United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
William C. Lee, Judge
matter is before the Court for resolution of several pending
motions filed by Defendant Burnham Trucking Company, Inc.,
including a Motion for Summary Judgment (ECF 27), a Motion to
Strike Undisclosed Expert Opinions (ECF 36), and a Motion to
Deem its Statement of Undisputed Material Facts Admitted (ECF
38). Plaintiff Dion Thomas filed briefs in opposition to all
three motions (ECF 31, 45 and 48) and Burnham filed reply
briefs (ECF 39, 46 and 51). For the reasons discussed below,
the motion for summary judgment is GRANTED and the motion to
strike and the motion to deem statement of facts admitted are
DENIED as moot.
Thomas, a truck driver employed by PTO Services, Inc.,
sustained physical injuries, including a broken leg, while
securing a large steel slab on a tractor trailer on February
26, 2014. Complaint (ECF 4). The truck Thomas was loading was
owned by Burnham Trucking and the accident occurred at a
steel plant in Burns Harbor, Indiana, that is owned and
operated by ArcelorMittal, an international steel and mining
company. Id., p. 1. Thomas filed this lawsuit
against Burnham Trucking in state court in Lake County,
Indiana (his county of residence), on February 25, 2016, and
Burnham removed it to this Court on March 31, 2016, on the
basis of diversity jurisdiction. Notice of Removal (ECF
Thomas asserts that Burnham Trucking provided him “with
equipment consisting, in part, of chains, bars and binders to
use to secure the steel products [on] its trucks.”
Id., p. 2. Thomas further asserts that
“[w]hile [he was] attempting to secure the slab
Burnham's equipment failed and caused [him] serious
injuries[.]” Id. Thomas alleges that
“Burnham knew, or should have known, that the equipment
it provided to Thomas was defective, inadequate and otherwise
unsuitable to use for securing steel products.”
Id. Thomas sued Burnham Trucking on a single state
law negligence claim. Id. He summarizes his claim
Burnham was negligent by failing to exercise reasonable care
for the protection of Thomas while he was using its
equipment; failing to provide reasonably safe equipment for
Thomas to use; failing to properly instruct Thomas how to use
its equipment; and failing to warn him of dangers Burnham
knew, or reasonably should have known, in using said
Id. Thomas alleges that he “sustained severe
and permanent injuries” as a result of Burnham
Trucking's negligence and the company should compensate
him for those injuries.
Trucking argues that it cannot be held liable for Thomas'
injuries because Thomas was employed by PTO Services at the
time of the accident, a company working under contract with
Burnham to provide steel hauling services, and “PTO-not
Burnham-was responsible for all aspects of Thomas's
hiring, safety and training, including selecting and
providing the equipment alleged to be defective.”
Motion for Summary Judgment, p. 1. Burnham argues that
“[u]nder Indiana law, Burnham owed no duty to provide
for the safety of Thomas, as an employee of its independent
contractor. Absent a duty, there can be no liability in
negligence.” Id., pp. 1-2. Burnham also argues
that “[e]ven if [it] did owe Thomas a duty, it cannot
be held liable in the ways alleged[, ]” because
Thomas's allegations provide “no basis to find that
Burnham failed to exercise reasonable care under the
circumstances.” Id., p. 2. Because this Court
finds Burnham's primary argument to be correct-that it
did not owe Thomas a duty of care as a matter of law-the
Defendant's alternative arguments that it was not
negligent need not be addressed, as they are based on the
assumption that a duty existed.
motion for summary judgment asks the Court to find that a
trial is unnecessary because 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). Whether a party
asserts that a fact is undisputed or genuinely disputed, the
party must support that asserted fact with citations to the
record, including depositions, documents, or affidavits.
Fed.R.Civ.P. 56(c)(1)(A). A party can also support a fact by
showing that the materials cited do not establish the absence
or presence of a genuine dispute or that the adverse party
cannot produce admissible evidence to support the fact.
Fed.R.Civ.P. 56(c)(1)(B). Failure to properly support a fact
in opposition to a movant's factual assertion can result
in the movant's fact being considered undisputed, and
potentially in the grant of summary judgment. Fed.R.Civ.P.
deciding a motion for summary judgment, the Court need only
consider disputed facts that are material to the decision.
“A disputed fact is material if it might affect the
outcome of the suit under the governing law.”
Hampton v. Ford Motor Co., 561 F.3d 709, 713 (7th
Cir. 2009). “An issue of fact is ‘material'
if it is outcome determinative[.]” Harper v.
Vigilant Ins. Co., 433 F.3d 521, 525 (7th Cir. 2005).
Fact disputes that are irrelevant to the legal question will
not be considered. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
summary judgment, “‘a party must show the Court
what evidence it has that would convince a trier of fact to
accept its version of the events.'” Johnson v.
Cambridge Indus., 325 F.3d 892, 901 (7th Cir. 2003)
(quoting Schacht v. Wisconsin Dep't of Corr.,
175 F.3d 497, 504 (7th Cir. 1999)). The moving party is
entitled to summary judgment if no reasonable fact-finder
could return a verdict for the non-moving party. Nelson
v. Miller, 570 F.3d 868, 875 (7th Cir. 2009). The Court
views the record in the light most favorable to the
non-moving party and draws all reasonable inferences in that
party's favor. Darst v. Interstate Brands Corp.,
512 F.3d 903, 907 (7th Cir. 2008). It cannot weigh evidence
or make credibility determinations on summary judgment
because those tasks are left to the fact-finder.
O'Leary v. Accretive Health, Inc., 657 F.3d 625,
630 (7th Cir. 2011). Any doubt as to the existence of a
genuine issue for trial is resolved against the moving party.
Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th
Cir. 2010). However, summary judgment is appropriate and
should be granted if the moving party shows there is
“no genuine dispute as to any material fact, ”
and that he is entitled to summary judgment as a matter of
law. A.H. by Holzmueller v. Illinois High Sch.
Ass'n, 881 F.3d 587, 592 (7th Cir. 2018) (quoting
stated above, Burnham Trucking argues that it is entitled to
summary judgment because it was not Thomas's employer and
owed him no duty of care at the time of the accident giving
rise to this lawsuit. Memorandum in Support (ECF 28), p. 2.
According to Burnham:
Thomas was working as an employee of PTO Services, Inc. . . .
at the time of his injury. Burnham hired PTO, an independent
contractor, to supply it with qualified truck drivers, safety
and dispatch personnel. Pursuant to the contract with
Burnham, PTO personnel hired Thomas, trained him and
supervised all aspects of his work. PTO also selected and
provided the equipment Thomas was using at the time of his
injury. . . . The undisputed evidence has proven the
allegations in Thomas' complaint untrue. It is undisputed
that PTO-not Burnham-selected and provided the equipment
Thomas was using at the time of his injury. . . . It is
undisputed that PTO-not Burnham-trained Thomas and supervised
the safety aspects of his work. Thomas has not alleged any
basis to find that Burnham owed Thomas a duty or that it can
be liable for PTO's allegedly negligent acts or
Id., pp. 1-2. If Burnham owed no duty of care to
Thomas, then Thomas cannot proceed with this lawsuit because
he cannot establish a prima facie case of negligence. Under
Indiana law “[t]he elements of a negligence action are:
(1) a duty owed to plaintiff by defendant; (2) breach of that
duty by conduct falling below the applicable standard of
care; and (3) compensable injury proximately caused by the
breach of duty.” Himsel v. Indiana Pork Producers
Ass'n, 2018 WL 845496, at *7 (Ind.Ct.App. Feb. 14,
2018) (citing Williams v. Cingular Wireless, 809
N.E.2d 473, 476 (Ind.Ct.App. 2004)). If Thomas cannot
establish that Burnham owed him a duty of care then the
inquiry is over and Burnham is entitled to summary judgment.
supports its argument that it did not owe a legal duty to
Thomas by explaining that “[o]n April 1, 2005, Burnham
entered into an agreement with PTO . . . to supply qualified
truck drivers to assist its steel hauling cartage.”
Memorandum in Support, p. 2 (citing Defendant's Exh. A,
“PTO Agreement, ” (ECF 28-1)). Burnham contends
that “PTO was solely responsible for determining the
manner, means and mechanics of how its drivers would haul the
freight. . . . PTO was responsible for all aspects of the
relationship with its employees who drove Burnham's
trucks, including, but not limited to, hiring, supervising,
paying, disciplining and handling all labor relations.”
Id. Burnham also points out that “the PTO
Agreement specifically provided:
P.T.O. will hire and employ all personnel required to perform
its obligations under this Agreement, shall have no authority
to hire any person on behalf of [Burnham], and any person
whom it may employ shall be deemed solely P.T.O.'s
employee. P.T.O. shall at all times be regarded as an
independent contractor to [Burnham], and the relationship
between P.T.O. and [Burnham] shall in no event be construed
to be that of principal and agent, master and
servant or employer and employee.
Id., p. 3 (quoting Exh. A) (boldface in original).
This couldn't be clearer, argues Burnham-it was PTO, not
Burnham, that owed a duty of care to Thomas.
concedes that he was an employee of PTO Services and that PTO
hired truck drivers to haul steel pursuant to the
long-standing contract between PTO and Burnham.
Plaintiff's Response, p. 2; see also Complaint,
p. 1, ¶ 3 (“On February 26, 2014[, ] Thomas was
employed as a truck driver for PTO Services, Inc.”) and
¶ 4 (“On February 26, 2014[, ] PTO Services, Inc.,
was under a contract or agreement to provide truck drivers to
operate trucks and other equipment controlled or owned by
Burnham for purposes of transporting various steel products
for the ArcelorMittal steel company.”). Those
undisputed facts notwithstanding, Thomas argues that Burnham
owed him a duty of care under either “the Loaned
Servant Doctrine” or a “dual employer”
theory. Id., p. 1. More specifically,
Thomas asserts that even though he was employed by PTO
Services, the operations of the two companies were so
intertwined and commingled that Burnham owed him a duty of
care just as it would if it employed him directly. Thomas
contends that summary judgment is inappropriate for the
Under the Loaned Servant Doctrine, there is a genuine issue
of material fact whether the employees who trained the
Plaintiff, supervised him, and provided him with the
equipment he was using at the time he was injured were acting
as employees or agents of Burnham.
There is also a genuine issue of material fact whether these
employees were acting in a dual capacity as employees and
agents of ...