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Smith v. Ppg Industries, Inc.

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

June 1, 2015



THOMAS B. RUSSELL, District Judge.

This matter is before the Court on Defendant's Motion for Summary Judgment. (Docket No. 32). The Plaintiffs have replied, (Docket No. 34), and the Defendant has responded, (Docket No. 35). This matter is now ripe for adjudication. For the following reasons, the Court will GRANT the Defendant's Motion for Summary Judgment.


Plaintiffs Samuel Smith ("Mr. Smith") and Betty Smith bring this lawsuit against PPG Industries, Inc. ("PPG") for negligence and loss of consortium. The Plaintiffs allege that on October 17, 2012, Mr. Smith suffered severe injuries when an industrial scale weighing approximately 100 pounds fell off of a forklift and struck him in the head. The scale was on a forklift, which caught on a platform, propelling the industrial scale forward. The accident occurred during the installation of a caulk line at PPG's Olympic Stain facility, which had been previously located at PPG's Porter Paint facility.

Before the time of the accident, Mr. Smith had worked for PPG's Porter Paint facility for 14 years as a machine operator and as lead man on second shift. As a machine operator, he operated a variety of industrial equipment and machines on the paint line and the caulk line. He consulted with employees about problems that arose during the process. His responsibilities as lead man were to ensure that schedules set by the supervisors were followed and that work was completed. According to Mr. Smith, PPG staff performed most maintenance at the plant unless it was a large project that required supplementing the workforce. The same was true with moving equipment, unless it was large like a product line. In his employment at PPG, Mr. Smith frequently moved scales and pumps because they were on rollers and easy to move.

In August of 2012, PPG closed the Porter Paint facility and terminated Mr. Smith's position. PPG also decided that the caulk line at the Porter Paint facility should be transferred to the Olympic Stain facility. The line consisted of several large pieces of equipment including a caulk mixer and a caulk filler. Caroline Smith ("Ms. Smith"), the Plant Manager, asked Mr. Smith if he would be interested in a temporary job to help set up the caulk line. He agreed, and was employed by a temporary employment agency, Randstad. Ms. Smith asked Mr. Smith to help operate the caulk line and to train another employee at the PPG facility about the operation of the caulk line. Mr. Smith stated that he knew what he was doing when he got there because he had performed those jobs before.

Mr. Smith was hired as a temporary employee rather than as a full time employee because the Olympic Stain facility was a union facility and he did not want to give up his severance and start as the "low man" there. (Docket No. 32-2). Ms. Smith also hired PPG employee Robert Ashley through a temporary agency. She charged Mr. Smith and Mr. Ashley with making sure the line operated efficiently after the contractors moved the larger equipment.

As a result of his injuries, Mr. Smith applied for and received workers compensation benefits from Randstad. PPG has filed a Motion for Summary Judgment, arguing that Kentucky's "up-the-ladder" immunity doctrine renders it immune from liability in this circumstance. (Docket No. 32).


Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

"[N]ot every issue of fact or conflicting inference presents a genuine issue of material fact." Street v. J. C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir. 1989). The test is whether the party bearing the burden of proof has presented a jury question as to each element in the case. Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996). The plaintiff must present more than a mere scintilla of evidence in support of his position; the plaintiff must present evidence on which the trier of fact could reasonably find for the plaintiff. See id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). Mere speculation will not suffice to defeat a motion for summary judgment: "the mere existence of a colorable factual dispute will not defeat a properly supported motion for summary judgment. A genuine dispute between the parties on an issue of material fact must exist to render summary judgment inappropriate." Moinette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1177 (6th Cir. 1996).


PPG argues that the Plaintiffs' claims are barred by Kentucky's Workers' Compensation Act, specifically KRS 342.690 and KRS 342.610. (Docket No. 32). KRS 342.690 provides that "[i]f an employer secures payment of compensation as required by this chapter, the liability of such employer under this chapter shall be exclusive and in place of all other liability of such employer to the employee...." The statute states that an "employer" includes "a contractor' covered by subsection (2) of KRS 342.610." KRS 342.610(2), in turn, defines a "contractor" as "[a] person who contracts with another... [t]o have work performed of a kind which is a regular or recurrent part of the work of the trade, business, occupation, or profession of such person." Together, these provisions "form the basis for what is known as the up the ladder' defense: an entity up the ladder' from the injured employee and who meets all the qualifications of a contractor' under KRS 342.610(2) is entitled to the immunity provided by KRS 342.690." Davis v. Ford Motor Co., 244 F.Supp.2d 784, 786 (W.D. Ky. 2003).

PPG argues that it is a statutory employer under the definition found in KRS 342.610, as the work that Ms. Smith was doing at the time of the accident was a "regular or recurrent" part of its business. (Docket No. 32). Mr. Smith asserts that PPG does not have "up the ladder" employer immunity under KRS 342.690 as the work that Mr. Smith was engaged in at the time of the accident was not a regular and recurrent part of the work. ...

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