Opinion
Civil No. 00-5641 (JBS).
January 16, 2002
Gary F. Piserchia, Esquire, Parker, McCay Criscuolo, P.A., Marlton, New Jersey, Counsel for Plaintiffs.
Stuart M. Goldstein, Esquire, Hollstein Keating Cattell Johnson Goldstein, P.C., Willow Ridge Executive Office Park, Marlton, New Jersey, Counsel for Defendant.
OPINION
This case arises from a fall and related injuries which plaintiff, Albert W. Ebenhoech, sustained while he was cleaning the chemical substance phthalic anhydride off the side of a railroad tank car owned by defendant Koppers Industries, Inc. ("Koppers"). At the time of the accident, Ebenhoech was working for Solutia, Inc. ("Solutia") as a chief chemical operator. Plaintiff alleges that defendant Koppers was negligently responsible for causing the chemical spill and allowing the contaminated rail car to leave its possession, and therefore that defendant is responsible for his reasonably foreseeable accident, which caused left distal tibia and fibula fractures and required closed and open reduction surgeries. In support of his claims plaintiff submits deposition testimony from several people and an expert report from Consulting Engineer, George P. Widas. Gail Ebenhoech, plaintiff's wife, also asserts a claim and seeks to recover for loss of consortium.
Although Albert and his wife Gail are both plaintiffs, the Court refers to Albert as plaintiff singular throughout this opinion, because most of the events discussed do not involve Gail.
Now before the Court is defendant's motion for summary judgment. Defendant Koppers asserts that summary judgment is proper because plaintiff is barred from recovering damages for his injuries 1) under the doctrine of avoidable consequences, 2) because plaintiff's own actions were the superceding, intervening cause of the accident, and 3) because the chemical spill which plaintiff alleges caused his injuries was an open and obvious condition and plaintiff assumed the risk of injury when he attempted to clean the PAA spill. Because there are genuine issues of material fact in dispute, and for the reasons expressed herein, defendant's motion will be denied, and plaintiffs' claims will proceed to trial in the ordinary course.
I. BACKGROUND
The undisputed facts are as follows. Plaintiff Albert Ebenhoech began his career at Solutia, Inc. ("Solutia") as an operator in 1970. In 1990, plaintiff became a chief chemical operator, which required that he manage the work of several other employees. On November 2, 1998, while he was performing his duties as a chief chemical operator at Solutia, plaintiff slipped and fell approximately fifteen feet off the side of a tank car and severely injured his left leg. Plaintiff alleges that defendant's negligence in spilling the hazardous chemical on the rail car and not cleaning it off prior to shipping the rail car to Solutia caused his injuries. In support of their negligence claims, plaintiffs offer deposition testimony and an expert report from George Widas, dated June 15, 2001, in which Widas opined that Koppers' spilling of the PAA and is subsequent failure to properly mitigate the chemical spill was negligent and a substantial contributing factor to plaintiff's injury. (Pl.'s Opp., Ex. D. at 29-30.)
The facts as stated here are compiled from the factual submissions by the parties, which are largely in accord. Any relevant facts to which the parties have not agreed will be followed by the appropriate citation.
A representative of defendant Koppers, Michael J. Mancione, acknowledged that the failure to properly clean PAA off of a rail car prior to allowing it to leave Koppers' property would be a violation of Department of Transportation Regulations and Koppers' internal policies. (Pl.'s Opp., Ex. B, Mancione Dep., Tr. 16:25-19:7, 28:21-29:24, 56:22-57:23, 71:6-73:25.) Mancione also testified that the shipper of the rail cars, here Koppers, is always responsible for ensuring that the cars are not contaminated. (Mancione Dep., Tr. 29:24.) Plaintiff asserts that he and Solutia, prior to shipping the contaminated rail car back out, were required to clean it to avoid a potential penalty because Koppers had failed to do so. Defendant, however, asserts that even if negligence is assumed, which it concedes is required on this motion for summary judgment, summary judgment in favor of defendant is appropriate.
During his employment at Solutia, plaintiff had occasion, approximately a dozen and a half times, to clean phthalic anhydride residue and other substances off of the sides of railroad tank cars. Plaintiff, however, never cleaned an area of a rail car outside the domed platform area prior to his accident. (Pl.'s Sur-Reply, Gregory Tomlinson Dep., Tr. 29:13-30:12.) Phthalic anhydride ("PAA") is a liquid chemical that solidifies in ambient conditions and can cause thermal burns, allergic respiratory reactions, and eye and skin burns. (See Pl.'s Opp., Ex. A.) When solidified, PAA appears as a white crystalline substance. (Def.'s Mot. for Summ. J., Ex. 2.) On November 2, 1998, the day of plaintiff's accident, he was instructed to clean a tank car that was leased by defendant and received by Solutia from defendant with the PAA spill already crystalized on its sides. The contaminated rail car in question arrived at Solutia's facilities from defendant approximately one week before the accident. Plaintiff's co-workers assert that Koppers was notorious for shipping contaminated rail cars, thus necessitating cleaning by the receiver. (See Pl.'s Opp., Ex. C., Bixler Aff., ¶¶ 5-7, Tokley Aff., ¶ 3, Rose Aff., ¶¶ 3-5.) Plaintiff alleges that it was reasonably foreseeable to defendant that by causing the PAA spill and nonetheless shipping the tank car to plaintiff's employer, persons in plaintiff's position would necessarily be exposed to the risk entailed in having to decontaminate the rail care before it was used again. Plaintiff observed the PAA spill on the rail car at the time it arrived at Solutia and was aware that it would be his responsibility to lead the clean-up of that spill. Plaintiff was assisted in the clean-up by another worker, Ed Tokley.
Although defendant denies any negligence or responsibility for the spill, it concedes that for the purposes of this motion, reading all facts in a light most favorable to the non-moving plaintiffs, that the spill was on the rail car at the time it arrived at Solutia.
The process used at Solutia to clean PAA off of rail cars is as follows. First, a large plastic drum with two holes in the bottom is positioned on top of the rail car to be cleaned. (See Def.'s Mot. for Summ. J. at 2-3, Exs. 3-4.) Next, soda ash is mixed with warm water from a hose inside the drum. As the solution mixes, it flows out of the bottom drum holes and over the PAA on the side of the rail car, thereby breaking up the solidified PAA. The dislodged PAA then falls off the side of the rail car and into a catch pan. (Id.). Depending on the location of the solidified PAA, the drum is either placed on a flat domed platform (see Def. Ex. 3, D-4) or directly on top of the tank car.
At the time of plaintiff's accident, plaintiff and the drum were on the top of the tank car in the area of the PAA spill, outside the domed platform area. (See Def.'s Br., Ex. 2, Photographs of spill area.) Plaintiff, who was handling the hose that was supplying the warm water, slipped and fell as he walked toward the platform area from his position over the PAA accumulation on top of the rail car. Plaintiff acknowledged that "personal fall protection" was available at Solutia for certain jobs, but asserted that he did not use such equipment and wore only a hard hat, gloves, work shoes, and safety glasses at the time of his fall. Plaintiff testified that he never wore such equipment when he did similar rail car cleanings in the past.
On October 4, 2000, plaintiff filed this action in New Jersey Superior Court, Camden County. On November 16, 2000, defendant removed the case to this Court, citing diversity jurisdiction. On July 6, 2001, defendant filed the instant motion for summary judgment, asserting that even if negligence on its part is assumed, summary judgment is proper because plaintiff is barred from recovering any damages against Koppers 1) under the doctrine of avoidable consequences, 2) because plaintiff's own actions were the superceding, intervening cause of the accident, and 3) because the chemical spill which plaintiff alleges caused his injuries was an open and obvious condition, and plaintiff therefore assumed the risk of injury when he undertook the cleaning job. As discussed below, there are genuine issues of material fact remaining regarding liability and damages and therefore summary judgment is improper at this time.
II. DISCUSSION
A. Summary Judgment Standard
Summary judgment is appropriate when the materials of record "show that 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). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law. Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id.
In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party; in other words, "[T]he nonmoving party's evidence `is to be believed, and all justifiable inferences are to be drawn in [that party's] favor.'" Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Anderson, 477 U.S. at 255). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby, 477 U.S. at 250; Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-330 (3d Cir. 1995) (citing Anderson, 477 U.S. at 248) ("[T]he nonmoving party creates a genuine issue of material fact if it provides sufficient evidence to allow a reasonable jury to find for him at trial.").
The moving party, here the defendant, always bears the initial burden of showing that no genuine issue of material fact exists, regardless of which party ultimately would have the burden of persuasion at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Jalil v. Avdel Corp., 873 F.2d 701, 706 (3d Cir. 1989), cert. denied, 493 U.S. 1023 (1990). However, where the nonmoving party bears the burden of persuasion at trial, as in the present case, "the burden on the moving party may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex Corp., 477 U.S. at 325.
The non-moving parties, here the plaintiffs, "may not rest upon the mere allegations or denials of" its pleading in order to show the existence of a genuine issue. Fed.R.Civ.P. 56(e). It must do more than rely only "upon bare assertions, conclusory allegations or suspicions." Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985), cert. denied, 474 U.S. 1010 (1985) (citation omitted); see Liberty Lobby, 477 U.S. at 249-50; Celotex, 477 U.S. at 324-25. Once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Thus, if the non-movant's evidence is merely "colorable" or is "not significantly probative," the court may grant summary judgment. Anderson, 477 U.S. at 249-50.
B. Application
In order to sustain their claims at trial, plaintiffs must prove (in addition to damages), that some action or omission of the defendant caused plaintiff's injuries, and that such action or omission fell below the applicable standard of care owed to plaintiff. In its summary judgment motion, defendant Koppers argues that, based on the record currently before the Court, even where negligence is assumed as it must be on this motion for summary judgment, it is clear as a matter of law that plaintiff is barred from recovering against Koppers for his injuries 1) under the doctrine of avoidable consequences, 2) because plaintiff's own actions were the superceding, intervening cause of the accident, and 3) because the chemical spill which plaintiff alleges caused his injuries was an open and obvious condition, which he should have avoided. While it may ultimately be determined that one or all of these assertions are correct, each requires determination of material facts by the jury. As discussed below, the Court agrees that plaintiffs have raised genuine issues of material fact regarding defendant's liability, and therefore summary judgment is not proper at this time. Defendants' motion for summary judgment will therefore be denied.
Plaintiffs argue that defendant's proffered defenses to liability and in support of summary judgment are flawed. First, plaintiff argues that the doctrine of avoidable consequences addresses a damages issue, not a liability issue, and therefore is not properly raised on motion for summary judgment on the issue of liability. Defendant vigorously asserts that "[s]ome things are just self-evident, especially these circumstances involving an experienced worker, who has been involved in cleaning tank cars many times in the past. Reasonable minds could not differ on the question of whether this plaintiff knew and appreciated the risk he was taking by working at these heights, on a slippery surface, with no personal fall protection." (Def.'s Reply at 2-3.)
In support of its position that there is no question that plaintiff is precluded from recovery against defendant for his injuries, defendant cites the New Jersey Supreme Court opinion inOstrowski v. Azzara, 111 N.J. 429 (1988). This case, where the New Jersey Supreme Court reversed the trial court's disallowance of any recovery on behalf of a medical malpractice plaintiff, does not support defendant's position. The Ostrowski decision did not relate to a motion for summary judgment, but rather reversed the trial court's decision that no damages judgment was recoverable against the defendant. The Court addressed the very confusion that defendant now exhibits: "Negligent conduct is not `immunized by the concept of avoidable consequences. This argument should more properly be addressed to the question of dimunation of damages; it does not go to the existence of a cause of action.'" Ostrowski, 111 N.J. at 442 (quoting Associated Metals Minerals Corp. v. Dixon Chem. Research, Inc., 82 N.J. Super. 281, 306 (App.Div. 1963), certif. denied, 42 N.J. 501 (1964)).
Despite the logic of the Ostrowski opinion, defendant still asserts that plaintiff's experience as a chemical operator clearly shows that recovery would ultimately be disallowed, and therefore the Court should end the case now, before liability has been determined. However, reasonable minds could differ about what role plaintiff's experience may have played, including the fact that he had successfully completed such cleaning operations on approximately a dozen and a half previous occasions without personal fall protection. Additionally, the very language ofLynch v. Scheininger, another New Jersey Supreme Court opinion quoted by defendant in their brief, undermines the position that the doctrine of avoidable consequences precludes liability for a wrong. 162 N.J. 209, 230-31 (2000) (instructing that "it is not true that the injured person has a duty to act, nor that the conduct of the [alleged] tortfeasor ceases to be a legal cause of the ultimate harm; but recovery for the harm is denied because it is part of the injured person's lack of care.") The doctrine of avoidable consequences does not warrant summary judgment in favor of defendant in this case. This Court is not prepared to say, as a matter of law, that plaintiff's failure to wear personal fall protection was the legal cause, rather than merely a contributing causative factor of his own lack of due care resulting in a comparative negligence verdict. Defendant may, if liability is conceded or found by a jury, raise this issue as it applies to damages at a later date.
Second, plaintiff argues that there is a genuine issue of material fact regarding whether plaintiff's own actions (i.e., the methods and tools used to clean the rail car) were the superceding cause of his own injuries. Defendant contends that the chemical spill of PAA on the rail car was "sufficiently unrelated to plaintiff's accident or unanticipated, so as to relieve Koppers of liability" (Def.'s Br. at 7) and that defendant could not have foreseen that plaintiff would have to clean the spill by using the "absurdly dangerous process of allowing a liquid mixture to flow over the top of the tank car" (Def.'s Reply at 3). A plaintiff confronting a known risk does not have the duty to exercise perfect care, but only reasonable care under all the circumstances. It is for a jury to decide whether the spill or plaintiff's actions or both were a substantial cause of the fall. Lynch, 162 N.J. at 228. Defendant cites no cases that justify finding plaintiff's actions to constitute a superceding cause as a matter of law.
Third, plaintiffs assert that a genuine issue of material fact remains about whether the soiled rail car represented an open and obvious condition which should have been avoided. Defendant citesNorthington v. Lone Star Steak House, A-2408-0075, slip op. (App.Div. 2001) in support of its position that plaintiff cannot recover from his injuries because the chemical spill that allegedly caused the fall was open and obviously dangerous. InNorthington, the Superior Court of New Jersey Appellate Division reversed the trial court's entry of judgment NOV in plaintiff's favor after the jury determined that there was no cause to find negligence on the part of the defendant. The Appellate Division concluded that the trial judge's ruling made defendant strictly liable for the peanut shells on which plaintiff slipped, and reversed the JNOV, reinstating the jury's finding of no negligence. (See Def.'s Br., Ex. 5 at 5.)
Defendant cites Northington even though it did not involve an entry of summary judgment. In this case, viewing the facts in a light most favorable to the non-moving plaintiffs, there is a significant factual question as to whether plaintiff assumed the risk of an open and obvious condition when he attempted to clean the defendant's PAA spill off of defendant's rail car. Specifically, there are questions as to whether plaintiff could have declined the orders of his supervisor and whether plaintiff was aware that he was assuming an obvious risk, and whether the precautions he took were reasonable. It is for a jury to decide whether plaintiff assumed the risk of injury when he attempted to clean the rail car at issue in the manner in which he proceeded.
Thus, viewing all the evidence presented in a light most favorable to the non-moving party, here the plaintiffs, as a Court must on motion for summary judgment, this Court finds that a reasonable jury could very well conclude that Koppers negligently caused the chemical PAA to be spilled on the side of their rail tank car and failed to clean it, and that defendant negligently permitted the rail car to be shipped to plaintiff's employer's facility where was foreseeable that plaintiff would have to undertake the cleanup task, and that plaintiff's fall was foreseeable and caused by that negligence. The jury will also be called upon to determine whether plaintiff was comparatively negligent and whether plaintiff's own conduct was the supervening cause of his injuries.
While defendant may succeed before the trier of fact on one or all of their theories to limit or preclude liability and/or damages at trial, it is not appropriate to decide those issues upon the existing record on summary judgment. Because plaintiffs have shown that a genuine issue of material fact remains to be determined about the causation of plaintiff Albert Ebenhoech's fall, summary judgment is inappropriate for the defendant at this time, and plaintiff's claim will proceed to trial, where he will bear the burden of proving his claims to the finder of fact by a preponderance of the evidence, and defendant can present its theories that plaintiff, not defendant, was responsible for his injuries.
III. CONCLUSION
For the foregoing reasons, this Court will deny defendant's motion for summary judgment. Plaintiff's proofs, in the form of his deposition testimony, certain admissions by defendant, and the prematurity of defendant's theories, are sufficient to present a material factual dispute as to duty, breach, causation, and damages, upon which he will still have the burden of proof at trial. Accordingly, summary judgment for the defendant at this time is inappropriate. The accompanying Order is entered.
ORDER
This matter having come before the Court upon the defendant's motion for summary judgment; and the Court having reviewed the parties' submissions; and for the reasons stated in an Opinion of today's date;
IT IS this day of January 2002 hereby
ORDERED that defendant's motion for summary judgment be, and hereby is, DENIED. Plaintiffs claims will proceed in the ordinary course to trial.