FILED
Nov 17 2017, 8:56 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Douglas A. Mulvaney PRAXAIR, INC.
Stutsman & Mulvaney Angela Kelver Hall
Elkhart, Indiana Matthew R. Kinsman
Faegre Baker Daniels LLP
South Bend, Indiana
Brian J. Paul
Faegre Baker Daniels LLP
Indianapolis, Indiana
ATTORNEY FOR APPELLEE
ANTIBUS SCALES & SYSTEMS, INC.
Andrew T. Glier
State Auto Insurance House Counsel
Carmel, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Marvin Podemski, November 17, 2017
Appellant-Plaintiff, Court of Appeals Case No.
71A03-1608-CT-1927
v. Appeal from the St. Joseph Superior
Court
Praxair, Inc. and Antibus Scales The Honorable Jenny Pitts Manier,
& Systems, Inc., Judge
Appellees-Defendants. Trial Court Cause No.
71D05-1302-CT-21
Brown, Judge.
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[1] Marvin Podemski appeals the trial court’s entry of summary judgment in favor
of Praxair, Inc. (“Praxair”) and Antibus Scales & Systems, Inc. (“Antibus”) and
the denial of his motion to correct error. Podemski raises two issues which we
revise and restate as whether the court erred in entering summary judgment in
favor of Praxair and Antibus (together, the “Defendants”) and abused its
discretion in denying his motion to correct error. We affirm.
Facts and Procedural History
[2] At approximately 9:00 or 9:15 p.m. on August 17, 2011, Podemski was working
as a truck driver for his employer, the Linde Group, hauling industrial gases
when he pulled into the Praxair facility in East Chicago. After he pulled the
day cab and trailer up on the scales and parked it, Podemski unhooked the air
supply line from the truck to the trailer, turned around, grabbed the white air
line from a post, hooked it up, and started to walk in the dark toward the back
of the trailer. His foot caught a portion of a black supply line running from the
post and downward into a grate, and he fell.
[3] On February 1, 2013, Podemski filed a complaint against Praxair alleging in
part that it had a duty to maintain its premises in a reasonably safe condition for
its invitees, that it failed to do so, that it was negligent in the maintenance of its
property in that it failed to maintain the area where deliveries of gas were made
by ensuring the area was well lit and any potential dangers were corrected or
warned of, and that it was otherwise negligent. After Praxair removed the case
to federal court on the basis of diversity jurisdiction, Podemski filed an
amended complaint adding Antibus, a company that services the scales at
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Praxair’s facility, as a party defendant, and the case was remanded to state
court. The amended complaint alleged in part that Antibus had a duty to
perform its work in a safe and workmanlike manner, to warn of any dangers it
created, and to maintain the work area in a safe condition.
[4] Praxair filed a motion for summary judgment on October 31, 2014, and
Antibus filed its own motion for summary judgment on May 11, 2015. The
court granted both the stipulated extension of time of the parties, filed on
November 26, 2014, allowing Podemski until March 2, 2015 to respond to
Praxair’s motion, and the follow-up request, filed on March 4, 2015, continuing
the response deadline until a new schedule for discovery was set. At a status
hearing held on February 24, 2016, the trial court set a hearing on both motions
for March 29, 2016. On March 4, 2016, Podemski filed a designation of facts
and brief in response to Defendants’ motions for summary judgment, as well as
a motion to publish the depositions of certain individuals.
[5] In his deposition, as designated by Praxair, Podemski testified that he started
working for the Linde Group as a truck driver on February 17, 1987, was
continuously employed as a truck driver through the time of the accident, and
that ninety-five percent of the time he was getting his loads out of the Praxair
facility and was there roughly every day. When asked about the air line,
Podemski testified that the air supply hoses for the brakes come off the back of
the cab of the trunk and hook to the front driver’s side corner of the trailer, that
when he parked on the scale, “you take the supply line off, put it on the deck
plate of the truck, just lay it there. You get the supply line from the post next to
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the truck and hook it up.” Praxair Appendix Volume 2 at 17. When asked
about where he was in the Praxair yard when the fall happened, he answered he
was on the scales and had just pulled and parked the day cab and trailer on the
scales and that it was dark. When asked how he came to fall, he responded that
he had unhooked the “air supply line from the truck to the trailer, turned
around, grabbed the air line from the post and hooked it up and started around
the post again.” Id. at 19. He stated that, in his estimation, the setup of the air
supply line that came out of the grate was not typical, that he did not recall ever
seeing it look like that before, and that “there’s three scales there. And I’m not
saying I pulled on this scale every time. But, you know, . . . they’ve had work
done on the scales over the five-plus years.” Id. at 24.
[6] Podemski also testified that the closest light from where he fell was “45, 50
feet” at the “back side of . . . the loading dock,” there were lights on the front
side of the loading dock, and that, prior to the accident, he never felt he needed
more light when he was performing his duties at Praxair. Id. at 25-27. When
asked if he felt “like if you had more light that night you would have seen the
line that you tripped over,” he answered affirmatively; when asked if he thought
that “the lights that were 35 feet away would’ve helped you be able to see the
grate and the air supply line issue,” he answered affirmatively; and, after
confirming that he had a flashlight in the truck, Podemski stated he used it on
his “pre-trip and post-trip, you know, to look around. Other than that, for
unhooking and hooking up, no.” Id. at 28. When asked how often he was able
to see well enough to do the things he needed, Podemski testified that “[i]t’s
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gonna sound stupid, and you’re probably not gonna understand. But you can
close your eyes and do it.” Id. at 27. He also testified that he has “hooked and
unhooked trailers for 40-plus years. It’s just – (Indicating.).” Id.
[7] Antibus designated an affidavit stating that it did not perform any work on the
grate, the air hose, or the post between May of 2011 and the date of Podemski’s
fall on August 17, 2011. Antibus designated a deposition stating that during its
normal inspections at Praxair, the employees of Antibus would not go below
the scales to make adjustments, but rather could do so “at the top of the scale.”
Corrected Antibus Appendix Volume 2 at 50.
[8] In his brief opposing Defendants’ motions for summary judgment, Podemski
cited several depositions and stated that there
were two separate hoses used to fill the tank. There was the hose
for the hydrogen itself and then an air line which was used to
keep pressure in the tank . . . . Several Praxair employees
testified that the air supply line should have come up through the
grating next to a metal post and zip tied with plastic ties to the
post. . . . The practice was to zip tie the hose to the post. . . .
The air hose should have . . . come up at the base of the post and
been fastened to the post.
Id. at 83-85.
[9] On March 28, 2016, Podemski filed an additional motion to supplement the
record with Mitchell Mullins’s deposition, stating that it was “newly discovered
evidence which was not available at the time [Podemski] filed his response to
[Defendants’] motions for summary judgment.” Second Corrected Appellant’s
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Appendix Volume 3 at 2. The following day, the court held its scheduled
hearing on the summary judgment motions. At the beginning of the hearing,
the court stated “I’ve read the motions, I’ve read the responses, read the
Replies. . . . I’ve not combed through the designated evidence yet. I’m
interested to hear your arguments.” Transcript at 28. Counsel for Podemski
tendered the motion to supplement, and Praxair’s counsel stated Mullins was a
“wayward” witness who “came out of nowhere,” a “former co-worker of Mr.
Podemski who [Praxair] deposed when we first learned about his intent to
testify that he had also, the night before the Podemski fall, had stubbed his toe
on this hose and that he had reported it to someone at Praxair,” and that his
testimony was “frankly just unbelievable,” given “the trip records from Linde,
his employer, show that he was not at the Praxair facility the night before the
fall, as he says he was.” Transcript at 37-38. The court responded that there is
“no motion to publish. You just file them with the Court and they’re available
for use. . . . We’ve done that with a bunch of them already,” and,
I have granted multiple extensions of time to respond to the
various motions for summary judgment. So it’s a little distressing
to get these Designation of Facts the day before . . . the hearing, .
. . I mean, as it is we’re right up on the trial because I’ve kept
continuing the Response date. I don’t have a whole lot of time . .
. between now and the trial, but I will . . . let you argue about
why this should be filed as part of your address.
Id. at 39. Counsel for Podemski stated:
We were just able to get his deposition scheduled and taken on
March 16. We did not get a copy of the transcript until
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yesterday. So that is why we unfortunately had to file the . . .
Motion to Supplement so close to the hearing date today,
because there was a delay in getting the deposition transcribed,
and we apologize for that. But we took his deposition as soon as
he was identified and supplied a copy of the transcript as soon as
we had it.
Id. at 42. When the court asked whether Podemski’s counsel disagreed that
“there’s a report showing [Mullins] was not at the facility? Or presumably
showing he was somewhere else,” Podemski’s counsel stated that he did not
recall seeing any trip report, and Praxair’s counsel stated, “we just got them.
[Podemski does not] have them.” Id. at 43.
[10] On March 31, 2016, the court entered an order granting summary judgment in
favor of Praxair and Antibus. In part, the order states:
Nowhere in [Podemski’s] Response or any of his earlier Motions
for (or Stipulations to the) Extension of Time did [Podemski]
alert the Court that there were additional witnesses sought, or
whose depositions were yet to be taken. Further, once the affiant
was identified or his deposition scheduled, [Podemski] did not
seek relief under Rule 56(e) of the Indiana Rules of Trial
Procedure. . . . [Podemski’s] Motion to File Supplemental
Designation is denied.
Second Corrected Appellant’s Appendix Volume 2 at 17. The order also found
Praxair owed the duty to Podemski that it did to a business invitee, that the
configuration of the air hose, although a danger, was not an unreasonable
danger, and,
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it was open and obvious to observation that the air hose was not
affixed to the pole and that some greater degree of care should be
taken to avoid catching one’s foot.
[Podemski] was very familiar with Praxair’s facility and had used
the equipment many times. He was using the equipment that he
believes caused him to trip immediately prior to the fall. Praxair
could not reasonably anticipate that he would not take notice of
the equipment he was using or that he would fail to look where
he was walking, in an area covered by floor grates and furnished
with supply hoses.
Although [Podemski] has designated evidence that the lighting in
the area in question was not adequate or was not adequate in
light of the fact that the hose was black, [Podemski] has not
designated evidence that he failed to see the hose. The factual
question of the degree of illumination at the location where the
trip occurred is not material under these circumstances.
Id. at 19-20. On April 29, 2016, Podemski filed a motion to correct error. At a
hearing on the motion on July 29, 2016, Podemski’s counsel was asked by the
court if the “conversation . . . about how the parties worked cooperatively
through the course of [these proceedings], that addresses my previous decision
to not allow the supplemental designation. That’s your response to my ruling,
basically,” and Podemski’s counsel responded that “we don’t feel it’s necessary
to address that, that particular ruling in connection – that’s not the basis for our
motion.” Transcript at 70. The court entered an order affirming its grant of
summary judgment on August 5, 2016, stating:
At the July 29, 2016 hearing, [Podemski] asserted that the
Court’s decision to deny [Podemski’s] Motion to File
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Supplemental Designation was not a basis upon which
[Podemski’s] Motion to Correct Error [was] made.
Nonetheless, the Court affirms its conclusions about the timing
and nature of the deposition testimony sought by [Podemski] to
“supplement” his designation. Additionally, the Court questions
whether the deposition testimony of Mitchell Edward Mullins
constitutes “supplementation” as contemplated by T.R. 56. See
Fort Wayne Lodge, LLC vs. EBH Corporation and Edward A. White,
805 N.E.2d 876 (Ind. Ct. App. 2004)[.]
Publication of Depositions
[Podemski’s] Motion also expresses concern . . . about the
Court’s “failure to properly admit and consider depositions
tendered to the Court as part of plaintiff’s summary judgment
response.” . . . Again, as noted at the July 29, 2016 hearing, all
depositions, save the deposition of Mitchell Edward Mullins, are
published and available for use as appropriate. . . .
The Court, in its review of [Podemski’s] brief took the referenced
portions of the deposition as true, but determined that while
suggesting the existence of a dangerous condition, they did not
suggest the existence of an unreasonable danger or a basis for
finding that Plaintiff would not fail to protect himself against any
such danger, under all of the facts designated to the Court.
Second Corrected Appellant’s Appendix Volume 2 at 21-23. It also stated that
Podemski’s “designated evidence does not create any issue of fact as to whether
the condition of [Praxair’s] premises were unreasonably dangerous,” that even
assuming “that the lighting was inadequate,” Podemski “proceeded into the
dark, without using his flashlight, without attending to his surroundings,” and
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that Podemski “has not established a genuine issue of fact as to whether
Defendants were in a better position than was [Podemski] to be aware of the
condition of the air hose.” Id. at 8.
Discussion
[11] The issue is whether the trial court erred in entering summary judgment in
favor of Praxair and Antibus or abused its discretion in denying Podemski’s
motion to correct error. We generally review rulings on motions to correct
error for an abuse of discretion. Ind. Bureau of Motor Vehicles v. Charles, 919
N.E.2d 114, 116 (Ind. Ct. App. 2009); Speedway SuperAmerica, LLC v. Holmes,
885 N.E.2d 1265, 1270 (Ind. 2008), reh’g denied. An abuse of discretion occurs
if the trial court’s decision is against the logic and effect of the facts and
circumstances before it, or the reasonable inferences drawn therefrom. Lighty v.
Lighty, 879 N.E.2d 637, 640 (Ind. Ct. App. 2008), reh’g denied.
[12] We review an order for summary judgment de novo, applying the same standard
as the trial court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). The
moving party bears the initial burden of making a prima facie showing that there
are no genuine issues of material fact and that it is entitled to judgment as a
matter of law. Manley v. Sherer, 992 N.E.2d 670, 673 (Ind. 2013). Summary
judgment is improper if the moving party fails to carry its burden, but if it
succeeds, then the nonmoving party must come forward with evidence
establishing the existence of a genuine issue of material fact. Id. We construe
all factual inferences in favor of the nonmoving party and resolve all doubts as
to the existence of a material issue against the moving party. Id. In the
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summary judgment context, we are not bound by the trial court’s specific
findings of fact and conclusions of law. Rice v. Strunk, 670 N.E.2d 1280, 1283
(Ind. 1996). They merely aid our review by providing us with a statement of
reasons for the trial court’s actions. Id.
[13] Podemski contends the court erred when it excluded the deposition testimony
of Mullins and when it granted summary judgment. He argues questions of fact
exist as to whether the configuration of the air hose was unreasonably
dangerous and whether the danger posed by the configuration of the black hose
and inadequate lighting was open and obvious.
[14] Praxair contends that the court did not abuse its discretion by “denying
Podemski’s eleventh-hour attempt to supplement his designation with the
deposition” of Mullins, correctly concluded that Praxair had no duty to protect
Podemski, and did not abuse its discretion by denying Podemski’s amended
motion to correct errors. Brief of Appellee Praxair at 18.
[15] Antibus contends that the court correctly denied Podemski’s attempt to
supplement his response with the deposition of Mullins, correctly determined
that Podemski failed to show there was a duty owed or assumed by Antibus,
and did not err in denying Podemski’s amended motion to correct errors.
[16] First, we address the preliminary procedural issue involving Podemski’s motion
to supplement his designation of evidence with Mullins’s deposition. Given the
length of time between Podemski’s identification of Mullins as a potential
witness in his October 10, 2013, and August 7, 2014 responses to the
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Interrogatories sent by Praxair and Antibus, respectively, and the March 28,
2016 motion to supplement the record with Mullins’s deposition, and in light of
the multiple extensions granted to Podemski, we cannot say the trial court
abused its discretion in denying Podemski’s motion. See Scripture v. Roberts, 51
N.E.3d 248, 254 (Ind. Ct. App. 2016) (holding no abuse occurred in a denial of
the defendants’ attempt to file supplemental affidavits the day before the
hearing on the motion for summary judgment and eighty-one days after the
plaintiff’s reply to the defendants’ response to the summary judgment motion).
[17] We now turn to Podemski’s claims of negligence. To recover on a negligence
theory, the plaintiff must establish: (1) a duty owed by the defendant to the
plaintiff; (2) a breach of that duty; and (3) injury to the plaintiff resulting from
the defendant’s breach. Rhodes v. Wright, 805 N.E.2d 382, 385 (Ind. 2004).
Absent a duty there can be no negligence or liability based upon the breach.
Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016).
Whether a duty exists is a question of law for the courts to decide. Id. at 386-
387. A defendant is entitled to summary judgment by demonstrating that the
undisputed material facts negate at least one element of the plaintiff’s claim.
Countrymark Coop., Inc. v. Hammes, 892 N.E.2d 683, 688 (Ind. Ct. App. 2008),
trans. denied. Generally, summary judgment is rarely appropriate in negligence
cases because they are particularly fact-sensitive and are governed by a standard
of the objective reasonable person, which is best applied by a jury after hearing
all the evidence. Kramer v. Catholic Charities of Diocese of Fort Wayne-S. Bend, Inc.,
32 N.E.3d 227, 231 (Ind. 2015). However, where the facts are undisputed and
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lead to but a single inference or conclusion, the court as a matter of law may
determine whether a breach of duty has occurred. King v. Ne. Sec., Inc., 790
N.E.2d 474, 484 (Ind. 2003).
[18] Generally, an owner of property is under no duty to provide an independent
contractor with a safe place to work. Pelak v. Ind. Indus. Servs., Inc., 831 N.E.2d
765, 769 (Ind. Ct. App. 2005) (citing Zawacki v. U.S.X., 750 N.E.2d 410, 414
(Ind. Ct. App. 2001), trans. denied). However, a property owner must maintain
its property in a reasonably safe condition for business invitees, including
employees of independent contractors. Id. (citing Douglass v. Irvin, 549 N.E.2d
368, 369 (Ind. 1990)). Indiana has adopted the formulation of landowners’
liability to business invitees expressed in the Restatement (Second) of
Torts. Id. (citing Douglass, 549 N.E.2d at 370); see also Smith v. Baxter, 796
N.E.2d 242, 244 (Ind. 2003). The Restatement provides:
A possessor of land is subject to liability for physical harm caused
to his invitees by a condition on the land if, but only if, he:
(a) knows or by the exercise of reasonable care would
discover the condition, and should realize that it involves
an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the
danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against
the danger.
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Restatement (Second) of Torts § 343. Under this section, an invitee is “entitled
to expect that the possessor will take reasonable care to ascertain the actual
condition of the premises and, having discovered it, either to make it reasonably
safe by repair or to give warning of the actual condition and the risk involved
therein.” Merrill v. Knauf Fiber Glass GmbH, 771 N.E.2d 1258, 1265 (Ind. Ct.
App. 2002) (citing Restatement (Second) of Torts § 343, cmt. d), trans. denied.
[19] In addition, Restatement (Second) of Torts § 343A(1), which addresses known
and obvious dangers and is meant to be read in conjunction with § 343,
provides: “A possessor of land is not liable to his invitees for physical harm
caused to them by any activity or condition on the land whose danger is known
or obvious to them, unless the possessor should anticipate the harm despite
such knowledge or obviousness.” The word “known” denotes not only
knowledge of the existence of the condition or activity itself, but also
appreciation of the danger it involves, and thus the condition or activity must
not only be known to exist, it must also be recognized that it is dangerous, and
the probability and gravity of the threatened harm must be
appreciated. Restatement (Second) of Torts § 343A, cmt. b. “Obvious” means
that both the condition and the risk are apparent to and would be recognized by
a reasonable person, in the position of the visitor, exercising ordinary
perception, intelligence, and judgment. Id.
[20] The designated evidence establishes that the condition presented by the air hose
and the illumination of the area around the hose was known and obvious. At
the time of his fall, Podemski had been a truck driver for many years and had
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been at the Praxair facility roughly every day during these years prior to the
time of his accident. Podemski knew that the Praxair facility had not had
lighting in the area of the hose for over five years, and he carried a flashlight in
the truck which he used to “look around” at other times. Praxair Appendix
Volume 2 at 28. Additionally, we cannot say that Defendants should have
expected that Podemski would not discover or fail to protect himself against the
condition presented by the configuration of the air hose. See Restatement
(Second) of Torts § 343 (“A possessor of land is subject to liability for physical
harm caused to his invitees by a condition on the land if, but only if, he [ . . . ]
should expect that they will not discover or realize the danger, or will fail to
protect themselves against it . . . .”); Merrill, 771 N.E.2d at 1265-1267 (“Merrill
knew of the skylights on the roof and their attendant dangers and had already
avoided at least one skylight while walking on the roof. Despite his knowledge
and appreciation of the risks, Merrill proceeded down the roof, was distracted,
and fell into a skylight. Knauf could not have anticipated such events given the
circumstances surrounding the invitation and the comparable knowledge of the
parties.”).
Conclusion
[21] For the foregoing reasons, we affirm the entry of summary judgment in favor of
Praxair and Antibus and against Podemski.
[22] Affirmed.
May, J., and Pyle, J., concur.
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