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New v. Blackwell Wind, LLC

United States District Court, W.D. Oklahoma

June 2, 2017

THOMAS W. NEW, Plaintiff,



         This case is scheduled for trial on the Court's December 2017 trial docket.

         Before the Court is defendant Blackwell Wind, LLC's (“Blackwell Wind”) Motion for Summary Judgment, filed December 10, 2016. On January 9, 2017, plaintiff filed his response, and on January 23, 2017, Blackwell Wind filed its reply. Based upon the parties' submissions, the Court makes its determination.

         I. Introduction

         Blackwell Wind is the owner of the twenty-six wind tower installation located in Blackwell, Oklahoma. The tower installation was constructed, pursuant to a construction agreement between Blackwell Wind and defendant Wind Energy Constructors (“WEC”). The installation of the climb assists[1] were performed by Milco Constructors, a subcontractor of WEC. During the construction phase of the project, Blackwell Wind contracted with Bartech, a company that provides qualified project personnel to staff wind farms with construction project personnel. Plaintiff was employed by Bartech.

         Plaintiff alleges that on December 3, 2012, his knee was injured while working as an inspector on the Blackwell wind tower installation. Specifically, plaintiff alleges that when he was inspecting the installation of the climb assists, he was forcibly dragged upward unexpectedly and his knee was injured when it repeatedly and forcefully hit metal ladder rungs. Plaintiff further alleges the climb assist was dangerously modified by exceeding the manufacturer's maximum relief/tension force.

         On September 5, 2014, plaintiff filed the instant action in the District Court of Kay County, State of Oklahoma. On October 15, 2014, this case was removed to this Court. Blackwell Wind now moves this Court for summary judgment in its favor.[2]

         II. Summary Judgment Standard

         “Summary judgment is appropriate if the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The moving party is entitled to summary judgment where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. When applying this standard, [the Court] examines the record and reasonable inferences drawn therefrom in the light most favorable to the non-moving party.” 19 Solid Waste Dep't Mechs. v. City of Albuquerque, 156 F.3d 1068, 1071-72 (10th Cir. 1998) (internal citations and quotations omitted).

         “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Furthermore, the non-movant has a burden of doing more than simply showing there is some metaphysical doubt as to the material facts. Rather, the relevant inquiry is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Neustrom v. Union Pac. R.R. Co., 156 F.3d 1057, 1066 (10th Cir. 1998) (internal citations and quotations omitted).

         III. Discussion

         A. Agency-based vicarious liability

         Plaintiff asserts, in part, that Blackwell Wind is liable based on agency-based vicarious liability. Blackwell Wind contends that plaintiff's agency-based vicarious liability claim is directly contradicted by the facts and the parties' express contractual agreement. Specifically, Blackwell Wind contends that WEC and Milco contractually assumed the duty of proper care in the installation of the climb assists and cannot be held to be Blackwell Wind's agent for purposes of any negligence in the performance of their construction duties. Further, Blackwell Wind relies upon the March 21, 2012 Engineering, Procurement and Construction Agreement for Blackwell Wind Project, which provides, in part, as follows:

Contractor shall be an independent contractor with respect to any and all Work performed and to be performed under the Agreement. The Agreement shall not be interpreted or construed to create an association, joint venture or partnership relationship among or between the Parties or any similar relationship, obligations or liabilities. Neither party shall have any right, power or authority to enter into any agreement or undertaking for, act on ...

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