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Tarter v. AP/AIM Rivercenter Suites, LLC

United States District Court, E.D. Kentucky, Northern Division, Covington

April 10, 2018




         This case is before the Court on Defendant AP/AIM Rivercenter Suites, LLC's (“AP/AIM”) Motion for Summary Judgment (Doc. # 68) in this personal-injury action brought by Plaintiff against AP/AIM and Ecolab, Inc. For the reasons stated below, AP/AIM's Motion for Summary Judgment is denied.


         Plaintiff Paul Tartar filed this action on May 10, 2016, alleging that Defendant AP/AIM had breached its duty of care owed to him while he was on premises owned by AP/AIM. (Doc. # 1). Following briefing by the parties on Defendant's Motion for Summary Judgment (Docs. # 18, 27, 32), and with the permission of the Court (Doc. # 38), Plaintiff filed an Amended Complaint, adding Ecolab as a Defendant. (Doc. # 39). On March 22, 2017, with the permission of the Court (Doc. # 61), Plaintiff filed his second Amended Complaint against AP/AIM and Ecolab. (Doc. # 62).

         According to Plaintiff, he began working at the Embassy Suites in Covington, Kentucky, as a maintenance engineer on September 30, 2015. (Doc. # 62 at 2-3). AP/AIM is alleged to be the owner and operator of the Embassy Suites, as a franchisee of Hilton. Id. Plaintiff was employed onsite by Aimbridge Hospitality, LLC (“Aimbridge”), which is the company responsible for operating and managing the Embassy Suites hotel and building. Id. at 5-7. Plaintiff alleges that two cases of Legionnaires' disease “were reported by [the] CDC to be associated with the Embassy Suites on August 14, 2015, ” and AP/AIM had knowledge of the report by September 2015. Id. at 2.

         As a maintenance engineer, Plaintiff alleges that he worked “in the vicinity of the pool/spa area” on a daily basis. Id. at 3. According to Plaintiff, on November 1, 2015, the pool/spa was shut down and Plaintiff was “given instructions to manually clean out the sand filter” and was thereby exposed to the Legionella bacteria. Id. Plaintiff claims that he was also exposed to the Legionella bacteria “throughout the potable water system by releasing air bubbles as part of his work as well as by passing by the Embassy Suites' indoor water feature.” Id.

         Plaintiff further alleges that his symptoms began showing within one week, and that by November 13, 2015, he was found unconscious by his daughter and taken to the hospital. Id. According to Plaintiff, he then spent almost two weeks in the hospital, and on November 22, 2015, was diagnosed with Legionnaires' disease. Id. Plaintiff alleges that he spent the next two months recuperating, was lethargic, coughing, fatigued from pneumonia, and required the use of an oxygen tank. Id. Plaintiff states that he was “fearful of going back to work, ” believing that he had contracted Legionnaires disease at the Embassy Suites, and “did not feel safe working in that environment.” Id. at 4. Eventually, Plaintiff alleges that he experienced worsening symptoms of fatigue, accompanied by panic, inability to sleep, anxiety, and “psychological” grief. Id. Plaintiff alleges that he is “unable to work effectively” since he became “seriously ill, ” and has “incurred significant medical bills, lost wages and earning capacity, endured pain and suffering, and loss of life's pleasure.” Id.

         As a result, Plaintiff brought this action against AP/AIM, alleging a negligence claim against AP/AIM, and negligence and products liability claims against Defendant Ecolab, the designer, supplier, distributer, marketer, and advertiser of the product that was supposed to ensure that the pool/spa water was cleaned and sanitized. Id. at 4-10. Specifically, Plaintiff alleges that AP/AIM negligently selected and managed Aimbridge to operate and manage the Embassy Suites hotel and building. Id. at 5-7.

         In its Motion for Summary Judgment, AP/AIM argues that under the Kentucky Workers' Compensation laws, it is immune from tort actions by employees of its subcontractor, Aimbridge. (Doc. # 68). Plaintiff having responded (Doc. # 71), and AP/AIM having replied (Doc. # 72), this Motion is ripe for the Court's review.

         II. ANALYSIS

         A. Standard of Review

         Summary judgment is appropriate when “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). The moving party has the initial burden of “showing the absence of any genuine issues of material fact.” Sigler v. Am. Honda Motor Co., 532 F.3d 469, 483 (6th Cir. 2008). Once the moving party has met its burden, the nonmoving party must cite to evidence in the record upon which “a reasonable jury could return a verdict” in its favor; a mere “scintilla of evidence” will not do. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-52 (1986). At the summary-judgment stage, a court “views the evidence in the light most favorable to the nonmoving party and draws all reasonable inferences in that party's favor.” Slusher v. Carson, 540 F.3d 449, 453 (6th Cir. 2008).

         B. Kentucky law provides up-the-ladder immunity for contractors.

         AP/AIM has moved for summary judgment, arguing that it enjoys full tort immunity under Kentucky law because it is an up-the-ladder employer under Kentucky's workers'-compensation scheme. (Doc. # 68-1, at 7-8) (citing Kentucky Revised Statutes §§ 342.690(1), 342.610(2)).[1] “The Kentucky Workers' Compensation Act is a legislative remedy which affords an injured worker a remedy without proof of the common law elements of fault.” Cain, 236 S.W.3d at 606. To balance that remedy, two sections of this Act, when read in conjunction, give a contractor immunity from tort liability with respect to tort-related injuries of its subcontractors' workers so long as the contractor had workers' compensation coverage and the worker was ...

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