United States District Court, W.D. Wisconsin
OPINION AND ORDER
William M. Conley District Judge.
Taylor Mayr brought claims against the owner and operator of
the Husky Superior Refinery, defendants Husky Energy, Inc.,
and Superior Refining Company, LLC, respectively, following
an explosion in which he was injured. Defendant Superior
Refining has two motions presently before the court: a motion
to strike specific paragraphs from plaintiff's complaint
and a motion to dismiss the complaint for failure to state a
claim. (Dkt. ##26, 28.) For the reasons discussed below, both
motions will be denied.
early 2018, Husky Energy scheduled a “shut down”
of the Husky Superior Refinery in Superior, Wisconsin, for
maintenance and installation of equipment. (Am. Compl. (dkt.
#4) ¶ 3.2.) Mayr, who is a resident of Texas, was at the
Refinery on April 28, 2018, when an explosion occurred,
sending him airborne and causing him physical injuries.
(Id. ¶¶ 1.1, 3.4.)
alleges that the explosion resulted from defendants'
continued use of a worn valve that malfunctioned, allowing
oxygen and hydrocarbon to mix within the Refinery and become
flammable. (Id. ¶ 3.6.) This mixture then
allegedly flowed until it ignited, causing the explosion.
(Id. ¶ 3.15.) Later that same day, the Chemical
Safety and Hazard Investigation Board (the
“CSB”), a federal agency that investigates
accidental releases of chemicals, began investigating the
explosion. (Id. ¶ 3.5.) The CSB compiled
information and issued a report about the explosion on August
2, 2018. (Id. ¶ 3.6.)
noted, before the court are two motions filed by Superior
Refining. In its motion to strike, defendant argues that the
complaint improperly references the CSB report in violation
of 42 U.S.C. § 7412(r)(6)(G), which prohibits the use of
“conclusions, findings, or recommendations of the [CSB]
relating to any accidental release or the investigation
thereof” in civil actions. (Mot. Strike Br. (dkt. #29)
2-3.) For reasons amply explained in the court's decision
yesterday in Bruzek v. Husky Energy, Inc., No.
18-cv-697-wmc (W.D. Wis. Sept. 30, 2019) rejecting a nearly
identical motion and incorporated here, that motion will be
its motion to dismiss, Superior Refining argues that
plaintiff's complaint fails to state a claim for relief.
A motion to dismiss for failure to state a claim is designed
to test the complaint's legal sufficiency. See
Fed. R. Civ. P. 12(b)(6). The court must “constru[e]
the complaint in the light most favorable to the plaintiff,
accepting as true all well-pleaded facts alleged, and drawing
all possible inferences in [the plaintiff's]
favor.” Hecker v. Deere & Co., 556 F.3d
575, 580 (7th Cir. 2009). Dismissal is warranted only if no
recourse could be granted under any set of facts consistent
with the allegations. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 563 (2007). To survive a motion to dismiss, a
plaintiff must allege sufficient facts to state a plausible
claim for relief. Spierer v. Rossman, 798 F.3d 502,
510 (7th Cir. 2015) (citing Twombly, 550 U.S. at
570). “[W]hen it is ‘clear from the face of the
complaint, and matters of which the court may take judicial
notice, that the plaintiff's claims are barred as a
matter of law,' dismissal is appropriate.”
Parungao v. Cmty. Health Sys., Inc., 858
F.3d 452, 457 (7th Cir. 2017) (quoting Conopco, Inc. v.
Roll Int'l, 231 F.3d 82, 86 (2d Cir. 2000)).
defendant presents several arguments seeking to dismiss
various claims in the complaint. For the reasons set forth
below, defendant's motion will be denied as to all
Superior Refining raises two arguments seeking to dismiss
plaintiff's negligence claim. First, defendant
contends that plaintiff's appropriate remedy is the
worker's compensation system, not a common law negligence
claim. (Mot. Dismiss Br. (dkt. #27) 5.) In Wisconsin, a
principal employer is generally “not liable in tort for
injuries sustained by an independent contractor's
employee while he or she is performing the contracted
work.” Tatera v. FMC Corp., 2010 WI 90, ¶
16, 328 Wis.2d 320, 786 N.W.2d 810 (citing Wagner v.
Cont'l Cas. Co., 143 Wis.2d 379, 400-01, 421 N.W.2d
835 (1988)). Plaintiff alleges that Superior Refining was his
principal employer and he was an independent contractor
performing the contracted work when he was injured.
(See Am. Compl. (dkt. #4) ¶¶ 3.3-3.4
(“Defendants brought in workers from all over the
United States, including Plaintiff's employer . . .
forth above, principal employers are generally not liable for
negligence claims by independent contractors performing that
work, but this rule is not absolute. Id. ¶ 18.
In particular, tort claim liability may proceed against the
principal employer when the contracted work is
extrahazardous. Wagner, 143 Wis.2d at 401.
Contracted work is extrahazardous if “the risk of harm
remains unreasonably high no matter how carefully it is
undertaken.” Id. at 392. Based on the
allegations in the complaint, the court cannot say as a
matter of law that the work plaintiff had contracted to
perform was not extrahazardous. (See Am. Compl.
(dkt. #4) ¶¶ 3.3, 3.7 (describing plaintiff's
work as “chemical clean up” at a refinery while
the Fluid Catalytic Cracking Unit was being shut down).) This
is not to hold that defendant Superior
Refining's worker's compensation defense may not
ultimately prevail, but rather that at present, plaintiff has
pleaded sufficient facts to survive defendant's
worker's compensation defense at the motion to dismiss
stage. Discovery and later motion practice will
give ample opportunity to explore the question further on a
more fulsome record.
defendant argues that plaintiff has not pleaded a prima facie
case of negligence because he has not sufficiently alleged
breach of duty and causation. (Mot. Dismiss Br. (dkt. #27)
9-11.) To the contrary, the complaint alleges that the
defendants continued to use a worn valve at the Refinery,
creating the risk of a flammable mixture, which lead to a
subsequent explosion that caused the plaintiff's
injuries. (Am. Compl. (dkt. #4) ¶¶ 1.1, 3.6, 3.15.)
Wisconsin law, defendant owes plaintiff a duty of ordinary
care to act as a reasonable person would in similar
circumstances. See Gritzner v. Michael R., 2000 WI
68, ¶ 22, 235 Wis. 781, 611 N.W.2d 906 (“A person
is negligent when [he or she] fails to exercise ordinary
care. Ordinary care is the care which a reasonable person
would use in similar circumstances.”). At least as
pleaded, the use of a defective valve, despite its worn
nature and the foreseeable consequences of that wear given
the potentially dangerous gases involved, could have fallen
outside what a reasonable person would have done if operating
the Refinery, or at least a reasonable ...