Brettel v. Omron Scientific Techs., Inc., CIVIL ACTION NO. 14–13936–JGD

302 F.Supp.3d 460

Kristen BRETTEL, Plaintiff,

v.OMRON SCIENTIFIC TECHNOLOGIES, INC. and Omron Sti Machine Services, Inc., Defendants/Third Party Plaintiffs,

v.Madico, Inc., Third Party Defendant.

CIVIL ACTION NO. 14–13936–JGD

United States District Court, D. Massachusetts.

Filed March 27, 2018

Deborah M. Santello, Paul F. Leavis, Leavis & Rest, P.C., Boston, MA, for Plaintiff.

Marie E. Chafe, Julianne C. Fitzpatrick, Cornell & Gollub, Boston, MA, for Defendants/Third Party Plaintiffs.

Anthony E. Abeln, Austin D. Young, Lori K. Vaulding, Morrison Mahoney LLP, Boston, MA, for Third Party Defendant.

MEMORANDUM OF DECISION AND ORDER ON MOTION OF OMRON DEFENDANTS FOR SUMMARY JUDGMENT

Judith Gail Dein, United States Magistrate Judge

I. INTRODUCTION

The plaintiff, Kristen Brettell, was injured while working on a laminating machine at the facility of her employer, Madico, Inc. ("Madico"). She brought this action against the defendants, Omron Scientific Technologies, Inc. and Omron STI Machine Services, Inc. (collectively "Omron"), alleging that Omron had been negligent in its inspection, testing and/or servicing of the laminating machine. Omron brought a Third–Party Complaint against Madico for contractual indemnification and breach of contract. This matter is presently before the court on "Defendants Omron Scientific Technologies, Inc.'s and Omron STI Machine Services, Inc.'s Motion for Summary Judgment Pursuant to Fed. R. Civ. P. 56." (Docket No. 78). Therein, Omron is seeking judgment on all counts of the Amended Complaint on the grounds that Madico's modification of the equipment after Omron's work was completed constituted an intervening and superseding cause as a matter of law, and that Omron owed no duty of care to the plaintiff as a matter of law. Because this court finds that there are material facts in dispute, Omron's motion for summary judgment is DENIED.

II. STATEMENT OF FACTS ¹

Madico's Retention of Omron

Madico is a manufacturer of laminating and coating films for windows and other applications. It has a facility in Woburn, Massachusetts. Omron is a machine and safeguarding consulting company. It is hired by manufacturing customers to, among other things, conduct safety training, evaluate equipment, and recommend, design and install safety improvements. See PF ¶ 36; DR ¶ 36. In August 2009, Madico retained Omron to perform a machine safeguarding assessment on equipment at the Woburn facility, including a composite coating/laminating line, known internally at Madico as LC–3. SF ¶¶ 1–2. Specifically, Omron was retained to

• Perform on-site machine safeguarding assessment pursuant to relevant OSHA, ANSI, and NFPA standards and other applicable guidelines as identified by the customer for the equipment specified.

• Identify risk level based on intended operator interface and maintenance requirements and recommend commensurate risk reduction measures for the associated equipment. Reduction measures to comply with applicable guidelines.

• Provide a complete machine safeguarding assessment documentation package including identified risk levels, risk reduction recommendations, and plan-view drawings as well as line item spreadsheet including estimated cost to bring each machine or process into compliance.

DR ¶ 43.

From approximately September 1–3, 2009, David Semenchuk, an assessor for Omron, visited Madico and conducted an inspection. SF ¶¶ 3–5. Ms. Brettell was aware that Omron had come to Madico to perform a safety evaluation of the laminating machine "to see what needed to be fixed or modified to make it safer." PR ¶ 35.

Mr. Semenchuk prepared an initial assessment report in which he identified the risk of serious injury to employees working the LC–3 laminating machine as "HIGH." SF ¶ 7; PR ¶ 7. After the initial report was issued, Mr. Semenchuk returned to Madico, met with various Madico employees to review his initial report, and issued a revised assessment report dated December 23, 2009. SF ¶¶ 8–9. It is disputed whether during these meetings Madico advised Mr. Semenchuk that workers needed access to the laminating area with the machine running to clean the roll. PF ¶ 51; DR ¶ 51. It is also disputed whether the parties discussed (and agreed to the possibility of) enclosing the laminating area entirely. See PF ¶ 56; DR ¶ 56. The revised report proposed an alternative safeguarding recommendation for the laminating platform of the LC–3. SF ¶ 10; PR ¶ 10. Of significance, the parties dispute whether either the initial report or the revised report identified the area where Ms. Brettell was injured as a potential area of injury. PF ¶ 54; DR ¶ 54. The parties also dispute whether Omron identified the risk to which Ms. Brettell was exposed. Specifically, the plaintiff alleges, and the defendant denies, that Omron "never identified the transport idlers where Ms. Brettell was entrapped as a crush point or potential in-running nip point." PF ¶ 55; DR ¶ 55. Furthermore, the parties dispute whether Omron's suggested safety recommendations were viable or would adversely affect the operation and utility of the machine. See SF ¶ 10–11; PR ¶¶ 10–11, 13.

Madico did not retain Omron to do any further work after it issued its revised assessment report. SF ¶ 12. Rather, Paul Malburg, Madico's controls engineer, was responsible for implementing any safety modifications. PR ¶ 12.

Madico's Work on the LC–3

It is undisputed that Mr. Malburg implemented some of Mr. Semenchuk's recommendations but not others. PR ¶¶ 14, 15. It is also undisputed that Madico, with the assistance of an outside mechanical engineering consultant, Gary Blaney, designed and installed a "clean air enclosure" around an area of the LC–3 machine. PR ¶¶ 16–17. While Omron contends that the clean air enclosure modified the work area and contributed to Ms. Brettell's injury, the plaintiff contends that the clean air enclosure did not involve the area where Ms. Brettell was hurt. See PR ¶ 16. The plaintiff also contends that since Omron never identified the area where Ms. Brettell was injured as a potential in-running nip or crush point, Madico was deprived of the opportunity to take steps to protect that area of the machine. See PF ¶ 58; DR ¶ 58; PR ¶¶ 16–19. Mr. Blaney was not aware of Omron's work, including its reports, and Omron was not aware of Mr. Blaney's work, including his designs. SF ¶¶ 20–22. The clean air enclosure was completed in late 2009. SF ¶ 23.

In January 2011, Madico purchased two Omron-branded safety mats and installed one in the area of the laminating platform of the LC–3 machine, and the other on the concrete floor alongside the LC–3 machine. SF ¶ 24. Omron contends that this installation was designed by Malburg of Madico and was not based on Omron's reports or recommendations. SF ¶ 25. The plaintiff, however, alleges that the safety mats were installed with Omron's approval. PR ¶¶ 24–25.

The Accident

On April 4, 2013, Ms. Bettell was working on the LC–3 machine. See PR ¶ 27. She observed a defect in the laminate surface and held a solvent soaked rag against the roll to clean it. PR ¶ 28. It is undisputed that as she was cleaning the idler roller, either the plaintiff's rag or rubber glove became caught against the film, and the moving web pulled her arm into the machine just before her elbow. SF ¶ 30. As a result, she suffered a crush injury to her right hand and arm. PR ¶ 30. There are disputed facts as to where the plaintiff was standing at the time of the accident, and how she reached the roller to clean it. See SF ¶¶ 27, 29, 32; PR ¶¶ 27, 29, 32.

Additional facts will be provided below as appropriate.

III. ANALYSIS

A. Standard of Review—Summary Judgment

"The role of summary judgment is ‘to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’ " PC Interiors, Ltd. v. J. Tucci Constr. Co., 794 F.Supp.2d 274, 275 (D. Mass. 2011) (quoting Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991) ) (additional citation omitted). The burden is upon the moving party to show, based upon the discovery and disclosed materials on file, and any affidavits, "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "[A]n issue is ‘genuine’ if it ‘may reasonably be resolved in favor of either party.’ " Vineberg v. Bissonnette, 548 F.3d 50, 56 (1st Cir. 2008) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990) ). "A fact is ‘material’ only if it possesses the capacity to sway the outcome of the litigation under the applicable law." Id. (quotations, punctuation and citations omitted).

"Once the moving party has satisfied its burden, the burden shifts to the non-moving party to set forth specific facts showing that there is a genuine, triable issue." PC Interiors, Ltd., 794 F.Supp.2d at 275. The opposing party can avoid summary judgment only by providing properly supported evidence of disputed material facts. LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841–42 (1st Cir. 1993). Accordingly, "the nonmoving party ‘may not rest upon mere allegation or denials of his pleading[,]’ " but must set forth specific facts showing that there is a genuine issue for trial. Id. at 841 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed. 2d 202 (1986) ). The court affords "no evidentiary weight to conclusory allegations, empty rhetoric, unsupported speculation, or evidence which, in the aggregate, is less than significantly probative." Tropigas de P.R., Inc. v. Certain Underwriters at Lloyd's of London, 637 F.3d 53, 56 (1st Cir. 2011) (internal quotation marks and citation omitted). Rather, "[w]here, as here, the nonmovant bears the burden of proof on the dispositive issue, it must point to ‘competent evidence’ and ‘specific facts’ to stave off summary judgment." Id. (citation omitted).

Applying these principles to the instant case compels the conclusion that Omron's motion for summary judgment...