CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (ICA NO. 29851; CIVIL NO. 07-1-36)
Gregory K. Markham, Keith K. Kato, for petitioner.
Steven K. Hisaka, for respondent.
Recktenwald, C.J., Nakayama, Acoba, McKenna, and Pollack, JJ.
We hold that inasmuch as the Circuit Court of the Third Circuit (the court) granted summary judgment to Petitioner/ Defendant-Appellee Sanford Iwata (Defendant) apparently as to all theories of liability and with respect to all his capacities alleged in the amended complaint, in focusing on negligence and on wilful and wanton misconduct in Defendant's position as a co-employee of Respondent/Plaintiff-Appellant Francisco Abadilla, Jr. (Plaintiff), the Intermediate Court of Appeals (ICA) erred in vacating summary judgment without determining whether summary judgment was appropriately granted or not with respect to the other said theories of liability and the other capacities of Defendant.
Defendant seeks review of the March 15, 2013 ICA judgment filed pursuant to its January 31, 2013 Memorandum Opinion, and the Order of Correction filed on March 15, 2013, vacating and remanding the Final Judgment filed by the court entered on April 28, 2009.
The essential facts taken from the ICA's opinion follow. "[Plaintiff] was employed by Sanford's Service Center, Inc. (SSC).... SSC operated a rock quarry . . . and was in the business of supplying gravel, cinder, and soil. [Defendant] was the president and general manager of SSC and a co-employee of [Plaintiff]. [Defendant's] duties included serving as a supervisor, mechanic, job estimator, laborer, trainer, safety compliance officer, equipment operator, and driver. [Defendant] was responsible for safety training and compliance and took care of 'most of the maintenance and the field work.' As the operator of the rock quarry, SSC was governed by federal Mine Safety Health Administration (MSHA) regulations, and [Defendant] held a mining training certificate." Abadilla v. Iwata, No. 29851, 2013 WL 377301, at *1 (App. Jan. 31, 2013) (mem.).
"As part of its business, SSC owned and used a[n] . . . [Impactor] to crush larger rocks into smaller rocks or aggregate. [Plaintiff] was trained by [Defendant] regarding the maintenance of the Impactor. The Impactor crushed rocks as follows: Rocks were fed by a chute into the inner chamber of the Impactor, which contained a rotating impeller shaft to which metal bars [(known as "blow bars")] were attached. . . . [T]he rotating impeller would hit the rocks against fixed breaker plates causing the rocks to fracture into smaller pieces. The metal bars were held in place with wedges or chocks designed to prevent them from coming out during operation. The chamber was lined with high-chrome tiles that were bolted down. While in operation, the cover to the chamber was kept closed[.]" Id.
"During a prior incident which occurred several months before [Plaintiff] sustained his injuries . . ., the Impactor malfunctioned and ''exploded, ' causing major damage to the Impactor." Id. at *2. "After the explosion, [Plaintiff] observed that the cover to the Impactor had opened up, and that pieces of the bar assembly were , all over the place.' Jack Lee (Lee), an employee of SSC, believed that the explosion occurred when one of the blow bars , got loose' in the Impactor. As a result of the malfunction/explosion, the impeller shaft, blow bars, and other parts of the machine were cracked or damaged and a metal piece attached to the impeller shaft had broken off." Id.
"There is no indication that [Defendant] or SSC sought assistance from the manufacturer of the Impactor ... or others in determining the exact cause of the Impactor's malfunction/ explosion. The damage to the Impactor was repaired in-house by SSC with the assistance of an outside welder[.]" Id. "At [Defendant's] direction, [the welder] welded a metal piece . . . onto the impeller shaft and fixed other cracks[.]" Id. "The welds were not tested[.]" Id.
"[Plaintiff] and other employees were instructed to weld worn locking wedges holding the metal bars in place, rather than replacing them with new locking wedges and bolts. [Plaintiff] warned [Defendant] that this practice was unsafe." Id. "[A] foreman at the company that previously owned the Impactor . . . explained that welding the wedges . . . would limit their usefulness and that the parts . . . would probably not ''stay tight.'" Id.
"After the Impactor was placed back into service, . . . the bearings holding the impeller shaft would run hot. [Defendant] was aware of this [ . ] " I_d. "[Defendant] instructed [Plaintiff] to grease the Impactor every thirty minutes while the machine was running to get a better coverage with the grease, and so that the greasing would not slow down the process of crushing rock. [Defendant's] instruction was contrary to MSHA regulations, which generally require that maintenance and repair on a machine only be performed after the power is off[.]" Id. "It was also contrary to the operating manual for the Impactor [that] . . . warned against over-lubrication because , [t]oo much lubrication will cause abnormally high operating temperatures.' [Defendant] was not aware of these . . . MSHA regulations and the operating manual." Id.
"On the day that [Plaintiff] was injured, he was greasing the Impactor while it was running in accordance with [Defendant's] instructions. . . . [T]he Impactor again ''exploded' and metal parts from within the Impactor flew outside the machine. [Plaintiff] was hit in the stomach by metal parts or pieces that broke off and were expelled from the Impactor, allegedly causing severe bodily injuries." Id. at *3. A coworker "observed that the cover to the Impactor had been blown open during the explosion. Metal parts ... to the impeller shaft had broken off, and . . . metal pieces ... of the blow bars as well as the wedges or chocks, were outside the machine on the ground. [The co-worker] concluded that a blow bar that came loose or cracked caused the Impactor to explode, because a metal piece that fell inside the Impactor would cause damage to the machine." Id. "Prior to the explosion . . . one or two of the locks designed to hold the cover to the Impactor in place were missing or broken. According to [Plaintiff], . . . the parts that had been welded after the prior malfunction incident came apart while the Impactor was running." Id.
Plaintiff filed an amended complaint on March 17, 2008. In pertinent part, the complaint stated:
2. [Defendant] has been . . . employed by [SSC] .
8. Defendants knew or should have known on and prior to May 17, 2005, that the impactor machine used by [Plaintiff] on property under their ownership and/or possession and/or control was mechanically unfit for use and was unsafe. The injuries and damages alleged in paragraph 7, above, occurred as a direct and legal result of Defendants' negligence, jointly and severally, in providing a defective impactor machine for use by [Plaintiff] and/or said Defendants' negligence, jointly and severally, in permitting a hazard known to them to exist on property under their ownership and/or possession and/or control.
13. Plaintiff incorporates by reference the allegations contained in Counts I and II, above.
14. At all times material to this Complaint, [Defendant] and [Plaintiff] were employed by [SSC] and were co-employees.
15. At all times material . . . [Defendant] was President of [SSC], and was charged with responsibility for providing inspection and/or maintenance and/or repair of heavy equipment and machinery, including the subject impactor machine[.]
16. At all times material . . . [Defendant] was responsible for supervising [Plaintiff] and for ensuring proper safety procedures were followed in the operation, maintenance and repair of the heavy equipment and machinery, including the [impactor.]
17. [Defendant] and [Doe] were also responsible . to ensure that operators of heavy equipment and machinery used by [SSC] were properly trained to operate heavy equipment and machinery.
18. [Defendant] . . . negligently failed to properly inspect and/or maintain and/or repair the [impactor] and/or to ensure that only properly trained personnel operated the [impactor.]
19. As a direct and legal result of the negligence of [Defendant] and/or Doe . . ., [Plaintiff] . . . suffered injuries and damages [.]
22. Plaintiff incorporates by reference the allegations contained in ...