The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
ROBERT SCOTT CORMACK, )
)
Plaintiff, )
)
v. )
) Case No. CIV-22-00804-PRW
EMCOR GOVERNMENT SERVICES )
INC., et al., )
)
Defendants. )
ORDER
Before the Court are the Motion for Summary Judgment (Dkt. 42), filed by
Defendant EMCOR Government Services, Inc. (“EMCOR), Plaintiff’s Response (Dkt. 49),
and EMCOR’s Reply (Dkt. 52). Having considered the pleadings and applicable legal
authorities, the Court DENIES the Motion (Dkt. 42).
Background
This is a personal injury case. The parties do not dispute that on or about April 12,
2018, Plaintiff Robert Scott Cormack worked as a security guard at the William J.
Holoway, Jr. United States Courthouse for the U.S. District Court for the Western District
of Oklahoma in Oklahoma City. At the same time, EMCOR contracted with the General
Security Administration (“GSA”) to provide various services at the Courthouse.
On April 12, 2018, Cormack was assigned to the east alleyway, where there is a
hydraulic gate with a security arm which lifts to allow vehicles to enter the property.
Cormack walked near the gate while it was raised and was allegedly struck and injured as
it lowered. On April 8, 2020, Cormack sued Defendant, alleging that it negligently
installed, maintained, repaired, and serviced the gate. EMCOR now moves for summary
judgment.
Standard of Review
Summary judgment is proper “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.”1 A
genuine issue exists if “there is sufficient evidence favoring the nonmoving party for a jury
to return a verdict for that party.”2 Evidence that is “merely colorable” or “not significantly
probative” will not defeat a motion for summary judgment.3 A fact is material if it “might
affect the outcome of the suit under the governing law.”4
The moving party bears the initial burden of showing beyond a reasonable doubt the
absence of a genuine issue of material fact.5 Once the movant has met his initial burden,
the burden shifts to the nonmoving party to “set forth specific facts showing that there is a
genuine issue for trial.”6 Courts may only consider admissible evidence in reviewing
summary judgment, but the evidence need not be submitted “in a form that would be
1 Fed. R. Civ. P. 56(a).
2 See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
3 Id. at 249–50.
4 Id. at 249.
5 Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002).
6 Anderson, 477 U.S. at 256
admissible at trial.”7 Rather, the proponent must merely show that the evidence is capable
of presentation in an admissible form.8 Courts must view all facts and reasonable inferences
in the light most favorable to the nonmovant.9
Under Oklahoma law, the elements of the tort of negligence are: “(1) a duty of care
owed by defendant to plaintiff, (2) defendant's breach of that duty, and (3) injury to the
plaintiff caused by defendant's breach of that duty.”10 In the absence of a contractual duty,
“a defendant's duty ‘depends on the relationship between the parties and the general risks
involved in the common undertaking.’”11 Oklahoma courts consider certain factors to
determine whether a duty existed, including “the closeness of the connection between the
defendant's conduct and the injury suffered, the moral blame attached to the defendant's
conduct,” and (most importantly) the foreseeability of the harm.12
Analysis
EMCOR argues that “there is no relationship” between it and Cormack “which
could in any way impose a duty on” EMCOR and that the record contains no evidence that
7 Brown v. Perez, 835 F.3d 1223, 1232 (10th Cir. 2016) (internal quotation marks omitted)
(quoting Trevizo v. Adams, 455 F.3d 1155, 1160 (10th Cir. 2006)).
8 Id. (citations omitted).
9 Anderson, 477 U.S. at 255.
10 See Lowery v. Echostar Satellite Corp., 160 P.3d 959, 964 (Okla. 2007) (cleaned up)
(citing Nicholson v. Tacker, 512 P.2d 156, 158 (Okla. 1973)).
11 Snow v. TravelCenters of Am. LLC, 527 P.3d 741, 753 (Okla. Civ. App. 2022) (citing
Wofford v. Eastern State Hosp., 795 P.2d 516, 519 (Okla. 1990)).
12 Id. (alteration removed) (collecting cases).
it installed, maintained, repaired, or serviced the gate.13 In support, it attaches an affidavit
of EMCOR Director of Environmental Safety and Quality Performance Excellence James
Morano, who attests that he is knowledgeable about “the specific type and scope of the
services provided by EMCOR at the . . . Courthouse,” as well as Cormack’s Petition, and
he maintains that EMCOR “did not install, maintain, or repair,” nor was it responsible for,
the gate. 14
The parties dispute whether the contract in place between the GSA and EMCOR at
the time of the incident demonstrates that EMCOR was responsible for the gate. EMCOR
maintains that the contract “lists the services provided by EMCOR at the” Courthouse, but
“[i]t does not list any services or maintenance provided by Defendant involving the gate.”15
It appears to rely on the Annual Preventive Maintenance Requirements table (which lists
“[a]ll equipment to receive [preventative maintenance]”)16 for building number OK0074.17
However, this particular table pertains to the “Federal Building/Courthouse” in Lawton.18
The table for the Oklahoma City Courthouse is found at OK0072.19 It lists, among other
13 Def.’s Mot. for Summ. J. (Dkt. 42), at 6–7.
14 Aff. of James Peter Morano (Dkt. 42-1, Ex. 1).
15 Def.’s Mot. for Summ. J. (Dkt. 42), at 6–7; see also Def.’s Reply (Dkt. 52), at 2.
16 Contract (Dkt. 42-2, Ex. 2), at 17, 110.
17 Def.’s Reply (Dkt. 42), at 2; see also Contract (Dkt. 42-2, Ex. 2), at 115–116 (listing,
among other things, two parking lot gates and six “GATES, SECURITY AND
ACCESS.”).
18 Contract (Dkt. 42-2, Ex. 2), at 115
19 Id. at 113–114; see also id. at 6.
things, five “GATES, SECURITY AND ACCESS.”20 EMCOR argues that this phrase
refers to security and access points around the building and does not specifically require
EMCOR to maintain the gate.21 The phrase, however, does not preclude EMCOR’s
responsibility for maintaining the gate, especially when viewed in the light most favorable
to Cormack. In fact, Cormack directs the Court to several provisions of the contract that
may show that it was responsible for maintaining the gate. 22
Further, Cormack attaches his affidavit, in which he attests that he “ha[s] personal
knowledge that [EMCOR] has provided repair and maintenance services to the Courthouse,
including the” gate.23 Specifically, in the past, when the gate would malfunction, Cormack
or one of his coworkers “would contact ‘building maintenance,’” and an EMCOR
representative “would appear[,] inspect the gate, review its operation[,] and repair the gate
so that it was functional[.]”24 In fact, before the incident occurred, Cormack had
20 Id. at 114.
21 Def.’s Reply (Dkt. 52), at 2.
22 See Dkt. 42-2 at 6 (“[EMCOR] shall provide all management, supervision, labor,
materials, supplies, repair parts, tools and equipment and shall plan, schedule, coordinate,
and effective performance of all services described[.]”), 111–14 (showing the contract
required EMCOR to perform “annual preventative maintenance” on “GATES, SECURITY
AND ACCESS” (cleaned up)), 95 (requiring EMCOR to, “periodically inspect the interior
and exterior condition of the building(s), the tenants’ work areas, the corridors, toilet
rooms, lobbies, and other public areas to identify building areas that may be deteriorating”),
134 (“[EMCOR] shall provide all labor, equipment and materials necessary to perform all
architectural and structural maintenance and repairs to the interior and exterior of the
facility, including, but not limited to . . . sidewalks [and] driveways . . . .”), 135 (“[EMCOR]
shall maintain in a safe and usable condition power doors, such as garage and loading ramp
doors, revolving doors, sliding or swinging doors and adjustable loading ramps.”)
23 Aff. of Robert Scott Cormack (Dkt. 49-1, Ex. 1), ¶ 3.
24 Id. ¶ 4 (emphasis removed).
“personally viewed [EMCOR] employees” performing maintenance on and repairing the
gate “on multiple occasions.”25
Cormack included several attachments with his affidavit, including (1) a blurry
photograph of a man in a red shirt riding what appears to be a forklift outside of a gate,
which apparently depicts an EMCOR employee working on the gate,26 and (2) pictures of
a handwritten document titled “Gate error log”, with entries from April 19, 30, and May
14, 2018, highlighted to show that EMCOR was notified or involved in the repair of the
gate on each occasion.27 EMCOR argues that the “Gate error log” is inadmissible,28 but
even if that is so, EMCOR does not dispute Cormack’s testimony that he has personally
viewed EMCOR employees work on the gate.29 Viewing this testimony, the provisions of
the contract that Cormack cited, and the photograph in the light most favorable to him, a
reasonable jury could find that EMCOR in fact maintained the gate.
Finally, EMCOR attached to its Reply a second affidavit from Morano, in which he
attests EMCOR utilizes certain procedures when it services or repairs equipment for GSA
that generate documentation of the work order.30 Mr. Morano states that no documentation
25 Id. ¶ 5 (emphasis removed).
26 Id. at 7.
27 Id. at 4–6. Cormack also included a document titled MVM, Inc Form 600-7 Worker’s
Compensation Report, which details the incident. Id. 11.
28 Def.’s Reply (Dkt. 52) at 3–4.
29 See Aff. of Robert Scott Cormack (Dkt. 49-1, Ex. 1), ¶¶ 4–5.
30 2d Aff. of James Peter Morano (Dkt. 52-1, Ex. 1), ¶¶ 6–7.
exists substantiating a servicing or a repair of the gate prior to the incident.*! But because
Cormack has provided sufficient evidence indicating that EMCOR actually did service the
gate, there remains a genuine issue of material fact. Thus, summary judgment is
inappropriate.
Conclusion
Accordingly, the Court DENIES the Motion (Dkt. 42).
IT IS SO ORDERED this 25th day of September 2024.
PATRICK R. WYRICK
UNITED STATES DISTRICT JUDGE
31 Td.