The opinion of the court was delivered by: Eduardo C. Robreno, J.
This is an asbestos personal injury case. Before the Court is the Motion for Summary Judgment of Defendant SGL Carbon, LLC ("SGL"). SGL is the successor to Great Lakes Carbon Corp. (Pl.'s Resp., doc. no. 17 at 2.) In 1976, SGL's Morgantown Carbon plant operated under the name Great Lakes Carbon Corp. SGL hired Siding, Inc. to perform work as an independent contractor at the Morgantown Carbon plant. Dutt Wagers, Jr., now deceased, was a Siding, Inc. employee. SGL argues that it did not owe Mr. Wagers a duty to warn about the dangers associated with asbestos.
Federal jurisdiction in this case is based on diversity of citizenship under 28 U.S.C. § 1332. Therefore, this Court will apply North Carolina substantive law in deciding Defendant's Motion for Summary Judgment since all of Mr. Wagers' alleged exposures occurred in North Carolina. See Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938); see also Guaranty Trust Co. v. York, 326 U.S. 99, 108 (1945).
Mr. Wagers worked as a laborer and then supervisor for Siding, Inc., an independent contractor hired by Defendant SGL Carbon, LLC ("SGL") in 1976 to install corrugated asbestos siding at SGL's Morgantown Carbon plant in North Carolina. In 1976, SGL extended building number 24 of its Morgantown Carbon plant. (Pl.'s Resp. at 2.) SGL contracted with Siding, Inc. to perform the siding and roof installation on building number 24. (Id. at 2-3.) There was no general contractor on this project. The contract between Siding, Inc. and SGL specified for the use of corrugated asbestos siding products. (Id. at 3.) Mr. Wagers performed work, cutting and applying asbestos siding materials at SGL's Morgantown Carbon plant from approximately September of 1976 until approximately January of 1977. (Id. at 5-6.)
Mr. Wagers passed away due to mesothelioma on August 25, 2007. (Id. at 3.)
A. Legal Standard for Summary Judgment
When evaluating a motion for summary judgment, Federal Rule of Civil Procedure 56 provides that the Court must grant judgment in favor of the moving party when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact. . . ." Fed. R. Civ. P. 56(c)(2). A fact is "material" if its existence or non-existence would affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of fact is "genuine" when there is sufficient evidence from which a reasonable jury could find in favor of the non-moving party regarding the existence of that fact. Id. at 248-49. "In considering the evidence the court should draw all reasonable inferences against the moving party." El v. SEPTA, 479 F.3d 232, 238 (3d Cir. 2007).
"Although the initial burden is on the summary judgment movant to show the absence of a genuine issue of material fact, 'the burden on the moving party may be discharged by showing -- that is, pointing out to the district court -- that there is an absence of evidence to support the nonmoving party's case' when the nonmoving party bears the ultimate burden of proof." Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004) (quoting Singletary v. Pa. Dep't of Corr., 266 F.3d 186, 192 n.2 (3d Cir. 2001)). Once the moving party has discharged its burden, the nonmoving party "may not rely merely on allegations or denials in its own pleading; rather, its response must -- by affidavits or as otherwise provided in [Rule 56] -- set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2).
B. North Carolina Premises Liability Law
In McCorkle v. North Point Chrysler Jeep, Inc., Defendant North Point Chrysler Jeep, Inc. entered into a contract with Landmark, where Landmark would serve as the general contractor for the construction of a new building on Defendant's property. 703 S.E.2d 750, 751 (N.C. Ct. App. 2010). Landmark hired Robey Painting as the painting subcontractor on the project and the plaintiff was employed by Robey Painting. Id. Plaintiff was injured while working on the project when a handrail, which was installed by the fabricator who supplied the handrail to Landmark, broke. Id. Plaintiff sued ...