United States District Court, N.D. Indiana, Hammond Division
TODD HUDSON, as personal representative of the Estate of WILLIAM HUDSON, Deceased, Plaintiff,
ARCELORMITTAL BURNS HARBOR, LLC, formerly known as ISG BURNS HARBOR, LLC, Defendant.
OPINION AND ORDER
LOZANO, JUDGE UNITED STATES DISTRICT COURT.
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.
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.
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.
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.)
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.)
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.)
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).
three motions are fully briefed and ready for adjudication.
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).
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).
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.
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.)
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.
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
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 ...