United States District Court, E.D. Kentucky, Northern Division, Covington
MEMORANDUM ORDER AND OPINION
L. BUNNING UNITED STATES DISTRICT JUDGE.
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
FACTUAL AND PROCEDURAL BACKGROUND
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).
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.
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.
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.
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.
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.
Standard of Review
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).
Kentucky law provides up-the-ladder immunity for
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)). “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 ...