Eaton v. WestRock Coated Board, LLC (CONSENT)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

SCOTT EATON, )

)

Plaintiff, )

)

v. ) Case No.: 3:20-cv-860-SMD

)

WESTROCK COATED BOARD, LLC, )

)

Defendant. )

OPINION & ORDER

I. INTRODUCTION

This is a premises liability claim arising from a chemical spill at a paper mill in

Cottonton, Alabama, owned by defendant Westrock Coated Board, LLC (“Westrock”).

Plaintiff Scott Eaton (“Eaton”) was working for a contractor, RMR Mechanical (“RMR”),

that was overhauling a boiler at the paper mill. While setting up caution tape around a

crane located outside the building housing the boiler, Eaton slipped and fell in a puddle

that he thought was rainwater. The colorless liquid turned out to be sodium hydroxide

solution, commonly known as lye,1 and the caustic chemical burned his leg.

Eaton filed this personal injury lawsuit against Westrock in the Circuit Court of

Russell County, Alabama, alleging claims of negligence, wantonness, and failure to warn.

Compl. (Doc. 1-1). Westrock removed the case to this Court, asserting diversity

jurisdiction under 28 U.S.C. § 1332. Not. of Removal (Doc. 1). Westrock moves for

1 Chemical Datasheet, Sodium Hydroxide Solution, https://cameochemicals.noaa.gov/report?key=CH1499

(last visited April 19, 2022).

summary judgment on the grounds that (1) the hazard was open and obvious, (2) defendant

gave adequate warnings of the hazard, (3) Eaton was contributorily negligent, and (4) there

is no evidence of wantonness. Motion for Summary Judgment (Doc. 20). For the reasons

below, Westrock’s motion for summary judgment is granted on the wantonness claim and

denied on all other grounds.

II. FACTUAL RECORD

Westrock hired RMR to replace modules in Recovery Boiler Number 2 at its

Cottonton, Alabama, paper mill. Def’s Ex. B, Hinton Dep. at 15. Eaton worked for RMR

as a rigger. Def’s Ex. A, Eaton Dep. at 26-27. His job was to work on the ground as part

of a crane’s crew attaching and detaching loads from the crane and making sure that the

lift zone was clear. Id.; Def’s Ex. D, Havens Dep. at 17.

Contractors arriving at the Westrock paper mill are given an orientation consisting

of a drug test, a 45-50 minute video, and a short written test. Def’s Ex. B, Hinton Dep. at

16. The orientation was conducted by ACT, a contractor hired by Westrock. Id. Eaton

attended this orientation. Def’s Ex. A, Eaton Dep. at 93; Def’s Ex. D, Havens Dep. at 47.

Westrock contends that the video instructs contractors to always assume any substance on

the ground is hazardous. Def’s Ex. B, Hinton Dep. at 58. Eaton contends that “[n]owhere

in the plant’s orientation did they say to assume anything on the ground would be

dangerous.” Def’s Ex. A, Eaton Dep. at 49. Westrock also provided its contractor safety

policy to RMR’s onsite safety director Grover Havens. Def’s Ex. D, Havens Dep. at 47-

48. Section 4.10 of this policy states that “Contractors will caution all employees to assume

any unknown materials, drips, leaks, puddles may be hazardous.” Id. at 48-49.

On February 27, 2019, Eaton was setting up barricade tape around a crane preparing

to begin work on the boiler. Def’s Ex. B, Hinton Dep. at 39-40. The crane was located

outside on Hollywood Boulevard right adjacent to the building containing Recovery Boiler

Number 2. Id. at 26-27. There was a rail siding next to the road where tank cars were

parked and unloaded. Def’s Ex. A, Eaton Dep. at 37-38, 52; Def’s Ex. B, Hinton Dep. at

27, 44; Def’s Ex. C, Banks Dep. at 12; Def’s Ex. D, Havens Dep. at 16. Eaton stepped

toward the crane and slipped and fell on a wet, slightly-sloped concrete surface. Def’s Ex.

A, Eaton Dep. at 40-41; Def’s Ex. B., Hinton Dep. at 39. He fell in some liquid that soaked

into his pants. Id. Eaton estimated that the puddle was approximately 20 feet long and 8-

10 feet wide. Def’s Ex. A, Eaton Dep. at 49. Eaton thought that the liquid was rainwater

from a rain storm the night before. Id. at 43, 50. The liquid was actually a 90% sodium

hydroxide solution. Def’s Ex. B, Hinton Dep. at 41. Sodium hydroxide solution is a

colorless, caustic chemical. Id. at 29. The chemical burned Eaton’s leg. Def’s Ex. A,

Eaton Dep. at 43.

III. LEGAL STANDARD

A. Summary Judgment

Pursuant to the Erie2 doctrine, a federal court sitting in diversity applies federal

procedural law and state substantive law. Palm Beach Golf Ctr.-Boca, Inc. v. Sarris, 781

F.3d 1245, 1259-60 (11th Cir 2015). Summary judgment is appropriate when “there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter

2 Erie R. Co. v. Tompkins, 304 U.S. 64 (1938).

of law.” FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The

party seeking summary judgment bears the initial responsibility of informing the court of

the basis for its motion and identifying those portions of the record that it believes

demonstrate the absence of a genuine issue for trial. Id. at 323. If the moving party satisfies

this burden, the non-moving party must come forward with record evidence showing that

a material fact is genuinely in dispute. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986). The legal elements of a claim or defense determine which

facts are material and which are irrelevant. Anderson v. Liberty Lobby, 477 U.S. 242, 248

(1986).

A court must view the proffered evidence in the light most favorable to the

nonmovant and resolve all reasonable doubts about the facts in the nonmovant’s favor.

Johnson v. Bd. of Regents of Univ. of Ga., 263 F.3d 1234,1242-43 (11th Cir. 2001). A

factual dispute is genuine “if the evidence is such that a reasonable jury could return a

verdict for the non-moving party.” Anderson, 477 U.S. at 248.

B. Premises Liability

Under Alabama law, a premises owner’s liability for injuries caused by the

condition of the property turns on the legal status of the injured party. McClurg v.

Birmingham Realty Co., 300 So. 3d 1115, 1118 (Ala. 2020); S. Ala. Brick Co. v. Carwie,

214 So. 3d 1169, 1175 (Ala. 2016). Contractors performing work on the premises are

considered business invitees. S. Ala. Brick Co., 214 So. 2d at 1176-77. The owner’s “‘duty

to business invitees is to use reasonable care and diligence to keep the premises in a safe

condition, or, if the premises are in a dangerous condition, to give sufficient warning so

that by use of ordinary care, the danger can be avoided.’” McClurg, 300 So. 3d at 118

(quoting Armstrong v. Ga. Marble Co., 575 So. 2d 1051, 1053 (Ala. 1991)); S. Ala. Brick

Co., 214 So. 3d at 1176 (quoting same).

The owner’s duty to keep an area safe or provide adequate warnings is limited to

hidden defects that are not known to the invitee and would not be discovered in the exercise

of ordinary care. Daniels v. Wiley, 314 So. 3d 1213, 1223 (Ala. 2020); McClurg, 300 So.

3d at 118; S. Ala. Brick Co., 214 So. 3d at 1176. Where the danger is open and obvious,

i.e., where the invitee knew or should have known of the hazard through the exercise of

reasonable care, the owner has no duty to make the area safe or give warnings. Id.

C. Contributory Negligence

Contributory negligence is an affirmative defense on which the defendant bears the

burden of proof. Robertson v. Travelers Inn, 613 So. 2d 376, 380 (Ala. 1993). “To obtain

summary judgment based on contributory negligence, the moving party must show two

things: (1) that the plaintiff put himself in danger’s way and (2) that the plaintiff had a

conscious appreciation of the danger at the moment the incident in question occurred.”

Lands v. Ward, __So. 3d __, 2021 WL 2622056, at *8 (Ala. June 25, 2021). See also,

Crook v. Allstate, 314 So. 3d 1188, 1199 (Ala. 2020) (holding same).

D. Wantonness

To establish wantonness, the plaintiff must prove that the defendant, with reckless

indifference to the consequences, consciously and intentionally did some wrongful act or

omitted some known duty. Hilyer v. Fortier, 227 So. 3d 13, 22 (Ala. 2017). To be

actionable, that act or omission must proximately cause the injury for which the plaintiff

complains. Id. at 22-23 (citing Smith v. Davis, 599 So. 2d 586 (Ala. 1992)).

IV. ANALYSIS

A. Open and Obvious

Westrock argues that the puddle of sodium hydroxide solution was an open and

obvious hazard. Def’s Opening Br. (Doc. 20-1) at 11-15; Def’s Reply Br. (Doc. 27) at 1-

11. This is an affirmative defense on which Westrock bears the burden of proof. McClurg,

300 So. 3d at 1119. For a hazard to be open and obvious, both the condition and the risk

it presents must be apparent to, and would be recognized by, a reasonable person in the

position of the invitee exercising ordinary perception, intelligence, and judgment. Owens

v. Ganga Hosp., LLC, __ So. 3d __, 2021 WL 5024454, at *2-4 (Ala. Oct. 29, 2021). This

is an objective, reasonable person standard. Id. at *4; McClurg, 300 So. 3d at 118.

Westrock does not have to show that Eaton subjectively appreciated the danger. Daniels

v. Wiley, 314 So. 3d 1213, 1224 (Ala. 2020); McClurg, 300 So. 3d at 1118. The Alabama

Supreme Court instructs that the issue of whether a hazard is open and obvious is generally

a fact question for the jury that should not be resolved on summary judgment. McClurg,

300 So. 3d at 119 (collecting cases).

Westrock has failed to carry its burden of showing through undisputed record

evidence that the danger presented by the puddle of sodium hydroxide solution would be

apparent to, and would be recognized by, every reasonable person in Eaton’s position. The

record shows that Eaton was working as a rigger on a large crane. Def’s Ex. A, Eaton Dep.

at 26-27; Def’s Ex. D, Hayden Dep. at 17. A rigger works on the ground next to the crane

and is responsible for attaching and detaching loads from the crane and making sure that

the lift zone is clear. Id. The crane was located outside on a road next to the building

containing the recovery boiler that RMR was working on. Def’s Ex. A, Eaton Dep. at 28;

Def’s Ex. B, Hinton Dep. at 26-27; Def’s Ex. D, Havens Dep. at 15-17. There was a rail

siding next to the road where tank cars were parked and unloaded. Def’s Ex. A, Eaton

Dep. at 37-38, 52; Def’s Ex. B, Hinton Dep. at 27, 44; Def’s Ex. C, Banks Dep. at 12; Def’s

Ex. D, Havens Dep. at 16.

Eaton was installing barricade tape in the area around the crane when he slipped on

a wet sloped concrete surface and fell into a large puddle of liquid. Def’s Ex. A, Eaton

Dep. at 40-41, 48; Def’s Ex. B, Hinton Dep. at 26-27. Eaton estimated the puddle to be

approximately 20 feet long and 8-10 feet wide. Def’s Ex. A, Eaton Dep. at 49. The liquid

had no noticeable color or smell, and Eaton assumed that it was rainwater from a storm the

night before. Def’s Ex. A, Eaton Dep. at 43, 50; Def’s Ex. B, Hinton Dep. at 29. The

liquid turned out to be sodium hydroxide solution. Def’s Ex. A, Eaton Dep. at 43.

Although the presence of the puddle would be apparent to a reasonable person, the

risk it presented would not. There was nothing unusual in the puddle’s appearance or odor

that would put a reasonable person on notice that it was a dangerous chemical spill rather

than accumulated rainwater. The Court rejects Westrock’s argument that a “seasoned

industrial construction worker” like Eaton would always assume that any liquid on the

ground outside at an industrial facility is potentially hazardous, making every chemical

spill at such a facility open and obvious as a matter of law. Def’s Opening Br. (Doc. 20-

1) at 14-15. Eaton testified that he worked outside all the time, and that working in the

rain, mud, ice, or snow and stepping in mud or rainwater was a routine part of his job.

Def’s Ex. A, Eaton Dep. at 50. He also testified that in his experience, dangerous chemicals

were unloaded in a special containment area with a wall to contain any spills, and there

was nothing like that in the area where he fell. Id. at 38. At the very least, viewing the

facts in the light most favorable to the non-movant, Eaton’s testimony presents a material

question of fact for the jury concerning what a reasonable person in his position would

perceive as dangerous on a job site.

B. Failure to Warn

Next, Westrock argues that, even if the sodium hydroxide spill was not open and

obvious, it satisfied its duty to warn of the spill by instructing both Eaton and RMR’s on-

site safety manager to assume that any liquids on the ground at the paper mill were

potentially hazardous. Def’s Opening Br. (Doc. 20-1) at 15-16; Reply Br. (Doc. 27) at 11-

12. Under Alabama law, a property owner has a duty to warn contractors of hidden dangers

on the property that the owner is aware of and the contractor is not. S. Ala. Brick Co., 214

So. 3d at 1176. The warning must be sufficient to allow the contractor to avoid the hidden

danger through the use of ordinary care. Id.; McClurg, 300 So. 3d at 1118.

The record establishes that contractors arriving at the paper mill received in-

processing that included drug testing and an orientation video followed by a brief written

test. Def’s Ex. B, Hinton Dep. at 16; Def’s Ex. A, Eaton Dep. at 89-92. However, the

content of the orientation is in dispute. Eaton testified that “[n]owhere in the plant’s

orientation did they say to assume anything on the ground could be dangerous.” Def’s Ex.

A, Eaton Dep. at 49. Viewed in the light most favorable to Eaton, this creates a genuine

issue of material fact.

More fundamentally, the adequacy of any warning given by Westrock to RMR or

Eaton is an issue for the jury. A warning must be sufficiently clear and specific to allow

an invitee to avoid a particular hidden hazard by using ordinary caution. Whether a blanket

warning during orientation to assume that any unknown materials, drips, leaks, or puddles

may be hazardous is sufficient to adequately warn a contractor that there was a large spill

of a dangerous chemical on the ground near his work area is a question of fact for the jury.

Pittman v. Hangout in Gulf Shores, LLC, 293 So. 3d 937, 944 (Ala. Civ. App. 2019)

(whether use of contrasting yellow paint gave adequate warning of the presence of a step

to patrons in a restaurant is a question of fact for the jury). See generally, W. Ry. of Ala. v.

Russell, 144 Ala. 142, 152 (Ala. 1905) (“[m]ere information in advance that the service

generally, or a particular thing connected with it, was dangerous, might give . . . no

adequate notice or understanding of the kind and degree of danger which would necessarily

attend the actual performance of [the] work”).

C. Contributory Negligence

Westrock argues that even if it breached a duty to Eaton, his claims are barred by

contributory negligence. Def’s Opening Br. (Doc. 20-1) at 17-18. To obtain summary

judgment on contributory negligence, Westrock must present undisputed record evidence

establishing (1) that Eaton put himself in danger’s way and (2) that he had a conscious

appreciation of the danger at the moment he fell in the sodium hydroxide solution. Lands,

2021 WL 2622056, at *8; Crook, 314 So. 3d at 1199.

As explained above, Eaton testified that he thought he was stepping in a puddle of

water from a rain storm the night before when he slipped and fell in the sodium hydroxide

solution. Def’s Ex. A, Eaton Dep. at 43, 50. Eaton’s testimony creates a genuine issue of

material fact on both elements of the contributory negligence test.

D. Wantonness

Finally, Westrock argues that Eaton lacks sufficient evidence of wantonness to

survive summary judgment. Def’s Opening Br. (Doc. 20-1) at 18-21; Reply Br. (Doc. 27)

at 13-14. The Court agrees. “Rule 56 mandates the entry of summary judgment . . . against

a party who fails to make a showing sufficient to establish the existence of an element

essential to that party’s case, and on which that party will bear the burden of proof at trial.”

Celotex, 477 U.S. at 322. To establish a claim of wantonness under Alabama law, the

plaintiff must prove the following elements: (1) that the defendant consciously and

intentionally did some wrongful act or omitted some known duty, (2) with reckless

indifference to the consequences, and (3) that the act or omission was the proximate cause

of the plaintiff’s injury. Hilyer, 227 So. 3d at 22.

In response to Westrock’s motion, Eaton produced evidence that Westrock knew of

the dangers of sodium hydroxide and trained its employees to report and clean up chemical

spills. Reply Br. (Doc. 25) at 16. Despite this, Westrock’s employees failed to report and

clean up the spill that injured Eaton. Id. This evidence is insufficient to establish that

Westrock’s act or omission was done consciously and intentionally or that it acted with

reckless indifference to the consequences. Eaton has produced no evidence of the state of

mind of Westrock’s employees at the time of the spill or even whether any employees were

present when the spill occurred. Accordingly, Westrock is entitled to summary judgment

on Eaton’s wantonness claim and it is DISMISSED.

VI. CONCLUSION

For the above-stated reasons, Westrock’s motion for summary judgment (Doc. 20)

is GRANTED on Eaton’s Wantonness claim and DENIED on all other grounds.

Done this 25th day of April, 2022.

Stephen M. Doyle

CHIEF U.S. MAGISTRATE JUDGE