Hartford The v. Schindler Elevator Corporation et al

Filing 62

OPINION AND ORDER GRANTING 41 MOTION (First) for Summary Judgment Or in the Alternative, Motion to Dismiss by Defendant Schindler Elevator Corporation; DENYING AS MOOT 60 RULE 56 MOTION to Strike 57 Response to Motion for Summary Judgment by Defendant Schindler Elevator Corporation. Signed by Judge Rudy Lozano on 1/31/12. (cer)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
THE HARTFORD, as
subrogee of MARION
GENERAL HOSPITAL,

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Plaintiff,
vs.
SCHINDLER ELEVATOR
CORPORATION, et al.,
Defendants.

NO. 1:09-CV-132

OPINION AND ORDER
This matter is before the Court on the: (1) Motion for Summary
Judgment, or in the Alternative, Motion to Dismiss, filed by
Defendants on June 27, 2011; and (2) Defendants’ Motion to Strike,
filed on December 1, 2011.

For the reasons set forth below,

Defendants’ motion for summary judgment is GRANTED.

The motion to

strike is DENIED as moot.

BACKGROUND
On April 28, 2009, Plaintiff, The Hartford, as subrogee of its
insured,

Marion

General

Hospital,

filed

a

complaint

against

Defendants, Schindler Elevator Corporation and Millar Elevator
Service Co., in Grant Circuit Court, Grant County, Indiana, which
has been removed here.
the

Defendants

are

In the complaint, Plaintiff alleges that

indebted

to
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the

Plaintiff

in

the

sum

of

$82,927.34 for medical treatment and other charges sustained by
Melissa Foustnight, an employee of Marion General Hospital, as a
result of her falling in an elevator maintained by the Defendants.
On June 27, 2011, Defendants filed a motion for summary
judgment and for dismissal, arguing that it is entitled to summary
judgment because The Hartford has failed to prove the essential
elements of its claim and, alternatively, is entitled to dismissal
because of The Hartford’s failure to prosecute this case and follow
court orders.

The Hartford has failed to respond.1

DISCUSSION
Motion for Summary Judgment
Facts
The discovery period has closed.

Defendants set forth that

The Hartford has failed to discover or produce any evidence that
Schindler acted negligently with regard to the Marion General
Hospital elevator.

(Aff. Atty. Ice, ¶¶ 6-7).

The Hartford has

failed to submit its initial disclosures, failed to disclose expert
opinions of any kind, failed to make its expert available for
deposition,

and

failed

to

produce

deposition.

Melissa

Foustnight

(Aff. Atty. Ice, ¶¶ 6-7).

Summary judgment standard

1

The Hartford’s untimely response has been stricken. (DE# 61).

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for

a

The standards that generally govern summary judgment motions
are familiar. Pursuant to Rule 56(c) of the Federal Rules of Civil
Procedure, summary judgment is proper only if it is demonstrated
that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.

See

Nebraska v. Wyoming, 507 U.S. 584, 590 (1993); Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986).

In other words, the record

must reveal that no reasonable jury could find for the nonmovant.
Karazanos v. Navistar Int'l Transp. Corp., 948 F.2d 332, 335 (7th
Cir. 1991); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
250 (1986).

In deciding a motion for summary judgment, a court

must view all facts in the light most favorable to the nonmovant.
Anderson, 477 U.S. at 255; Nucor Corp. v. Aceros Y Maquilas De
Occidente, 28 F.3d 572, 583 (7th Cir. 1994).
The burden is upon the movant to identify those portions of
"the

pleadings,

depositions,

answers

to

interrogatories,

and

admissions on file, together with the affidavits," if any, that the
movant believes demonstrate an absence of a genuine issue of
material fact.

Celotex, 477 U.S. at 323.

Once the movant has met

this burden, the nonmovant may not rest upon mere allegations but
"must set forth specific facts showing that there is a genuine
issue for trial."

Fed. R. Civ. P. 56(e); Becker v. Tenenbaum-Hill

Assocs., Inc., 914 F.2d 107, 110 (7th Cir. 1990); Schroeder v.
Lufthansa German Airlines, 875 F.2d 613, 620 (7th Cir. 1989).
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"Whether

a

fact

is

material

depends

on

the

substantive

law

underlying a particular claim and 'only disputes over facts that
might affect the outcome of the suit under governing law will
properly preclude the entry of summary judgment.'"

Walter v.

Fiorenzo, 840 F.2d 427, 434 (7th Cir. 1988) (citing Anderson, 477
U.S. at 248).
"[A] party who bears the burden of proof on a particular issue
may not rest on its pleading, but must affirmatively demonstrate,
by specific factual allegations, that there is a genuine issue of
material fact which requires trial." Beard v. Whitley County REMC,
840 F.2d 405, 410 (7th Cir. 1988) (emphasis in original); see also
Hickey v. A.E. Staley Mfg., 995 F.2d 1385, 1391 (7th Cir. 1993).
Therefore, if a party fails to establish the existence of an
essential element on which the party bears the burden of proof at
trial, summary judgment will be appropriate.

Defendants are entitled to summary
judgment because The Hartford has failed
to establish any of the essential elements of its claim.
In order for The Hartford to prevail on its claim that
Schindler

is

responsible

for

Foustnight’s

injuries,

it

must

establish: (1) that Schindler owed Foustnight a duty; (2) that
Schindler’s conduct failed to fulfill that duty; and (3) that
Foustnight sustained an injury as a result of Schindler’s failure.
Collins v. American Optometric Ass’n, 693 F.2d 636 (7th Cir. 1982);

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Pfenning v. Lineman, 947 N.E.2d 392, 398 (Ind. 2011).
Here, The Hartford has failed to present any evidence in this
case establishing what, if any, duty Schindler had to Foustnight.
Moreover, the Hartford is equally deficient in failing to provide
any evidence that establishes Schindler’s conduct breached its duty
or that Foustnight’s injuries were a result of that alleged breach.
Because The Hartford has failed to present any evidence on these
issues,

it

cannot

demonstrate

Defendants were negligent.

a

triable

issue

of

fact

that

See Gross v. Town of Cicero, Ill, 619

F.3d 697, 708 (7th Cir. 2010)(holding that plaintiff’s failure to
produce evidence in support of his claim made summary judgment
appropriate); Williams v. National R.R. Passenger Corp., 161 F.3d
1059,

1062

(7th

Cir.

1998)(noting

that

the

Seventh

Circuit

consistently declines to “infer negligence when a plaintiff fails
to produce any evidence suggesting that [the defendant] played even
the slightest role in bringing about the injury.”); Klein v.
Trustees of Indiana University, 766 F.2d 275, 283 (7th Cir.
1985)(finding that “[b]ecause the plaintiff failed to produce any
evidence raising a material issue of fact as to whether defendants’
proffered reason for its employment decision was pretextual, we
hold that the district court’s action in granting summary judgment
to the defendants was proper.”).
Not only are negligence cases generally subject to summary
judgment when the plaintiff fails to produce evidence on one of its
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burdens but, this is especially true here, where the alleged
injuries were allegedly caused by an elevator, which is a complex
mechanical device.

See Davlan v. Otis Elevator Co., 816 F.2d 287,

296 (7th Cir. 1987)(finding that under Illinois law, to demonstrate
a breach of duty, the plaintiff must establish that the elevator
company had knowledge of the problem that caused the injury and
failed to take reasonable steps to correct the problem); Adams v.
W. Host, Inc., 779 P.2d 281, 284 (Wash Ct. App. 1989)(Noting that
“elevators are mechanical devices of some complexity.

Materials

can wear out or break without negligence being involved.”).
Because The Hartford failed to present any evidence supporting
its claim, concluding that either Schindler breached its duty or
that its breach proximately caused Foustnight’s injuries would
require this Court to speculate, which it will not do.

See e.g.

Pfenning, 947 N.E.2d at 404-05(noting that proximate cause cannot
be

established

based

on

speculation).

Accordingly,

summary

judgment is appropriate.

Motion to Dismiss
In the alternative, Defendants argue that if this Court is
unwilling to enter summary judgment, they are nevertheless entitled
to dismissal for two reasons. First, Defendants argue dismissal is
appropriate

under

Rule

41(b)

of

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the

Federal

Rules

of

Civil

Procedure because The Hartford has failed to prosecute this case.
Second, Defendants seek dismissal under Rule 37(b)(2)(A) as a
discovery sanction, arguing that The Hartford has failed to obey a
discovery order under Rule 26(f) of the Federal Rules of Civil
Procedure.

While both of these arguments have merit, considering

the dismissal of this case for failure to prosecute or as a
discovery sanction

is unnecessary as this Court has found summary

judgment to be appropriate.

Motion to Strike
Defendants have filed a motion to strike The Hartford’s
response to their motion for summary judgment.
response has already been stricken.

(DE# 61).

However, the

Accordingly, this

motion is moot.

CONCLUSION
Defendants’ motion for summary judgment is GRANTED.

The

motion to strike is DENIED as moot.

DATED:

January 31, 2012

/s/RUDY LOZANO, Judge
United States District Court

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