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Ramos v. Foam America, Inc.

United States District Court, D. New Mexico

July 27, 2018

FOAM AMERICA, INC., et al., Defendants.



         THIS 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 DISMISSED.

         I. Background[1]

         In 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 107).

         Plaintiff's 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).

         At the 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.

         According 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.

         Plaintiff 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 training. Id.

         II. Defendant's Motion for Summary Judgment

         In its 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.

         In his 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).

         In its 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 judgment. Id.

         In 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. Id.

         In his 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.

         Regarding 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. Id.

         III. Legal Standard

         Summary 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).

         A party 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 non-movant. Id.

         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).

         IV. ...

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