol Fuels No. 2’s (“Covol”) Motion for Summary Judgment [DN 120] and Motion to Exclude, or Limit Testimony of, Plaintiffs Expert Witnesses [DN 122]. Additionally, other matters before the Court are Plaintiffs’ Motion for Partial Summary Judgment [DN 113], Daubert Motion to Exclude Testimony and Opinions of Dr. George R. Nichols [DN 115], Motion In Limine Excluding Any Reference at Trial to David McCarty’s Alleged Marijuana Use [DN 116], and Motion for Sanctions is [DN 114].
I. BACKGROUND
On February 26, 2009, David McCarty, employed by Evansville Garage Doors, fell and suffered fatal injuries while installing an overhead commercial-grade door at the Minuteman Fines Recovery Plant located in Muhlenberg County. Covol hired H & B Builders to construct the post-frame building at the facility, and to complete this building, H & B Builders subcontracted the installation of the garage door to Evansville Garage Doors.
On the day of the fall, McCarty and Jeremy Means were sent to Covol’s facility to install the garage door, but McCarty was the lead installer for the project. The incident that led to McCarty’s death occurred while McCarty and Means were
Following the incident at Covol, William Barnwell, a Mine Safety and Health Coal Mine Inspector, conducted an investigation into how McCarty fell from the ladder. Barnwell concluded that McCarty’s fall resulted from the placement of his ladder directly below the door opening, the failure of Means and McCarty to follow the installation instructions for the door, and the lack of restraint devices used to prevent the door from descending as it did when it struck the ladder. However, “the root” cause of the incident, Barnwell reported, was that “[t]he steel curtain was not blocked from motion during the installation of the door as required in the manufacturer’s installation manual.” (MSHA’s Report, DN 51-1, at 12). Additionally, the inspector found the garage door itself free of any defects that would have contributed to the accident.
II. STANDARD OF REVIEW
Before the Court may grant a motion for summary judgment, it must find that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(a). The moving party bears the initial burden of specifying the basis for its motion and identifying that portion of the record that demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett,
Although the Court must review the evidence in the light most favorable to the nonmoving party, the non-moving party must do more than merely show that there is some “metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
III. DISCUSSION
In this case, Plaintiffs assert four theories of negligence: (1) common law duty
A. Exclusive Remedy Under Workers’ Compensation Act
Defendant argues that it is immune from tort liability because the Workers’ Compensation Act provides the exclusive remedy in this case. Defendant supports this contention on what it perceives as Plaintiffs’ admission within their motion for partial summary judgment. In response to this argument, Plaintiff points to Defendant’s various filings to show issues of fact as to the applicability of the Workers’ Compensation Act.
KRS § 342.690(1) provides that if an employer secures payment of workers’ compensation under Chapter 342, “the liability of such employer under this chapter shall be exclusive and in place of all other liability of such employer____” For purposes of this section, “the term ‘employer’ shall include a ‘contractor’ covered by subsection (2) of KRS 342.610, whether or not the subcontractor has in fact, secured the payment of compensation.” Granus v. North Am. Philips Lighting Corp.,
A contractor who subcontracts all or any part of a contract and his or her carrier shall be liable for the payment of compensation to the employees of the subcontractor unless the subcontractor primarily liable for the payment of such compensation has secured the payment of compensation as provided for in this chapter---- A person who contracts with another: ...
(b) To have work performed of a kind which is a regular or recurrent part of the work of the trade, business, occupation, or profession of such person
shall for the purposes of this section be deemed a contractor, and such other person a subcontractor....
KRS § 342.610(2).
“The purpose of the provision of KRS 342.610 that a contractor is liable for compensation benefits to an employee [of] a subcontractor who does not secure compensation benefits is to prevent subcontracting to irresponsible people.” Fireman’s Fund Ins. Co. v. Sherman & Fletcher,
Here, Covol has repeatedly maintained that constructing post frame buildings is both an integral and recurring part of its business operations. So, pursuant to KRS 338.031, Covol owed a duty to McCarty to maintain a safe workplace free of hazards, such as the defective stepladder McCarty was on at the time he fell.
(Mem. in Supp. of Pis.’ Mot. for Partial Summ. J., DN 113-1, at 23). From this particular section, Defendant concludes, “The plaintiff argues that KRS 338.031 applies to Covol. As a matter of logic, the plaintiff seems to be conceding the regular-or-recurrent factor. If so, the plaintiffs action is barred by the exclusive-remedy rule.”
The Court does not agree with the Defendant’s contention that the Plaintiff has conceded the “regular-or-recurrent” issue. Instead, the Court finds that the Plaintiffs simply used Defendant’s admissions in discovery documents regarding “regular or recurrent” work to support Plaintiffs’ argument for a violation of state and federal mining regulations under the “regular job site” requirement for OSHA and KOSHA violations. The two are completely different issues.
Other than Plaintiffs’ alleged concession, Covol fails to assert any facts that would support that McCarty’s work constituted “regular or recurrent” for Covol. The Defendant has the burden of demonstrating why the exclusive remedy applies in this case. General Elec. Co. v. Cain,
B. Premises Owner’s Common Law Duty
Plaintiffs next argue that Defendant breached its common law duty of care for McCarty by not warning him of the unsafe condition of the ladder, the condition of the safety harnesses, and not training McCarty on fall protection for the post-frame building. Defendant does not dispute that it owed a common law duty to warn McCarty of latent dangers, but Defendant contends that any unsafe condition McCarty faced, if any at all, would be considered obvious to him. Thus, Defendant did not breach any common law duty to warn McCarty.
The parties do not dispute that Covol, as a premises owner, owed McCarty, an invitee, “a general duty to exercise
Plaintiffs contend that Defendant should be liable for failing to warn McCarty specifically about “the condition of the ladder, the condition of the lanyard and harness, and the lack of training on the particular fall protection system McCarty had on while in the post frame building.” (Pis.’ Resp. in Opp’n to Covol’s Mot. for Summ. J., DN 129, at 19). As to the condition of the harness, Plaintiffs do not allege that the safety harness was unsafe or defective in any manner, and in fact, it is undisputed that McCarty was not using the safety harness to tie-off at the time he fell. (Dep. of Jeremy Means, DN 120-10, at 99). Additionally, Plaintiffs’ argument concerning Covol’s failure to train McCarty on fall prevention either relates more closely to Plaintiffs’ theory of duty under Covol’s internal policies, see infra Part D, or they are attempting to suggest Covol should have warned about the dangers of not tying-off when working on a ladder. In the case of the latter theory, McCarty, an individual trained and experienced in installing garage doors, certainly did not need to be warned of the risks associated with climbing a ladder. Thus, neither the failure to warn of falling off of a ladder nor the failure to train McCarty on the use of the safety harness creates a plausible claim under common law premises liability.
As to the condition of the ladder, Plaintiff relies on a citation issued approximately a month after McCarty’s fall on March 26, 2009 that describes the ladder as having a stress crack in the legs, one of the locking devices being broken, and some worn treads. (Mine Citation, DN 118-17, at 1). This citation only indicates the condition of the ladder after the incident. To oppose Plaintiffs’ contention, Defendant offers the independent evaluation by William Barnwell, the MSHA inspector for incident, who concluded that McCarty fell due to the position of the ladder, the lack of restraint on the door, and McCarty’s deviation from the installation instructions for the door. (MSHA report, DN 51-1, at 11). Additionally, Defendant provides expert testimony by Dr. John Wiechel who concluded that the condition of the ladder could not have contributed to the fall. Notwithstanding the strength of Defendant’s evidence in opposition, summary judgment is warranted here because the Plaintiffs have failed to meet the threshold of demonstrating that Covol had any actual knowledge of the condition of the ladder prior to the incident. Brewster,
C. Negligence Per Se
Under a theory of negligence per se, Plaintiffs contend that Covol is liable for violating state and federal mining regulations. Plaintiffs rely on KRS § 446.070 that provides a cause of action for persons injured due to the violation of penal or forfeiture statute. In response, Defendant argues that Plaintiffs’ negligence per se theory fails because McCarty neither belonged to the class of persons meant to be protected by mining statutes nor did the accident result from the type of incident that the statutes are meant to prevent.
Negligence per se “is merely a negligence claim with a statutory standard of care substituted for the common law standard of care.” Real Estate Mktg., Inc. v. Franz,
[T]he mere violation of a statute does not necessarily create liability unless the statute was specifically intended to prevent the type of occurrence which has taken place. Not all statutory violations result in liability for that violation. The violation must be a substantial factor in causing the injury and the violation must be one intended to prevent the specific type of occurrence before liability can attach.
Lewis v. B & R Corporation,
Defendant contends that there is no need to even discuss violations of state and federal mining regulations under Plaintiffs’ theory of negligence per se without the Plaintiff first showing an independent basis for a duty owed to McCarty. Defendant’s argument arises from language in Ellis v. Chase Communications, Inc.,
The first threshold for the Plaintiffs is to demonstrate that McCarty was within the intended class to be protected by Kentucky’s mining safety regulations. While Kentucky courts have significantly explored the contours of the intended class for OSHA or KOSHA violations, the intended class for Kentucky mining violations is an issue of first impression. When faced with “an undecided question of Kentucky law, a federal court sitting in diversity must make the ‘the best prediction, even in the absence of direct state precedent, of what the Kentucky Supreme court would do if it were confronted with [the] question.’” Combs v. International Ins. Co.,
We believe that Congress [the General Assembly] enacted Sec. 654(a)(2) [KRS 338.031(l)(b) ] for the special benefit of all employees, including the employees of an independent contractor, who perform work at another employer’s workplace. The specific duty clause represents the primary means for furthering Congress’ purpose of assuring ‘so far as possible every working man and woman in the Nation safe and healthful working conditions.’ 29 U.S.C. Sec. 651(b). The broad remedial nature of the Occupational Health and Safety Act of 1970 is the Act’s primary characteristic.
Hargis,
Thus, the question here is whether Kentucky’s mining. regulations express the same broad inclusive coverage of individuals as found in KOSHA. Fortunately, in the case of Kentucky mining regulations, the General Assembly codified its findings
Although Kentucky has not addressed the issue of whether state mining regulations cover independent contractors working at a mining facility, the Wyoming Supreme Court addressed this particular question in Burnett v. Imerys Marble, Inc.,
[W]e must conclude that Burnett is not among the class of persons the Mine Act is intended to protect. First, Burnett is not a miner because he is not an individual working in a mine. While the definition of “mine” is broad enough to include milling facilities such as Imerys’ processing facility, it is clear that Burnett does not work in that facility and is not allowed in that facility when tarping his load. Burnett does get his truck loaded at the warehouse but no processing takes place at the warehouse. Furthermore, Burnett was not even at the warehouse when the accident occurred. Instead, he was in an open field across from the warehouse. Burnett is not a miner. He is a commercial truck driverwho occasionally transports products produced in a mine.
Id. at 464-65. Here, McCarty’s work with the installation of the garage door was less involved with the mining process than even Burnett’s hauling of material from the warehouse.
Even assuming arguendo that McCarty fell within this protected class, it is extremely unlikely that he was injured in a way that the statutes and regulations were meant to prevent. Plaintiffs reference Kentucky Administrative Regulations, requiring “Hazard Training,” 805 KAR 7:090, or placing restrictions on employees working in “hazardous conditions,” 80115 KAR 3:020, to suggest that McCarty’s injury was the type the statutes are meant to prevent. (Pis.’ Resp. in Opp’n to Covol’s Mot. for Summ. J., DN 129, at 17-18). However, Kentucky mining regulations define “Hazard training” as “instruction in awareness and avoidance of accident or injury from conditions inherent to mining provided by the licensee to visitors exposed to mine hazards.” 805 KAR 7:010(6) (emphasis added). McCarty’s fall off the ladder was not an injury “inherent to mining” despite the fact that it happened at a mine site. The Wyoming Supreme Court similarly concluded:
[T]he hazard that Burnett encountered was not a mining hazard but a hazard of his job as a commercial trucker. Indeed, Burnett acknowledged that tarping was a normal part of his job as a trucker. He tarped approximately ninety percent of his loads, many of which are in no way related to Imerys or other mining operations. Thus, Burnett’s accident was not a product of the hazard the Mine Act was intended to protect against.
Burnett,
Since McCarty does not fall within the class of persons meant to be protected by state mining regulations nor injured by the type of hazards the regulations are meant to prevent, he may not pursue an action under KRS § 446.070.
D. Assumption of a Duty of Care
Plaintiffs assert three theories under which they allege Covol assumed a duty of care for McCarty. First, Plaintiffs claim Covol created and owed a duty of care to McCarty based on its lease with Kentucky to mine coal. The second and third theories are fairly intertwined because Plaintiffs argue that Covol assumed a duty of care based on its own internal policies and “affirmative steps to enforce its safety policies and procedures to employees of independent contractors.” (Mem. in Supp. of Pis.’ Mot. for Partial Summ. J., DN 113-1, at 19-20). Under these two theories, Plaintiffs contend that the Defendant may be held liable if it established an internal policy, and then subsequently failed to follow that policy. In support of this argument, Plaintiffs rely on the Restatement of Torts (Second) §§ 323, 324A (1965) to establish liability based on a theory that Covol voluntarily assumed a duty of care for McCarty. In response, Covol contends that McCarty cannot be a third-beneficiary to Covol’s contract with Kentucky because the lease does not require Covol to render any services to McCarty. As to Plaintiffs second and third theory, Covol argues that Plaintiffs’ claim fails as a matter of law because Kentucky does not impose a duty on companies based on their internal policies and that Sections 323 and 324A do not apply under these facts.
1. Covol’s Lease with Kentucky
Plaintiffs assert that Covol’s lease with Kentucky made McCarty an intended
Plaintiffs also argue that Section 324A of the Restatement (Second) of Torts supports a finding that Covol assumed a duty to McCarty under its lease with the Commonwealth. In Ostendorf v. Clark Equipment Co.,
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.
Restatement (Second) of Torts § 324A (1965). Plaintiffs argue that “Covol contractually agreed to adhere to the Federal and State regulations and statutes which required Covol to take a number of safety precautions as delineated previously in this memorandum.” (Mem. in Supp. of Pis.’ Mot. for Partial Summ. J., DN 113-1, at 21-22). Plaintiffs’ reliance on Section 324A of the Restatement (Second) of Torts is misplaced. Notwithstanding Covol’s agreement to adhere to the law, Covol did not render services to the Commonwealth of Kentucky which it should recognize as necessary for the protection of McCarty.
2. Covol’s Internal Policies
Plaintiffs’ final two theories, under an assumed duty claim, rely on Covol’s internal policies and its subsequent failure to follow those policies. Similar to Plaintiffs’ claim based on Covol’s lease with Kentucky, Plaintiffs utilize Sections 324A and 323 of the Restatement (Second) of Torts to establish a claim against Defendant. Covol answers by arguing that internal policies of a company cannot be the basis of liability, and that Sections 324A and 323 do not apply under these set of facts.
Kentucky rejects the notion that “a person or business entity’s adoption of an internal guideline or policy and subsequent failure to follow that internal guide
A operates a grocery store. An electric light hanging over one of the aisles of the store becomes defective, and A calls B Electric Company to repair it. B Company sends a workman, who repairs the light, but leaves the fixture so insecurely attached that it falls upon and injures C, a customer in the store who is walking down the aisle. B Company is subject to liability to C.
Restatement (Second) of Torts § 324A cmt. c (1965). This illustration identifies the obvious flaw in Plaintiffs’ argument; McCarty was the party rendering services, not Covol. As a result, Plaintiffs may not rely on Section 324A to establish a theory of liability for Covol.
In addition to an argument based on Section 324A, Plaintiffs also contend that Defendant made certain promises to McCarty to provide necessary equipment and training in order to complete the work with the garage door. Thus, according to Plaintiffs, Covol rendered services to McCarty, which means it may be liable under Section 323. The relevant section states as follows:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other’s reliance upon the undertaking
Restatement (Second) of Torts § 323 (1965). Again, the Court struggles to find any fact that would suggest that Covol would be considered “rendering services” to McCarty. Even if Covol’s promise to provide safety equipment' met the first part of the test under Section 323, Plaintiffs claim still fails to meet either (a) or (b). Since Covol never rendered any extra training to McCarty, it would be impossible for them to have failed exercise reasonable care which would have increased the risk of harm to McCarty under Section 323(a). Additionally, if the “services” were the safety policies, it would similarly be impossible for Plaintiffs to argue that McCarty relied on them because he started working on the garage door without the equipment or the training. In other words, McCarty could not have relied on something to his detriment when he knew that he had not received extra training or equipment. As such, Plaintiffs cannot rely on these theories to assert a claim against Defendant.
E. Plaintiffs’ Motion for Sanctions [DN 114]
Plaintiffs seek to have the Court enter partial summary judgment against Defendant as a sanction for spoliation of evi
In federal courts, the issue of spoliation is controlled by federal law. Adkins v. Wolever,
“[A] proper spoliation sanction should serve both fairness and punitive functions.” Adkins,
(1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed “with a culpable state of mind”; and (3) that the destroyed evidence was “relevant” to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.
Id. at 553. The usual sanction for spoliation of evidence is an adverse inference instruction to the jury which generally requires bad faith. In re Nat’l Century Fin. Enters., Inc., No. 2:03-md-1565,
IV. CONCLUSION
For the foregoing reasons, Defendant Covol’s Motion for Summary Judgment is GRANTED [DN 120] and Plaintiffs’ Motion for Partial Summary Judgment is DENIED [DN 113]. Since Liberty Mutual Agency Market’s, the Intervening Plaintiff, claim is contingent on a finding of liability against Covol, it is also DISMISSED.
Additionally, Plaintiffs’ Daubert Motion to Exclude Testimony and Opinions of Dr. George R. Nichols [DN 115], Plaintiffs’ Motion In Limine Excluding Any Reference at Trial to David McCarty’s Alleged Marijuana Use [DN 116], and Defendant’s Motion to Exclude, or Limit Testimony of, Plaintiffs Expert Witnesses [DN 122] are DENIED as MOOT. Finally, Plaintiffs’ Motion for Sanctions is DENIED [DN 114],
Notes
. Covol maintained in its reply to Plaintiffs' response that it "interpreted McCarty's summary-judgment memorandum as conceding the regular-or-recurrent issue.” (Covol's Reply in Supp. of Mot. for Summ. J., DN 139, at 25).
. KRS § 351.101 tracks very closely Congressional findings contained within the chapter governing MSHA. 30 U.S.C. § 801.
. MSHA cited Imerys for violation of 30 C.F.R. § 56.15005 (2004), which is also a section that Plaintiffs in this case contend that Defendant violated. (Mem. in Supp. of Pis.’ Mot. for Partial Summ. J., DN 113-1, at 13).
. The Court notes that Plaintiffs also included several other items later in the motion.