Hoskinson v. High Gear Repair, Inc.

982 F.Supp.2d 1210

Betty HOSKINSON, Individually and as Surviving Spouse of Ronald Hoskinson, Plaintiff,

v.HIGH GEAR REPAIR, INC., Defendant.

Case No. 11–1190–JTM.

United States District Court, D. Kansas.

Nov. 12, 2013.

Eldon L. Boisseau, Law Offices of Eldon L. Boisseau, LLC, Wichita, KS, for Plaintiff.

F. James Robinson, Jr., Kimberly D. Farha, Hite, Fanning & Honeyman, L.L.P., Wichita, KS, for Defendant.

MEMORANDUM AND ORDER

J. THOMAS MARTEN, District Judge.

While unloading his employer's anhydrous ammonia tanker trailer, Ronald Hoskinson suffered serious injuries leading to his death when he came in contact with the power take-off (PTO) shaft extending from his truck to a pump on the tanker. His surviving spouse, Betty Hoskinson, brings the present action against a small Oklahoma company, High Gear Repair, Inc., which had performed work on the tanker ten months before the accident. Because this work was entirely unrelated to the PTO shaft and pump, the court grants High Gear's Motion for Summary Judgment.

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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Findings of Fact

SKC Leasing, Dodge City Express, and Sallee, Inc. are Kansas entities which have facilities in Dodge City and Garden City, Kansas. Martin Keim is the CEO of each of these companies. SKC owns trucks and trailers, which it leases to Dodge City Express and Sallee. As of January 2013, Dodge City Express and Sallee operated 75 trucks (60 of which are owned by SKC and 15 are leased from owner-operators) and 301 trailers.

Dodge City Express hauls mostly general commodities using refrigerated trailers and dry van trailers.

As of January 2013, Sallee used 13 cargo tankers to haul liquefied gas. Sallee does business in 42 states, and has repair shops in Dodge City and Garden City. There are approximately 15 shop employees. Since 2005, Brent D. Woods has been the safety director for Sallee.

Ronald Hoskinson was hired by Sallee on January 27, 2010. He participated in a one day orientation at Sallee's Garden City office. Typically, Sallee's “oldest driver,” Dave Collins, would take new hires on deliveries of anhydrous ammonia and provide on-the-job training on “all the process, safety procedures, safe unloading practices, safe loading practices, safety equipment.” Woods understood from Hoskinson that Hoskinson had “between 30 and 40 years of handling that material, anhydrous ammonia, so basically he could have trained all of us how to handle it.”

According to Keim, Hoskinson did not receive on-the-job training from Sallee's oldest driver. Keim believed that given Hoskinson's “experience doing the job” delivering anhydrous ammonia, Hoskinson “could have taught me. He could have taught my trainer.”

At one time, for approximately two years, Hoskinson had his own auto repair shop where he performed general mechanical work on cars and trucks and rebuilt engines. Hoskinson had also worked for 7 or 8 years as a mechanic for the Renick & Reynolds farm on tractors, combines, planters and “all kinds of equipment.” All of the tractors he worked on had a power take-off. Before Hoskinson was employed by Sallee, the trailers he had used to haul liquefied gas had power take-offs.

On February 19, 2009, Mark Dorris Equipment and Leasing sold to SKC a cargo tanker, Serial No. 4144454, used to transport liquefied gas. The tanker had been manufactured in 1977 by Trinity Industries of Fort Worth, Texas for Enderby–Anderson Co. of Gainesville, Texas. Sallee referred to the tanker as trailer # 58 or # 58A1 (hereafter “Trailer 58”). “A” is used with the trailer number when the trailer is set up to haul anhydrous ammonia.

IMAGE

Figure 1 shows the front of the trailer from the operator's perspective.

The United States Department of Transportation (“DOT”) classifies ammonia as a hazardous material and requires ammonia as a liquefied gas to be transported in containers that meet DOT specifications. The design and construction standards for tankers that haul liquefied ammonia gas are found at 49 C.F.R. 178.337, Specification MC 331.

DOT requires an annual inspection for MC 331 cargo tankers, and Trailer 58 underwent an external visual inspection and leakage test in February 2009.

All liquid and vapor inlet (openings that allow the product to flow only into the tank) and outlet (openings that allow the product to flow either into or out of the tank) connections to a standard MC 331 tank are located along the centerline of the tank bottom. Under DOT regulations governing such trailers, (a) each inlet and outlet opening must be fitted with a back flow check valve or an internal self-closing stop valve located inside the cargo tank or inside a welded nozzle that is an integral part of the cargo tank, (b) a thermal means of remote closure must be installed at or near the internal self-closing stop valve, and (c) a mechanical means of remote closure must be installed on the end of the cargo tank furthest away from the loading/unloading connection area.

On Trailer 58, a pump was used for off-loading the product. This product pump was powered by a series of drive shafts connected to a tractor's PTO output shaft. A short drive shaft was attached to the product pump. This short shaft connected by a universal joint to another drive shaft known as a jackshaft, which could telescope for connection to the tractor's PTO by means of another universal joint.

For 26 years Rocky Shaw has operated High Gear Repair, Inc. of Woodward, Oklahoma. His brother, his wife, and his son also work in the business. High Gear performs general maintenance on trucks.

Plaintiff notes that High Gear has also converted tankers from propane to anhydrous ammonia. However, the evidence establishes that Trailer 58 was already configured to carry anhydrous ammonia before it was taken to High Gear.

High Gear has done work for Roger Sallee for approximately 15 to 20 years, working on approximately 15 trailers for Roger Sallee. Typically, Roger Sallee would call Shaw on the phone and tell Shaw what work he wanted done on a trailer.

Roger Sallee sold his business to Keim and others in 2002. After the sale, Roger Sallee worked as an owner-operator leased to Sallee. Shaw also continued to receive telephone work orders for work from Sallee, Inc. after the sale.

Regarding Trailer 58, Keim telephoned Shaw that “he was going to send a trailer down and wanted this plumbing changed on it.”

The parties do not agree as to the nature of this plumbing change. The Plaintiff cites testimony by Keim that he told Shaw “we need to get this trailer up to—up to spec for what we do. [Shaw] was familiar he worked on a lot of our trailer[s] in the past, so we would have instructed him to get it in shape for us to haul with.” Keim further testified he wanted the trailer modified so that it could be loaded from either side rather than the rear only.

By “up to spec,” Keim referred to the intended change in plumbing on the trailer, not any separate change to the PTO shaft connection to the pump. Immediately after the cited testimony, counsel asked for a clarification:

Q. Did—did you ask him to put a protective guard on the driveshaft?

A. Not that I'm aware of.

Q. Okay. And none of your trailers at that time had—

A. At that time had them, correct.

The Defendant submits that Keim's testimony is otherwise erroneous, noting first that Keim directly acknowledged that he was unable to recall if he himself spoke with Shaw, or if Sallee did. Further, all of the other evidence in the case shows that Show worked to move the loading lines from the side to the rear, not vice versa.

According to Shaw, Keim wanted to change “the internal vapor valve at the front and plumb it to both sides, and he wanted to change the load lines ... from the side to the rear. During the conversation, he wrote out a work order during the conversation:

MOVE REAR VAPOR LINES & VALVES TO PUMP / INSTALL INTERNAL VALVE. INSTALL & RUN...