                          NOT RECOMMENDED FOR PUBLICATION
                                  File Name: 05a0925n.06
                                 Filed: November 21, 2005

                                             No. 04-6481

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT


TIMOTHY LEE,                     )
                                 )
     Plaintiff-Appellee,         )
                                 )
v.                               )                   ON APPEAL FROM THE UNITED
                                 )                   STATES DISTRICT COURT FOR THE
UNITED PARCEL SERVICE, INC., AND )                   WESTERN DISTRICT OF KENTUCKY
SIEMENS DEMATIC CORPORATION,     )
                                 )
     Defendants-Appellants.      )                   OPINION
                                 )


Before: GILMAN and COOK, Circuit Judges; and CARR, District Judge.*

       RONALD LEE GILMAN, Circuit Judge. Timothy Lee appeals from a summary judgment

order in favor of United Parcel Service, Inc. (UPS) and Siemens Dematic Corporation (Siemens) in

this personal injury case. UPS contracted with Vanderlande Industries (VI), who then subcontracted

with Delta Electric (Delta), Lee’s employer, to install conveyors and electrical wiring throughout

the UPS Hub 2000 Project site (Worldport) near Louisville, Kentucky. Siemens also had a contract

with UPS to install conveyors and wiring at the Worldport. While working as a journeyman

electrician at the site, Lee was injured when he stepped onto a moving conveyor belt installed by

Siemens as he attempted to cross over the conveyor on an improvised stairway.




       *
        The Honorable James G. Carr, Chief Judge of the Northern District of Ohio, sitting by designation.
No. 04-6481
Lee v. UPS, Inc.

       Lee argues on appeal that summary judgment was improper as to Siemens because Siemens

breached its duty of care when it failed to adequately warn Lee and other employees that the

conveyor was moving. As to UPS, Lee argues that summary judgment was improper because the

Kentucky Workers’ Compensation Act did not immunize UPS from tort liability and because UPS

breached its duty to Lee when it ignored complaints about the danger of crossing over the Siemens

conveyor. For the reasons set forth below, we AFFIRM the judgment of the district court.


                                        I. BACKGROUND

A.     Lee’s job responsibilities

       Lee began working for Delta in 2000. Delta was a subcontractor for VI, one of five general

contractors that UPS had hired to assist in its construction of the Worldport, a package sorting and

handling facility. VI hired Delta to provide the electrical wiring for the conveyors after VI installed

them. As a Delta employee, Lee worked as a journeyman electrician. He did not work on the

Siemens conveyors, nor did he perform any work for Siemens or its subcontractors. His

responsibilities consisted primarily of installing programmable controller units, which are cabinets

that contain motors to control the conveyors.

B.     Working conditions at the Worldport

       To reach the restroom and break area, Lee had to cross over the Siemens conveyor. Other

Delta employees also agreed that crossing the conveyor was the only convenient way to leave the

site or to use the restroom. The conveyor was two to three feet off the ground and had two four-inch

wide parallel belts. Its total width was approximately three feet, and the conveyor had a light-



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Lee v. UPS, Inc.

colored belt and a white frame. When operating, the conveyor ran at a speed of approximately 5

meters, or 16.4 feet, per second.

       Lee, UPS, and Siemens all agree that someone had stacked loose pieces of wood near the

conveyor to create a makeshift stairway to facilitate crossing over the conveyor, although the parties

dispute who was responsible for the structure. Workers in the area often used this makeshift

stairway. Lee and other Delta employees working at the Worldport facility also agreed that

conditions in the facility made it difficult to determine whether the conveyors were moving. Donnie

Smith, a Delta foreman, was asked about this point in his deposition:

       Q:      Could you tell when those conveyors were on by looking at the belts?
       A:      No, you could not see the belt moving. It was a clear white belt, the lights
               was [sic] bad, you could not see that belt moving.
       Q:      Could you hear it?
       A:      No, because there was [sic] conveyors above the grading that were running,
               and you couldn’t—there was so much noise in that area you couldn’t really
               tell what was running and what wasn’t.

Lee and Smith both testified that poor lighting in the area contributed to the difficulty. In addition,

there were no controls available for the employees to turn the conveyors off in an emergency.

C.     Lee’s injury

       On the day of his accident, Lee crossed the Siemens conveyor once without incident. The

conveyor belt was not moving at the time, and the makeshift stairway held in place. Lee, in fact,

thought that the conveyor was still under construction because there was debris on and around it.

As a result, when he attempted to cross the conveyor later that day, he did not even check to see if

the belt was moving before he crossed. Lee claims that he never heard a warning horn, the sound

that was supposed to indicate that the conveyor was being turned on. When Lee attempted to cross

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Lee v. UPS, Inc.

the conveyor on this second occasion, the stacked wood pieces that comprised the makeshift

stairway began to wobble. Lee, in an effort to catch himself, stepped onto the conveyor.

Unbeknownst to him, the conveyor belt was moving, and it threw him onto the floor.

        Scott Buchanan, a coworker of Lee’s who had crossed just before him, rushed to his aid.

Lee, according to Buchanan, appeared shaken but not seriously injured. After Lee’s fall, Lee and

Buchanan walked together to the portable restroom, located a few hundred feet away from the job

site. Lee went to an urgent care facility later that day. An examination revealed back, neck,

shoulder, and leg injuries as a result of the fall, but he returned to work the following day with only

minor limitations. Three weeks later, however, Lee received a second opinion from a doctor who

recommended that he be placed on a light-duty restriction. Because Delta had no light-duty work

for Lee to do, he lost his job.

D.      Siemens’s knowledge, possession, and control of the conveyors

        On the day that Lee was injured, he was installing new conveyors in an area above a set of

conveyors that were manufactured and installed by Siemens. Lee testified that Siemens employees

were in the area that day, and Volker Wetzel, a project manager for Siemens, admitted that he

“walked” the area almost daily. Wetzel also recognized the danger of stepping onto a moving

conveyor belt, because he himself had fallen as a result of doing so while working at the Worldport.

Because of the safety concerns associated with the conveyors, Siemens developed “start-up

warning” procedures, including flagging the area with “Danger” tape, blasting a handheld air horn,

and communicating with the workers in the immediate vicinity. The parties dispute whether a horn

was sounded prior to Lee’s fall.

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Lee v. UPS, Inc.

E.     UPS’s knowledge, possession, and control of the accident site

       Smith, the Delta foreman, testified in his deposition that he had discussed safety concerns

regarding the conveyor with officials at UPS:

       Q:      Mr. Smith, in the time leading up to Mr. Lee’s accident [,] . . . you conducted
               weekly safety meetings correct?
       A:      Yes.
       Q:      Okay. Do you recall some of the issues that were addressed in those
               meetings?
       A:      Yes. Lighting, no way to cross the conveyor except for—no way to get
               across the conveyor except for stepping on it. I believe they were starting the
               conveyors without sounding the horns, I believe that was an issue.

Smith also discussed with UPS the poor lighting and the potential for injury if the conveyor was

turned on without the workers’ knowledge. UPS safety manager David Stein acknowledged that the

workers could “get hurt” on a moving conveyor belt and admitted that using a wooden platform to

cross the conveyor was dangerous.


                                         II. ANALYSIS
A.     Standard of review

       The district court’s grant of summary judgment is reviewed de novo. Minadeo v. ICI Paints,

398 F.3d 751, 756 (6th Cir. 2005). Summary judgment is proper where there exists no genuine issue

of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.

56(c). In considering a motion for summary judgment, the district court must construe the evidence

and draw all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co.

v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The central issue is “whether the evidence

presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that



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Lee v. UPS, Inc.

one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52

(1986).

B.        The summary judgment order in favor of Siemens

          The district court erroneously stated in its summary judgment order that Siemens and Lee

had stipulated to a licensor/licensee relationship. A licensor/licensee relationship is based upon

premises liability, which generally applies only if Siemens had possession of or title to the premises

on which Lee was injured. See Thompson v. Breeding, 351 F.3d 732, 738 (6th Cir. 2003) (applying

Kentucky law). Siemens’s primary argument is that it was not a licensor and thus owed no duty to

Lee. Because Siemens neither owned nor controlled the area where the accident took place, this

argument has merit. Furthermore, there is no evidence that Siemens constructed the makeshift

stairway that wobbled and caused Lee to fall.

          Siemens argues in the alternative, however, that it did not breach a duty to Lee even if the

relationship is characterized as that of a licensor/licensee. We find this argument also persuasive.

Kentucky law defines the relationship between contractors on a project as that of licensor/licensee

unless there is a mutual beneficial relationship. Brauner v. Leutz, 169 S.W.2d 4, 6 (Ky. Ct. App.

1943) (classifying the relationship between a painter and a builder as that of licensor/licensee where

the painter borrowed the builder’s scaffolding but offered nothing in return). In the present case,

Siemens and Delta, Lee’s employer, were both subcontractors on the same Worldport project. No

mutually beneficial relationship existed, even though they worked in the same area of the site. As

a result, the relationship can be characterized as that of licensor/licensee if we take as true (as we




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Lee v. UPS, Inc.

must for summary judgment purposes) Lee’s claim that Siemens was responsible for constructing

the makeshift stairway.

       The scope of Siemens’s duty to Lee, assuming that he was a licensee, is a limited one. A

licensor must “abstain from doing any intentional, wilful (and in some jurisdictions gross reckless)

act endangering the safety of the licensee,” Brauner, 169 S.W.2d at 6, and “[t]here is no duty to

warn a licensee of any danger or condition which is open and obvious or which should or could be

observed by the licensee in the exercise of ordinary care.” Scifres v. Kraft, 916 S.W.2d 779, 781

(Ky. Ct. App. 1996) (holding that homeowners did not breach their duty to a party guest who injured

himself when diving into the homeowners’ shallow swimming pool because the danger was “readily

apparent”); see also Thompson, 351 F.3d at 737-38 (holding that a licensor did not breach a duty to

the plaintiff because the wet, oily spot that she slipped on was open and obvious, even though she

was distracted when she stepped on it).

       The district court properly ruled that Siemens did not breach its duty to Lee. Lee never

claimed that Siemens intentionally or willfully injured him. The dangerous nature of the makeshift

stairway over the conveyor, furthermore, was open and obvious. Construing the evidence in the

light most favorable to Lee, we assume that Lee neither heard nor saw that the conveyor belt was

running when he stepped onto the conveyor. Lee, however, still knew that he was crossing the

conveyor, and he knew that he was crossing the conveyor on a makeshift stairway. Siemens was

in no better position than Lee was to appreciate the danger of him doing so.

       But Lee argues on appeal that a new burden-shifting approach articulated in Lanier v. Wal-

Mart Stores, Inc., 99 S.W.3d 431 (Ky. 2003), a slip-and-fall case, precludes summary judgment in

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Lee v. UPS, Inc.

favor of the defendants. Although Siemens argues in its brief that Lee did not raise the Lanier

analysis below, Lee did, in fact, mention the case in his response to Siemens’s motion for summary

judgment. In Lanier, the court held:

       [O]nce the plaintiff establishes that he or she fell as a result of a transitory foreign
       substance, a rebuttable presumption of negligence arises. At that point, the burden
       shifts to the defendant to show by the greater weight of the evidence that it exercised
       reasonable care in the maintenance of the premises under the circumstances.

Lanier, 99 S.W.3d at 435 (citation omitted). Lee claims, on the basis of Lanier, that his case should

have survived summary judgment because Siemens did not meet its burden of proving that it

exercised reasonable care.

       Although the Lanier court did articulate a new burden-shifting rule, Lanier is both factually

and legally distinguishable from the present case. Wal-Mart, the defendant in Lanier, is a business

invitor that owed a greater duty to its customers than Siemens owed to Lee. See McNay v. Shell’s

Seafood Restaurants, Inc., No. 2003-CA-001958-MR, 2005 WL 384547 at *3 (Ky. Ct. App. Feb.

18, 2005) (unpublished) (holding that “[t]he application of Lanier is limited to slip and fall cases

brought by business invitees who have been injured as a result of slipping on a foreign substance”).

The plaintiff in Lanier, moreover, did not see the clear, slippery substance that caused her to fall,

99 S.W.3d. at 435, so there was no discussion of the “open and obvious” doctrine. In contrast, Lee

not only knew of the conveyor and its potential danger, but also admitted in his deposition that he

would have used the makeshift stairway to cross the conveyor even if he had known that the belt was

moving. This distinction is critical, because the Lanier court noted: “Presumably, had the customer




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Lee v. UPS, Inc.

had personal knowledge of the presence of the substance/object before the accident, [the customer]

would not have stepped on it.” Id. at 434.

       Lee further argues that the open-and-obvious doctrine is outdated given the holdings in

Lanier, Wallingford v. Kroger Co., 761 S.W.2d 621 (Ky. Ct. App. 1989), and Horne v. Precision

Cars of Lexington, Inc., 170 S.W.3d 364 (Ky. 2005). As discussed above, however, the Lanier

decision did not involve an open and obvious hazard. Lee’s reliance on Wallingford is similarly

misplaced. The deliveryman in Wallingford was injured after Kroger refused to clear the icy path

he normally used, or to allow him to use another entrance. His injury occurred when he attempted

to clear the path himself. Wallingford, 761 S.W.2d. at 624. The Wallingford court allowed

recovery, but it cautioned that its holding does not permit someone “to walk blindly into dangers that

are obvious, known to him, or would be anticipated by one of ordinary prudence.” Id. (citations

omitted). Unlike the deliveryman in Wallingford, Lee took no precautions to avoid the open and

obvious danger he faced.

       Horne is similarly distinguishable. In Horne, the plaintiff was a customer who tripped and

fell on a concrete parking barrier in an auto dealer’s parking lot, injuring his wrist. Horne, 170

S.W.3d at 365-66. The court held that the parking barrier was not an open and obvious danger

because an employee of the auto dealer had improperly parked a car in front of it. Id. at 370. In

dicta, the Horne court also commented that even if the danger was open and obvious, the auto dealer

could still be liable because it should have anticipated that the plaintiff was too distracted by the

salesperson’s conversation to notice the barrier or to protect himself from it. Id.




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Lee v. UPS, Inc.

       Horne does not control the outcome in Lee’s case. While the parking barrier in Horne was

at least partially concealed from the plaintiff’s view, the makeshift stairway over the conveyor was

open and obvious to Lee. Lee had worked at the Worldport for nearly two years before the accident,

and he frequently crossed the conveyor. The court in Horne relied in part on the fact that Horne was

distracted, and that the nature of auto sales, with its constant banter between salespersons and

customers, led to such distraction. Id. In the present case, Lee could have checked to see if the

conveyor was moving before stepping over it, and he had no reason to be distracted while doing so.

       Finally, Lee fails to establish causation. Regardless of the scope of Siemens’s duty or any

breach thereof, Lee still would have suffered injury under the circumstances. Although Lee claims

that he did not realize that the conveyor was moving or hear any warning signal, he also admits in

his deposition that he would have crossed anyway:

       Q:      [W]ould you have crossed the conveyor anyhow if you knew it was moving?
       A:      Yes.
       Q:      Okay . . . . you would have crossed it if you — if you had been warned that
               it was moving?
       A:      Yes.

       Lee’s failure to establish causation precludes his recovery despite whatever duty Siemens

might have owed him. See Cremeans ex rel. Cremeans v. Speedway SuperAmerica, LLC, No. Civ.

A. 04-343-KSF, 2005 WL 1883662, at *2 (E.D. Ky. Aug. 9, 2005) (holding that even if the plaintiff

had proven that the danger was not open and obvious, the failure to establish causation between a

defective door and his smashed finger was fatal to the plaintiff’s claim). The district court in

Cremeans also applied the open and obvious doctrine, signaling that the doctrine survives Lanier.

Id. at *4. Because Lee failed to establish causation, and because Siemens had no duty to warn him

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No. 04-6481
Lee v. UPS, Inc.

of the obvious danger of crossing the conveyor on a makeshift stairway, we affirm the grant of

summary judgment to Siemens.

C.     The summary judgment order in favor of UPS

       Lee also argues on appeal that the summary judgment order in favor of UPS was improper

because, under Lanier, once Lee has proven that crossing over the conveyor was dangerous and that

it was a substantial factor in causing his injury, the burden shifts to UPS to prove an absence of

negligence. In response, UPS claims that it had no duty either to warn or to protect Lee because the

makeshift stairway over the conveyor belt was an open and obvious danger. UPS argues in the

alternative that it is immune from tort liability under the Kentucky Workers’ Compensation Act as

an “up-the-ladder employer.” See Ky. Rev. Stat. §§ 342.610, 342.690 (West 2003). Because Lee

collected workers’ compensation benefits, moreover, UPS claims that Lee waived his right to seek

damages in tort from UPS. See id. § 342.690(1).

       As discussed above, Lanier is not controlling in the present case. Lee must therefore prove

that UPS breached its duty to Lee and that the breach caused his injury. UPS’s relationship with Lee

is clearly one of invitor/invitee because UPS, unlike Siemens, owned the premises on which Lee was

injured. The scope of the duty to invitees in Kentucky requires an invitor such as UPS to “discover

the existence of dangerous conditions on its premises and either correct them or warn of them.”

Johnson v. Lone Star Steakhouse & Saloon of Ky., Inc., 997 S.W.2d 490, 492 (Ky. Ct. App. 1999)

(discussing the duty of an invitor under Kentucky law). An invitor’s duty to protect or warn invitees

of dangerous conditions, however, does not encompass dangers that are open and obvious. See id.,

(precluding recovery for a plaintiff who slipped on peanut shells because the shells on the

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Lee v. UPS, Inc.

restaurant’s floor were open and obvious and because an invitor’s duty does not require “precaution

or even warning” against such dangers). As explained above, the makeshift stairway over the

conveyor was an open and obvious danger.

       UPS therefore had no duty to warn Lee or to protect him from the moving conveyor belt,

because UPS was in no better position than Lee to appreciate the danger. In light of our holding that

UPS did not breach its duty to Lee, we need not reach the issues of immunity and waiver under the

Kentucky Workers’ Compensation Act.


                                       III. CONCLUSION

       For all of the reasons set forth above, we AFFIRM the judgment of the district court.




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