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Nagel v. Northern Ind. Pub. Serv. Co.

Court of Appeals of Indiana

January 23, 2015

ADAM NAGEL and EMILY NAGEL, Appellants-Plaintiffs,
v.
NORTHERN INDIANA PUBLIC SERVICE COMPANY, Appellee-Defendant

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APPEAL FROM THE LAKE SUPERIOR COURT. The Honorable John R. Pera, Judge. Cause No. 45D10-0910-CT-188.

ATTORNEY FOR APPELLANT: ROBERT D. BROWN, Kenneth J. Allen Law Group, LLC, Valparaiso, Indiana.

ATTORNEYS FOR APPELLEE: PAUL A. RAKE, ROBERT H. FELDT, Eichhorn & Eichhorn, LLP, Hammond, Indiana.

BARNES, Judge. MAY, J., and PYLE, J., concur.

OPINION

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BARNES, Judge.

Case Summary

Adam and Emily Nagel appeal the trial court's refusal to impose discovery sanctions against Northern Indiana Public Service Company (" NIPSCO" ) and the trial court's grant of summary judgment in favor of NIPSCO. We affirm in part, reverse in part, and remand.

Issues

The issues before us are:

I. whether the trial court properly refused to enter default judgment against NIPSCO for its purported delays in responding to the Nagels' discovery requests; and
II. whether there is any designated evidence to show that NIPSCO owed a duty to Adam and breached that duty in connection with his personal injury negligence action against NIPSCO.

Facts

We first relate the available facts and designated evidence regarding Adam's accident and resulting injuries in a light most favorable to the Nagels.[1] Bailly Generating Station is a NIPSCO-owned coal-fired power plant located in Chesterton. On April 8, 2008, Adam was employed by ThyssenKrupp Safway, Inc. (" Safway" ). Emily was married to Adam at the time, but they have since divorced. NIPSCO had hired Safway to erect scaffolding attached to a cooling tower at the Bailly Generating Station in preparation for routine maintenance of the plant.

In connection with construction of the scaffolding, Safway placed a parts rack nearby. Safway instructed a NIPSCO forklift driver where to place the parts rack. However, NIPSCO retained the general authority to direct contractors in their use of staging areas, and specifically it could have instructed Safway to move the parts rack if it believed its placement posed a safety hazard. Also, a NIPSCO project manager conducted daily walkthroughs of the site. Kurt Sangster, a NIPSCO project manager, would later state in a deposition that NIPSCO did not believe the parts rack was in an unsafe location.

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Across the road from the cooling tower was a silo that collected fly ash, a byproduct of burning coal. Semi-tractors pulling tanker trailers frequently drove to the silo to collect fly ash and remove it from the site. The parts rack was placed a few feet away from a road that led to and from the fly ash silo. The road had no curb, and there was no barrier between the road and where the parts rack was located. Trucks removing fly ash from the silo would sometimes cross into the area where the parts rack was located, in part because of the narrow turning radius provided for entering or exiting the silo area. Aside from a stop sign at the entry to the plant, there were no traffic control signs on the Bailly Generating Station premises.

Adam was assigned to work as a " ground man" on the Safway scaffolding project. App. p. 1694. This meant that Adam was required to obtain parts from the parts rack and deliver them to the other individuals constructing the scaffold. On April 8, 2008, Adam was asked to retrieve a part from the parts rack. One of his co-workers saw Adam descend a ladder from the scaffolding catwalk but lost sight of him when he was about three feet from the ground. When Adam did not return with the part, his co-workers went looking for him and found him face down on the ground, unconscious and severely injured, about twenty-six feet away from the ladder he would have descended. Adam's hard hat and safety glasses were strewn in different directions several feet away from him. Tire tracks were observed near the parts rack. No witnesses recalled seeing what had happened to Adam.

Adam's recollection of the event was that he descended the ladder, then walked to the parts rack to obtain the needed part. He described what happened next as follows:

And then as I bent over to bend over towards the rack to look for the part, I caught out of the corner of my eye a glimpse of a truck tire passing behind me.
And as I caught that glimpse of the truck tire--it was close. As I caught the glimpse of that truck tire passing behind me, I jumped up and tried to twist--I may have yelled something even--to get out of the way of this truck when I felt--I felt something striking me in the--you know, which I think was the deck of the trailer.

Id. at 1715-16. As a result of the incident, Adam was in a coma for six weeks and continues to suffer from serious mental and physical problems.

Later, it was determined that a semi-truck pulling a tanker trailer driven by Matt Hren was the only vehicle that could have been near the parts rack at the time of the incident. Hren was employed by Whitcomb Trucking (" Whitcomb" ) and Whitcomb owned the vehicle he was driving. Whitcomb, in turn, had leased both Hren and the vehicle to MCS Trucking on April 8, 2008. Hren had no recollection of that date and, thus, no recollection of having struck Adam.

The Indiana Occupational Safety and Health Administration (" IOSHA" ) conducted an investigation of the accident. IOSHA issued a report on June 2, 2008, closing the investigation because of a lack of evidence or witnesses as to how Adam had been injured. The report noted that, as a " ground man," Adam would not have been allowed to climb a scaffold, and " [n]o evidence shows if the employee was on the scaffold or if he just fell . . . ." Id. at 1052. The report also related a phone interview with Emily while Adam was in the hospital, in which ...


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