United States District Court, D. Kansas
MEMORANDUM AND ORDER
CARLOS MURGUIA, District Judge.
Plaintiff Jesse Stottlemyre brought this action against defendant Sunflower Electric Power Corporation ("Sunflower") alleging Sunflower's negligence resulted in plaintiff's injury at one of Sunflower's coal-fired power plants. Sunflower promptly filed a third-party complaint for indemnification against Piping and Equipment Co., Inc. ("P&E"), which was plaintiff's employer and the company contracted by Sunflower to complete maintenance work on Sunflower's power plant equipment. Sunflower and P&E each filed a motion for summary judgment (Docs. 97 & 99). Within a week, P&E filed an amended motion for summary judgment (Doc. 101) clarifying that it is also seeking summary judgment with respect to plaintiff's claims. The day after P&E's amendment, plaintiff filed a motion to strike affidavits, arguing that three paragraphs in two different affidavits offer inadmissible evidence and thus should not be considered at the summary judgment stage. (Doc. 102.) These are the four motions before the court.
I. Factual Background
Sunflower contracted with P&E to perform maintenance at its power plant, Holcomb Station. Specifically, P&E was to change heavy solid baskets in a horizontal air pre-heater. Plaintiff, a boilermaker, was employed by P&E and was responsible for changing out the baskets inside the horizontal air pre-heater. Air pre-heaters enclose three levels of baskets (the lowest level baskets are called "cold-end" baskets). These baskets increase the efficiency of the boilers and thus the efficiency of the power plant. Periodically, Sunflower shuts down all or part of a power plant for a limited period of time to perform maintenance on power plant systems, causing a power outage. Sunflower shut down its power plant for maintenance in 1997, 2003, 2006, and 2012. To minimize the length and effects of the power outage, Sunflower contracts with specialized companies to help perform such maintenance.
On January 19, 2012, plaintiff was removing a cold-end basket from the air pre-heater when another cold-end basket fell on him, causing injury. Plaintiff is receiving workers' compensation from his employer, P&E. Plaintiff's cause of action alleges Sunflower failed to inspect the brackets holding the baskets in the air pre-heater before plaintiff began work.
II. Legal Standard
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the record's evidence and reasonable inferences in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). "[T]here must be evidence on which the jury could reasonably find for the plaintiff. The judge's inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict-whether there is [evidence] upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
A. Plaintiff's Motion to Strike Affidavits
Plaintiff filed a motion to strike affidavits (Doc. 102). Importantly, plaintiff does not request the court to strike the affidavits as a whole; rather, plaintiff requests the court strike paragraphs seventeen, nineteen, and twenty of the affidavits of Steven Ricard and Ralph Marsh. According to plaintiff, those paragraphs in Sunflower's affidavits do not comply with Federal Rule of Civil Procedure 56(e) because they are conclusory. Sunflower and P&E contend those paragraphs are sufficiently supported by the record.
Rule 56(c)(4) states the requirements for submitting an affidavit in support of a motion for summary judgment:
An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.
Fed. R. Civ. P. 56(c)(4). In reviewing a motion for summary judgment, it is well settled that a court can consider only admissible evidence. Fed R. Civ. P. 56(c)(2); see Law Co., Inc. v. Mohawk Constr. & Supply Co., Inc., 577 F.3d 1164, 1170 (10th Cir. 2009).
In paragraph seventeen of both affidavits, the declarants state: "The plaintiff was the statutory employee of P&E and Sunflower at the time of his injury on January 19, 2014, pursuant to the Act." (Docs. 98-1 at 2, 98-2 at 3.) Plaintiff is correct that the question of whether a worker is a statutory employee is a question of law for the court to decide. The testimony of Mr. Ricard and Mr. Marsh- non-lawyers-constitutes an inadmissible conclusion of law because neither is qualified to offer such testimony. Accordingly, the court will strike those paragraphs and ignore those statements when considering the motions for summary judgment. However, this does not mean the court cannot conclude Sunflower is plaintiff's statutory employer based on other facts or case law.
Next, paragraphs nineteen and twenty of both affidavits state:
19. The removal and replacement of the cold end baskets in the air pre-heaters are an ordinary part of Sunflower's regular maintenance and repair work of its generation facilities at the Holcomb Station.
20. The removal and replacement of the cold end baskets in the air pre-heaters are an integral part of Sunflower's regular operation of its electric generation facilities at the Holcomb Station.
(Docs. 98-1 at 2, 98-2 at 3-4.) For this objection, plaintiff relies on Woods v. Cessna Air Craft Co., 553 P.2d 900, 906 (1976) ("These affidavits, while using the magic' words from Hanna v. CRA, Inc., supra, are devoid of a factual basis to adequately explain the trade or business of the Wallace Division of Cessna and its relation to Coonrod."). Woods is not analogous because the record in this case is not "devoid of a factual basis." Id. There is evidence to support these statements-that the removal and replacement are an ordinary and/or integral part of Sunflower's regular operations. For instance, in another affidavit provided in Sunflower's response to plaintiff's motion to strike, Mr. Ricard clarified these paragraphs. According to Mr. Ricard, during a 1997 outage at Holcomb Station, Sunflower's own employees performed the same type of work that plaintiff attempted on January 19, 2012-in fact, it was the same air pre-heater unit. (Doc. 113-2 at 2.) In support, Mr. Ricard stated that he personally knew each of the employees that completed maintenance work on the air pre-heater in 1997, attaching a document he identified as the 1997 work order. (Id. at 2.) Accordingly, because Sunflower has established a factual basis to support the statements, the court declines to strike paragraphs nineteen and twenty of either affidavit.
Pursuant to Rule 59, plaintiff's motion to strike affidavits (Doc. 102) is granted with respect to paragraph seventeen in each affidavit, but is denied with respect to paragraphs nineteen and twenty in each affidavit.
B. Sunflower's Motion for Summary Judgment - Statutory Employer
Sunflower's main argument is that it, as landowner, is not liable for the negligence of P&E, the contractor. Sunflower cites Herrell v. Nat'l Beef Packing Co., LLC, 259 P.3d 663 (2011), for the proposition that the employee of a contractor, who is collecting workers compensation benefits, cannot pursue the landowner for violation of a non-delegable duty for the contractor's negligence. The court does not believe Herrell helps Sunflower's argument-factually or legally. Factually, the cases are dissimilar. In Herrell, the employee of the contractor fell into a hole on the floor of the beef packing facility. The hole was a defect in the premises that any invitee could encounter and was independent from the work the employee was contracted to perform. Here, plaintiff, the employee of the contractor, injured himself performing the work he was hired to do. The cold end basket could not fall on any invitee to the premises; rather, plaintiff and his co-workers had to abide by Sunflower's lock-out procedures, which restricts personnel in the area where work is being performed.
Herrell does not help Sunflower's legal argument, either. As the court explained:
Under the plain language of these two statutes, a landowner in National Beef's position is not excluded from liability if its negligence causes injury to an independent contractor's employee while that employee is working on the landowner's property. It is not the employer, so it cannot claim the protection of K.S.A. 44-501(b)'s exclusive remedy provision. And it is not omitted from the ranks of third parties that "shall" be subject to suit under K.S.A. 44-504(a). The workers compensation statutory scheme simply does not respond to the general common law of premises liability. It certainly could do so if the legislature chose this policy route. Thus National Beef owed Herrell the same duty it owed to other entrants onto its property-a duty of reasonable care under the circumstances, including a duty to warn of any dangerous condition.
Herrell, 259 P.3d at 675. In this case, plaintiff's claim is direct negligence against Sunflower. Sunflower, therefore, is situated identically to National Beef. Thus, Sunflower owed plaintiff a duty of reasonable care under the circumstances, including a duty to warn of any ...