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Fimbres v. Garlock Equipment Co.

United States District Court, W.D. Kentucky, Louisville

June 11, 2014

KAREN FIMBRES, Administratrix of the Estate of Thomas Alton Basham, et al., Plaintiff,


CHARLES R. SIMPSON, III, Senior District Judge.

This matter is before the court on the motion of Defendant Garlock Equipment Co. ("Garlock") for summary judgment. (DN 63). Plaintiff Karen Fimbres, as administratrix of the Estate of Thomas Alton Basham ("Plaintiff"), has filed a response to Garlock's motion (DN 68), to which Garlock has replied (DN 69). Fully briefed, the matter is now ripe for adjudication. For the reasons stated herein, Garlock's motion for summary judgment (DN 63) will be granted.


The following facts are undisputed.[1] Plaintiff represents the estate of her adult son, Thomas Alton Basham ("Basham"), who allegedly sustained job-related injuries when the Genesis 412 asphalt kettle that he was operating "exploded" and covered his body with hot asphalt. As a result of the explosion, Basham suffered thermal injuries over a significant percentage of his body. At the time of the April 13, 2010 incident, Basham was employed as a roofer by Bruce's Tri-State Roofing & Sheet Metal Co. ("Bruce's Tri-State").[2] Basham subsequently died from a pain medication overdose on March 24, 2011.[3]

On the day of the incident, Bruce's Tri-State was performing roofing work at Lebanon Junction Elementary School in Bullitt County, Kentucky. Basham was tasked with operating an asphalt kettle manufactured and distributed by Garlock. Testimony from Basham's coworkers indicates that this was the first time Basham had operated a kettle "from dead cold to" application temperature. (DN 63-8, p. 5). An asphalt kettle is used in the asphalt roofing industry to heat solid blocks of asphalt and pump the melted asphalt to a rooftop through the "hot line" pipe.[4] The asphalt is then used to insulate the roof from water penetration. An asphalt kettle operator is charged with monitoring the kettle's temperature and adjusting the flow of propane to the kettle's burners to maintain the asphalt at a level below its flashpoint temperature and at or above its application temperature. This monitoring can be done by the use of a handheld thermometer or sensor or a tank-mounted gauge.

The particular asphalt kettle Basham was operating on the day of the incident came equipped with an Automatic Temperature Control Sensor ("ATECS"). The device continuously monitors the temperature of the asphalt in the kettle and automatically shuts off or turns on the propane burners to maintain the asphalt temperature at or below the level set by the operator. Thus, it obviates the need for the kettle operator to manually monitor the temperature of the asphalt. However, the ATECS device was not connected to the kettle on the day of the incident: a supervisor at Bruce's Tri-State had disconnected the device more than a year before the incident due to an alleged malfunction. Thus, the kettle was essentially operating in a manual mode because its self-regulating controls were disabled. The Operator's Instruction Manual contemplates that the kettle can be operated without the assistance of the ATECS device, as it provides specific instructions on "temporarily bypass[ing]" the ATECS controls in the event that "problems develop" with the system. (DN 63-3, p. 16). The manual further instructs users to "[m]onitor the kettle temperature closely to avoid overheating problems" in the event that the ATECS device is bypassed. ( Id. ).

Plaintiff argues that Basham's injuries resulted from the improper bypassing of the ATECS system which in turn allowed the asphalt in the kettle to overheat past its flash point and flash out of the kettle. Plaintiff has asserted various causes of action against Garlock, including: (1) negligence/wrongful death (Count I); (2) strict liability (Count II); (3) failure to warn (Count III); and (4) breach of warranty (Count IV). Each claim is predicated on Plaintiff's theory that Garlock defectively designed the asphalt kettle and failed to warn Basham of its associated dangers.


A court may grant a motion for summary judgment if it finds that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial burden of specifying the basis for its motion and of identifying the portion of the record that demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Failure to prove an essential element of a claim renders all other facts immaterial. Elvis Presley Enters, Inc. v. Elvisly Yours, Inc., 936 F.2d 889, 895 (6th Cir. 1991). Once the moving party satisfies this burden, the nonmoving party thereafter must produce specific facts demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Summary judgment is proper if the nonmoving party cannot meet her burden of proof after sufficient opportunity for discovery. Celotex, 477 U.S. at 322-23.

The evidence must be construed in a light most favorable to the party opposing the motion. Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425, 427 (6th Cir. 1962). However, the nonmoving party is required to do more than simply show there is some "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The nonmoving party cannot rely upon the assertions in its pleadings; rather, that party must come forward with probative evidence, such as sworn affidavits, to support its claims. Celotex, 477 U.S. at 324. It must present specific facts showing that a genuine factual issue exists by "citing to particular parts of materials in the record" or by "showing that the materials cited do not establish the absence... of a genuine dispute[.]" Fed.R.Civ.P. 56(c)(1). "The mere existence of a scintilla of evidence in support of the [nonmoving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmoving party]." Anderson, 477 U.S. at 252.


Though not explicitly stated in their briefs, the parties appear to agree that the substantive law of Kentucky governs this diversity action. See Rutherford v. Columbia Gas, 575 F.3d 616, 623 (6th Cir. 2009). In Kentucky, a party injured by a product can bring suit for that injury under three different theories: (1) strict liability in tort; (2) negligence; or (3) breach of warranty under the Uniform Commercial Code. Ostendorf v. Clark Equip. Co., 122 S.W.3d 530, 535 (Ky. 2003). Plaintiff has asserted claims under all three theories.


First, Plaintiff brings design defect claims[5] sounding in both negligence and strict liability. The Supreme Court of Kentucky has specifically ...

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