United States District Court, E.D. Kentucky, Northern Division, Covington
MEMORANDUM OPINION AND ORDER
L. Bunning, United States District Judge
matter is before the Court on three motions-Defendant AP/AIM
Rivercenter Suites LLC's ("AP/AIM") Joint
Motion for Reconsideration of the Court's April 10, 2018
Order and AP/AIM's Second Motion for Summary Judgment
(Doc. # 83), Defendant Ecolab Inc.'s ("Ecolab")
Motion for Summary Judgment (Doc. # 85), and Ecolab's
Motion to Strike Plaintiff's Sur-Reply (Doc. # 97). The
Court has reviewed the motions and supporting documentation,
as well its prior Orders and previously-submitted evidence.
The Court has determined that AP/AIM's Motion for
Reconsideration is procedurally improper and, therefore, is
denied. AP/AIM's Second Motion for Summary Judgment is,
however, granted, Ecolab's Motion for Summary Judgment
shall be granted in part and denied in part, and Ecolab's
Motion to Strike shall be granted for the reasons set forth
FACTUAL AND PROCEDURAL BACKGROUND
case arose after Plaintiff Paul Tarter contracted
Legionnaires' disease in November 2015. (Doc. # 62 at 3).
Tarter began working as a maintenance engineer at the Embassy
Suites in Covington, Kentucky on September 30, 2015.
Id. 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. Part of
Tarter's job included daily work "in the vicinity of
the pool/spa area" at the hotel. Id. at 3.
the pool at the Embassy Suites was managed by employees at
the hotel, maintenance support was also provided through the
"Aqua Balance Pool & Spa Program" ("Aqua
Balance")-a service which Ecolab provided to the Embassy
Suites in Covington. (Doc. # 62 at 5). As part of this
program, Ecolab installed a remote-monitoring system in the
pool facility which would measure the level of chemicals in
the pool and spa water, and dispense certain chemicals as
needed. (Doc. # 85-4 at 3). The system would also send alerts
to the Ecolab headquarters when the chemical balance in the
pool or spa was off; Ecolab would then automatically send a
fax to the hotel alerting the hotel of the problem and
recommending ways to restore the appropriate chemical levels
in the pool or spa. Id. Ecolab, additionally,
provided in-person support and training to help organizations
properly and safely maintain their pools and spas. (Doc. #
85-5 at 47:4-10). One of the goals of the Aqua Balance
program is to help an organization "achieve sanitized
and fresh water" based upon state regulations.
Id. at 48:19-24. (Dennis Fitzpatrick, an employee of
Ecolab, testifying about the Aqua Balance program).
late July and November 2015, Ecolab sent 523 alerts to the
Embassy Suites notifying of problems with the chemical
balance in the pool and spa at the hotel, (Doc. # 88-10 at
119:1-121:21), or notifying that "there's no water
flowing through [the] sample cell in [the] system."
(Doc. # 88-11 at 32:11-12) (Joel Flom, Customer Support
Supervisor at Ecolab, explaining what the "no flow"
alert meant). Around the same time, there were problems with
the Ecolab controller installed at the Embassy Suites. (Doc.
# 88-3 at 1, 5, 7, 18); see also (Doc. # 90-2 at
26:7-8) (Ray Toepfert, employee at the Embassy Suites,
testifying that the controller "was always going off, an
alarm, I'm going to say false alarms to a certain
November 1, 2015, Tarter was instructed "to manually
clean out the sand filter" for the pool and spa; this
required him to scoop a large quantity of "slimy"
sand out of the filter and replace it with 500 pounds of new
sand, without any type of respiratory protection. (Docs. # 62
at 3, 85-1 at 2 and 85-10 at 45:8-49:12). Tarter claims that
he was exposed to the Legionella bacteria while
cleaning out the sand filter and during his other work with
and near the potable-water system at the Embassy Suites.
(Doc. # 62 at 3).
first became ill on November 7, 2015 and was diagnosed with
Legionnaires' disease on November 22, 2015. Id.
He was the third person associated with the Embassy Suites in
Covington to contract the disease; the first two instances
were reported to the Centers for Disease Control and
Prevention in August 2015. Id. at 2. Despite
testing, no definitive link was ever established between
water at the Embassy Suites hotel and Legionella
bacteria. (Doc. # 85-9 at 1-2). Two plaintiffs experts who
reviewed the circumstances of Tarter's illness, however,
believe that he was exposed to Legionella bacteria
when cleaning out the pool filter at the Embassy Suites.
(Docs. # 85-13 at 3 and 85-14 at 10).
on November 11, 2015, Tarter was unable to work due to his
illness. (Doc. # 62 at 3). His daughter found him unconscious
on November 13, 2015, and he was hospitalized from November
13 to November 25, 2015. Id. Tarter made six
outpatient, follow-up visits to the hospital between December
2015 and April 2016, complaining of symptoms of pneumonia,
fatigue, weakness, and anxiety. Id. at 3-4. The
disease left Tarter unable to work for months after, and he
"has been unable to work effectively since his
result, Plaintiff Paul Tarter ("Tarter") initiated
this suit against AP/AIM on May 10, 2016. (Doc. # 1). AP/AIM
filed a Motion for Summary Judgment on August 9, 2016 (Doc. #
18) which the Court denied as premature on September 14,
2016. (Doc. # 34). Defendants were given permission to renew
their motion after "the discovery period related to the
issue of up-the-ladder immunity expire[d]." Id.
permission of the Court, Tarter filed an Amended Complaint on
October 25, 2016 which added Ecolab as a defendant. (Doc. #
39). A Second Amended Complaint was filed with leave of Court
on March 22, 2017. (Doc. # 62). This Complaint brought a
claim for negligence against AP/AIM and two claims against
Ecolab-a negligence claim and a strict products-liability
claim. Id. Plaintiff specifically alleged that
AP/AIM negligently selected and managed Aimbridge to operate
and manage the Embassy Suites hotel and building.
Id. at 5-7. Additionally, Tarter alleges that Ecolab
was "negligent and failed to exercise reasonable care to
avoid foreseeable injury and harm to the Plaintiff when it
designed, distributed, marketed, promoted, and sold the
services associated with its Aqua Balance System."
Id. at 7. Tarter also brought a strict
products-liability claim against Ecolab, arguing that
products "associated with its Aqua Balance System"
were "inherently dangerous and posed an increased risk
of harm to the Plaintiff." Id. at 9.
filed a Renewed Motion for Summary Judgment on September 8,
2017 (Doc. # 68) which the Court denied on April 10, 2018.
(Doc. # 82). Now before the Court is AP/AIM's Motion for
Reconsideration and Second Motion for Summary Judgment, which
AP/AIM filed on April 27, 2018. (Doc. # 83). With this
motion, AP/AIM provided new evidence including the Franchise
Agreement between Hilton Franchise Holding LLC and AP/AIM,
and citations issued to AP/AIM from the Kentucky Labor
Cabinet Office of Occupational Safety and Health. (Docs. #
84-1 and 89-1). Tarter responded on May 16, 2018 (Doc. # 87),
AP/AIM replied on May 26, 2018 (Doc. # 89), and Tarter filed
a sur-reply on June 5, 2018 (Doc. # 94). The motion is now
ripe for the Court's review.
on May 3, 2018, Ecolab moved for summary judgment on both of
the claims against it. (Doc. # 85). Tarter responded on May
22, 2018 (Doc. # 88) and Ecolab replied on June 1, 2018.
(Doc. # 90). Tarter filed a sur-reply without leave of court
on June 8, 2018 (Doc. # 96) and Ecolab moved to strike the
sur-reply as improper on June 12, 2018. (Doc. # 97). Tarter
having failed to respond to Ecolab's Motion to Strike
(Doc. # 97) within the required timeframe, see LR
7.1 (c), both motions are also ripe review. The Court will
address each motion in turn.
AP/AIM'S JOINT MOTION TO RECONSIDER AND SECOND MOTION FOR
Motion to Reconsider
Rule of Civil Procedure 59(e) allows a court to review and
reconsider a previous decision and grant a motion to
reconsider "if there is clear error of law, newly
discovered evidence, an intervening change in the controlling
law, or to prevent manifest injustice." Johnson v.
Interstate Brands Corp., 351 Fed.Appx. 36, 38 (6th Cir.
2009); Fed. R. Civ. P 59(e). Such a motion, however, cannot
be brought after the denial of summary judgment; Rule 59(e)
only applies to final judgments, and a denial of summary
judgment is not final. Turk v. Comerford,
1:09-cv-868, 2011 WL 1899209 at *3 (N.D. Ohio, May 19, 2011),
aff'd in part, rev'd in part on other
grounds, 488 Fed.Appx. 933 (6th Cir. 2012) (citing
Cameron v. Ohio, 344 Fed.Appx. 115, 117-18 (6th Cir.
2009)). "[W]here a motion seeks reconsideration of a
denial of summary judgment, the court treats the motion as a
renewed summary judgment and is 'therefore free to
reconsider or reverse its decision for any reason.'"
Id. (quoting Cameron, 344 Fed.Appx. at
instant case, AP/AIM styled its Motion as a "Motion to
Reconsider and Defendant's Second Renewed Motion for
Summary Judgment on Up the Ladder Immunity" and asks the
court to reconsider its previous denial of summary judgment.
(Doc. # 83). As a denial of summary judgment cannot be
reconsidered, see supra, AP/AIM's Motion to
Reconsider will be denied as procedurally improper.
Accordingly, the Court will review the Motion only as a
Second Motion for Summary Judgment. Id.
Summary Judgment Standard
motion for summary judgment allows a court to grant judgment
as a matter of law if there is no genuine dispute of material
fact. Fed.R.Civ.P. 56. In making this determination,
"the judge's function is not himself to weigh the
evidence and determine the truth of the matter;" rather,
the judge must consider if there is an issue for trial.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986). "[T]he facts [must] be viewed in the light most
favorable to the party opposing summary judgment."
Shelton v. Ky. Easters Seals Soc'y., Inc. 413
S.W.3d 901, 905 (Ky. 2013); see also Scott v.
Harris, 550 U.S. 372, 380 (2007). And, "[a]ll
reasonable inferences [are to be drawn] in favor of the
non-moving party." Bishop v. Hackel, 636 F.3d
757, 765 (6th Cir. 2011).
Court must deny summary judgment if there are any factual
issues "that properly can only be resolved by a finder
of fact because they may reasonably be resolved in favor of
either party." Anderson, 477 U.S. at 250.
Accordingly, the party opposing the motion must show more
than "metaphysical doubt" about the facts of the
case. Lossia v. Flagstar Bancorp, Inc., 859 F.3d
423, 428 (6th Cir. 2018) (quoting Matsushita Bee. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986)). "A mere scintilla of evidence [in favor of the
non-moving party] is insufficient" to defeat summary
judgment. Williams v. Mehra, 186 F.3d 685, 689 (6th
Cir. 1999) (quoting Anderson, 477 U.S. at 252).
Additionally, the evidence submitted by the parties
supporting or opposing summary judgment must be admissible.
U.S. Structures, Inc. v. J.P. Structures, Inc., 130
F.3d 1185, 1189 (6th Cir. 1997).
Review under Diversity Jurisdiction
personal-injury case comes before the Court on diversity
jurisdiction. (Doc. # 62 at 1). Under Erie R.R. Co. v.
Tompkins, 304 U.S. 64 (1938), a federal court sitting in
diversity must apply the substantive law of the state in
which it is sitting. See Hanna v. Plumer, 380 U.S.
460, 466 (1965) (explaining Erie). When deciding
such a case, it is the job of the federal court to "try
to make sense of the case law and to apply state law in
accordance with the controlling decisions of the state [where
the federal court is located]." Meridian Mut. Ins.
Co. v. Kellman, 197 F.3d 1178, 1181 (6th Cir. 1999)
(citing Erie R.R. Co., 304 U.S. 64) (quotations
omitted). When the highest court of a state has not yet ruled
on the issue before the federal court, it is up to the
federal court to determine how the highest court would decide
the case. Pittman v. Experian Info. Sols., Inc., 901
F.3d 619, 636 (6th Cir. 2018).
differently, the Court is to "predict how the [state
supreme] court would rule by looking to all the available
data." Allstate Ins. Co. v. Thrifty Rent-A-Car Sys.,
Inc., 249 F.3d 450, 453 (6th Cir. 2001). "The Court
may use the decisional law of the state's lower courts,
other federal courts construing state law, restatements of
law, law review commentaries, and other jurisdictions on the
'majority' rule in making this determination."
Meridian Mut. Ins. Co., 197 F.3d at 1181 (citing
Grantham & Mann v. Am. Safety Prods., 831 F.2d
596, 608 (6th Cir. 1987)).
there are no Kentucky Supreme Court decisions directly on
point, the Court must predict how the Kentucky Supreme Court
would dispose of this Motion. See Pittman, 901 F.3d
at 636. Following the direction of the Sixth Circuit, this
Court will also look to "the decisions (or dicta) of the
Kentucky Supreme Court in analogous cases" and
"pronouncements from other Kentucky courts" for
guidance. State Auto Prop, and Cas. Ins. Co. v.
Hargis,785 F.3d 189, 195 (6th Cir. 2015). When
interpreting Kentucky statutes, the Court is directed to
ascertain and give effect to the intent of the ...