United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
HONORABLE CARMEN E. GARZA CHIEF UNITED STATES MAGISTRATE
MATTER is before the Court on Defendant C. Ortiz Corp.'s
Motion for Summary Judgment (the “Motion for
Summary Judgment”), (Doc. 172), filed September 5,
2017; Plaintiff Refugio Ramos's Unopposed Motion for
Extension of Time to File Response to Defendant C. Ortiz
Corp.'s Motion for Summary Judgment (the
“Motion for an Extension”), (Doc. 179), filed
September 19, 2017; Plaintiff's Response in
Opposition to Defendant C. Ortiz, Corp.'s Motion for
Summary Judgment (the “Response”), (Doc.
182), filed October 2, 2017; Defendant's Reply to
Plaintiff's Response Opposing Defendant C. Ortiz,
Corp.'s Motion for Summary Judgment (the
“Reply”), (Doc. 226), filed March 7, 2018; and
Plaintiff's Surreply in Opposition to Defendant C.
Ortiz, Corp.'s Reply to Plaintiff's Response Opposing
Defendant C. Ortiz, Corp.'s Motion for Summary
Judgment (the “Surreply”), (Doc. 233), filed
April 18, 2018. Having considered the briefs, record, and
relevant law, Plaintiff's Motion for an Extension is
GRANTED, Defendant's Motion for Summary
Judgment is GRANTED, and Plaintiff's
claims against Defendant C. Ortiz, Corp. are
November 2013, Plaintiff was working on a roofing crew for
Defendant on White Sands Missile Range (“WSMR”).
(Doc. 182-1 at 6). The job involved removing the old roofing
material, placing new insulation, and then mopping hot tar
over the new material. Id. Defendant's employees
were using a “tar lugger” to transport the heated
tar on the roof. (Doc. 226-1 at 5). The employees would heat
tar to 500 degrees Fahrenheit in a kettle on the ground, then
pump the tar up to the lugger on the roof. Id. They
would then push the lugger around the roof, distributing the
tar to be mopped. Id. The lugger consists of a drum,
which is filled with the hot tar, supported by a frame and
three wheels-two wheels on one end and one wheel on the
other. (Doc. 182-3 at 1); (Doc. 233 at 107). Fully loaded and
equipped, the tar lugger weighs over 700 pounds. (Doc. 233 at
job was to lay down sheets of insulation while other
employees operated the tar lugger and mopped the tar. (Doc.
226-1 at 4). On November 19, 2013, Carlos Ortiz, one of
Defendant's owners, was on the roof supervising the
workers. (Doc. 182-1 at 8). Defendant's employees at
first moved the tar lugger around the roof without incident.
(Doc. 226-1 at 11). However, the second time they moved the
lugger, one of the wheels struck debris on the roof and the
tar lugger tipped and fell over. (Doc. 172-1 at 2); (Doc.
182-1 at 11); (Doc. 226-1 at 3). Some employees tried to pick
the lugger up, but they dropped it back down when they saw
something was wrong with the wheel. (Doc. 226-1 at 3). Hot
tar then began pouring out of the tar lugger, and suddenly
tar sprayed out onto Plaintiff, severely burning him.
Id.; (Doc. 172-1 at 2).
time of the incident, Plaintiff was a seasoned roofer with
over twenty years of total experience and about ten years of
experience working around tar luggers. (Doc. 226-1 at 5, 7).
Plaintiff stated he worked with tar luggers but did not
operate them himself. Id. Plaintiff also stated that
he was familiar with and qualified to do the job Defendant
required him to do, that he never complained to Defendant
that the tar lugger was unsafe or that he felt unsafe around
it, and that he did not expect tar to spray out of the lugger
onto him. Id. at 6-7, 9, 12-13.
to Plaintiff, a week before the incident the tar lugger's
wheel had fallen off, and Mr. Ortiz told an employee to fix
it. (Doc. 226-1 at 12, 19). Specifically, Plaintiff states
that Mr. Ortiz was informed there was a problem with the
tire, he ordered the site supervisor to fix the tire, and he
asked if the tire had been fixed and was told that it had
been fixed. Id. at 17, 19-20. Plaintiff stated he
never heard Mr. Ortiz or anyone else employed by Defendant
order someone to use a defective tar lugger. Id. at
20. At Mr. Ortiz' deposition, he stated that he was
generally aware that if a tar lugger wheel ran into debris,
and if that caused the tar lugger to tip over, tar could come
out of the lugger. (Doc. 182-1 at 18). He further stated that
he had never seen that happen. Id.
brought claims against Defendant for negligence and reckless,
willful, and wanton conduct. (Doc. 85 at 5-6). Plaintiff
alleged that Defendant owed Plaintiff a duty that it
breached, which proximately caused Plaintiff's injuries.
Id. at 5. Plaintiff also alleged that Defendant
recklessly, willfully, and wantonly failed to train its
employees on the dangers of the tar lugger, and exposed them
to the extreme danger of working with the tar lugger.
Id. at 5-6. Further, Plaintiff claimed that
Defendant knew or should have known that there was a
substantial likelihood that its employees faced serious
injury or death by working with the tar lugger without
Defendant's Motion for Summary Judgment
Motion, Defendant argues Plaintiff's claims are barred
based on the exclusivity provisions of the New Mexico
Workers' Compensation Act (the “NMWCA”), NMSA
1978, §§ 52-1-1 to -70 (1929, as amended through
2016). (Doc. 172 at 3-8). Under the NMWCA, workers'
compensation is a worker's exclusive remedy for injuries
resulting from an accident at work. NMSA 1978, §§
52-1-6(E), 52-1-9 (1990). “Non-accidental”
injuries are exempted from the NMWCA, but Defendant maintains
that Plaintiff cannot show the incident was not an accident
under New Mexico law.
Response, Plaintiff contends that his claims are not barred
by the NMWCA because he has successfully raised a
Delgado claim. (Doc. 182 at 1-5). A Delgado
claim constitutes an exception to the general rule that
prevents workers from recovering damages for injuries
suffered during the course of employment. Delgado v.
Phelps Dodge Chino, Inc., 2001-NMSC-034, ¶ 26, 131
N.M. 272, 34 P.3d 1148. Delgado requires a plaintiff
to prove that (a) an intentional act or omission by an
employer (b) that a reasonable person would expect to injure
the worker (c) actually did-either directly or
proximately-injure the worker. Id. Plaintiff argues
that Defendant intentionally provided its workers with a
defective tar lugger, failed to clear a safe path for the tar
lugger, and failed to properly train and supervise its
workers, and that those actions were reasonably expected to
injure Plaintiff. (Doc. 182 at 5). Plaintiff further contends
that Defendant either expected its intentional acts and
omissions to cause Plaintiff's injuries or utterly
disregarded the consequences, and as a result, Plaintiff was
injured by the molten tar. Id. Plaintiff attached an
affidavit to his Response, which explains his version of
events. (Doc. 182-7 at 1-2).
Reply, Defendant argues that the facts of this case do not
overcome the NMWCA's exclusivity provisions. (Doc. 226 at
1-3). Defendant contends its conduct was not intentional
because Defendant had ordered the defective tire on the tar
lugger to be fixed, and then followed up by asking if the
tire had been fixed. Id. at 6-7. Defendant relies on
Plaintiff's testimony that he did not hear his supervisor
or any of Defendant's employees order someone to use a
defective tar lugger. Id. at 7. For these reasons,
Defendant argues that Plaintiff's injuries were
accidental as a matter of law, and it is entitled to summary
addition, Defendant objected to Plaintiff's affidavit as
not properly authenticated under Rule 901 of the Federal
Rules of Evidence because it was written in English.
Id. at 1. Defendant states that Plaintiff does not
speak English and he could not read or remember what the
affidavit said at his deposition. Id. Defendant,
therefore, objects to the affidavit because it was not
accompanied by a certificate of translation or other evidence
that Plaintiff understood the affidavit before he signed it.
Surreply, Plaintiff maintains that Defendant's acts and
omissions were intentional. (Doc. 233 at 3-10). Plaintiff
reiterates that Defendant intentionally provided its
employees with a dangerous and defective tar lugger,
intentionally failed to ensure the tar lugger and roof were
safe, and intentionally failed to properly supervise or train
its employees. Id. at 5. Plaintiff also argues that
summary judgment is inappropriate because there are genuine
disputes of material fact relating to the egregiousness of
Defendant's conduct. Id. at 9.
his affidavit, Plaintiff attached two affidavits from
Plaintiff's counsel's employees. The employees state
they are fluent in English and Spanish, and that they each
translated the affidavit into Spanish and read it to
Plaintiff. Id. at 102-03, 109-10. One of the
employees states he made sure Plaintiff understood the
affidavit by answering any questions Plaintiff had.
Id. at 109-10. Plaintiff argues this is sufficient
to show the Court that he understood his declarations and
that the affidavit is a true and accurate translation.
Id. at 2. Plaintiff also argues this issue is moot
because he has now testified to the same matters at his
deposition, which both parties have cited extensively.
judgment is appropriate “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.”
Fed.R.Civ.P. 56(a). A fact is material if it could have an
effect on the outcome of the suit under the governing law.
Smothers v. Solvay Chems., Inc., 740 F.3d 530, 538
(10th Cir. 2014). A dispute over a material fact is genuine
if the evidence presented could allow a rational jury to find
in favor of the non-moving party. EEOC v. Horizon/CMS
Healthcare Corp., 220 F.3d 1184, 1190 (10th Cir. 2000).
In considering a summary judgment motion, the court views the
facts in the light most favorable to the non-moving party and
draws all reasonable inferences in favor of that party.
Shero v. City of Grove, 510 F.3d 1196, 1200 (10th
Cir. 2007). The court cannot weigh the evidence and determine
the truth of the matter, but instead determines whether there
is a genuine issue for trial. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 243 (1986).
seeking summary judgment bears the initial burden of showing
that there is no genuine dispute as to a material fact.
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670
(10th Cir. 1998). When that party does not have the burden of
persuasion at trial, it can satisfy its burden at the summary
judgment stage by identifying a lack of evidence on an
essential element of the claim. Id. at 671. If the
movant satisfies its burden, the burden shifts to the
party opposing summary judgment cannot rest on the pleadings,
but must go beyond the pleadings and “designate
specific facts so as to make a showing sufficient to
establish the existence of an element essential to that
party's case in order to survive summary judgment.”
Sealock v. Colo., 218 F.3d 1205, 1209 (10th Cir.
2000). The non-movant must “set forth specific
facts” from which a rational trier of fact could find
in the non-movant's favor, identifying those facts in
affidavits, deposition transcripts, or incorporated exhibits.
Adler, 144 F.3d at 671 (internal quotation marks
omitted). The party cannot rest on ignorance of the facts, on
speculation, or on unsubstantiated conclusory allegations.
Harvey Barnett, Inc. v. Shidler, 338 F.3d 1125, 1136
(10th Cir. 2003); Conaway v. Smith, 853 F.2d 789,
794 (10th Cir. 1988). “A fact is ‘disputed'
in a summary-judgment proceeding only if there is contrary
evidence or other sufficient reason to disbelieve it; a
simple denial, much less an assertion of ignorance, does not
suffice.” Grynberg v. Total S.A., 538 F.3d
1336, 1345 (10th Cir. 2008).