ALLENTOWN – A federal judge has partially granted and partially denied the Mars Chocolate company’s attempt to obtain summary judgment, in a lawsuit filed by a man tasked with cleaning a chocolate batching tank at its facility and who claimed he became trapped in the machinery for more than six hours.
Luis Torres Crespo and Tsutsumi Cuebas Torres of Lancaster first filed suit in the Lancaster County Court of Common Pleas on Jan. 13, 2023 versus Mars Wrigley Confectionery US, LLC, of Elizabethtown.
“On or about June 9, 2022, defendant Mars did employ certain employees, workmen, servants, agents who were on duty at defendant’s facility at all times relevant herein. On or about June 9, 2022, plaintiff’s employer I.K. Stoltzfus Service Corporation was retained by the defendant Mars to clean certain micron tanks at the defendant’s facility, specifically the Dove chocolate batching 20 micron tank. On or about the aforesaid date, plaintiff Luis Torres Crespo was an employee of I.K. Stoltzfus Service Corporation, and was instructed by employees, agents, servants, or workmen of defendant Mars to enter the Dove chocolate batching 20 micron tank to clean same,” the suit said.
“On or about June 9, 2022, while cleaning the Dove chocolate batching 20 micron tank, the composite that was remaining in said tank, at the time that the cleaning was commenced, hardened, trapping the plaintiff in said composite, and in said tank itself. Despite the plaintiff’s cries for help to extricate him from the composite which had hardened, the agents, servants, workmen and/or employees of the defendant Mars refused to extricate the plaintiff from the hardened substance by simply cutting a hole in the micron tank itself, leaving plaintiff trapped in the hardened substance for over six hours, until finally the local authorities were notified and arrived on the scene, at which time the local authorities cut a hole in the micron tank and extricated the plaintiff from the hardened substance. By the time the plaintiff was extricated from the hardened substance, the plaintiff was in and out of consciousness. As a result of the incident described above, the plaintiff sustained serious permanent personal injuries.”
The suit added that the “solidifying of the substance located in the tank in question was not caused whatsoever due to any act or failure to act on the part of the plaintiff.”
“As a direct and proximate result of the defendant’s actions, plaintiff suffered grave and traumatic injuries, including injuries to his left knee, left kidney, entire left leg from below the knee, head, the full extent of which is not yet known, and including, but not limited to: Rhabdomyolysis, acute kidney injury, right ankle sprain, right knee sprain, left knee sprain, right leg laceration, anxiety, post-traumatic stress disorder, depression, sleep disturbance, disruptions in functioning including increased feelings of dysphoria, avoidance behaviors at work, increased emotional distress, mode lability and panic, flashbacks, social withdrawal, nightmares, severe aches, pains and mental anguish, injury to his nerves and nervous systems, whereby he has in the past, and will continue in the future to suffer severe pain,” the suit stated.
On Feb. 27, 2023, the defendant removed the case to the U.S. District Court for the Eastern District of Pennsylvania in Allentown, citing the diversity of citizenship between the parties and the amount of damages at issue, and then followed up with a motion to dismiss the case on March 3, 2023.
“In the instant matter, plaintiffs have failed to set forth any factual allegations of actual conduct by moving defendant capable of supporting a punitive damages award. Specifically, while plaintiffs’ complaint includes a multitude of allegations in support of his claim that his damages were caused ‘solely by the negligence, recklessness and carelessness’ of moving defendant, these allegations all sound in negligence and are primarily based on a failure to act. Plaintiffs rely solely on these allegations throughout their complaint in an effort to support their claim for punitive damages. It is of utmost importance to note that none of the allegations set forth in plaintiffs’ complaint give rise to willful and wanton misconduct as is required by the well-established jurisprudence of the Commonwealth of Pennsylvania,” per the dismissal motion.
“Moreover, the allegations simply do not explain how moving defendant’s conduct was tantamount to an evil motive or reckless indifference to the right of others. It is evident that plaintiffs’ complaint falls woefully short of pleading evidence to meet the strict standard for punitive damages under Pennsylvania law. Accordingly, consistent with the significant body of case law regarding punitive damages, this Honorable Court should strike all allegations of recklessness as well as claims for punitive damages contained in plaintiffs’ complaint.”
A March 10, 2023 response to the dismissal motion saw the plaintiffs reject the defense’s conclusion that the claims were not properly pled.
U.S. District Court for the Eastern District of Pennsylvania Judge John M. Gallagher denied the attempt to dismiss the plaintiffs’ allegations of recklessness and claims for punitive damages, in a memorandum opinion handed down on May 17, 2023.
“Pursuant to the foregoing test articulated by the Supreme Court of Pennsylvania in Hutchinson v. Luddy, a defendant’s failure to act may give rise to an award of punitive damages where that failure to act is in conscious disregard’ of a risk of harm to the plaintiff of which the defendant was subjectively aware. Here, plaintiffs allege defendant and its employees had a subjective appreciation of the risk of harm to which plaintiff Torres Crespo was exposed: Defendant failed to ‘warn plaintiff that there had been prior entrapments in the tank in question’ previously, or that defendant failed to conduct periodic inspections of the tank or lock out all of the tank’s energy sources,” Gallagher said.
“Moreover, the complaint alleges defendant became aware Torres Crespo was ‘trapped in the hardened substance.’ Plaintiffs further allege that defendant failed to act, in conscious disregard of the risk of harm to plaintiff: ‘Despite the plaintiff’s cries for help…defendant Mars refused to extricate the plaintiff from the hardened substance by simply cutting a hole in the micron tank itself.’ Rather than “immediately extricating the plaintiff from the tank,” the complaint avers defendant left Torres Crespo ‘trapped in defendant’s tank for six hours before notifying local authorities.’ Plaintiffs allege Torres Crespo was ‘in and out of consciousness’ by the time he was extricated. Therefore, plaintiff pleads enough, at the motion to dismiss stage, to warrant discovery on plaintiffs’ allegations of recklessness and claims for punitive damages.”
UPDATE
In an April 8 motion for summary judgment, the defendant asserted that it took “every reasonable step possible to extricate plaintiff from the tank, immediately upon being notified that plaintiff was trapped”, in stark contrast to the plaintiff’s claims to the contrary.
“Mike Hughes, a volunteer firefighter and the Production Coordinator for Chocolate at Mars, testified that in the early afternoon on the day of the incident, he received a page and was asked to report to the area of the tank where plaintiff was working. Mr. Hughes was part of Mars’ confined rescue team. After he observed several people in the tank, one of which appeared to be stuck, Mr. Hughes contacted other members of the confined space rescue team for assistance. Mr. Hughes and other members of the confined space rescue team then immediately attempted to extricate plaintiff using a piece of plywood to get leverage to pry him out. They also provided plaintiff with a Supplied Air Respirator (SCBA) and water,” the summary judgment motion read, in part.
“After about 25 minutes of unsuccessfully attempting to remove plaintiff on their own, emergency responders were contacted by Mars personnel. Mr. Hughes estimated that from the time Mars was notified that plaintiff was stuck in took emergency responders about 55 minutes to arrive on scene. This included about 20 minutes for Mars employees to assess the situation, 25 minutes of attempts to extricate plaintiff and then 10 minutes for EMS to arrive after they were called. Once EMS arrived it took them approximately 2.5 additional hours to extricate plaintiff.”
Other personnel also spoke to Mars’s efforts to get the plaintiff out of the tank.
“Derrick Poznaniak, a Mars Chocolate Maintenance Coordinator, also testified regarding direct actions he took to extricate plaintiff after Mars was informed that plaintiff was trapped. Mr. Poznaniak testified he was contacted by his boss, Keith Leedy and asked to come to the fourth floor, where the tank was located. Once he arrived, he met with others to try to determine how to extricate plaintiff from the tank. Mr. Poznaniak took the lid off of the tank in an attempt to get more room to extricate plaintiff. He also used a rope and tried to pull plaintiff out. Mr. Poznaniak testified that once they were unsuccessful in pulling plaintiff out, he started cutting into the side of the tank in order to make a hole to extricate the plaintiff. He and another Mars employee used a Cordless Sawzall to cut into the side of the tank. Once EMS arrived they took over cutting into the tank,” the motion continued.
“Elizabethtown Fire Department indicate that when they arrived on scene rescue ropes were already attached to the plaintiff, indicating that Mars had attempted to rescue him using the ropes. In addition, the first responders observed at least a dozen Mars employees were observed around the tank taking active efforts to extricate plaintiff from the tank. In addition, the first responders noted that prior to their arrival the Mars personnel had already made unsuccessful efforts to extricate plaintiff. In addition, prior to the arrival of the first responders, it is noted that Mars had inserted large flexible tubes into the tank to blow air and also provided the plaintiff with an SCBA. Moreover, once the first responders arrived, they worked jointly with Mars personnel to assess the situation and worked directly with the first responders to cut a hole in the side of the tank in order to extricate the plaintiff.”
As a result, Mars requested the Court grant its summary judgment motion and dismiss the plaintiffs’ claims for false imprisonment, intentional infliction of emotional distress and to obtain punitive damages.
In a May 6 judicial order, Gallagher dismissed the requested claims for false imprisonment and intentional infliction of emotional distress, but only dismissed punitive damages as a standalone count – not the possibility of obtaining them altogether.
“Despite this motion’s title, it is in fact a motion for partial summary judgment. It does not move for summary judgment as to Counts I, II, VI or VII, which – with the exception of Count II – will proceed to trial in accordance with this opinion. Because plaintiffs do not oppose dismissal of Count IV (False Imprisonment) and for the reasons stated in defendant’s motion for summary judgment, the Court dismisses Count IV,” Gallagher said.
“The high standard for intentional infliction of emotional distress claims is reflected in the scarcity of triable issues those claims create. ‘It has been said that the conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.’ ‘In the employment context, ‘it is extremely rare to find conduct…that will rise to the level of outrageousness necessary to provide a basis for recovery for the tort of intentional infliction of emotional distress.”
Gallagher explained that “though the Court recognizes the traumatic ordeal Mr. Crespo experienced, the plaintiffs’ briefing “does not establish an issue of fact as to the ‘atrocious’ conduct necessary to create a triable issue.”
Whatever defendant’s culpability for its actions and inactions – such as failing to maintain a functioning retrieval system – its severity is tempered by Mars’s clear concern for Mr. Crespo on the day in question. The record establishes that Mars exhibited enough concern for Mr. Crespo’s safety to keep this matter quite far from conduct ‘utterly intolerable in a civilized society.’ We dismiss this [punitive damages] count because damages are not an independent cause of action. But we do not strike the requested relief because the record establishes a triable issue for the fact-finder. Punitive damages require a showing of ‘intentional, reckless or malicious’ conduct. Plaintiffs have identified an alarming lack of precautions taken by defendant in the face of known, serious risks. To strike this relief, the Court must conclude that ‘no reasonable inference from the facts alleged supports a punitive award.’ No such conclusion may be drawn on this record. Though we dismiss the only intentional tort claim (Count V), a jury may still grant punitive damages for negligence. Defendants did not so move [to dismiss the damages count, Count II], but we dismiss this count without striking relief.”
For multiple counts of negligence, recklessness, negligent infliction of emotional distress and loss of consortium, the plaintiffs are seeking compensatory and punitive damages in excess of $50,000.
The plaintiffs are represented by Craig A. Falcone of Sacchetta & Falcone, in Media.
The defendant is represented by Christina Capobianco of Goldberg Segalla, in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 5:23-cv-00744
Lancaster County Court of Common Pleas case CI-23-00300
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com