United States District Court, D. Minnesota
MEMORANDUM AND ORDER
A. Magnuson United States District Court Judge
matter is before the Court on Motions for Summary Judgment
filed by Defendants Rawlings Industrial, Inc., and Tinsley
Consulting Group, LLC. For the following reasons, the Motions
lawsuit stems from injuries Plaintiff Jared Mostrom-Ose
sustained at Third-Party Defendant Potlatch Corporation's
saw mill in Bemidji, after Potlatch commenced a modernization
project to upgrade the mill's saw line. Mostrom-Ose is a
utility worker for Potlatch.
modernization project included the installation of two cranes
that would rest on overhead tracks supported by steel beams.
(Kirsch Decl. (Docket No. 93-1) Ex. 2 (Aube Dep.) at 9-10.)
Potlatch hired MP-Squared Structural Engineers, LLC,
create drawings for the project. (Id. (Docket No.
93-1) Ex. 9 (Anderson Dep.) at 13-16.) Potlatch separately
contracted with Tinsley to perform “engineering
related, project management and construction management
services” related to the modernization project.
(Lauricella Aff. (Docket No. 101-2) Ex. 2 (Service Contract)
at 1.) Finally, Potlatch hired Rawlings to install the
support beams and perform other work on site. (Aube Dep. at
16; Kreidler Aff. (Docket No. 72-1) Ex. B (Rawlings Dep.) at
installed one support beam only four feet, ten inches above
an existing staircase that led to a catwalk. (Kirsch Decl.
(Docket No. 93-2) Ex. 22 (Werlein Dep.) at 23.) Occupational
Safety and Health Act (“OSHA”) regulations
require that the “[v]ertical clearance above any stair
tread to any overhead obstruction [be] at least 6 feet, 8
inches.” 29 C.F.R. § 1910.25(b)(2). Rawlings
claims that it installed the support beam as directed, but
the construction drawings did not specify any catwalk in that
location. Regardless, Rawlings could not have installed it in
a different location or at a different height because the
overhead crane tracks had to be at the same elevation
throughout the mill for the two cranes to function properly.
notified Potlatch immediately after it installed the support
beam. And apparently Potlatch had plans to relocate the
catwalk. Potlatch employee Pete Aube testified that the steel
“beams have to go” where they go, but moving
catwalks at the mill is “very common.” (Aube Dep.
at 66.) In the meantime, Potlatch attached padding to the
edges of the support beam and painted that padding yellow.
Potlatch also warned its employees of the hazardous
condition, but Mostrom-Ose contends that no one warned him of
days after Rawlings installed the support beam, Mostrom-Ose
sustained severe injuries by hitting his head on it. (Kirsch
Decl. Ex. 7 (Schimenek Dep.) at 29-30, 38-39; Aube Dep. at
9-10.) Mostrom-Ose contends that Defendants caused his
injuries by creating a hazardous condition that violated OSHA
regulations and contractual obligations, and the Second
Amended Complaint claims that Defendants were negligent,
negligent per se, strictly liable for failure to warn, and
that Defendants breached an implied warranty. (2d Am. Compl.
(Docket No. 18).) Defendants now move for summary judgment.
Standard of Review
judgment is proper if there are no disputed issues of
material fact and the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(a). The Court must view the
evidence and inferences that “may be reasonably drawn
from the evidence in the light most favorable to the
nonmoving party.” Enter. Bank v. Magna Bank of
Mo., 92 F.3d 743, 747 (8th Cir. 1996). The moving party
bears the burden of showing that there is no genuine issue of
material fact and that it is entitled to judgment as a matter
of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). A party opposing a properly supported motion for
summary judgment may not rest on mere allegations or denials,
but must set forth specific facts in the record showing that
there is a genuine issue for trial. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 256 (1986).
Negligence Per Se
alleges that Defendants are negligent per se for violating
OSHA regulations. But generally, “OSHA only governs
duties that are owed by an employer to an employee.”
Banovetz v. King, 66 F.Supp.2d 1076, 1081 (D. Minn.
1999) (Erickson, M.J.). Mostrom-Ose argues that OSHA
regulations also govern Defendants' duties based on
OSHA's multi-employer worksite policy. (See
Lauricella Aff. (Docket No. 99-24).)
multi-employer worksite, an “employer that caused a
hazardous condition that violates an OSHA standard . . . is
citable even if the only employees exposed are those of other
employers at the site.” (Id. at 3.) However,
even if OSHA governed Defendants' duties, the violation
of an OSHA regulation cannot constitute negligence per se.
Jones v. Spentonbush-Red Star Co., 155 F.3d 587,
595-96 (2d Cir. 1998); see Solo v. Trus Joist
MacMillan, No. 02-cv-2955, 2004 WL 524898, at *7 (D.