Himes v. United States

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0187p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

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Plaintiffs-Appellants, -
JOSH HIMES; MARY HIMES,
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No. 10-5114
v.
,
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Defendant-Appellee. -
UNITED STATES OF AMERICA,
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Appeal from the United States District Court
for the Eastern District of Kentucky at Lexington.
No. 08-00475—Karl S. Forester, District Judge.
Argued: June 7, 2011
Decided and Filed: July 13, 2011
Before: COOK, McKEAGUE, and GRIFFIN, Circuit Judges.

_________________

COUNSEL
ARGUED: James T. Gilbert, COY, GILBERT & GILBERT, Richmond, Kentucky, for
Appellant. Dell W. Littrell, ASSISTANT UNITED STATES ATTORNEY, Lexington,
Kentucky, for Appellee. ON BRIEF: James T. Gilbert, COY, GILBERT & GILBERT,
Richmond, Kentucky, for Appellant. Dell W. Littrell, Charles P. Wisdom Jr.,
ASSISTANT UNITED STATES ATTORNEYS, Lexington, Kentucky, for Appellee.
_________________

OPINION
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McKEAGUE, Circuit Judge. Plaintiff Josh Himes was injured while mowing
grass at an Army base when a deteriorating steam pipe fell from its place, striking him
in the head. Himes and his wife sued the United States for these injuries. The district
court granted summary judgment to the United States on the grounds that under the
Kentucky Workers’ Compensation Law, the United States was an “up-the-ladder”

1
No. 10-5114 Himes, et al. v. United States Page 2

contractor, or statutory employer, and thus Himes’ only remedy was the workers’
compensation benefits he received from his direct employer. The Plaintiffs appeal this
determination, arguing that no governmental entity can be a “contractor” for purposes
of this up-the-ladder immunity, and that in this particular case, the mowing work Himes
was performing was not a “regular and recurrent” part of business at the base as is
required in order for the government to be considered a “contractor.” They also appeal
the district court’s limitations on their discovery requests and its denial of their motion
to hold a hearing on various motions. Because the district court correctly determined
that the United States is entitled to up-the-ladder immunity and there is no merit to the
other claims, we AFFIRM.

I.

Plaintiffs Josh and Mary Himes are husband and wife. In 2007, Josh Himes was
an employee of Ricky Childers Excavating & Fencing (“Childers”). Pursuant to a
Grounds Maintenance Contract between Childers and the United States, Childers
provided grounds maintenance services, including mowing, at the Blue Grass Army
Depot (“BGAD”), an installation of the United States Army in Richmond, Kentucky.
The BGAD is a 14,000-acre facility, used to store conventional and chemical weapons
and dispose of obsolete weapons and weapons which must be destroyed by law.

The Childers contract included mowing and trimming in unrestricted, restricted,
and chemical exclusion areas on the base, and provided for mowing of each designated
area a certain number of times during each mowing season. Childers was responsible
for providing all personnel, equipment, tools, supervision, and other services necessary
to accomplish this work. The contract also required Childers to provide and maintain
workers’ compensation insurance for Childers employees who performed work at the
BGAD. Childers obtained and furnished the United States with a Certificate of Liability
Insurance showing that from January 1, 2007, through December 1, 2007, Childers was
covered with workers’ compensation insurance as required by Kentucky law.
No. 10-5114 Himes, et al. v. United States Page 3

The Army had been “contracting out” grounds maintenance, mowing, and
trimming of the BGAD premises since around 1988. Prior to that time, it was
accomplished by Army employees. The government asserts, however, that Army
employees continued to perform a portion of the ground maintenance, like mowing.
Prior to 2007, the Army had also apparently abandoned certain facilities on the premises.
Certain asbestos-insulated steam pipes remained and their condition had deteriorated.
These pipes were located near Loading Platform 53.

On August 1, 2007, Plaintiff Josh Himes was working as a Childers employee
at the BGAD. Around 9:00 a.m., he was instructed to mow in a “restricted area” which
included Platform 53. While he was mowing, a steam pipe fell from its pole and struck
him on the head. There were no witnesses to the accident. The pipe crushed Himes’
skull and caused multiple skull and facial fractures, causing severe traumatic brain
injury, complete loss of vision in the left eye, loss of peripheral vision in his right eye,
loss of hearing, loss of ability to smell, and severe spinal column injuries. He is now
unable to work and unemployable.

As a result of the accident, Himes received full workers’ compensation benefits
pursuant to Childers’ workers’ compensation insurance policy.

Josh and Mary Himes filed the present Federal Tort Claims Act (“FTCA”)
complaint in district court on November 9, 2008.1 In Count I, they alleged that Himes
was a business invitee, and that the United States Army, a federal agency, failed to
exercise ordinary care to maintain the premises in a reasonably safe condition. In Count
II, Mary Himes asserted a claim for loss of spousal consortium.

On April 30, 2009, the United States filed a motion to dismiss and alternatively
for summary judgment, arguing that the Kentucky Workers’ Compensation Act provided
the Plaintiffs’ exclusive remedy. It asserted that under that Act, it was entitled to the
“up-the-ladder” defense, which shields an employer up-the-ladder from the injured

1
Josh and Mary first filed a claim for administrative settlement with the United States Army, as
required,on March 13, 2008. The Army failed to respond within six months, and thus the claim was
considered denied by operation of law. See 28 U.S.C. § 2675(a).
No. 10-5114 Himes, et al. v. United States Page 4

employee if the employer meets all the qualifications of a “contractor” within the
meaning of the Act.2 This, however, would require that the work Himes was doing at
the time of the accident was a “regular and recurrent” part of the business at the BGAD.

The Plaintiffs responded that discovery would be necessary to determine
whether, as the government alleged, the work Himes was doing was “regular and
recurrent” work of the BGAD. The district court provided additional time to allow
“limited discovery only on the issue of whether the work performed by Himes, as an
employee of Childers pursuant to the Grounds Maintenance Contract, was a ‘regular’
and ‘recurrent’ part of the work of the Blue Grass Army Depot.”

Pursuant to that order, the Himeses served a Request for Production of
Documents on the government.3 The government refused to provide the requested
material, and instead filed a motion to quash and for a protective order, arguing that the
discovery requests sought information that was irrelevant, privileged, and went beyond
the authorized scope. The Plaintiffs opposed the motion. The district court agreed with
the government that the discovery requests went “well beyond the bounds” of the court’s
order. The court granted the motion to quash and for a protective order, and entered the

2
The United States also asserted that the Plaintiffs failed to prove that they had exhausted their
administrative remedies. The district court denied the motion on that ground, and the issue is not relevant
to this appeal.
3
This included requests for several categories of information, namely: (1) All files or information
utilized in preparing or supporting of the government’s summary judgment Affidavits, as well as the bases
for their factual assertions and conclusions; (2) All files or information “relating to or otherwise
referencing the prevailing policies, procedures, standards, regulations, and instructions to any and all
officers, employees, and agents of the Defendant . . . regarding obtaining contractors to provide ‘grounds
maintenance . . . on an Army installation such as or comparable to BGAD”; (3) All files or information
relating to the decision to “contract out” the grounds maintenance work in 1988; (4) All files or
information relating to the “mission” of the United States and Blue Grass Army Depot; (5) All files or
information relating to the maintenance of restricted areas within the Blue Grass Army Depot; (6) All files
or information relating to the contract between the United States and Childers, including prior versions,
etc; (7) Information regarding who directed Himes to perform work in the restricted area; as well as
whether the United States had knowledge of the steam pipe’s deterioration and/or decided not to warn its
contractors; and (8) All files or information relating to reports or documentation of the investigation of
Himes’ claim, including injury reports.
No. 10-5114 Himes, et al. v. United States Page 5

government’s proposed order. This order limited discovery to the issue previously
specified by the district court. It also, however, provided other restrictions.4

In discovery, the Plaintiffs were permitted to take the deposition of both
Christine Wren, Supervisory Program Manager at the BGAD, and John Patton, Lead
Engineer for Business Operations for Southeastern U.S. Public Works (who was
designated as a Rule 30(b)(6) witness). Wren had worked at the BGAD continuously
since 1980, and Patton was in charge of overseeing facility operations and
maintenance—including ground maintenance—in Army installations in North Carolina,
Kentucky, Louisiana, Tennessee, and Alabama.

Wren asserted that the work performed under the Childers contract was
maintenance work done regularly and routinely, and was part of the overall maintenance
and operation of the facility that was necessary for reasons such as security, safety, and
fire protection. She also stated that before 1988, the type of maintenance work now done
by Childers had been done by Army civilian employees and was now contracted out due
to cost issues. She asserted that if the costs were to grow, the work would once again
be done by Army employees.

Patton explained that many similar Army installations contract out such work,
but that others use civilian personnel or even Army soldiers. Because Wren and Patton
are employees in charge of overseeing such operations, who each have multiple years
of personal knowledge on the subject, their testimony constituted evidence of several
key facts: that mowing is considered maintenance work on the grounds of the BGAD;

4
Specifically, the order stated that Requests 4, 5, and 7 were quashed “in their entirety,” and that
Request 8 was quashed to the extent it sought information beyond the findings of the OSHA investigation.
It stated that all requests were quashed to the extent they sought confidential or privileged information,
including attorney-client or work-product items. It further quashed the requests to the extent they sought
information pertaining to any contract for mowing services, or for non-mowing services. The order further
quashed all requests that sought records not maintained at the BGAD itself, sought personnel file records,
or sought information “directly or indirectly pertaining to the security of BGAD.”
No. 10-5114 Himes, et al. v. United States Page 6

that such mowing is done regularly at the BGAD; and that the BGAD and similar
installations sometimes use their own employees to do this work.5

After discovery, the district court ruled on the motion for summary judgment.
It concluded that “Himes’ work—mowing and grounds maintenance—was indeed a
‘regular’ and ‘recurrent’ part of the business of the BGAD.” It noted that many Army
installations contract out these services, while some have the work performed by civilian
personnel, and yet others still use Army soldiers to mow. The court reasoned that
mowing is a “regular” activity, despite that the frequency may vary based on certain
factors. Addressing the Plaintiffs’ claims that mowing cannot be part of the “trade,
business, occupation, or profession” of the BGAD, the court cited precedent from this
Court holding that regular or recurrent work includes regular maintenance. Therefore,
the district court found that the United States was entitled to up-the-ladder immunity
under KRS § 342.690 and granted summary judgment. The Plaintiffs timely appealed.

II.

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure
to state a cause of action is treated as a motion for summary judgment when matters
outside the pleadings are presented to the court. Mays v. Buckeye Rural Elec. Co-Op,
Inc., 277 F.3d 873, 877 (6th Cir. 2002). Here, the district court decided the
government’s motion as one for summary judgment. This court reviews a district court’s
grant of summary judgment de novo. Valentine-Johnson v. Roche, 386 F.3d 800, 807
(6th Cir. 2004).

We review the district court’s legal conclusions de novo and its factual findings
for clear error. H.D.V.-Greektown, LLC v. City of Detroit, 568 F.3d 609, 620 (6th Cir.
2009). The district court’s determination that the United States was an up-the-ladder
employer entitled to immunity was a legal conclusion, and thus is reviewed de novo.

5
Patton also produced at his deposition a section of his Department Technical Manual, which
states that “[m]aintenance of grounds is essential to the mission of the [Department of Defense]
installation.” Patton explained that this included both the “specific military mission as well as the inherent
support required to provide that military mission.”
No. 10-5114 Himes, et al. v. United States Page 7

III.

The United States government has waived its sovereign immunity in limited
contexts under the Federal Tort Claims Act (“FTCA”). The FTCA is the exclusive
remedy for suits against the United States or its agencies sounding in tort. 28 U.S.C.
§ 2679(a). Under the FTCA, the United States can be liable “in the same manner and
to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674.
Courts must look to the law of the state where the alleged wrong occurred to determine
the liability of a private person. 28 U.S.C. § 1346(b). Here, Josh Himes was injured at
the Blue Grass Army Depot in Richmond, Kentucky, so the court must apply Kentucky
law.

It is undisputed that, by contract, the United States required Childers to obtain,
and Childers did obtain, workers compensation insurance in the limits required by
Kentucky law. It is also undisputed that Himes received workers’ compensation benefits
pursuant to that policy. Therefore, the issue is whether the United States is protected
from further liability under the Kentucky Workers’ Compensation Act. “Every
employer” subject to the Act is liable in Kentucky for compensation for injury, disease,
or death of an employee, “without regard to fault as a cause.” KRS § 342.610(1).
Therefore, employers are required to provide workers’ compensation insurance to cover
their employees; if they fail to secure such payment, an injured employee can claim
workers’ compensation benefits “and in addition may maintain an action at law.” KRS
§ 342.690(2). The benefit to employers is that if they comply, the workers’
compensation scheme becomes the exclusive remedy for any injured worker:

If an employer secures payment of compensation as required by this
chapter, the liability of such employer under this chapter shall be
exclusive and in place of all other liability of such employer to the
employee, his legal representative, husband or wife, parents, dependents,
next of kin, and anyone otherwise entitled to recover damages from such
employer at law or in admiralty on account of such injury or death. For
purposes of this section, the term “employer” shall include a “contractor”
covered by subsection (2) of KRS 342.610, whether or not the
subcontractor has in fact, secured the payment of compensation.
No. 10-5114 Himes, et al. v. United States Page 8

KRS § 342.690(1). The Act further provides:

A contractor who subcontracts all or any part of a contract and his or her
carrier shall be liable for the payment of compensation to the employees
of the subcontractor unless the subcontractor primarily liable for the
payment of such compensation has secured the payment of compensation
as provided for in this chapter . . . A person who contracts with another:
...
(b) To have work performed of a kind which is a regular or
recurrent part of the work of the trade, business, occupation, or
profession of such person
shall for the purposes of this section be deemed a contractor, and such
other person a subcontractor.

KRS § 342.610(2).

Here, the United States asserts this “up-the-ladder” defense, in which an entity
“up-the-ladder” from the injured employee who meets all the qualifications of a
“contractor” is considered a “statutory employer,” and is entitled to the immunity
provided by KRS § 342.690. The district court found that the United States was a
“statutory employer” up the ladder from Josh Himes, entitled to the defense; it therefore
granted summary judgment.

IV.

The Plaintiffs argue that the district court erred when it concluded that the United
States Army may take advantage of the statutory employer immunity, or “up-the-ladder
defense,” afforded to contractors under Kentucky Workers’ Compensation law. We
disagree.6

6
We note at the outset that although Plaintiffs assert a tort based on failure to maintain a safe
premises for business invitees, the theory of recovery does not change the government’s immunity.
Kentucky law demonstrates that even in cases where the plaintiff alleges that the premises owner failed
to keep the premises reasonably safe, such owners are immune from suit by employees or subcontractors
if they otherwise meet the definitions under the Workers’ Compensation provisions, because that system
provides the exclusive remedy for such harms. See, e.g., Crider v. Monarch Eng’g, Inc., 2008 WL
5102090, at *3 (Ky. App. Dec. 5, 2008) (finding that where a subcontractor was injured while painting
a water tower, the premises owner was a “contractor” and thus was immune from suit despite the plaintiff’s
claims that the defendant failed to exercise reasonable care in making the premises safe for his use).
No. 10-5114 Himes, et al. v. United States Page 9

A. “Persons” under the statute

Plaintiffs argue that the Kentucky Supreme Court has determined that
governmental entities are not “persons” under the Workers’ Compensation Act, and thus
cannot be contractors entitled to the up-the-ladder defense. The purpose of the up-the-
ladder defense “is not to shield contractors from tort liability but to assure that both
contractors and subcontractors provide workers’ compensation coverage.” Davis v.
Hensley, 256 S.W.3d 16, 18 (Ky. 2008). It thus only protects contractors who, if they
had failed to secure a paying subcontractor, would have been liable themselves as up-
the-ladder employers.

In Davis, the Kentucky Supreme Court reasoned that while KRS § 342.630
requires both “persons” and “the state” to provide workers’ compensation, governmental
entities are not included in the definition of “person.” Instead, the Workers’
Compensation statute requires both “any person” and—separately—“the state” and its
subdivisions, to comply with the Act. Davis, 256 S.W.3d at 19. Because the Act
separately contemplates “persons” and “the state,” and does not include the state within
the definition of “person,” see KRS § 342.0011(16), the provisions imposing up-the-
ladder liability (on “persons”) do not apply to the state of Kentucky. Davis, 256 S.W.3d
at 19. Therefore, the court reasoned, if the state government had failed to secure a
subcontractor that would cover the employee’s damages, the statute would nonetheless
not hold the state liable as an up-the-ladder employer.7 Id. Therefore, if the state would
not have been liable up-the-ladder, it was not entitled to an exclusive remedy defense on
that basis. Id.

Plaintiffs argue that Davis conclusively determined that all governmental
entities—including the federal government here—cannot claim the up-the-ladder
defense. This argument is misplaced. First, though Davis used the phrase
“governmental entities,” it did so in the context of addressing a Kentucky state entity.

7
Instead, the statute separately requires those who contract with the state to comply with the Act
and fines those who fail to do so, KRS §§ 342.085, 45A.480, and ultimately places secondary liability in
such circumstances on the Uninsured Employers’ Fund. KRS § 342.760; Davis, 256 S.W.3d at 19 n.1.
No. 10-5114 Himes, et al. v. United States Page 10

When using the term “governmental entity,” the court was attempting to encompass the
broad range of entities within the state that are covered under the statute: “[t]he state, any
agency thereof, and each county, city of any class, school district, sewer district,
drainage district, tax district, public or quasipublic corporation, or any other political
subdivision or political entity of the state that has one (1) or more employees subject to
this chapter.” KRS § 342.630(2). There is no indication Davis intended to include the
federal government, or even contemplated that meaning.

Second, the court’s rationale for refusing to grant the state the up-the-ladder
defense was that, under the terms of the statute, the state would not have been liable as
an up-the-ladder contractor/employer. Here, however, the federal government would
have been so liable. The statute creates special rules for “the state,” but is not written
such that the federal government would fall within the state exception.8 Because the
Federal Tort Claims Act explicitly waives federal government immunity and allows tort
claims against the United States “in the same manner and to the same extent as a private
individual under like circumstances,” the United States should be considered a private
“person” under Kentucky’s Workers’ Compensation Act. See, e.g., Bailey v. United
States, 2007 WL 1175048, at *3 (E.D. N.Y. 2007) (“Because the FTCA requires that the
court treat the United States as if it were a ‘person’ under the relevant state law, and the
Workers’ Compensation Law specifically includes ‘person’ within its definition of
employer, the United States must be treated as an employer under the law.”).

“This Court is tasked with looking past the inherent differences between the
Government and a private person in order to find the most reasonable private person
analogy.” In re FEMA Trailer Formaldehyde Prods. Liability Lit., 2010 WL 3168116,
at *7 (E.D. La. 2010) (granting statutory immunity from suit to FEMA based on
Alabama statute that provided immunity for “any person . . . who voluntarily and without
compensation” helps shelter persons during a disaster). Therefore, as a “person” in
Kentucky, the United States would be made liable as an up-the-ladder employer—unlike

8
Plaintiffs’ counsel argued strenuously that the statute contemplates “persons” and “governmental
entities,” but the statute is not written so broadly. Instead, the second section contemplates “[t]he state”
and “any other political subdivision or political entity of the state.” KRS. § 342.630.
No. 10-5114 Himes, et al. v. United States Page 11

the state of Kentucky. If the United States would be liable up-the-ladder, it is entitled
to an up-the-ladder defense if it complied with the Act and the subcontractor paid the
worker’s benefits.

To address one last matter, the Plaintiffs argue that “the United States is not
liable to an employee of a contractor on its premises since ‘Congress has never
authorized the government to pay workers’ compensation benefits to employees’ of its
contractors.” (Appellant Br. at 13, quoting McWhinnie v. United States, No. 08-6071
(6th Cir. 2009)). Under KRS § 342.690(1), the exclusive remedy provision only applies
if the employer “secures payment of compensation as required by this chapter.” The
Plaintiffs seem to argue that this means the contractor must establish that it has
purchased, for itself, a workers’ compensation program or insurance that would have
paid a plaintiff’s claim. They then argue that (1) since the government did not purchase
workers’ compensation insurance, it would not be liable to an employee like Josh Himes,
and (2) since it would not be liable, it cannot receive the benefit of the exclusive remedy
provision. However, Plaintiffs misread the statute.

First, an employer or contractor can “secure payment of compensation” without
itself buying workers’ compensation insurance—by doing precisely what the United
States did here: it hired a subcontractor and required that subcontractor to purchase
workers’ compensation insurance that met the state requirements.

If premises owners are ‘contractors’ as defined in KRS [§] 342.610(2)(b),
they are deemed to be the statutory, or ‘up-the-ladder,’ employers of
individuals who are injured while working on their premises and are
liable for workers’ compensation benefits unless the individuals’
immediate employers of the workers have provided workers’
compensation coverage.

Gen. Elec. Co. v. Cain, 236 S.W.3d 579, 585 (Ky. 2007) (emphasis added). “[A]n up-
the-ladder contractor is immune from tort liability to an injured employee of a
subcontractor if it proves that the immediate employer of the injured employee had
secured coverage for the employee.” Pennington v. Jenkins-Essex Const., Inc., 238
S.W.3d 660, 666 (Ky. App. 2006). As this court has determined in similar
No. 10-5114 Himes, et al. v. United States Page 12

circumstances, through hiring the contractor who carried workers’ compensation
insurance, “the United States took advantage of the ‘up-the-ladder’ immunity provision
of § 342.690(1) and would be entitled to immunity should it qualify under the rest of the
definition of ‘contractor’ as found in § 342.610(2).” McWhinnie, No. 08-6071, Slip. Op.
at 4.

Second, the fact that Congress has not authorized the government to pay workers’
compensation benefits does not mean, as Plaintiffs assert, that the United States “would
not have been liable to Josh had his employer not secured those benefits for him.”
(Appellant Br. at 14.) Instead, the United States would then be liable (through the
FTCA) to the same extent as an ordinary person, and an ordinary person is “liable for
the payment of compensation to the employees of the subcontractor unless the
subcontractor . . . has secured the payment of compensation.” KRS § 342.610(2)
(emphasis added).

If Himes’ employer had not secured benefits, the United States would be liable
to Josh for the full amount of his damages—workers compensation and damages at law.
See KRS § 342.690 (2) (providing that an employer who fails to secure payment is
liable for both compensation under the workers’ compensation chapter and, “in
addition,” for “an action at law”). “[I]t is the potential liability for workers’
compensation benefits that relieves the contractor of tort liability.” Pennington, 238
S.W.3d at 666. Because it would have been liable up-the-ladder if Himes’ employer had
failed to provide coverage, the United States is likewise entitled to the up-the-ladder
defense now that his employer has done so (as long as it qualifies as a contractor).

Put simply, the FTCA subjects the United States to liability “to the same extent”
as an ordinary person; it does not expose the United States to broader liability. If
Childers’ contract had instead been with a private party, and Himes was then injured in
similar circumstances, that private party would have been protected from further liability
as an up-the-ladder employer. The same is true of the United States in this case.
No. 10-5114 Himes, et al. v. United States Page 13

B. “Regular or recurrent” work

An entity up-the-ladder from an injured employee is only entitled to the defense
if it meets all the qualifications of a “contractor” under KRS § 342.610(2). See KRS
§ 342.690. A person is a contractor if they “contract with another” to have work
performed “of a kind which is a regular or recurrent part of the work of the trade,
business, occupation, or profession” of that person. KRS § 342.610(2)(b). If deemed
a contractor, a person is “deemed to be the statutory, or ‘up-the-ladder,’ employer[] of
individuals who are injured while working on their premises and are liable for workers’
compensation benefits unless the individuals’ immediate employers of the workers have
provided workers’ compensation coverage.” Cain, 236 S.W.3d at 585. Such contractors
are “immune from tort liability” to the employees of the subcontractor if the
subcontractor has secured the payment of compensation. KRS § 341.610(2). Because
we interpret the federal government to be a “person” within this statute, the only
remaining issue is whether the work done by Josh Himes was a “regular or recurrent”
part of the business at the BGAD.

The Plaintiffs argue that the government failed to meet its burden to demonstrate
that the mowing Himes was performing when injured was a “regular or recurrent” part
of the work at the BGAD. They assert that while Christine Wren testified in her affidavit
that mowing and trimming is maintenance work done regularly and routinely at the
BGAD, she points to no specific directive or regulation specifying that this is so.
Therefore, the Plaintiffs assert, this is a bare assertion that does not rise to the level of
“substantial evidence” needed to support summary judgment. They also argue that
mowing is not part of the “business” of the Army, and instead assert that the Army’s
business is preparing for war, which has nothing to do with mowing.

However, it is clear that the work Himes performed was maintenance work at the
BGAD. The Kentucky Supreme Court recently defined “regular or recurrent” work as
that which is “customary, usual, or normal to the particular business (including work
assumed by contract or required by law) or work that the business repeats with some
degree of regularity, and it is of a kind that the business or similar businesses would
No. 10-5114 Himes, et al. v. United States Page 14

normally perform or be expected to perform with employees.” Cain, 236 S.W.3d at 588.
Furthermore, “employees of contractors hired to perform routine repairs or maintenance
are generally viewed as being statutory employees under the Act. Such maintenance
work on an employer’s physical plant is classified as a matter of law to be a regular and
recurrent part of the employer’s business.” Bratcher v. Conopco, Inc., 2008 WL
2065202, at *2 (Ky. App. May 16, 2008) (citing Cain, 236 S.W.3d at 588).

Our Court has interpreted the provision similarly. In Thompson v. The Budd Co.,
199 F.3d 799 (6th Cir. 1999), this Court addressed Kentucky’s Workers’ Compensation
Act and considered the same “regular or recurrent business” provision. The employer,
Budd, ran an automobile part stamping plant, and Budd had hired a subcontractor,
Merrick, to maintain its heating, ventilation, and air conditioning system. The plaintiff,
Thompson, was a Merrick employee, and was injured while changing the air system
filters. The Court summarized past Kentucky and Sixth Circuit law before concluding
that “‘part of . . . the business of such person’ incorporates more than the primary task
of Budd’s company. Its business of ‘stamping automotive parts,’ therefore, may include
more than the actual assembly line production of auto parts. . . . [S]ection 342.610
encompasses regular maintenance of manufacturer’s physical plant . . .” Id. at 805.

These cases demonstrate that the work Himes was doing as a Childers employee
was “regular and recurrent” work at the BGAD. Just as maintenance of an air
conditioning system might not be, in the strictest sense, the true business of a
manufacturing plant, the mowing that Himes performed at the BGAD may not have been
the BGAD’s direct business; however, both were routine maintenance tasks necessary
for the running of the facilities. Following Kentucky precedent requires that such
routine maintenance be regarded as “regular and recurrent” work of any business, as it
must be done in order for the facility to continue its true mission.9 The United States put
forth affidavit evidence, from both Christine Wren and John Patton, that mowing was

9
Similarly, in Budd, “the plant contained a mezzanine level electrical substation” that was a
“restricted area,” which “remained locked to ensure limited access.” Budd, 199 F.3d at 803. Thompson
was admitted to this restricted area to do his task, and it was within this area that he was injured. Id.
Therefore, even if the area Himes was working was considered “restricted,” that does not change the
“regular and recurrent” analysis.
No. 10-5114 Himes, et al. v. United States Page 15

done as regular maintenance work at the BGAD. They explained that this work was
necessary for the running of the base, including for safety, security, and administrative
reasons, and that the work had been, sometimes still is, and might in the future be, done
by Army personnel. As employees in charge of overseeing such operations, who each
have multiple years of personal knowledge on the subject, this constitutes substantial
evidence of several key facts: that mowing is considered maintenance work on the
grounds of the BGAD; that such mowing is done regularly at the BGAD; and that the
BGAD and similar installations sometimes use their own employees to do this work.

The Plaintiffs have failed to come forward with any specific facts to dispute the
facts that mowing by Childers at the BGAD is regularly performed, that it is considered
ordinary maintenance work, or that such work used to be, occasionally is, and might in
the future be, done by BGAD employees. In light of Kentucky case law stating that
maintenance work is considered “as a matter of law to be a regular and recurrent part of
the employer’s business,” Bratcher, 2008 WL 2065202 at *2, Himes’ argument that
mowing is not part of the BGAD’s business must fail. Therefore, the district court
correctly concluded that Himes’ work pursuant to the contract between Childers and
BGAD constituted “regular and recurrent” work, and the United States was entitled to
immunity as a “contractor” under KRS § 342.690(1).

V.

The Plaintiffs also argue that the district court erred by quashing their discovery
requests, and entering a protective order for the defendants. They argue that the quashed
requests involved information that was necessary to determine the “trade, business,
occupation, or profession” of the BGAD in order to assess whether Himes’ mowing was
“regular or recurrent” work. They also argue they were entitled to seek information
relating to the Army’s knowledge of the deteriorated steam pipe, because if agents of the
government were aware of its dangerous nature and sent contract employees into the
area, such conduct is not “regular or recurrent.”

This court reviews a district court’s decisions regarding discovery matters for an
abuse of discretion. Dortch v. Fowler, 588 F.3d 396, 400 (6th Cir. 2009) (citations
No. 10-5114 Himes, et al. v. United States Page 16

omitted). Reversal is proper “only if we are firmly convinced of a mistake that affects
substantial rights and amounts to more than harmless error.” Id. (internal quotation
marks and citation omitted).

Here, no abuse of discretion occurred. The district court had explicitly allowed
discovery “only on the issue of whether the work performed by Himes, as an employee
of Childers pursuant to the Grounds Maintenance Contract, was a ‘regular’ and
‘recurrent’ part of the work of the Blue Grass Army Depot.” The Plaintiffs’ discovery
requests clearly exceeded this limited scope. Only three requests were quashed “in their
entirety”: (4) All files or information relating to the “mission” of the United States and
Blue Grass Army Depot; (5) All files or information relating to the maintenance of
restricted areas within the Blue Grass Army Depot; and (7) Information regarding who
directed Himes to perform work in the restricted area; as well as whether the United
States had knowledge of the steam pipe’s deterioration and/or decided not to warn its
contractors.

Most clearly, Request Seven goes directly to the merits of the Plaintiffs’ claims,
but does not address whether Himes’ work—mowing the grass—was regular or recurrent
at the base. The Plaintiffs’ argument that sending contract employees into dangerous
areas cannot be “regular or recurrent” work is a thinly-veiled attempt to conflate the
questions of what is regular work at the BGAD, and whether the United States was at
fault. Even if the United States knew of the pipe’s condition and negligently chose not
to warn Himes, that would not change the issue of discovery: whether the mowing itself
was “regular or recurrent.” As to Requests Four and Five, Kentucky has clearly stated
that regular maintenance work, such as mowing of the premises, is considered “regular
and recurrent” work of a business. Because of this, no information regarding some more
specific “mission” of the BGAD or about the maintenance of restricted areas would
change the ultimate determination about the type of work Himes was doing. And also
because mowing is regular or recurrent “as a matter of law,” Bratcher, 2008 WL
2065202, at *2, the Plaintiffs cannot demonstrate that quashing those requests “affect[ed]
No. 10-5114 Himes, et al. v. United States Page 17

substantial rights” or “amount[ed] to more than harmless error.” Dortch, 588 F.3d at
400.

The court’s order also quashed the requests to the extent they sought
“confidential” information pertaining to any contract for mowing services, or any
information about contracts for non-mowing services. However, since the only issue for
discovery was whether mowing was “regular or recurrent,” the second set of documents
(contracts which “do[] not pertain to the provision of mowing services”) were properly
found to be outside the scope. Any error in exclusion of the first portion, relating to all
mowing contracts, was harmless error. The Plaintiffs had possession of the contract
under which Himes himself worked, and therefore the “regular or recurrent” nature of
that work could be assessed.

The rest of the requests were not quashed in their entirety, but were limited only
to the extent that they sought privileged information, records outside the BGAD, private
personnel files, or BGAD security information. All of these limitations were legitimate
and within the court’s discretion.

Ultimately, the Plaintiffs were allowed to take discovery on the issue approved
by the district court. They were allowed to depose United States
officials—knowledgeable about ground maintenance specifically—at the local and
regional level. The Plaintiffs were able to inquire about the nature of the work done and
who generally does such work at the BGAD and similar installations. The Plaintiffs
cannot show “how [further] discovery would rebut the movant’s showing of the absence
of a genuine issue of material fact.” Singleton v. United States, 277 F.3d 864, 871 (6th
Cir. 2002). Therefore, the court did not abuse its discretion in restricting the Plaintiff’s
discovery requests.

VI.

Lastly, the Plaintiffs argue that the district court abused its discretion by refusing
to afford them a hearing on the discovery motions and on the motion to dismiss. They
essentially assert that they were entitled to such a hearing under Federal Rule of Civil
No. 10-5114 Himes, et al. v. United States Page 18

Procedure 5610 and the Local Rules for the Kentucky District Courts. This argument is
without merit. While the Plaintiffs were certainly entitled to request a hearing, the
district court was within its discretion to deny such motions: our Court as well as other
circuits have held that “Rule 56 does not require an oral hearing on a motion for
summary judgment.” Banfield v. Turner, 66 F.3d 325, 1995 WL 544085, at *4 (6th Cir.
1995). Instead, the mention of a “hearing” simply requires an adequate chance to
present evidence and arguments, and respond to those of one’s opponent. See March v.
Levine, 249 F.3d 462, 473 (6th Cir. 2001); Chrysler Credit Corp. v. Cathey, 977 F.2d
447, 449 (8th Cir. 1992) (holding that the parties’ rights to be heard on a summary
judgment motion are satisfied by the opportunity to submit briefs and supporting
affidavits); Anchorage Assoc. v. Virgin Islands Bd. of Tax Rev., 922 F.2d 168, 176 (3d
Cir. 1990) (“When Rule 56 speaks of a ‘hearing,’ we do not read it to require that an oral
hearing be held before judgment is entered. An opportunity to submit written evidence
and argument satisfies the requirements of the rule.”); Landham-Hill Petroleum Inc. v.
Southern Fuels Co., 813 F.2d 1327 (4th Cir. 1987) (“There is no absolute requirement
that a ruling on a motion for summary judgment be preceded by a hearing.”).
Furthermore, the Local Rule cited by Plaintiffs simply states that a party can “request”
a hearing—not that they are entitled to one.11 This Court has previously rejected a claim
that the district court abused its discretion by not conducting an oral hearing under these
rules. Chicago Ins. Co. v. Chimnee Cricket, 17 F. App’x 374, 383 (6th Cir. 2001).

Here, the Plaintiffs fail to demonstrate what arguments or responses they could
not make in their briefs and memoranda on these issues. On the contrary, they were able
to fully make their arguments and present their evidence on both issues. Since they had

10
At the time of these proceedings, Rule 56 provided, in relevant part that: (1) Any party may
move for summary judgment on all or part of a claim, Fed. R. Civ. P. 56(a); (2) The motion “must be
served at least 10 days before the day set for the hearing,” and “[a]n opposing party may serve opposing
affidavits before the hearing day,” id. at 56(c); and (3) summary judgment should be rendered if there is
no genuine issue of material fact. However, the Rule was amended on March 26, 2009, effective
December 1, 2009 (and again on April 28, 2010, effective December 2, 2010). The rule no longer contains
the language discussed here regarding the “time fixed for the hearing” or “the hearing day.” It instead
provides time limits running from the close of discovery.
11
In fact, the next subsection states that “[a] motion is submitted to the Court for decision after
completion of the hearing or oral argument—or if none—after the reply memorandum is filed . . .” JT. KY.
LOC. R 7.1(g).
No. 10-5114 Himes, et al. v. United States Page 19

an opportunity to conduct discovery, prepare and submit affidavits, and present
memoranda and briefs for the court to consider, the Plaintiffs were “heard” within the
meaning of Rule 56. See 27A FED. PROC., L. ED. § 62.673. Therefore, the district court
did not abuse its discretion.

VII.

For the foregoing reasons, we AFFIRM the district court’s grant of summary
judgment.