The basis for both rulings is set forth below. It is undisputed that Tom's contracted with defendant Apex Environmental and Sessions Tank Liners for permitting oversight and tank relining services, respectively. It is also undisputed that Sessions, without Tom's knowledge, subcontracted with defendant Semco for tank relining services and with defendant Hake for applicable inspections. Plaintiffs Busby and Griffin were employees of Semco and Hake. In moving for summary judgment, Tom's argues that it did not supervise any aspect of plaintiffs' work at Tom's Lincoln facility and that plaintiffs' injuries were caused not by any conduct attributable to Tom's but rather to plaintiffs' own negligence in failing to follow established safety procedures.
Plaintiffs make several arguments in response.
First, they point to testimony that both plaintiff Busby and his supervisor, Tom Brunner, were told prior to the accident by a Tom's maintenance supervisor, Gary Dashielle, that the two tanks being relined were completely isolated from the third tank that remained in use. Secondly, plaintiffs contend that keeping the gas station operational during the relining process, and refilling the third tank with gasoline the day prior to the accident, was negligent. Plaintiffs argue that under those circumstances, triable issues of fact are present both with respect to the negligence and premises liability causes of action pled against defendant Tom's. It remains uncontroverted, however, that testing and other safety precautions had been consistently undertaken prior to the accident, and that plaintiffs as well as other personnel on the job site knew such measures were mandatory. Expert declarations doing no more than to speculate on a different outcome are insufficient to defeat summary judgment.