United States District Court, D. Utah, Central Division
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.
MEMORANDUM DECISION AND ORDER
A. KIMBALL United States District Judge.
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.
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.
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.
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.
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.
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.
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.
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).
COMPENSATION EXCLUSIVE REMEDY
‘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.; ...