Jessop v. Bairco Constr. Inc.

690 F.Supp.3d 1210

John JESSOP, Plaintiff, v. BAIRCO CONSTRUCTION INC., Sorensen Design & Construction Inc.,Devin Bair Family Trust through Devin and Stacy Bair,Trustees, and John Does 1-10, Defendants.

Case No. 22-CV-165-NDF

United States District Court, D. Wyoming

Signed September 5, 2023

Rachel M. Berkness, Alexander F. Freeburg, Freeburg Law, Jackson, WY, for Plaintiff.

Deborah G. Muirhead Kellam, Hall & Evans LLC, Laramie, WY, for Defendants Bairco Construction Inc., Devin Bair, Stacy Bair.

Eric Hevenor, John W. Fairless, Lambdin & Chaney LLP, Denver, CO, for Defendant Sorensen Design & Construction Inc.

ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

NANCY D. FREUDENTHAL, UNITED STATES SENIOR DISTRICT JUDGE

This matter is before the Court on the Motions for Summary Judgment by Defendants Bairco Construction Inc., and Devin Bair Family Trust through Devin and Stacy Bair, trustees (collectively, Bairco) and Sorensen Design & Construction Inc. (Sorensen). CM/ECF Document (ECF) 30, 32. Plaintiff has responded (ECF 36, 38), and Defendants have replied (ECF 43, 44).

This is a personal injury case based on diversity jurisdiction involving an accident on land owned by the Devin Bair Family Trust during construction of a steel building behind the Bair family home. Bairco Construction used Sorensen as a subcontractor to provide and install the steel building, and Sorensen used Jerold Williams (through Williams' company JNW Construction) as a sub to perform some labor on the project. Jerold Williams hired Plaintiff John Jessop and Troy and Josh Hammon as his labor crew.

Jessop was injured when he jumped from the basket of a scissor lift as it tipped over. The scissor lift tipped because a co-worker, Troy Hammon, drove the lift off a cement curb while the basket was extended 25 feet in the air.

Plaintiff sued the Defendants based on differing theories including negligence, negligence per se, breach of a non-delegable duty, premises liability, and negligent hiring or in the alternative, respondeat superior. Defendants filed their motions seeking judgment against Plaintiff as to all claims pled against them. Viewing the evidence and inferences in the light most favorable to Plaintiff and based on the following reasons, the Court GRANTS Defendants' motions for summary judgment.

I. Facts

Based on the submissions and the record, the Court finds the following facts in the light most favorable to Plaintiff:

Bairco Construction contracted with Sorensen to provide and install a prefabricated steel building for the Bair Family Trust ("the Bair project"). ECF 31-1. Sorensen relied on Jerold Williams as a "second tier sub" to be in charge of the physical labor for the Bair project (erection, the framing, the fixtures, the panels and insulation). ECF 39-3, pp. 39, 59, 60.¹ Williams testified that Sorensen was anxious to get somebody, and that he (Williams) was desperate enough to take the Bair project because he needed the money. ECF 39-5, p. 15. There was no written contract between Sorensen and Williams - Williams "just went up on an agreement to go up and help do it." ECF 39-5, p. 8. Williams didn't have a contractor's license and he testified that he was self-employed through JNW Construction, although he never kept the business filings current. ECF 39-5, pp. 8, 14.

Jerold Williams testified he had a hard time getting the help he needed for the Bair project. ECF 39-5, p. 12. Williams ultimately hired Josh and Troy Hammon, and Troy Hammon contacted Plaintiff John Jessop to work for Williams on the project.² ECF 33-3, p. 10; 39-4, pp. 5-6; ECF 39-5, p. 17. Josh Hammon and Jerold Williams directed Jessop on the work he was to do each day. Id., p. 9. Williams paid the crew. ECF 39-4, p. 14.

When Williams was there, he supervised his crew's work. ECF 33-3, p. 11. Sorensen didn't have anybody on site supervising Williams' work and Williams didn't expect Sorensen to be there. ECF 33-3, p. 9, 19. Further, neither the Bairs nor anyone from Bairco Construction trained or supervised any of Williams' crew. ECF 31-2, p. 7. Williams confirmed that the Bairs did not take responsibility for anyone's safety. Mr. Bair only told Williams to make sure everybody was safe, such as having people who were on the roof tied off. ECF 31-3, pp. 5-6.

With the exception of a forklift and the seamers used to crimp the metal panels together (which Sorensen provided), Williams was responsible for the tools and equipment that his crew used. ECF 31-2, p. 7. Williams rented the scissor lift that was used and damaged in the accident. ECF 31-3, p. 4.

Williams testified that Josh and Troy Hammon already knew how to perform work on metal buildings, including how to operate a scissor lift. ECF 33-3, p. 12. Troy Hammon had experience operating scissor lifts on other projects including every day he was at the Bair project, which was over a span of roughly two months. 31-5, pp. 3, 9. Troy Hammon did not expect anyone to give him any kind of safety training on the Bair project. ECF 31-5, p. 20. He explained that, to drive the scissor lift, "[t]here's just one little switch, and it's either you raise it with the joystick, or you flip the switch and you can drive it around." ECF 31-5, p. 12. In his words, "it's really simple." Id. He used his own judgment when operating the scissor lift. ECF 31-5, p. 17. In contrast, Jessop received no training when he arrived at the site but was just put to work. ECF 39-5, p. 5.

A week before the accident, Wesley Sorensen told Williams that he didn't want Williams to use any more uneducated, unqualified people for the labor crew. Rather, Sorensen wanted Williams to continue to run the job and oversee another company's labor crew (A.W. Hunt's crew).³ Sorensen testified he reached this "gentlemen's deal"⁴ with Williams because the Bairs were concerned with the project taking a long time. Sorensen also testified it was inefficient and unsafe to have one or two guys on a framing project and that Williams didn't have sufficient manpower. ECF 39-3, pp. 45-49. Williams agreed to the deal and told Sorensen he was going home for the weekend. Id., p. 61. Sorensen told Williams, "take your guys home and don't bring anyone else back." Id.

The accident occurred on a Saturday. There were no Sorensen workers on the site. ECF 29-3, p. 98. Williams also wasn't there that day, but Jessop talked by phone to Williams that morning about what needed to be done. ECF 39-3, p. 57; 31-4, p. 12; ECF 31-5, p. 8. Williams told Jessop he wanted them to keep taping all the way around the building. Id.

As to the location of the scissor lift and the accident itself, Troy Hammon testified, "[t]he thing is, where it was positioned, we really shouldn't have been going forward or backwards. It should have been up or down. And that's where my mistake was." ECF 31-5, p. 13. In terms of where the lift was positioned, Hammon explained "[i]t was sitting [on the concrete] right by a 4-inch sidewalk where it drops to dirt. So if you drive off that, then you're going to tip." Id.

In summary, Hammon testified he knew where the lift was positioned, he could see the drop-off, he knew the bucket was extended and inherently unstable, he knew he could have lowered it and then tried to move the lift, and he knew if the lift dropped off the edge of the concrete it would likely tip over. ECF 31-5, p. 15-16. But he "didn't really think that." Id. Sorensen testified that an operator should bring the boom and bucket down before driving a lift. ECF 39-3, p. 73.

Sorensen testified that the perimeter sidewalk on which the scissor lift was initially positioned was sufficient and reasonable for a safe operation, and there wasn't anything about the perimeter that was unreasonable or dangerous. ECF 31-2, pp. 5-6. Williams said there was a water supply pipe sticking up in the sidewalk, but he also confirmed there was nothing unreasonably dangerous about the premises, and nothing that wasn't open and obvious to the workers. Williams never thought anyone would drive the lift right out at the edge. ECF 31-3, pp. 12-13. Finally, while Hammon thought it wasn't safe to have the lift by the concrete ledge, he didn't know who drove it there and admitted it was his fault the lift was there. ECF 31-5, pp. 21-22.

Before the accident occurred, Jessop was in the bucket putting up two-sided thermal tape on the building. ECF 39-3, pp. 64-65. Jessop testified that Troy Hammon was inching the scissor lift forward with the bucket extended and Jessop told Hammon to stop three times, but Hammon didn't stop. ECF 39-4, p. 11; ECF 33-5, p. 7. As Hammon drove forward, the lift's right tire went off the edge of the concrete and the lift started rocking. ECF 39-4, p. 10. Jessop was injured when he jumped from the basket of the scissor lift as it tipped over.

Sorensen testified he didn't know Jessop and Hammond were onsite and was shocked to hear they were there working alone on a Saturday after Sorensen had made the deal with Williams to take his people home and oversee a different crew. ECF 39-3, pp. 58-63.

II. Applicable Legal Standards

"The Court shall grant summary judgment if the movant shows 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); Mata v. Anderson, 635 F.3d 1250, 1252 (10th Cir. 2011). In determining whether summary judgment is appropriate, the Court views the evidence and draws all reasonable inferences therefrom in the light most favorable to the nonmoving party. Mumby v. Pure Energy Servs. (USA), Inc., 636 F.3d 1266, 1269 (10th Cir. 2011). "However, to defeat summary judgment, a plaintiff must support the claim with more than conjecture and speculation." Cunningham v. Jackson Hole Mt. Resort Corp., 15-cv-07, 2016 WL 9080240, 1, 2016 U.S. Dist. LEXIS 190233, 4 (D. Wyo. Feb. 17, 2016). To survive a motion for summary judgment, there must be more than "[t]he mere existence of a scintilla of evidence in support of...