Summary 2009 WY 93

Summary of Decision issued July 28, 2009

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Loredo v. Solvay America, Inc.

Citation: 2009 WY 93

Docket Number: S-08-0030; S-08-0031; S-08-0032

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

Representing Appellants Loredo: P. Richard Meyer and Pamela T. Harvey of Meyer & Williams, PC, Jackson, Wyoming.

Representing Appellees: Joe M. Tieg, Paula A. Fleck and Susan L. Lyndrup of Holland & Hart, LLP, Jackson, Wyoming for Appellees Solvay America, Inc. and Gilbert Pacheco; and Richard A. Mincer, Richard G. Schneebeck and Lindsay A. Woznick of Hirst Applegate, PC, Cheyenne, Wyoming for Joy Technologies, Inc.

Facts/Discussion: Jose Loredo was rendered a quadriplegic by injuries he suffered in 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. (Joy).
In Case No. S-08-0030, Jose Loredo, his wife, Yolanda and his son Alexander sought review of the grant of summary judgment dismissing Loredo’s claims against Solvay America (the parent company of Loredo’s immediate employer, Solvay Chemicals.)
In Case No. S-08-0031, Loredo sought review of the grant of summary judgment to his co-employee/supervisor, Pacheco.
In Case No. S-08-0032 Loredo sought review of summary judgment in favor of Joy Technologies.
Claims against Solvay America: The Court concluded that the district court’s analysis was sound and correct in concluding that Solvay America as parent corporation of Solvay Chemicals, was not so involved in the day-to-day operations of Solvay Chemicals, as they related to the event that caused Loredo’s injuries so as to pose a genuine issue of material fact whether Solvay America assumed an independent legal duty vis-à-vis Loredo.
Claims against co-employee Gilbert Pacheco: The Court noted that the matter of co-employee liability and the meaning conveyed by § 27-14-104(a) had been before the Court recently and it referenced Bertagnolli v. Louderback and Hannifan v. American National Bank of Cheyenne because they played a significant role in the resolution of the instant matter. In the instant case, the Court agreed with the district court that Loredo informed Pacheco of his concerns over the machinery’s problems but that Pacheco never threatened Loredo with a disciplinary action for notifying him of the defect. At the moment of the injury, Pacheco did not know where Loredo was or what he was doing. Pacheco’s actions did not rise to the level of purposeful and reckless disregard of consequences to Loredo’s safety.
Claims against Joy Technologies: As the Court said in O’Donnell, the surest route to summary judgment in negligence actions arises from the inability to establish the existence of a duty on the part of the defendant. Common knowledge and years of experience should have warned Loredo that traveling under the unbolted mine ceiling exposed him to sudden rock falls. Nothing in the manufacture or design of the roof bolter caused the ceiling to collapse. Nothing about it was defective by the omission of a canopy. The roof bolter did not have any defects and met with mine safety regulations; and Loredo was injured while using the bolter in a manner that was not anticipated or appropriate under applicable policies and regulations.

Conclusion: The Court concluded the district court correctly determined that there was no genuine issue of material fact apparent in the record on appeal that Pacheco acted willfully, wantonly, or intentionally so as to contribute to Loredo’s injuries. Thus, as a co-employee, he remained immune from Loredo’s action against him. Loredo failed to establish that Joy owed a duty to provide a product that protected him from falling rock.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/m5sxm8 .

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