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Gilbert v. Cereal Food Processors Inc.

United States District Court, D. Utah, Central Division

January 11, 2017

LORI GILBERT, as administrator of the Estate of MICHAEL GILBERT, deceased; MARY GILBERT, heir of MICHAEL GILBERT, by and through her mother and natural guardian LORI GILBERT; LORI GILBERT, individually, as heir of MICHAEL GILBERT; ALVIN GILBERT, individually, as heir of MICHAEL GILBERT; MIKE E. GILBERT, individually, as heir of MICHAEL GILBERT; and SEAN GILBERT, individually, as heir of MICHAEL GILBERT, Plaintiffs,
CEREAL FOOD PROCESSORS, INC., a Kansas corporation; GRAIN CRAFT, INC., a Georgia corporation; THYSSEN KRUPP CO., INC., a Delaware corporation; JOHN DOES 1-20; and BLACK AND WHITE CORPORATIONS 1-20, Defendants.


          DALE A. KIMBALL United States District Judge.

         This matter is before the court on Defendants Cereal Food Processors, Inc. and Grain Craft, Inc.'s Motion to Dismiss for Failure to State a Claim. A hearing on the matter was held on December 15, 2016. At the hearing, Plaintiffs were represented by Randall Edwards and Jeanne Marshall. Defendants were represented by Jeremy Seeley and Blake Biddulph. Before the hearing, the court carefully considered the memoranda and other materials submitted by the parties. Since taking the matter under advisement, the court has further considered the law and facts relating to the matter. Now being fully advised, the court renders the following Memorandum Decision and Order.


         Defendant Cereal Food Processors, Inc., operates grain mills in Ogden and Salt Lake City, Utah. In May 2014, Cereal Food Processors was acquired by other companies to create Grain Craft, Inc. Michael Gilbert was an employee of Cereal Food Processors and Grain Craft (collectively, “CFP”) for over 20 years. Plaintiffs are relatives of Mr. Gilbert who are administrators of his estate or his heirs, or both.

         On August 2, 2014, Mr. Gilbert was working as an employee and under the supervision of CFP at CFP's grain mill in Salt Lake City. On that day, Mr. Gilbert was assigned by Dave Shomer, his supervisor, to move malt product from the second floor to the first floor using a freight elevator, which was not Mr. Gilbert's usual assignment. The freight elevator was installed at CFP's facility in 1923 and was an open elevator that only had a chest-high gate as a barrier to the front of the elevator. The gate had to be closed before the elevator moved. Because the elevator had no sensors to detect the presence of an obstruction or person, the Standard Operating Procedure (“SOP”) at CFP was for the second-floor employee to lower the elevator about half way to the first floor so that the first-floor employee was aware of the load. The first-floor employee would then lower the elevator the remainder of the way. CFP did not provide formal training or written materials on the SOP.

         Because this was not Mr. Gilbert's usual assignment, Mr. Gilbert was not very familiar with the SOP. After Mr. Gilbert loaded the elevator with malt product, he partially lowered the elevator and stopped it between the floors. Mr. Gilbert then poked his head into the elevator space over the front of the gate to yell down to the first-floor employee that the elevator was ready. Before Mr. Gilbert could yell down, the first-floor employee engaged the elevator controls and lowered the elevator the rest of the way. Mr. Gilbert's head and upper body were caught between the top of the elevator and the gate, which killed Mr. Gilbert.

         The elevator originally included a flexible ceiling that could open upward as a failsafe, but, before the accident, CFP's safety officer, Bob Crandall, directed that the elevator car ceiling be fixed in a closed position by inserting screws through the ceiling and into the car. Before the accident took place, CFP was aware of the unsafe condition of the elevator and of the SOP.


         CFP filed a Motion to Dismiss for Failure to State a Claim under Federal Rule of Civil Procedure 12(b)(6) arguing that the Utah Workers Compensation Act provides an exclusive remedy provision that bars all claims against an employer and its employees for on-the-job accidents, except intentional torts. See Utah Code § 34A-2-105(a). Therefore, the issue before the court is whether the Complaint states a plausible claim for an intentional tort.


         When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), “the court accept[s] all well-pleaded facts as true and view[s] them in the light most favorable to the plaintiff.” Jordan-Arapahoe, LLP v. Bd. of County Comm'rs, 633 F.3d 1022, 1025 (10th Cir. 2011) (citing Fed.R.Civ.P. 12(b)(6)). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Bixler v. Foster, 596 F.3d 751, 756 (10th Cir. 2010); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (“[A] plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions.”). To overcome a Rule 12(b)(6) motion, a plaintiff's complaint must “state a claim to relief that is plausible on its face” such that the plaintiff has “nudged his claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 555.

         A court performs this “context specific” task by applying “judicial experience and common sense.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). A court “begin[s] by identifying pleadings that, because they are not more than conclusions, are not entitled to the assumption of truth.” Id. “[T]he mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” The Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007).


         “The ‘primary objective' of workers' compensation is ‘to remove industrial negligence, in all its forms, from the concept of the law of tort.'” Helf v. Chevron U.S.A., Inc., 203 P.3d 962, 970 (Utah 2009) (“Helf I”) (citation omitted). Under the exclusive remedy provision of the Utah Workers' Compensation Act, Utah Code § 34A-2-105(1), “[w]orkers may not sue their employers for injuries caused by on-the-job accidents.” Helf v. Chevron U.S.A., Inc., 361 P.3d 63, 69 (Utah 2015) (“Helf II”). “A worker, however, may sue an employer for injuries caused by an intentional tort.” Id.; ...

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