The opinion of the court was delivered by: Sarah Evans Barker, Judge United States District Court Southern District of Indiana
ORDER ADDRESSING PENDING MOTIONS FOR SUMMARY JUDGMENT
Plaintiff, Jason M. Schnitzmeyer, was seriously injured while working as a member of a crew responsible for rail car switching on the property of Indopco, Inc., which at the time did business under the name National Starch & Chemical Company. Schnitzmeyer has brought this lawsuit naming as defendants: Indopco, Inc., National Starch & Chemical Company, and Indopco, Inc.'s successor in interest, National Starch LLC (collectively "National Starch"). Schnitzmeyer includes The Indiana Rail Road Company ("IRR") as a defendant as well, alleging that they all share responsibility for his injuries. All of these defendants have moved for summary judgment and, for the reasons explicated in this entry, we find merit in IRR's motion, but conclude that National Starch's motion must be denied because of unresolved material questions of fact.
IRR is a common carrier owned by an Indiana holding company, Midland United ("Midland"), which operates an interstate rail freight service that serves Indiana, Illinois and Kentucky. Its business consists of picking up rail cars from customers and transporting the cars over IRR track to a consignee or to another rail carrier which takes over any further transportation of the car. Once IRR delivers and releases the rail car to a consignee company, its obligations as the common carrier are complete and any further movement of the car within the consignee's facilities is the responsibility of the consignee. Some customers use their own employees to move and switch rail cars within the boundaries of their facilities and others retain independent contractors to provide such services. IRR has leased locomotives to its customers for purposes of on-site rail car movement by the customers' employees or third-party contractors, but it has never provided third-party contract switching services to its customers.
During the 1990s, Midland decided that there might be a business opportunity to provide various services that, although related to, were not services provided by a common carrier. Accordingly, Midland incorporated Unified Services, Inc. ("Unified") as an Indiana corporation to act as a holding company for subsidiaries which would actually provide the non-common carrier services. Unified incorporated two subsidiaries, Dependable Rail Services, Inc. ("DRS") to provide customers third-party switching services and Distribution Services, Inc. ("DSI") to perform what is referred to as trans- load operations.
It is uncontested that Midland's expansion into areas other than common carrier services was the brainchild of IRR's upper management, several of whom served in official capacities with respect to all the Midland subsidiaries. In fact, because DRS was a small start-up company which had yet to acquire a foothold in the marketplace, in addition to sharing several officers with IRR, it purchased most of its administrative services (i.e. accounting, payroll, human resources) from IRR, and employed only those persons necessary to perform the contracted work. Thus, DRS was heavily dependent upon IRR's ability to provide, at a reasonable price, the various administrative and management services necessary to assist DRS in operating and growing its business. Over time, Unified hired certain individuals to market the services of DRS and DSI, but their success was very limited in that they secured only one long-term contract.
In early 2002, DRS submitted a successful low bid to provide third-party switching services to National Starch. Pursuant to the Switching Services Agreement executed between DRS and National Starch, DRS was to provide a supervisor/engineer and two two-men crews to perform rail car switching services at the National Starch facility, which included: picking up rail cars delivered to the plant by CSX Transportation (the common carrier which serviced National Starch) and moving them to locations within the National Starch facility; positioning outbound cars for pick-up by CSX Transportation; and moving and switching cars within the National Starch facility as directed by National Starch. DRS was to supply the locomotive necessary to execute the requirements of the Switching Services Agreement, which it did by leasing one from IRR. The agreement was for a period of three years but was extended; indeed, the relationship lasted for more than five years.
At the request of National Starch, the first employees hired by DRS to fill the crew positions were employees who had worked for the previous third-party switching contractor and were familiar with the National Starch facility. One of those employees, Patrick Fugate, eventually qualified to operate the locomotive and later became the DRS supervisor responsible for overseeing the switching crews and interacting with the National Starch bulk operations supervisor, J.T. Rusk, who provided DRS with day-today instructions regarding which rail cars needed to be moved to which locations within the facility. Rusk would also observe work of DRS crews on occasion to make sure they were following safe work practices and staying in compliance with the written standards and procedures of the plant.
At the suggestion of a former co-worker, Josh Asa, the plaintiff, Jason Schnitzmeyer, went to the offices of IRR in April 2006 to apply for a crew position similar to the one Asa had been hired into after he left the moving company where they both had been employed. Though the application form stated at the top that it was for employment with IRR, the letter Schnitzmeyer received a few days later offering him a job contingent upon passing a physical was from DRS. Schnitzmeyer accepted the position as an employee of DRS and passed the physical. Thereafter, at all relevant times Schnitzmeyer was assigned to the switch crew at the National Starch plant in Indianapolis.
As with all crew members, Schnitzmeyer checked-in for work each day at the DRS trailer located within the National Starch facility. He received instructions on which rail cars needed to be moved that day from Fugate or from John Holland, the next most senior DRS crew member who was also qualified to operate the locomotive. During his first week of employment, Schnitzmeyer rode the locomotive and shadowed Josh Asa on the ground crew to gain an understanding of the daily operations and the specialized language utilized by the crew to communicate via radio during the course of switching, coupling and decoupling rail cars. After his initial week of shadowing the others, Schnitzmeyer became a regular member of the ground crew. Schnitzmeyer claims in this litigation that he received no specific safety instructions other than a review of a daily safety rule that Fugate posted at the trailer which each crew member was required to read and certify to having read at the start of each work day. Though there was a DRS safety manual retained and available for review at the trailer, Schnitzmeyer maintains he never received or reviewed it.
Schnitzmeyer worked through the end of 2006 without incident. However, on February 26, 2007, he suffered an injury which eventually required the amputation of his right foot. The incident occurred when the crew he was working with was assigned to couple and move two rail cars located near what was known as the feed shed on the National Starch property. The railroad track curves near that feed shed, which sometimes caused additional difficulty in aligning the cars placed there by National Starch for coupling, often necessitating multiple attempts to accomplish the final hook-up. Once coupled, the cars were moved to the outbound track for pick-up by CSX Transportation.
John Holland was the engineer responsible for operating the locomotive on the day Schnitzmeyer was injured. When coupling cars, he received direction via radio transmissions from crew members on the ground. The ground crew was responsible for aligning the coupling devices ("couplers") located on the ends of two adjoining rail cars, allowing them to engage when they were joined together. A coupler is a pivoting mechanism mounted on the ends of rail cars and, because it pivots, its lateral position can be adjusted so that it better mates with the coupler on the rail car with which it is attempting to connect. The crew member executing the coupling gives direction to the operator of the locomotive concerning when to move the locomotive backwards or forwards, and when to stop. John Fries, a member of the ground crew, coupled the locomotive into the first car, thereafter passing control of the locomotive movement to Schnitzmeyer to manage the coupling of the second car. Schnitzmeyer radioed Holland telling him to back up the locomotive in order to accomplish the coupling of the second railroad car. Their first attempt to couple the second car failed.
When the couplers on the cars failed to engage correctly, Schnitzmeyer instructed Holland to pull the locomotive forward in preparation for a second coupling attempt. The locomotive pulled away as instructed and stopped, whereupon Schnitzmeyer walked between the cars and adjusted, by hand, the coupler on the car which was connected to the engine. After making the adjustment, Schnitzmeyer stepped out from between the cars and radioed Holland to move the locomotive toward the car to be coupled.
Holland put the locomotive in motion, but Schnitzmeyer perceived that the coupler on the car attached to the locomotive was still out of alignment. Without asking Holland to stop the locomotive, Schnitzmeyer walked between the car being pushed and the stationary car to which it was to be connected and, while balancing on his left leg, kicked the coupler on the moving car with his right foot at the point when the coupler was approximately a foot from making a connection. According to Schnitzmeyer, he and other crew members regularly performed this type of adjustment of a coupler when the situation required. As he stated in his deposition, "within the blink of an eye" his foot became caught between the two couplers as they met. He managed to extract his foot, falling to the ground screaming from the pain. Schnitzmeyer's co-workers heard him screaming and came immediately to his aid. They also notified National Starch personnel who dispatched the company's on-site emergency responders who called for an ambulance.
Schnitzmeyer's foot ultimately required amputation, for which injury Plaintiff seeks compensation in this lawsuit. He retained counsel to assist him with his claims.
His medical bills and workers compensation benefits were paid by DRS and a settlement was reached which included a payment to Schnitzmeyer to compensate him for his permanent partial disability in accordance with Indiana Workers Compensation laws. Schnitzmeyer filed this lawsuit under the Federal Employers' Liability Act (FELA) against IRR and also seeks to recover on his claim of common law negligence against both IRR and ...