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Hudson v. Arcelormittal Burns Harbor, LLC

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

January 9, 2018

TODD HUDSON, as personal representative of the Estate of WILLIAM HUDSON, Deceased, Plaintiff,



         This matter is before the Court on the: (1) Defendant's Motion for Summary Judgment, filed by Defendant, ArcelorMittal Burns Harbor LLC (“ArcelorMittal”), on May 25, 2017 (DE #38); (2) Defendant's Motion to Exclude or Bar Gregory Pestine, filed by Defendant ArcelorMittal on July 10, 2017 (DE #46); and (3) Motion to Strike Plaintiff's Reference to Subsequent Remedial Measures From Its Brief In Opposition to Defendant's Motion for Summary Judgment, filed by Defendant ArcelorMittal on July 10, 2017 (DE #47). For the reasons set forth below, the Motion for Summary Judgment (DE #38) is GRANTED; the Motion to Exclude or Bar Gregory Pestine (DE #46) is DENIED AS MOOT; and the Motion to Strike Plaintiff's Reference to Subsequent Remedial Measures (DE #47) is DENIED AS MOOT. The Clerk is ORDERED to DISMISS this case WITH PREJUDICE and to CLOSE this case.


         This premises liability case revolves around the death of William Hudson, an employee of Tranco Industrial Services, Inc., Defendant ArcelorMittal's snow removal contractor. Hudson died from a fatal heart attack that occurred after his loader/backhoe ran into a raised manhole cover that was buried under 17 inches of snow.

         There has been extensive briefing in this case. Defendant moves for summary judgment. (DE #38.) It argues that a landowner is not required to warn its independent contractors about known facts. Additionally, it contends that the alleged hazard (the snow-covered manhole) only existed because of the very condition that Tranco was hired to address on ArcelorMittal's premises; therefore, the hazard was specific to the work Tranco was performing. Finally, Defendant argues that ArcelorMittal did not have “superior knowledge” of the hazard, and therefore cannot be liable for failing to instruct or warn Hudson.

         In response, Plaintiff claims that ArcelorMittal had a duty to provide Hudson with a reasonably safe work place and to warn him of the presence and hazard of the buried manhole. Plaintiff also argues that superior knowledge is not required here, because Hudson was not killed by the very condition he was employed to address. (DE #42.)

         Defendant filed a reply brief on July 10, 2017 (DE #45). It also filed a sur-reply on September 14, 2017 (DE #57). In the sur-reply, ArcelorMittal identified a case recently decided by Judge Cherry in the Northern District of Indiana, Strominski v. ArcelorMittal USA, LLC, No. 2:15-cv-122-PRC, 2017 WL 3034975 (N.D. Ind. Jul. 17, 2017), and urges this Court to follow the logic in Strominski. Strominski also involved a plaintiff who was injured at a different ArcelorMittal facility. While operating a payloader and clearing snow, his machine struck a protruding manhole cover and Strominski was injured. In Strominski, the Court granted summary judgment in favor of ArcelorMittal. In its sur sur-response (DE #62), Plaintiff attempts to distinguish Strominski by pointing out that the Daily Work Authorization in this case made identification of hazards a joint responsibility between Tranco and ArcelorMittal, in contrast to the Daily Work Authorization in Strominski, which did not contain a requirement for hazards to be jointly identified by Tranco and ArcelorMittal. Plaintiff also filed with the Court the Daily Work Authorization to be part of the record. (DE #66.) Defendant counters by maintaining that control or responsibility of the premises is not a material factor, but rather the issue of superior knowledge is dispositive. (DE #65.)

         Aside from the motion for summary judgment, ArcelorMittal also filed a motion to exclude or bar Gregory Pestine, claiming he lacks the requisite training, education, experience, and knowledge to offer an expert opinion about warnings (DE #46). In response, Plaintiff argues that he is qualified and his expert report comports with Federal Rule of Evidence 702 and Daubert. (DE #50.) Defendant filed a reply on August 14, 2017. (DE #52.)

         Finally, ArcelorMittal also filed a Motion to Strike Plaintiff's reference to subsequent remedial measures from its brief in opposition to Defendant's motion for summary judgment. (DE #47.) Defendant argues that citing the fact that reflective posts and slag were installed after the accident to mark the manhole covers is inadmissible under Federal Rule of Evidence 407. In opposition, Plaintiff claims that the evidence is relevant in proving control and the feasibility of precautionary measures. (DE #51.) Defendant filed a reply brief on August 14, 2017 (DE #53).

         All three motions are fully briefed and ready for adjudication.


         Summary judgment must be granted when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine dispute of material fact exists when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Not every dispute between the parties makes summary judgment inappropriate; “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. To determine whether a genuine dispute of material fact exists, the Court must construe all facts in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. See Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir. 2010). However, “a court may not make credibility determinations, weigh the evidence, or decide which inferences to draw from the facts; these are jobs for a factfinder.” Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003) (citations omitted).

         A party opposing a properly supported summary judgment motion may not rely on allegations in his own pleading but rather must “marshal and present the court with the evidence [he] contends will prove [his] case.” Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). “[I]nferences relying on mere speculation or conjecture will not suffice.” Stephens v. Erickson, 569 F.3d 779, 786 (7th Cir. 2009) (citation omitted). If the non-moving party fails to establish the existence of an essential element on which he bears the burden of proof at trial, summary judgment is proper. See Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006).

         Undisputed Facts [1]

         ArcelorMittal contracted with Tranco to maintain the railroad tracks used to ship products and materials in and out of ArcelorMittal's steel mill in Burns Harbor, Indiana, including plowing snow. Ryan Hopkins, a general foreman of Tranco, was known as the “snow commander.” As the snow commander, Hopkins took care of the thoroughfares, roads, and parking lots. Another Tranco foreman, Juan Luna, took care of the railroad tracks and switches.

         Tranco performed work on ArcelorMittal's premises every day, and had an on-site trailer on ArcelorMittal's site. Tranco purchased its own equipment and determined which equipment should be used by its employees, including the payloader Hudson was operating on the day in question. Tranco monitored the weather patterns to anticipate the scope of its snowplowing work, and then Hopkins (the “snow commander”), designated personnel to plow specific areas. Each snow plowing shift had to be authorized by a written work authorization from ArcelorMittal, and ArcelorMittal did give Tranco some direction on the work they needed done. (Hopkins Dep. at 111; Beck Dep. at 50.) Ultimately, staffing a job was authorized and approved by ArcelorMittal. Moreover, the Daily Work Authorization form specifically states that “[h]azards must be jointly identified and reviewed by ArcelorMittal representative and contractor representative.” (DE #42-14.)

         The possibility of a plow striking a snow-covered object is a hazard that is present in Tranco's snow removing work. Tranco provided training to its employees about snow removal, including how to operate in snow at safe speeds and how to avoid contact with covered obstructions in the snow. Tranco also held safety meetings a couple times per month, and one meeting addressed “Cold Weather Hazards” and included specific training on taking caution near stationary objects while plowing snow.

         Hudson was a heavy equipment operator and at the time of the accident, had been employed by Tranco as an operator for at least seven years. Prior to working for Tranco, Hudson had worked other jobs on ArcelorMittal's premises for many years. Hudson was described as one of Tranco's best operators and Hopkins reported that Hudson knew the whole mill. (Hopkins Dep. at 14-15, 47-48; Beck Dep. at 46-47.) Hudson typically worked five to seven shifts a week, starting at 7:00 a.m. In the weeks before the incident, he was working twelve to sixteen hour shifts, including at night, to address the snowfall.

         On the day of the incident, about 17 inches of snow had accumulated on ArcelorMittal's premises. At about 7:30 p.m. on January 9, 2014, Hopkins instructed Hudson to clear snow from the area to the east of the 110 plate mill next to the railroad switch. Hudson had plowed the area in question many times over the course of many years before the incident, including on days when there was a substantial amount of snow. While the parties dispute whether this area was an authorized roadway or not, they ...

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