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Kirby v. Diversified Fabrications

July 2, 2008

JERRY KIRBY, PLAINTIFF,
v.
DIVERSIFIED FABRICATIONS, INC., AND ARCH CHEMICAL COMPANY, INC. DEFENDANT.



The opinion of the court was delivered by: R. Allan Edgar United States District Judge

MEMORANDUM

Plaintiff Jerry Kirby brings this negligence action against Defendants Diversified Fabrications, Inc. ("Diversified") and Arch Chemical Company, Inc. ("Arch Chemical") (collectively "Defendants") for injuries sustained by Mr. Kirby. This court has jurisdiction pursuant to 28 U.S.C. § 1332 due to the diversity of the parties.

Defendants have both filed motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). [Court Doc. Nos. 4 and 11]. The motions are now ripe for review. After careful consideration of the record and the applicable law, the court has determined that it will GRANT Arch Chemical's motion to dismiss and DENY Diversified's motion to dismiss.

I. Background

The Plaintiff's complaint provides the following facts. [Court Doc. No. 1-2 ("Complaint")]. Plaintiff is a resident of Chattanooga, Tennessee. Diversified is an Alabama corporation that manufactures and ships metal equipment. Complaint, ¶¶ 2-3. Defendant Arch Chemical is a citizen of Virginia and Connecticut that manufactures and processes chemical products. See [Court Doc. No. 1, Petition for Removal]. Plaintiff worked for Mack Kirby on August 31, 2007, and on that day he "was dispatched in a 2006 Ford Diesel Truck pulling a 40- foot flat bed 'goose neck' steal [sic] trailer to pick up several pieces of metal equipment at Diversified's factory in Oneonta, Alabama and carry them to Arch's place of business in Charleston, Tennessee." Complaint, ¶ 4. The Complaint next recounts the following events:

Kirby arrived at Diversified late in the day on August 31, 2007. After arriving at Diversified, agents or employees of Diversified loaded three large pieces of metal equipment onto Kirby's truck. These pieces of equipment together weighed 9500 pounds. . . .

One of the pieces of metal equipment loaded on Kirby's truck was a large "cone shaped" piece that weighed approximately 6000 pounds. It was loaded on the trailer by a crane operated by employees or agents of Diversified. It was approximately seven feet in height, eleven feet in length, and eight feet in width. After loading the metal pieces onto the trailer, agents or employees of Diversified "cinched down" the pieces of metal with metal chains to secure them.

The "cone shaped" piece was improperly and negligently loaded by Diversified and as a result was unstable and dangerous.

After the trailer was loaded, Kirby drove the truck to a steel mill in Birmingham, Alabama where additional freight was loaded. This did not disturb the metal pieces loaded by Diversified. He then drove to the location of Arch in Charleston, Tennessee. . . .

Upon arrival at Arch, Kirby was directed by its employees or agents to drive the truck to the rear of the plant. A mobile crane was brought to the truck. Kirby climbed onto the trailer and began removing the straps and chains from the "cone shaped" metal item. After he had removed all but one chain, Kirby climbed off the trailer. Then an employee or agent of Arch said "you going to get your short chain off". Kirby climbed back onto the trailer to remove the final chain so that Arch's employees or agents could unload it with the crane. . . .

After doing what he was asked to do, Kirby turned from the piece of metal and was preparing to climb off the trailer when one of the employees or agents called "watch out Jerry". Kirby looked back and saw that the "cone shaped" piece of metal was tipping over and falling in his direction. Because he was still standing on the trailer, he felt his only option was to try to hold the piece in place long enough for the employees or agents of Arch to assist him.

Kirby's attempt to hold the piece of metal in place was futile. In desperation, he jumped from the trailer. When he hit the ground he fell, landing on the pavement on his side. The "cone shaped [sic] metal then fell onto him pinning him to the ground.

Two of Arch's employees or agents ran to Kirby and tried to lift the steel piece off of him. They were able to shift its weight enough for Kirby to pull his legs out from under it.

The force of the metal landing on Kirby caused excruciating pain and resulted in severe injuries to his feet and legs. . . . Complaint, ¶¶ 5-13. Plaintiff seeks compensation from Defendants for these injuries. He claims that Diversified's employees negligently loaded the metal equipment onto his truck and that Arch Chemical's employees "negligently failed to alert Kirby to the danger posed by the 'cone shaped' piece being improperly loaded, negligently failed to take responsibility for the unloading, and negligently failed to properly oversee Kirby's attempt to unload the metal pieces." Id. at ¶ 9.

II. Standard of Review

Federal Rule of Civil Procedure 12(b)(6) allows a party to move to dismiss a complaint for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). In reviewing a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a court "must read all well-pleaded allegations of the complaint as true." Weiner v. Klais and Co., Inc., 108 F.3d 86, 88 (6th Cir. 1997) (citing Bower v. Federal Express Corp., 96 F.3d 200, 203 (6th Cir. 1996)). In addition, a court must construe all allegations in the ...


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