United States District Court, D. South Carolina, Anderson/Greenwood Division
OPINION & ORDER
TIMOTHY M. CAIN, District Judge.
This matter is before the court on West Fraser, Inc.'s ("West Fraser") motion for summary judgment. (ECF No. 49). For the reasons set forth below, that motion is granted.
Johnny Mac Brownlee ("Brownlee") filed this action seeking damages for injuries he sustained when he fell from a load of lumber stacked on a commercial trailer. During the course of this litigation, Brownlee has presented three different versions of events about what happened on the day he was injured. Most recently, in his response in opposition to the motion for summary judgment (ECF No. 49), Brownlee presented his latest theories of how West Fraser was negligent. Because Brownlee has not filed a motion to amend his pleadings to incorporate these substantive factual allegations and theories of recovery, the court finds it necessary to address the three fact patterns presented thus far.
1. The Complaint
Brownlee filed his complaint on March 26, 2012. (ECF No. 1). According to his complaint, Brownlee, a commercial truck driver for Boyd Brothers Transportation, Inc. ("Boyd Brothers") made a delivery of lumber to West Fraser on or around March 29, 2010. The lumber was covered by a tarp. It had been raining that day so the tarp and lumber were wet. West Fraser made Brownlee unhook the tarp from the top of his truck. While unhooking the tarp, Brownlee slipped on the wet tarp and lumber, resulting in injuries and damages. (ECF No. 1 at 2).
Brownlee's complaint asserts that West Fraser was negligent, reckless, willful, wanton and grossly negligent in the following particulars:
A. In failing to provide a safe means of removing the tarp;
B. In requiring, as a condition to unload lumber, that the Plaintiff remove the tarp, without providing any means of safe access or a way to dry the tarp, or way to remove the tarp without it becoming wet.
C. In failing to take appropriate corrective measures to ensure the safety of the Plaintiff; and
D. In failing to exercise the care and caution that a reasonable person would have used at that time under the circumstances existing.
(ECF No. 1 at 2). This factual background was restated in the Joint Rule 26(f) Report filed on September 6, 2012 pursuant to Local Rule 26.3, D.S.C. (ECF No. 13). Brownlee again asserted these facts on May 23, 2013, in his response to West Fraser's first motion for summary judgment. (ECF No. 23).
2. The Interrogatories
On September 30, 2013, Brownlee answered interrogatories served on him by West Fraser pursuant to Fed.R.Civ.P. 26(b). In the interrogatories, West Fraser asked Brownlee to "[p]lease state in your own words how you contend the underlying incident occurred, specifically identifying what caused you to fall." (ECF no. 49-1 at 80). Brownlee stated:
The Plaintiff arrived at the facility in Riegelwood, N.C., to pick up a load of lumber. As required by the Defendant, the Plaintiff has all of his safety equipment, including a hard hat, safety glasses, a safety vest, long sleeve shirt, pants, and steel-toed boots. After being checked for safety equipment at the guardhouse, he made his way to the shipping office, where he again passed a safety equipment check. He was then required to pull into a specific loading area, where the Defendant's forklift driver began to load the bundles of lumber onto his truck after the Plaintiff handed the forklift driver his keys. This occurred outside and in the pouring rain, so the load became wet. The forklift driver then returned the Plaintiff's keys, and directed the Plaintiff into the bay in the warehouse he should pull his truck. Unlike other facilities where the Plaintiff picked up loads, the Defendant did not provide equipment to tarp the load automatically, employees to tarp the load for the Plaintiff, or a way for the Plaintiff to clip himself into a safety harness. Instead, the Plaintiff was required to clamber up the bundles of lumber to get to the top, where he used the first tarp to cover the back of the load, then the second tarp to cover the front of the load. There remained a 3-5 foot gap of uncovered lumber in the middle, and as the Plaintiff moved to put the tarp on this load, his feet slipped on the wet lumber and he fell approximately 15 feet to the solid concrete floor, landing on his back.
(ECF No. 49-1 at 80-81) (emphasis added). A different interrogatory asked Brownlee to "describe the... lighting conditions at the time of the subject incident." (ECF No. 49-1 at 83). Brownlee responded that the "inside of the warehouse was well-lit." (ECF No. 49-1 at 83). In addition, West Fraser asked Brownlee to "state the basis upon which these allegations are supported including each specific action or non-action you contend West Fraser took or failed to take in causing the incident in question." (ECF No. 49-1 at 80). Brownlee answered, stating:
Defendant was negligent and/or grossly negligent in failing to provide a safe means of placing a tarp on the Plaintiff's truck, in requiring the Plaintiff to place the tarp on his load despite a lack of safe access, proper safety equipment, or any employees or other equipment which may have helped in placing the tarp over the load, in failing to provide a way for the Plaintiff to dry the load before he placed the tarp over it, and in requiring the Plaintiff to tarp his load over a solid concrete surface.
(ECF No. 49-1 at 80).
3. Response to West Fraser's Motion for Summary Judgment
On December 22, 2014, West Fraser filed its second motion for summary judgment. (ECF No. 49). On January 8, 2015, Brownlee filed a response. (ECF No. 53). This response is the first document to assert that West Fraser created a "hidden danger, " and that it was the ...