Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Podemski v. Praxair, Inc.

Court of Appeals of Indiana

November 17, 2017

Marvin Podemski, Appellant-Plaintiff,
v.
Praxair, Inc. and Antibus Scales & Systems, Inc., Appellees-Defendants.

         Appeal from the St. Joseph Superior Court The Honorable Jenny Pitts Manier, Judge Trial Court Cause No. 71D05-1302-CT-21

          ATTORNEY FOR APPELLANT Douglas A. Mulvaney Stutsman & Mulvaney Elkhart, Indiana

          ATTORNEYS FOR APPELLEE PRAXAIR, INC. Angela Kelver Hall Matthew R. Kinsman Faegre Baker Daniels LLP South Bend, Indiana Brian J. Paul Faegre Baker Daniels LLP Indianapolis, Indiana

          ATTORNEY FOR APPELLEE ANTIBUS SCALES & SYSTEMS, INC. Andrew T. Glier State Auto Insurance House Counsel Carmel, Indiana

          Brown, Judge.

         [¶1] Marvin Podemski appeals the trial court's entry of summary judgment in favor of Praxair, Inc. ("Praxair") and Antibus Scales & Systems, Inc. ("Antibus") and the denial of his motion to correct error. Podemski raises two issues which we revise and restate as whether the court erred in entering summary judgment in favor of Praxair and Antibus (together, the "Defendants") and abused its discretion in denying his motion to correct error. We affirm.

         Facts and Procedural History

         [¶2] At approximately 9:00 or 9:15 p.m. on August 17, 2011, Podemski was working as a truck driver for his employer, the Linde Group, hauling industrial gases when he pulled into the Praxair facility in East Chicago. After he pulled the day cab and trailer up on the scales and parked it, Podemski unhooked the air supply line from the truck to the trailer, turned around, grabbed the white air line from a post, hooked it up, and started to walk in the dark toward the back of the trailer. His foot caught a portion of a black supply line running from the post and downward into a grate, and he fell.

         [¶3] On February 1, 2013, Podemski filed a complaint against Praxair alleging in part that it had a duty to maintain its premises in a reasonably safe condition for its invitees, that it failed to do so, that it was negligent in the maintenance of its property in that it failed to maintain the area where deliveries of gas were made by ensuring the area was well lit and any potential dangers were corrected or warned of, and that it was otherwise negligent. After Praxair removed the case to federal court on the basis of diversity jurisdiction, Podemski filed an amended complaint adding Antibus, a company that services the scales at Praxair's facility, as a party defendant, and the case was remanded to state court. The amended complaint alleged in part that Antibus had a duty to perform its work in a safe and workmanlike manner, to warn of any dangers it created, and to maintain the work area in a safe condition.

         [¶4] Praxair filed a motion for summary judgment on October 31, 2014, and Antibus filed its own motion for summary judgment on May 11, 2015. The court granted both the stipulated extension of time of the parties, filed on November 26, 2014, allowing Podemski until March 2, 2015 to respond to Praxair's motion, and the follow-up request, filed on March 4, 2015, continuing the response deadline until a new schedule for discovery was set. At a status hearing held on February 24, 2016, the trial court set a hearing on both motions for March 29, 2016. On March 4, 2016, Podemski filed a designation of facts and brief in response to Defendants' motions for summary judgment, as well as a motion to publish the depositions of certain individuals.

         [¶5] In his deposition, as designated by Praxair, Podemski testified that he started working for the Linde Group as a truck driver on February 17, 1987, was continuously employed as a truck driver through the time of the accident, and that ninety-five percent of the time he was getting his loads out of the Praxair facility and was there roughly every day. When asked about the air line, Podemski testified that the air supply hoses for the brakes come off the back of the cab of the trunk and hook to the front driver's side corner of the trailer, that when he parked on the scale, "you take the supply line off, put it on the deck plate of the truck, just lay it there. You get the supply line from the post next to the truck and hook it up." Praxair Appendix Volume 2 at 17. When asked about where he was in the Praxair yard when the fall happened, he answered he was on the scales and had just pulled and parked the day cab and trailer on the scales and that it was dark. When asked how he came to fall, he responded that he had unhooked the "air supply line from the truck to the trailer, turned around, grabbed the air line from the post and hooked it up and started around the post again." Id. at 19. He stated that, in his estimation, the setup of the air supply line that came out of the grate was not typical, that he did not recall ever seeing it look like that before, and that "there's three scales there. And I'm not saying I pulled on this scale every time. But, you know, . . . they've had work done on the scales over the five-plus years." Id. at 24.

         [¶6] Podemski also testified that the closest light from where he fell was "45, 50 feet" at the "back side of . . . the loading dock, " there were lights on the front side of the loading dock, and that, prior to the accident, he never felt he needed more light when he was performing his duties at Praxair. Id. at 25-27. When asked if he felt "like if you had more light that night you would have seen the line that you tripped over, " he answered affirmatively; when asked if he thought that "the lights that were 35 feet away would've helped you be able to see the grate and the air supply line issue, " he answered affirmatively; and, after confirming that he had a flashlight in the truck, Podemski stated he used it on his "pre-trip and post-trip, you know, to look around. Other than that, for unhooking and hooking up, no." Id. at 28. When asked how often he was able to see well enough to do the things he needed, Podemski testified that "[i]t's gonna sound stupid, and you're probably not gonna understand. But you can close your eyes and do it." Id. at 27. He also testified that he has "hooked and unhooked trailers for 40-plus years. It's just - (Indicating.)." Id.

         [¶7] Antibus designated an affidavit stating that it did not perform any work on the grate, the air hose, or the post between May of 2011 and the date of Podemski's fall on August 17, 2011. Antibus designated a deposition stating that during its normal inspections at Praxair, the employees of Antibus would not go below the scales to make adjustments, but rather could do so "at the top of the scale." Corrected Antibus Appendix Volume 2 at 50.

         [¶8] In his brief opposing Defendants' motions for summary judgment, Podemski cited several depositions and stated that there

were two separate hoses used to fill the tank. There was the hose for the hydrogen itself and then an air line which was used to keep pressure in the tank . . . . Several Praxair employees testified that the air supply line should have come up through the grating next to a metal post and zip tied with plastic ties to the post. . . . The practice was to zip tie the hose to the post. . . . ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.