Injured Hydroblaster Loses Bid to Sue Plant Owner

A unanimous panel of the 8th U.S. Circuit Court of Appeals upheld a summary judgment for Conopco, Inc., which owns the Missouri plant where plainfiff Ricky Spaulding was hurt.

An independent contractor's employee who was severely injured when he fell headfirst into a tank at Conopco, Inc.'s Unilever plant in Independence, Mo., cannot sue Conopco for negligence because the company did not retain substantial control over the job site, nor did Conopco have a duty to warn him of dangerous conditions, the 8th U.S. Circuit Court of Appeals has ruled. The unanimous decision by a panel of three judges in Ricky Spaulding v. Conopco, Inc., No. 12-3966, was issued Jan. 29.

Spaulding was working for Vac-Con Industrial Services, Inc. on May 14, 2010, when he was assigned to hydroblast a tank known as Kettle 910. According to the court's decision, he "climbed atop some railing located above the Kettle 910." He slipped and fell into the tank, suffering severe injuries that required the partial amputation of his right leg.

Spaulding filed for and received worker's compensation benefits through his employer, Crown Services, Inc., which had assigned him to work for Vac-Con. But he also sued Conopco, which he claimed exercised substantial control of the job site, for negligently failing to provide a scaffold, ladder, or lift or warn him of the dangerous conditions the tank posed.

The appellate judges disagreed. Conopco did not provide hydroblast training or equipment, did not instruct Spaulding on how he was to perform the task, and no Unilever plant personnel were present on the day of the accident, according to the decision, which also says only Vac-Con employees attended the daily safety meetings, including one that took place the day of Spaulding’s injury.

Spaulding claimed Conopco's lockout/tagout procedures proved that it controlled the job site; a Vac-Con employee who worked with Spaulding that day testified he'd never seen the LOTO procedures because it was Conopco's responsibility to lock out and tag out the machines that would be cleaned. But the appellate court held that "Conopco's adoption of general safety policies is not enough to establish that Conopco retained control over the jobsite." The decision states that "selecting items to be cleaned and providing access to the plant do not constitute sufficient control to impose liability on Conopco from an injured invitee. Conopco selected the Kettle 910 for cleaning per its contract with Vac-Con. In fact, the lockout/tagout protocols were also a mere means of allowing Vac-Con employees to access the tanks."

Conopco had no duty to warn Spaulding because Missouri courts do not follow a rule that landowners owe employees of independent contractors a duty to warn of dangerous conditions, the three St. Louis appeals court judges – Lavenski R. Smith, C. Arlen Beam, and Roger L. Wollman – held.

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