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Thomas v. Burnham Trucking Co., Inc.

United States District Court, N.D. Indiana, Fort Wayne Division

March 12, 2018

DION THOMAS, Plaintiff,


          William C. Lee, Judge

         This 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).[1] 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.


         Dion 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 1).[2] 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 this way:

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 equipment.

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.

         Burnham 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.


         A 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. 56(e).

         In 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).

         On 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 Fed.R.Civ.P. 56(a)).


         As 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 omissions.

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.

         Burnham 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.

         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.[3] 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 following reasons:

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 ...

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