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Loredo v. Solvay America

July 28, 2009


Appeal from the District Court of Sweetwater County The Honorable Jere A. Ryckman, Judge.

The opinion of the court was delivered by: Hill, Justice.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

[¶1] In this appeal, we are called upon to consider three interrelated aspects of this case. All three matters arise out of the same set of factual circumstances which, in brief, are that Jose Loredo was seriously injured on August 14, 2002, when tons of rock fell on him in a Sweetwater County trona mine. At the time of the incident, Loredo was operating a roof bolting machine manufactured by Joy Technologies, Inc. Such a machine is used to secure the roof/top of the mine so that miners would not be subjected to potential injury from falling rock as the mine shaft work-areas progressed. During his work effort, the roof of the mine did collapse in the area in which he was operating (an area where the mine roof had not yet been bolted), and Loredo was rendered a quadriplegic by the injuries he suffered.

[¶2] In Case No. S-08-0030, Appellants, Jose Loredo, Yolanda Loredo (wife of Jose) and Alexander Loredo (Jose‟s minor child) (collectively, Loredo), seek review of an order of the district court that granted summary judgment dismissing Loredo‟s claims against Solvay America, Inc. (Solvay America), the parent company of Jose Loredo‟s immediate employer, Solvay Chemicals, Inc. (Solvay Chemicals).*fn1 The essence of Loredo‟s claim against Solvay America was that it exercised such a significant degree of control over safety at its subsidiary, Solvay Chemicals, as to be responsible for the lack of adequate safety in the trona mine.

[¶3] In Case No. S-08-0031, Loredo seeks review of an order of the district court which granted summary judgment to his co-employee/supervisor, Gilbert Pacheco (Pacheco). Loredo contended that Pacheco‟s supervision (or lack thereof) of safety at the work site just prior to the accident was willful, wanton and reckless (intentional) and ultimately led to Loredo‟s disabling injuries.

[¶4] In Case No. S-08-0032, Loredo seeks review of an order of the district court granting summary judgment in favor of Joy Technologies, Inc. (Joy Technologies), the manufacturer of the piece of equipment that Loredo was using at the time of his injuries. Loredo raised claims of product liability and negligent design against Joy Technologies. These claims focused on the failure of Joy Technologies to equip the roof bolter with a protective canopy so as to eliminate or reduce the possibility of serious injury from falling rock, such as that which occurred in this case.

[¶5] We will affirm.


[¶6] In Case No. S-08-0030, Loredo articulates this issue:

Did the district court err in granting summary judgment dismissing [Loredo‟s] personal injury and loss of consortium claims against Solvay America, Inc., the parent company of. Loredo‟s employer?

Solvay America responds thus:

Did Solvay America exercise sufficient control over the roof bolting operations of Solvay Chemicals such that it assumed a legal duty of care towards.Loredo, an employee of Solvay Chemicals?

In his reply brief, Loredo asserts that Solvay America broached these additional issues in its brief:

1. Does a genuine issue of material fact exist as to whether Solvay America, Inc. exercised sufficient control over relevant safety issues at the mine operated by its corporate subsidiary, Solvay Chemicals, Inc. so that summary judgment for Solvay America must be denied?

2. Does W.R.E. 407 bar considering evidence of Solvay America‟s involvement in subsequent remedial measures such as the purchase of new roof bolting machines equipped with canopies to show Solvay America‟s control over such decisions?

3. Should this Court reach the issue of whether [Loredo‟s] expert‟s opinion is admissible when the district court did not rule on this issue, and the issue is not necessary in reviewing the district court‟s grant of summary judgment?

In Case No. S-08-0031, Loredo raises this issue:

Whether the district [court] erred in granting summary judgment dismissing Loredo‟s claim against his co-employee supervisor, Gilbert Pacheco.

Pacheco restates the issue like this:

Did the district court correctly hold that [Loredo] failed to raise a genuine issue of material fact as to whether Pacheco intentionally or willfully and wantonly acted to cause Loredo harm or injury?

In his reply brief, Loredo asserts that Pacheco broached these additional issues in his brief:

1. Should this Court disregard much of the evidence in [Pacheco‟s] Brief as improper under the standard of review applicable when reviewing a grant of summary judgment?

2. How does this Court‟s recent decision in Hannifan v. American National Bank of Cheyenne, 2008 WY 65, 185 P.3d 679 (Wyo. 2008) impact this case?

3. Is a co-employee defendant‟s violation of company policy, or the co-employee‟s absence from the scene prior to the accident, relevant in determining whether that co-employee acted in reckless disregard of the consequences?

4. Under all the circumstances of this case, including that [Loredo‟s] co-employee supervisor knew that [Loredo] was not protected from rock fall by any canopy, knew that [Loredo] was operating his roof bolting machine in an area of the mine with unstable roof conditions, and knew that [Loredo] was having difficulties with the steering mechanism of his machine, but the supervisor failed to take any action, does a genuine issue of material fact exist as to whether [Pacheco] acted with willful and wanton misconduct, as that term is interpreted by Wyoming law?

In Case No. S-08-0032, Loredo raises these issues:

1. When Loredo was severely injured in an underground trona mine by rock falling from the roof while [he] was operating a roof bolting machine designed and sold by Joy Technologies, Inc. that lacked a canopy to protect the operator from falling rocks, did the district court err in granting summary judgment dismissing [Loredo‟s] product liability and negligent design claims against Joy on the basis that [Loredo] was not injured by Joy‟s product?

2. On the record in this case, could the district court have granted [Joy Technologies] summary judgment on the ground that the roof bolting machine was not unreasonably dangerous?

3. On the record in this case, was a genuine issue of material fact presented as to whether the risk posed by [Joy Technologies‟] roof bolting machine was open and obvious?

4. Was [Joy Technologies] under a non-delegable duty to install safety features such as a canopy to protect miners from falling rock on its roof bolting machine?

Joy Technologies, Inc. responds with this terse capsule of the issues:

Is summary judgment in a products liability case appropriate where the disputed facts show the product is not unreasonably dangerous?


General Overview

[¶7] The instant proceedings were initiated in the district court on October 17, 2005. Loredo was employed by Solvay Chemicals. Solvay America is the parent corporation of Solvay Chemicals, Inc. As articulated by Solvay America‟s Chief Financial Officer:

Solvay America is a holding company that does not engage in business in its own name. Instead, [it] administers, on behalf of its subsidiaries, certain company-wide functions, including benefits plans, national contracts, travel, use of the Solvay corporate logos, taxation, treasury, insurance, auditing, and health, safety and environmental reviews for manufacturing plants and other facilities. [Id.]

[¶8] On the day of his injuries, August 14, 2002, Loredo was operating a "bolting machine," as he had done for many years. The bolting machine was manufactured by Joy Technologies. A roof bolter is a piece of mobile equipment used to install bolts in an underground mine to secure the roof of the mine and prevent collapse after ore is extracted by the mining process. On August 9, 2002, the machine Loredo was using on the day of his injury had undergone repairs. The bolting machine did not have a protective canopy to guard its users from falling rock and debris.

[¶9] Loredo was injured when a slab of rock from an unbolted portion of the roof of the mine fell on him. Loredo began his work shift on August 14, 2002, at 6:00 a.m., and the incident at issue here occurred at about 2:45 p.m. Pacheco was Loredo‟s immediate supervisor that day. As Loredo was moving his roof bolter from one area of the mine to another, he noticed that the left tram of the vehicle was not spinning at the same speed as the right tram, making the machine difficult to steer. Loredo detected it to be a hydraulic problem. By adjusting the speed of one of the trams, to a different speed than the other, he was able to keep it running straight. In addition to the steering difficulties, Loredo‟s path of progress was impeded by other operations and he drove his machine in reverse for a distance, in order to get to his desired location. Then, as he attempted to turn his machine around and get to that desired location, he got stuck. Loredo got off the machine and spent 10-15 minutes trying to get it unstuck. Next he got back on his machine and resumed his efforts to get unstuck. It was then that a 4 foot by 15 foot piece of slab fell from the mine roof and hit him on the head. That chunk of rock came from a portion of the roof that had not yet been bolted into place. However, Loredo did not realize he was in an unbolted area. Although Pacheco, Loredo‟s supervisor, knew he was having trouble with his machine, Loredo was told to continue working and that repairs could be made during "down shift." In addition, Loredo had informed Pacheco on many occasions preceding the accident that the sequence and method of mining being used required him to go into areas where the mine roof was not yet bolted. Because of that situation, Loredo had asked to be transferred to a different job in a different part of the mine. Loredo testified that he knew it was dangerous to put himself into an area that was not yet bolted and that he should not do it if it could be avoided. Furthermore, he indicated that he did not intend to, nor did he want to ever place himself into an unbolted area.


Claims Against Solvay America

[¶10] Our general standard of review is well-known:

We evaluate the propriety of a summary judgment by employing the same standards and using the same materials as the district court. Cook v. Shoshone First Bank, 2006 WY 13, ¶ 11, 126 P.3d 886, 889 (Wyo.2006). Thus, our review is plenary. Birt v. Wells Fargo Home Mortg., Inc., 2003 WY 102, ¶ 7, 75 P.3d 640, 647 (Wyo.2003).

Wyo. R. Civ. P. 56 governs summary judgments. A summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. W.R.C.P. 56(c).

When reviewing a summary judgment, we consider the record in the perspective most favorable to the party opposing the motion and give that party the benefit of all favorable inferences which may be fairly drawn from the record. We review questions of law de novo without giving any deference to the district court's determinations. Cathcart v. State Farm Mut. Auto. Ins. Co., 2005 WY 154, ¶ 11, 123 P.3d 579, 586 (Wyo.2005), quoting Baker v. Ayres and Baker Pole and Post, Inc., 2005 WY 97, ¶ 14, 117 P.3d 1234, 1239 (Wyo.2005).

"A genuine issue of material fact exists when a disputed fact, if it were proven, would establish or refute an essential element of a cause of action or a defense that the parties have asserted." Christensen v. Carbon County, 2004 WY 135, ¶ 8, 100 P.3d 411, 413 (Wyo.2004) (quoting Metz Beverage Co. v. Wyoming Beverages, Inc., 2002 WY 21, ¶ 9, 39 P.3d 1051, 1055 (Wyo.2002)). The party requesting a summary judgment bears the initial burden of establishing a prima facie case for summary judgment. If he carries his burden, "the party who is opposing the motion for summary judgment must present specific facts to demonstrate that a genuine issue of material fact exists." Id. We have explained the duties of the party opposing a motion for summary judgment as follows:

"After a movant has adequately supported the motion for summary judgment, the opposing party must come forward with competent evidence admissible at trial showing there are genuine issues of material fact. The opposing party must affirmatively set forth material, specific facts in opposition to a motion for summary judgment, and cannot rely only upon allegations and pleadings..., and conclusory statements or mere opinions are insufficient to satisfy the opposing party's burden."

The evidence opposing a prima facie case on a motion for summary judgment "must be competent and admissible, lest the rule permitting summary judgments be entirely eviscerated by plaintiffs proceeding to trial on the basis of mere conjecture or wishful speculation." Speculation, conjecture, the suggestion of a possibility, guesses, or even probability, are insufficient to establish an issue of material fact.

Cook, ¶ 12, 126 P.3d at 890, quoting Jones v. Schabron, 2005 WY 65, ¶¶ 9-11, 113 P.3d 34, 37 (Wyo.2005).

Hatton v. Energy Elec. Co., 2006 WY 151, ¶¶ 8-9, 148 P.3d 8, 12-13 (Wyo. 2006).

[¶11] We have articulated a standard of review more directly applicable to claims such as the one at issue here, in somewhat more detail than our usual and more general standard of review:

In support of their claim of an independent duty on the part of ARCO, Appellants emphasize their record presentation of certain evidence which they assert demonstrates genuine issues of material facts. They point to the Wyoming Workers Compensation Division record showing Sharon Fiscus to be an employee of ARCO and that the benefits she received came from ARCO's Wyoming workers‟ compensation account. They rely upon the fact that ARCO retained a fifty percent (50%) overriding royalty interest in the mine, and they mark the fact that the Bureau of Land Management continues to refer to mining leases relating to the Thunder Basin's Black Thunder Mine as jointly held by ARCO and Thunder Basin. Appellants contend that ARCO pays all taxes on the mine. More precisely, then, they show that ARCO officials paid visits to the mine which would average four times a day and that various ARCO officials did attend safety meetings conducted by Thunder Basin at the mine. They place a great deal of importance upon the fact that the president of Anaconda Minerals, another corporate subsidiary of ARCO, had sent a memorandum to Thunder Basin recommending the use of seat belts by the employees of Thunder Basin. Furthermore, Appellants contend that the record ...

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