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Fermaintt v. Mcwane

March 5, 2010

FLORENCE FERMAINTT, ADMINISTRATRIX AD PROSEQUENDUM FOR THE ESTATE OF THOMAS LAWLOR, DECEASED PLAINTIFF,
v.
MCWANE, INC., ATLANTIC STATES CAST IRON PIPE COMPANY; MARK NEETZ; JOHN DOE CORPORATIONS ONE THROUGH TEN, DEFENDANTS.



The opinion of the court was delivered by: Pisano, District Judge.

OPINION

Plaintiff Florence Fermaintt, administratrix for the estate of Thomas Lawlor, has brought this action against McWane, Inc, Atlantic States Cast Iron Pipe Co., and Mark Neetz ("Defendants") for the tragic workplace death of Thomas Lawlor. Plaintiff alleges claims of negligence, breach of warranty, strict liability, intentional tort and wrongful death against Defendants. This Court has original jurisdiction to hear this dispute pursuant to 28 U.S.C. § 1332 because this case is a civil action between citizens of different states and the amount in controversy exceeds $75,000.

Presently before the Court is Defendants' summary judgment motion. The Court heard oral arguments on October 29, 2009. For the reasons set forth herein, the Court grants Defendants' summary judgment motion.

I. Background*fn1

On January 20, 2005, Thomas Lawlor was fatally injured when he was struck by a fallen cast iron pipe during the course of his employment with Atlantic States Cast Iron Pipe Co. ("ASCIP"). ASCIP, a division of McWane, manufactures iron pipes and fittings. ASCIP employed Lawlor from 1999 until January 20, 2005.

a. Cast Iron Pipe Manufacturing Process

ASCIP manufactures cast iron pipes from raw material and scraps made mostly of iron. To begin the process, raw materials are picked up by a crane from the scrap yard and dropped into the cupola furnace on top of the building. The iron is then melted down and poured into casting machines to form the pipes. These new pipes pass through an annealing furnace or oven to strengthen the pipes and then through a "quencher" which cools the pipes with water. After the quencher, the pipes are set on steel rails and proceed through a weigh station, grinding station, cut-off station and lastly an inspection station. After passing inspection, the pipes are sent to the "Test Press Area" for pressure testing to locate any cracks in the pipe casing. The Test Press Area is separated from the inspection station by tracks on which Transfer Car #2 is used to bridge the gap between rails from the inspection station to the Test Press Area and to transport pipes to storage rails outside the plant. The Test Press Area consists of a Large Test Press which handles pipes between four and twenty-four inches of inner diameter and a Small Test Press which handles pipes with an inner diameter of six and twelve inches. The Test Press Area has two sets of rails which lead to either the Large Test Press or Small Test Press. There are two stairs leading from the ground level to the Large Test Press platform which are located north of the Large Test Press rails.

The Operator of Transfer Car #2 is responsible for sorting the pipes after inspection, lining up the Transfer Car with the inspection side rails, lowering the guard to allow the pipes onto the Transfer Car, moving the Transfer Car to either the outside storage rails, Large Test Press or Small Test Press, and finally lowering a guard on either side of the Transfer Car so the pipes can roll off the Transfer Car. Depending on the diameter of the pipes, twenty or more pipes can fit on the Large Test Press Rails each with a weight between approximately 260 and 2,400 pounds. The Test Press Rails have a slight downward slope in the direction of the Test Press. Pl.'s Stmt. Mat. Facts, ¶ 25. Therefore, due to gravity, the pipes on the Test Press Rail cannot roll backwards away from the Test Press and towards Transfer Car #2 absent some external force. Holecek Dep., 324-25, Coyle Cert., Ex. T.

Prior to Lawlor's accident, ASCIP had installed an "anti-rollback device" on the right-side rail leading to the Large Test Press near Transfer Car #2. The anti-rollback device is a piece of steel nine inches in length designed to pivot down to allow pipes to roll down towards the Test Press. The device extends 4.5 inches above the Test Press Rails in its vertical position. After pipes pass over the anti-rollback device, the device automatically pivots back to a locked upright position preventing the pipes from rolling backwards. In order for the anti-rollback device to be effective, a rolled pipe cannot rest on the device in its horizontal position, but must pass the top of the device in order to activate the locking mechanism. On a daily basis, approximately one to ten times per day, employees rolled pipes onto the Small and Large Test Press rails disabling the anti-rollback device. Vial Dep., 46:22-24, Coyle Cert., Ex. E. When this occurred, employees, in particular Mr. Vial the transfer car operator, were in the habit of placing a triangular wooden wedge under the pipe as a safety procedure. Vial Dep., 49:20-50:10, Coyle Cert., Ex. E. Prior to the installation of the anti-rollback device, ASCIP only utilized the wooden wedge for safety and considered the wedge a good way to prevent pipes from rolling backwards. Fairchild Dep., 60:1-17, Coyle Cert., Ex. B.

b. Pre-Accident OSHA Violations

Prior to Lawlor's accident, OSHA never issued a citation to ASCIP for any operations or procedures in place at the Test Press or for allowing pipes to be rolled onto the anti-rollback device so that it was held in a horizontal position and disabled. Additionally, OSHA never issued a citation to ASCIP for using wooden wedges when the anti-rollback device had become disabled or for failing to use a wooden wedge when the anti-rollback device had become disabled. Further, OSHA never issued a citation to ASCIP for moving the Transfer Cars when the anti-locking device had been disabled or for having pipes overhanging the Large Test Press Rails so they blocked the exit from the Test Press platform.

c. Prior Accidents at ASCIP

ASCIP recorded one injury due to falling pipes sustained during the ten years prior to Lawlor's accident. On April 4, 2001, Nicholas Girou, an employee of ASCIP, was injured when an eight inch pipe rolled off a saw rail in the finishing department and struck his head and left hip. Girou sustained a compression fracture and was hospitalized for ...


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