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Passmore v. Barrett

United States District Court, N.D. Indiana, Hammond Division

June 15, 2015

ROSIE PASSMORE, Individually and as Special Administrator of the Estate of WILLIE PASSMORE, Deceased, Plaintiff,


Andrew P. Rodovich, United States Magistrate Judge.

This matter is before the court on the Motion for Summary Judgment [DE 54] filed by the defendant, James R. Barrett Jr., on February 27, 2015, the Motion Requesting Oral Argument on Defendant’s Motion for Summary Judgment [DE 77] filed by the plaintiff, Rosie Passmore, on April 22, 2015, and the Motion to Strike Certain Evidence Submitted in Plaintiff’s Response to Summary Judgment [DE 79] filed by Barrett on May 5, 2015. For the following reasons, the Motion for Summary Judgment [DE 54] is DENIED, the Motion Requesting Oral Argument on Defendant’s Motion for Summary Judgment [DE 77] is DENIED AS MOOT, and the Motion to Strike Certain Evidence Submitted in Plaintiff’s Response to Summary Judgment [DE 79] is DENIED AS MOOT.


On July 29, 2013, the plaintiff, Rosie Passmore, filed a state court complaint against the defendants for the wrongful death of her husband, Willie Passmore (Willie). On August 23, 2013, the defendant, James R. Barrett Jr., removed this case to federal court. Passmore has alleged that Barrett negligently ran over and killed Willie while Willie was working at Boss Truck Shop in Gary, Indiana. The parties have submitted a surveillance video that shows the accident.

The video shows the back-end of Barrett’s trailer inside the service bay with the trailer extending outside the service bay where it was connected to the truck cab. The tractor was turned to the right slightly and was pulling an extra-long trailer. At the beginning of the video, Barrett walked from the Boss Truck Shop lobby along the driver’s side of his tractor-trailer to the cab. At the same time, Willie was walking around the back-end of the trailer, and he picked up what appeared to be a long tire iron. As Barrett entered the cab, Willie walked to the driver’s side rear tires and began using the tire iron on the rear driver’s side tires. As Willie was working on the rear driver’s side tires, Barrett began moving the truck forward. As the truck began to move, Willie turned around, took a couple steps along the trailer, and appeared to insert the tire iron in front of the rear tire. Shortly thereafter, the truck ran over Willie and killed him. After running over Willie, Barrett continued driving a short distance before stopping outside the service bay.

Barrett testified that he went to Boss Truck Shop to have a tire replaced on his trailer and that this was his first trip to Boss Truck Shop. He indicated that Willie informed him that the work was completed and instructed Barrett to obtain his mileage and to pull his truck forward out of the service bay. After Willie instructed him to pull forward, Barrett has claimed that he walked from the service bay into the lobby and out the front door towards his truck. Barrett has alleged that he could see around the back end of his trailer as he walked to the cab and that he did not see anyone, including Willie. After Barrett entered the cab, he pulled forward with the driver’s door open because he intended to follow Willie’s instructions to pull forward just out of the bay. Additionally, Barrett has claimed that he would not have been able to see inside the bay from the truck because the truck was angled to the right and the bay was dark.

Passmore has disputed whether Willie told Barrett to pull his trailer out of the bay, whether Willie knew that Barrett was going to pull out of the bay, and whether Barrett alerted Willie that he was going to pull out of the bay. Passmore has argued that Barrett should have ascertained Willie’s location before he pulled forward and that he should have attempted to warn Willie before he began pulling forward. Additionally, she has argued that Willie was confronted with a sudden emergency and that he exercised the proper standard of care for that situation.


Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment is proper only if it is demonstrated that “there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Garofalo v. Vill. of Hazel Crest, 754 F.3d 428, 430 (7th Cir. 2014); Kidwell v. Eisenhauer, 679 F.3d 957, 964 (7th Cir. 2012); Stephens v. Erickson, 569 F.3d 779, 786 (7th Cir. 2009). A fact is material if it is outcome determinative under applicable law. The burden is upon the moving party to establish that no material facts are in genuine dispute, and any doubt as to the existence of a genuine issue must be resolved against the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 160, 90 S.Ct. 1598, 1610, 26 L.Ed.2d 142, 155 (1970); Stephens, 569 F.3d at 786. If the non-movant bears the ultimate burden of persuasion on an issue at trial, the requirements are not as onerous for the moving party. Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013). Under this circumstance, the moving party can either come forward with affirmative evidence negating an element of the opponent’s claim or by asserting that the nonmoving party has insufficient evidence to succeed on its claim. Modrowski, 712 F.3d at 1169.

Summary judgment may be entered against the non-moving party if it “is unable to ‘establish the existence of an essential element to [the party’s] case, and on which [that party] will bear the burden of proof at trial . . . .’” Kidwell, 679 F.3d at 964 (quoting Benuzzi v. Bd. of Educ., 647 F.3d 652, 662 (7th Cir. 2011) (quoting Celotex, 477 U.S. at 322)). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.” Blythe Holdings, Inc. v. DeAgnelis, 750 F.3d 653, 656 (7th Cir. 2014) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The non-moving party must show specific facts that create a genuine issue for trial. Blythe, 750 F.3d at 656.

In deciding a motion for summary judgment, the trial court must determine whether the evidence presented by the party opposed to the summary judgment is such that a reasonable jury might find in favor of that party after a trial. Anderson, 477 U.S. at 248; Cung Hnin v. Toa, LLC, 751 F.3d 499, 504 (7th Cir. 2014); Stephens, 569 F.3d at 786; Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008).

The inquiry performed is the threshold inquiry of determining whether there is the need for a trial--whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party. . . . [T]his standard mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a), which is that the trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict.

Anderson, 477 U.S. at 250; see Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149– 51, 120 S.Ct. 2097, 2109, 147 L.Ed.2d 105, 120–22 (2000) (setting out the standard for a directed verdict); Celotex, 477 U.S. at 322–23; Stephens, 569 F.3d at 786; Argyropoulos v. City of Alton, 539 F.3d 724, 732 (7th Cir. 2008) (stating that a genuine issue is one on which a reasonable fact finder could find for the non-moving party); Springer v. Durflinger, 518 F.3d 479, 483 (7th Cir. 2008) (stating that a genuine issue exists and summary judgment is inappropriate if there is sufficient evidence for a jury to return a verdict for the non-moving party). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’” Blythe, 750 F.3d at 656 (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).

“A federal court sitting in diversity jurisdiction must apply the substantive law of the state in which it sits.” Land v. Yamaha Motor Corp., 272 F.3d 514, 516 (7th Cir. 2001) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)). The elements that a plaintiff must prove to succeed on a negligence claim in Indiana are (1) a duty owed to the plaintiff, (2) a breach of that duty by the defendant, and (3) the breach proximately caused the plaintiff’s damages. Bond v. Walsh & Kelly, Inc., 869 N.E.2d 1264, 1266 (Ind.Ct.App. 2007) (citing Peters v. Foster, 804 N.E.2d 736, 742 (Ind. 2004)). Similarly, the elements for a wrongful death claim under Indiana law are “a duty owed by the defendant to the decedent, breach of that duty, and an injury proximately caused by the breach.” Tom v. Voida, 654 N.E.2d 776, 787 (Ind.Ct.App. 1995); see Karpov v. Net Trucking, Inc., 2011 WL 6056618, at *4 (N.D. Ind. Dec. 5, 2011) (quoting Tom). Breach of a duty and proximate cause issues generally are questions of fact. See Peters v. Forster, 804 N.E.2d 736, 743 (Ind. 2004); King v. Northeast Security, Inc., 790 N.E.2d 474, 484 (Ind. 2003). Only ...

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