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 .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2007 WY 134

Summary of Decision issued August 22, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

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

Case Name: Rohde v. Smiths Medical, d/b/a Sims Deltec, Inc.

Citation: 2007 WY 134

Docket Number: 06-213

Appeal from the District Court of Teton County, the Honorable Nancy J. Guthrie, Judge

Representing Appellants (Plaintiffs): Katherine L. Mead and Bradford S. Mead of Mead & Mead, Jackson, Wyoming. Argument by Ms. Mead.

Representing Appellee (Defendant): Richard A. Mincer of Hirst & Applegate, Cheyenne, Wyoming; Michelle L. Rognlien of Bowman and Brooke, LLP, Minneapolis, Minnesota. Argument by Mr. Mincer.

Issue: Whether the trial court erred when it held that the inference of defect rule was inapplicable to the instant case.

Facts/Discussion: Rohde sued Smiths Medical, the manufacturer of a venous access device which fractured after it was inserted into his chest to administer chemotherapy treatment, claiming the device was defective. The district court granted summary judgment in favor of Smiths Medical.
Standard of Review: The Court’s standard for reviewing the district court’s summary judgment is de novo. The Court examined the same material as the district court in the light most favorable to the party opposing the motion. A genuine issue of material fact exists when a disputed fact, if proven, would establish or refute an essential element of a cause of action or a defense that a party has asserted.
In Ogle v. Caterpillar Tractor Co., the Court recognized a cause of action based upon the Restatement (Second) of Torts for strict liability in favor of a party injured by a defective product. A plaintiff must show the product was defective when the seller sold it. Generally, a defective product is one which is not reasonably safe or is unreasonably dangerous to the user or consumer. A plaintiff must show a defect in the product, which he may do either by presenting evidence of a specific defect or by inference. The inference of defect rule was recognized by the Court in Sims and required the plaintiff to present evidence that there was no abnormal use and no reasonable cause for the malfunction. Because Rohde did not present any evidence to the district court to counter Smiths Medical showing that compression was a reasonable secondary cause of the Port-A-Cath’s fracture he failed to meet his burden to discount reasonable secondary causes of the product’s malfunction as required by Sims. The Court discussed the two Illinois cases that Rohde relied upon, Weedon v. Pfizer, Inc. and Tweedy v. Wright Ford Sales, Inc.
Rohde also contested the district court’s refusal to apply the inference of defect rule in his case. He blended two distinct theories of strict liability: a defect in the product itself and failure to warn about an inherent risk of a non-defective product. The district court granted summary judgment in favor of Smiths Medical on Rohde’s failure to warn claim. On the record before the Court, the district court’s decision was proper because Rohde failed to present any evidence or any argument that a genuine issue of material fact existed on the adequacy of Smiths Medical’s warnings about the risk of fracture.

Holding: Smiths Medical was entitled to a summary judgment on Rohde’s claim that the Port-A-Cath was defective because he failed to fulfill his obligation, under the inference of defect rule, to present evidence creating a material issue of fact whether there were reasonable secondary causes of the Port-A-Cath’s failure. The district court properly granted summary judgment on Rohde’s failure to warn claim because he presented no evidence that the warnings provided by Smiths Medical were inadequate.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/2qgu57 .