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Jones v. Blattner Energy, Inc.

United States District Court, D. Kansas

September 12, 2019

Steven Jones, Plaintiff,
Blattner Energy, Inc., and Saul Hurtado, Defendants.



         On August 29, 2018, plaintiff Steven Jones was injured in a motor vehicle accident with Saul Hurtado in Pratt County, Kansas. At the time, Jones on his motorcycle and Hurtado in his pickup truck were both driving to their places of employment. Jones has brought the present action for negligence against both Hurtado and his employer, Blattner Energy. Both Jones and Blattner have moved for summary judgment on the issue of whether Hurtado's employer is liable for Hurtado's actions under the doctrine of respondeat superior. The court holds that under long-standing Kansas law, the employer is not legally responsible for Hurtado's actions at the time of the accident.[1]

         Findings of Fact

          Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the court must examine all evidence in a light most favorable to the opposing party. McKenzie v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir. 1988). The party moving for summary judgment must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir. 1985). The moving party need not disprove plaintiff's claim; it need only establish that the factual allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir. 1987).

         In resisting a motion for summary judgment, the opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving party must come forward with specific facts showing the presence of a genuine issue of material fact for trial and significant probative evidence supporting the allegation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the moving party has carried its burden under Rule 56(c), the party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. "In the language of the Rule, the nonmoving party must come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita). One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in a way that allows it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The court excludes from the following findings all assertions by the parties which are not fairly supported in the cited factual record.

         Blattner Energy is in the business of constructing and maintaining wind turbines and was under contract to do work on a wind turbine installation project commonly referred to as “Pratt Wind.”

         Saul Hurtado is a New Mexico resident who has worked for Blattner as an installation laborer at various sites since 2017. Hurtado was temporarily renting a home in Pratt, Kansas while working on Pratt Wind. It is uncontroverted that Hurtado made his own living arrangements while working on Pratt Wind. Blattner Energy did not direct Hurtado on where to live, how to live, or who, if anyone, to live with.

         Many of the workers on Pratt Wind, and all of the workers in Hurtado's workgroup, normally lived outside Kansas.

         Hurtado's job duties involved the construction of wind turbines (or windmills). He was a tower climber and would climb an estimated 280 feet high on the towers to perform his work. Travel or performing errands or business transactions for Blattner Energy during non-work hours was not within Hurtado's job duties.[2]

         Blattner paid Hurtado an hourly wage, and provided a per diem for each day he worked.[3] Blattner did not direct or control how Hurtado spent the per diem funds he received. Hurtado testified, “you could do whatever you want with that money.”

         Work at Pratt Wind commenced when employees arrived at what was know as the “Laydown Yard, ” which was located 10 to 12 miles outside of Pratt. The closest hotels were in Pratt.

         Blattner required to employees to be at the job site by a specified time, but it did not control or direct travel to the job site. Typically, Hurtado's start time was 7:00 a.m. He would travel to the laydown yard to start work each morning, where he would attend a safety meeting and then travel into the field in a company-owned vehicle to work on erecting wind turbines. His compensation did not begin until he arrived at the laydown yard for the daily safety meeting. He received no separate compensation for the time spent travelling to and from work.

         The accident occurred around 6:30 a.m., before Hurtado arrived at the Blattner Energy laydown yard and before Hurtado began earning any wages. Hurtado was driving his own personal vehicle to work (actually owned or co-owned by or with his mother).

         It was up to Hurtado to make his own travel arrangements to work. Blattner did not pay mileage reimbursement, fuel, maintenance, insurance, or other expenses associated with Hurtado's personal vehicle involved in the subject accident. Hurtado paid for all fuel, maintenance, and insurance. Blattner did not direct Hurtado on how to maintain or operate his personal vehicle.

         Hurtado did not operate or drive a vehicle owned by Blattner, because he was not “driver qualified” by the company. At the time of the subject accident, Hurtado was not transporting any tools, equipment, or materials for Blattner, and had never done so for Blattner Energy. He had not been running any errands or performing any business transactions for Blattner; indeed, he had never done so on his way to work. Blattner Energy did not direct Hurtado to use a certain route to get to the laydown yard, did not tell him how to drive his vehicle, or instruct him to transport co-workers to the jobsite.

         Hurtado and two co-workers (Joel Gonzalez and Guillermo Chaves) rented a residence in Pratt, and the three drove together to the Laydown Yard. Hurtado paid the driving expenses with his per diem allowance.

         The evidence indicates that Blattner was aware that some employees shared rides, but it did not require it, or even do anything in particular to encourage it. The plaintiff points to the Blattner employment application completed by Hurtado (like all employees), which indicates “we prefer applicants who are able to operate a vehicle to transport co-workers.” But the evidence indicates this preference related to employees becoming “driver qualified” (which Hurtado was not) so they could use company vehicles to transport workers. As indicated ...

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