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Webber v. Butner

United States District Court, S.D. Indiana, Indianapolis Division

December 20, 2017

ROGER BUTNER, Defendant.



         This matter is before the Court on a Motion for Summary Judgment filed pursuant to Federal Rule of Civil Procedure 56 by Defendant Roger Butner (“Butner”) (Filing No. 32), a Motion to Strike Affidavit of Farheen S. Khan, Ph.D. (“Dr. Khan”) filed by Plaintiffs Johnny Webber (“Webber”) and Debora Webber (collectively, the “Plaintiffs”) (Filing No. 37), and a Request for Judicial Notice of Order from Florida Trial Court filed by the Plaintiffs (Filing No. 40).

         Following an accident where Webber was seriously injured by a large tree branch, the Plaintiffs filed a Complaint against Butner, asserting a claim for negligence, including Debora Webber's derivative claim for loss of consortium, love, care, companionship, and affection of her husband (Filing No. 1-3). Butner filed a Motion for Summary Judgment, asserting that the danger was known and obvious, that he did not breach a duty and he could not have caused or prevented Webber's injury. Also before the Court is Plaintiffs Motion to Strike and their Request for Judicial Notice. For the following reasons, the Court denies Butner's Motion for Summary Judgment, grants the Plaintiffs' Motion to Strike, and grants the Plaintiffs' Request for Judicial Notice.

         I. BACKGROUND

         The following facts are not necessarily objectively true, but as required by Federal Rule of Civil Procedure 56, the facts are presented in the light most favorable to the Plaintiffs as the non-moving parties. See Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

         The Plaintiffs are a married couple who reside in Fayette County, Indiana. Butner resides in Oxford, Ohio, and owns property in Indiana where the incident giving rise to this action took place (Filing No. 34-1 at 2). On April 17, 2014, Butner purchased a 47.6 acre property in Everton, Indiana (Filing No. 39-1 at 11). The property was brought to Butner's attention by David Moore (“Moore”) (Filing No. 39-2 at 10), a longtime professional in the lumber industry, who has cut down hundreds of thousands of trees in his lifetime. Id. at 4-6. Moore had an existing social relationship with both Butner and Webber. Id. at 7-9.

         Two or three weeks before Butner closed on the property, he and Moore visited the property so that Moore could determine whether he would buy trees from the property. Moore decided not to purchase any trees because they did not fit his needs, but Moore recommended to Butner that he contact David Shelton (“Shelton”), who also was in the lumber industry, to see if Shelton was interested in purchasing any trees. Id. at 20-23.

         Moore provided the following testimony at his deposition: While he and Butner were at the property together, Moore told Butner that the trees “were very dangerous, and [that] if he didn't want to sell them, if he wanted me to cut them down for him, I would.” (Filing No. 39-2 at 22.) “I volunteered to do it for him.” Id. “I would as a friend, yes, because they were dead and needed to be cut down. I advised him not to -- I really advised him not to cut them because they were so dangerous.” Id. at 23. Moore told Butner that “they were very dangerous trees, that [he should] get me or Mr. Shelton to cut them.” Id. at 29. Moore also advised Butner that a professional should cut down the trees. Id. at 50. Butner does not recall Moore telling him that the trees were dangerous or that he should have a professional cut down the trees (Filing No. 39-1 at 34).

         On April 18, 2014, the day after Butner closed on the property, Webber went with him to the property to assist his friend Butner, in felling numerous trees on the property, free of charge. Only Webber and Butner were present when the trees were being cut down. The two discussed that Webber would be primarily responsible for operating the chainsaw to cut the trunks of the trees, and Butner would assist by acting as a lookout for any hazards, including without limitation falling branches. (Filing No. 1-3 at 2). Webber used his chainsaw to cut down five to seven of the trees. The trees were approximately fifty to seventy feet tall and approximately nineteen to twenty-two inches in diameter (Filing No. 39-4 at 2-3). While Webber was cutting down the trees, Butner did not tell Webber about Moore's warnings (Filing No. 39-5). After cutting down approximately five to seven trees, Webber began cutting down another tree. A large branch fell from above and struck Webber on the head, resulting in serious injuries. Butner did not see the branch fall (Filing No. 39-4 at 3; Filing No. 39-1 at 45). The tree from which the branch fell was the tallest tree that Webber had cut that day (Filing No. 39-6 at 41-42).


         The purpose of summary judgment is to “pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Hemsworth v., Inc., 476 F.3d 487, 489-90 (7th Cir. 2007). In ruling on a motion for summary judgment, the court reviews “the record in the light most favorable to the non-moving party and draw[s] all reasonable inferences in that party's favor.” Zerante, 555 F.3d at 584 (citation omitted). “However, inferences that are supported by only speculation or conjecture will not defeat a summary judgment motion.” Dorsey v. Morgan Stanley, 507 F.3d 624, 627 (7th Cir. 2007) (citation and quotation marks omitted). Additionally, “[a] party who bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial.” Hemsworth, 476 F.3d at 490 (citation omitted). “The opposing party cannot meet this burden with conclusory statements or speculation but only with appropriate citations to relevant admissible evidence.” Sink v. Knox County Hosp., 900 F.Supp. 1065, 1072 (S.D. Ind. 1995) (citations omitted).

         “In much the same way that a court is not required to scour the record in search of evidence to defeat a motion for summary judgment, nor is it permitted to conduct a paper trial on the merits of [the] claim.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001) (citations and quotation marks omitted). “[N]either the mere existence of some alleged factual dispute between the parties” nor “the existence of some metaphysical doubt as to the material facts is sufficient to defeat a motion for summary judgment.” Chiaramonte v. Fashion Bed Grp., Inc., 129 F.3d 391, 395 (7th Cir. 1997) (citations and quotation marks omitted).


         Butner moves for summary judgment, asserting that the danger of falling tree branches was known and obvious, that he did not breach a duty and he could not have caused or prevented Webber's injury. The Plaintiffs filed a Request for Judicial Notice and a Motion to Strike the affidavit of Webber's proposed expert, Dr. Khan. The Court will first address Plaintiffs' request for judicial notice and their motion to strike, before turning to Butner's motion for summary judgment.

         A. Plaintiffs' Request for Judicial Notice

         Butner hired Farheen S. Khan, Ph.D., to provide expert testimony regarding “human factors issues related to the incident” and “whether Mr. Butner would have had sufficient time to prevent the incident from occurring.” (Filing No. 34-3 at 2.) The Plaintiffs ask the Court to take judicial notice of an order issued in a Florida state court proceeding, Judge v. Tamiami Memorial Post No. 8118, Veterans of Foreign Wars of the U.S. Inc., No. 2014 CA 001771 NC (12th Cir. Sarasota Cnty. Fla.) (the “Florida Order”) (Filing No. 39-13). The Florida Order “considered the opinions of Farheen S. Khan, Ph.D., and found many of them to be ‘pure opinions' which could not meet the standards of Daubert.” (Filing No. 40 at 2.) See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). The Plaintiffs ask this Court to take judicial notice of the Florida Order, which determined some of Dr. Khan's conclusions were pure opinions and granted in part a motion to strike Dr. Khan's opinions. In this case, the Plaintiffs also challenge Dr. Khan's opinions, arguing that her opinions are ‚Äúnothing more than her untestable ...

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