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Mayr v. Husky Energy, Inc.

United States District Court, W.D. Wisconsin

October 1, 2019

TAYLOR MAYR, Plaintiff,


          William M. Conley District Judge.

         Plaintiff 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.


         In 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.)

         Plaintiff 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.)


         As 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 denied.

         As for 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)).

         Here, 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 claims.[2]

         I. Negligence

         Defendant 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 . . . .”).)

         As set 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.[3] 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.[4] Discovery and later motion practice will give ample opportunity to explore the question further on a more fulsome record.

         Second, 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.)

         Under 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 ...

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