Alvarez et al v. CSX Corporation Inc et al

Filing 118

OPINION AND ORDER The Court GRANTS Savage Services Corporations Motion to Dismiss DE 77 ; GRANTS Defendants Joint Motion for Summary Judgment DE 75 ;GRANTS TRANSFLO and CSX Defendants Motion to Strike Inadmissible Evidence Cited in Response to Defe ndants Motion for Summary Judgment DE 102 ; GRANTS Savage Services Corporations Objection to and Motion to Exclude Exhibit B DE 106 , filed by Defendant Savage on January 10, 2013, and STRIKES the document labeled Exhibit B at DE [104-3]. The Court DIRECTS the Clerk of Court to enter judgment in favor of Defendants and against Plaintiff as to all claims in Plaintiffs Complaint. The Trial setting, the Final Pre-Trial Conference setting, and all other previously established dates and deadlines in this case are VACATED. ***Civil Case Terminated. Signed by Magistrate Judge Paul R Cherry on 5/2/13. (kjp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
KELLY A. ALVAREZ, Individually and
as Administratrix of the ESTATE OF
ANGEL L. ALVAREZ, JR.,
Plaintiff,

)
)
)
)
)
v.
)
)
CSX CORPORATION, INC., et al.,
)
Defendants.
)
____________________________________)
)
TRANSFLO TERMINAL SERVICES,
)
INC., et al.,
)
Cross Claimants,
)
)
v.
)
)
SAVAGE SERVICES CORPORATION, )
Cross Claim Defendant.
)

CAUSE NO.: 2:10-CV-80-PRC

OPINION AND ORDER
This matter is before the Court on:
(1)

Savage Services Corporation’s Motion to Dismiss [DE 77], filed by Defendant Savage on
September 14, 2012;

(2)

Defendants’ Joint Motion for Summary Judgment [DE 75], filed by Defendants on
September 14, 2012;

(3)

TRANSFLO and CSX Defendants’ Motion to Strike Inadmissible Evidence Cited in
Response to Defendants’ Motion for Summary Judgment [DE 102], filed by Defendants on
November 15, 2012; and

(4)

Savage Services Corporation’s Objection to and Motion to Exclude Exhibit B [DE 106],
filed by Defendant Savage on January 10, 2013.

PROCEDURAL HISTORY
On January 8, 2010, Plaintiff Kelly A. Alvarez filed a Complaint as personal representative
of the Estate of Angel L. Alvarez, Jr., in Lake County Circuit Court, for the wrongful death of her
husband as the result of the alleged carelessness, recklessness, and negligence of Defendants CSX
Corporation (“CSX”), CSX Transportation, Inc. (“CSXT”), CSX Intermodal, Inc. (“CSXI”), and
CSX Intermodal Terminals, Inc. (“CSXIT”) (collectively, the “CSX Defendants”) and TRANSFLO
Terminal Services, Inc. On February 11, 2010, Defendants filed an Answer and affirmative
defenses, and on February 16, 2010, they removed the action to this Court.
On March 29, 2010, Defendants filed a Motion for Summary Judgment, and at a preliminary
pretrial conference on April 15, 2010, the parties agreed to limit discovery while the Motion was
pending. The Court issued a scheduling order setting a deadline of 60 days after the Court’s ruling
on the Motion for Summary Judgment for Plaintiff to file an amended complaint without seeking
leave of court. On July 14, 2010, the Court issued an Order granting in part the Motion for Summary
Judgment dismissing Plaintiff’s claims for Alvarez’s personal injuries and the claims for loss of
consortium brought in her individual capacity.
On September 13, 2010, Plaintiff filed an Amended Complaint adding Defendant Savage
Services Corporation. On September 24, 2010, the CSX Defendants and TRANSFLO filed an
Answer to the Amended Complaint and a cross-claim for indemnification against Savage. On
November 10, 2010, Defendant Savage filed its Answer to Plaintiff’s Amended Complaint and
affirmative defenses, including the defense that Plaintiff’s claims were barred by the applicable
statute of limitations.
On September 14, 2012, Defendants filed a joint Motion for Summary Judgment. On
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October 29, 2012, Plaintiff filed a response. On November 15, 2012, TRANSFLO and the CSX
Defendants filed a reply and Savage filed a separate reply. Also on November 15, 2012,
TRANSFLO and the CSX Defendants filed a Motion to Strike. Plaintiff has not filed a response and
the time to do so has passed.
On September 14, 2012, Savage filed a Motion to Dismiss. On October 16, 2012, Plaintiff
filed a response, including exhibits, and on October 23, 2012, Savage filed a reply, including its own
evidence and statement of material facts. On November 15, 2012, the Court held a telephonic
conference at which the parties agreed that Savage’s Motion should be converted to a Motion for
Summary Judgment and the Court set deadlines for additional briefing. On December 15, 2012,
Plaintiff filed an additional response brief and on January 10, 2013, Savage filed an additional brief
in reply. Also on January 10, 2013, Savage filed a Motion to Strike. Plaintiff has not filed a
response and the time to do so has passed.
The parties filed forms of consent to have this case assigned to a United States Magistrate
Judge to conduct all further proceedings and to order the entry of a final judgment in this case.
Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c).
SUMMARY JUDGMENT STANDARD
The Federal Rules of Civil Procedure mandate that motions for summary judgment be
granted “if the movant shows that 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). Rule 56 further requires the entry
of summary judgment, after adequate time for discovery, against a party “who fails to make a
showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
3

(1986) (citing Fed. R. Civ. P. 56(c)). “[S]ummary judgment is appropriate – in fact, is mandated –
where there are no disputed issues of material fact and the movant must prevail as a matter of law.
In other words, the record must reveal that no reasonable jury could find for the non-moving party.”
Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir. 1994) (citations and
quotations omitted).
A party seeking summary judgment bears the initial responsibility of informing the court of
the basis for its motion and identifying those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, that it believes
demonstrate the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323; Fed. R.
Civ. P. 56(c). The moving party may discharge its initial responsibility by simply “‘showing’ – that
is, pointing out to the district court – that there is an absence of evidence to support the nonmoving
party’s case.” Celotex, 477 U.S. at 325. When the nonmoving party would have the burden of proof
at trial, the moving party is not required to support its motion with affidavits or other similar
materials negating the opponent’s claim. Celotex, 477 U.S. at 323, 325; Green v. Whiteco Indus.,
Inc., 17 F.3d 199, 201 n.3 (7th Cir. 1994); Fitzpatrick v. Catholic Bishop of Chi., 916 F.2d 1254,
1256 (7th Cir. 1990). However, the moving party, if it chooses, may support its motion for summary
judgment with affidavits or other materials, and, if the moving party has “produced sufficient
evidence to support a conclusion that there are no genuine issues for trial,” then the burden shifts to
the nonmoving party to show that an issue of material fact exists. Becker v. Tenenbaum-Hill Assoc.,
914 F.2d 107, 110-111 (7th Cir. 1990) (citations omitted); see also Hong v. Children’s Mem’l Hosp.,
993 F.2d 1257, 1261 (7th Cir. 1993).
Once a properly supported motion for summary judgment is made, the non-moving party
4

cannot resist the motion and withstand summary judgment by merely resting on its pleadings. See
Fed. R. Civ. P. 56(e); Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th Cir. 1994). Rule 56(e)
provides that “[i]f a party fails to properly support an assertion of fact or fails to properly address
another party’s assertion of fact as required by Rule 56(c), the court may . . . consider the fact
undisputed for purposes of the motion [or] grant summary judgment if the motion and supporting
materials – including the facts considered undisputed – show that the movant is entitled to it . . . .”
Fed. R. Civ. P. 56(e)(2), (3); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986).
Thus, to demonstrate a genuine issue of fact, the nonmoving party must “do more than simply show
that there is some metaphysical doubt as to the material facts,” but must “come forward with
‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586-87 (1986) (quoting Fed. R. Civ. P. 56(e)) (emphasis in original).
In viewing the facts presented on a motion for summary judgment, a court must construe all
facts in a light most favorable to the non-moving party and draw all legitimate inferences in favor
of that party. See Anderson, 477 U.S. at 255; Srail v. Vill. of Lisle, 588 F.3d 940, 948 (7th Cir.
2009); NLFC, Inc. v. Devcom Mid-Am., Inc., 45 F.3d 231, 234 (7th Cir. 1995). A court’s role is not
to evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth
of the matter, but instead to determine whether there is a genuine issue of triable fact. See Anderson,
477 U.S. at 249-50.
FACTUAL BACKGROUND
On January 8, 2008, journeyman electrician Angel L. Alvarez, Jr., was killed by electrocution
while working at Defendant TRANSFLO’s Distribution Center Yard. Alvarez was employed as an
electrician by Meade Electric Co., Inc., for whom he had worked since completion of an electrical
5

workers’ apprenticeship program at the top of his class.
Defendant TRANSFLO leased the Terminal from Defendant CSX Transportation, Inc.
Defendant Savage Services Corporation operated the Terminal for TRANSFLO as an independent
contractor, and was responsible for conducting and supervising operations in the Terminal.
At the time of the incident, the Terminal had an ungrounded 480-volt, three phase delta
electrical system, a type of system often used for industrial sites using heavy equipment and
machinery. The lighting circuit was made up of two insulated current-carrying conductor wires
wrapped around an uninsulated messenger wire that provided the strength to carry the conductor
wires between poles and served as a ground reference for the lighting circuit. The Terminal’s
electrical system complied with the National Electric Code at the time of the incident.
For years, Meade had been the contractor hired for all electrical problems at the Terminal.
It provided services to the Terminal on an on-call basis, and Meade employees frequently repaired
lighting problems at the Terminal. Meade’s electricians were responsible for identifying and fixing
the electrical problems they were sent to address, including shutting off the power if needed. The
electricians were required to follow Meade’s training and procedures. Meade also regularly
performed repairs on other ungrounded delta systems.
On January 8, 2008, Savage’s Terminal Operation Manager called Meade to report a lighting
outage, apparently due to a lightning strike during a thunderstorm that morning that damaged a
conductor wire. Meade sent electricians Alvarez and his working foreman, William Purcell, to the
Terminal. They met with the Operation Manager and were told that lights had gone out on the south
side of the Terminal. They began to take voltage readings to investigate the cause of the outage.
Alvarez noticed a break in the line. His handheld proximity tester indicated the presence of voltage
6

in the line, although his contact tester indicated that the conductor wires were not energized. Alvarez
continued to work on the line without using protective equipment or requesting that the power be
turned off. When he touched the two sides of the broken messenger line with his bare hands, he was
electrocuted.
Plaintiff, as representative of the estate of Alvarez, seeks recovery for compensatory damages
arising out of his accident and death.
ANALYSIS
A.

Motions to Strike
Defendant TRANSFLO and the CSX Defendants request that the Court strike inadmissible

evidence cited by Plaintiff in response to Defendants’ Motion for Summary Judgment. Plaintiff has
not responded to the Motion and the time to do so has passed. The Court has considered
Defendants’ arguments in the Motion to Strike, and concludes that the evidence identified by
Defendants should be stricken from the record: the Court will not consider the inadmissible hearsay
from the deposition of Charles Anderson describing what others have told him and will not consider
the unsupported statements of Plaintiff identified by Defendants. The facts as laid out above do not
include these assertions of Plaintiff that are not supported by the evidence in the record.
Defendant Savage requests that the Court exclude Exhibit B to Plaintiff’s response to
Defendant Savage’s Motion for Summary Judgment. Plaintiff has not responded to the Motion and
the time to do so has passed. Savage Services argues that the exhibit, which consists of a letter
prepared by an attorney for a nonparty, a privilege log, Meade work orders, and a photograph of a
sign, do not contain admissible evidence and are not relevant for the purpose for which they are
offered.
7

Plaintiff cites to the exhibit in her response brief in order to show the connection between
CSX Transportation, Inc., TRANSFLO, and Savage, but the letter and work orders relate to Meade,
a non-party, and the privilege log describes documents that explicitly have not been included in
evidence. The photograph bears no apparent relationship to any part of the case. As Savage argues,
the materials are not admissible evidence and are therefore stricken from the record.
B.

Savage’s Motion for Summary Judgment
Savage argues that it should be dismissed from the case because the Amended Complaint

first naming Savage as a party defendant was filed more than eight months after the expiration of the
applicable statute of limitations. Plaintiff argues that the Court’s case management order operated
to toll the statute of limitations and that the Amended Complaint relates back to the time the original
Complaint was filed because Savage was closely related to Defendant TRANSFLO. Savage also
argues, and Plaintiff acknowledges, that the personal injury claims brought in her individual capacity
are not allowed under Indiana law, and these claims are therefore dismissed.
Although titled a Motion to Dismiss, Savage’s initial motion came after its Answer and was
therefore a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c). See
Alioto v. Town of Lisbon, 651 F.3d 715, 718 (7th Cir. 2011). However, Plaintiff attached evidence
to the response brief, and, in accordance with Rule 12(d), the Court converted the Motion to one for
summary judgment and ordered additional briefing to make sure the parties were “given a reasonable
opportunity to present all the material that is pertinent to the motion.” Fed. R. Civ. P. 12(d); see also
Loeb Indus., Inc. v. Sumitomo Corp., 306 F.3d 469, 479 (7th Cir. 2002).
As described above, the CSX Defendants and TRANSFLO filed a Motion for Summary
Judgment on March 29, 2010, and the Court entered a scheduling order limiting discovery pending
8

ruling on the Motion and extending the deadline for filing an amended complaint without leave of
court. Plaintiff contends that the Court’s grant of leave to file an amended pleading under Federal
Rule of Civil Procedure 15(a)(2) also acted to toll the statute of limitations.
Indiana law governs the statute of limitations and the doctrine of equitable tolling in this case.
See Hollander v. Brown, 457 F.3d 688, 694 (7th Cir. 2006). In Indiana, a statute of limitations is
tolled only if: (1) a timely-filed case in federal court is dismissed for lack of diversity jurisdiction;
(2) “if fraud or fraudulent concealment has occurred;” or (3) “ if the plaintiff suffers from a legal
disability.” Trzeciak v. State Farm Fire & Cas. Co., 809 F. Supp. 2d 900, 911 (N.D. Ind. 2011).
Scheduling orders and procedural rulings are not included in this list, and Plaintiff does not contend
that any of these three circumstances exist. Rather, she cites to the standard for extension of time
for service of process under Federal Rule of Civil Procedure 4(m). The Rule 4(m) standard of “good
cause” is not the standard applied under Indiana law of equitable tolling. See Trzeciak, 809 F. Supp.
2d at 911.
The Court’s case management deadline did not operate to extend the Indiana statute of
limitations, and, even had that been the Court’s intent, “[d]istrict judges lack authority to extend
statutory periods of limitations.” Lee v. Cook County, 635 F.3d 969, 972 (7th Cir. 2011).
Accordingly, the statute of limitation was not tolled.
Plaintiff also argues that the claim against Savage in the Amended Complaint is not barred
by the statute of limitations because it relates back to the time of the original Complaint under Rule
15(c). Under Federal Rule of Civil Procedure 15(c),
An amendment to a pleading relates back to the date of the original
pleading when:
(A) the law that provides the applicable statute of limitations
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allows relation back;
(B) the amendment asserts a claim or defense that arose out of the
conduct, transaction, or occurrence set out--or attempted to be set
out--in the original pleading; or
(C) the amendment changes the party or the naming of the party
against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied
and if, within the period provided by Rule 4(m) for serving the
summons and complaint, the party to be brought in by amendment:
(i) received such notice of the action that it will not be
prejudiced in defending on the merits; and
(ii) knew or should have known that the action
would have been brought against it, but for a
mistake concerning the proper party's identity.
Fed. R. Civ. P. 15(c)(1). The parties agree that the requirements of subsections (A) and (B) have
been met, so the question before the Court is whether, within the 120 days after the Complaint in this
case was filed as provided by Rule 4(m), “the defendant who is sought to be added by the
amendment knew or should have known that the plaintiff, had it not been for a mistake, would have
sued him instead or in addition to suing the named defendant.” Joseph v. Elan Motorsports Techs.
Racing Corp., 638 F.3d 555, 560 (7th Cir. 2011). “‘[R]elation back’ on grounds of ‘mistake
concerning the identity of the proper party’ does not apply where the plaintiff simply lacks
knowledge of the proper defendant,” and “[i]t is the plaintiff's responsibility to determine the proper
party to sue and to do so before the statute of limitations expires.” Hall v. Norfolk S. Ry. Co., 469
F.3d 590, 596 (7th Cir. 2006) (applying an earlier version of Rule 15).
Savage has attached affidavits demonstrating that it had no notice of initiation of the lawsuit
within that 120-day period proscribed by Rule 4(m). Plaintiff does not point to any evidence that
Savage had actual knowledge that it was a proper defendant, but argues that the contractual
relationship between Savage and TRANSFLO establishes identity of interest between the original
defendants and Savage, and allows for the Court to impute notice of the suit to Savage from the time
10

that the original Defendants were served.
Courts have applied the “identity of interest principle” to conclude that an unnamed party had
notice of a lawsuit in situations “where the original and added parties are a parent corporation and
its wholly owned subsidiary, two related corporations whose officers, directors, or shareholders are
substantially identical and who have similar names or share office space, past and present forms of
the same enterprise, or co-executors of an estate.” Norton v. Int’l Harvester Co., 627 F.2d 18, 21
(7th Cir. 1980). Plaintiff argues that “Savage and TRANSFLO may not be subsidiaries or related
by way of shared officers, directors, or shareholders but they are so closely related in business or
other activities that it is fair to presume they learned of the cause of action shortly after it was
commenced.” Pl. Resp. Br. 14 [DE 104]. As evidence of the alleged shared identity of the parties,
Plaintiff attaches the Master Terminal Services Agreement setting out the contractual relationship
between TRANSFLO and Savage and describing the services provided by Savage for TRANSFLO,
and argues that the fact that Savage operates a business unit specifically to provide services to
TRANSFLO indicates that the two are so closely-related that Savage should have known that
Plaintiff intended to sue it. Plaintiff also argues that the fact that Savage knew about the incident
indicates that Savage and TRANSFLO are closely-related, but does not explain why shared
knowledge of an accident is commensurate with shared identity.
Savage argues that the only relationship between the parties is governed by business
contracts. TRANSFLO and the CSX Defendants, in a brief responding to Plaintiff’s contentions,
affirm that they are distinct and separate entities from Savage and that TRANSFLO’s relationship
with Savage is purely contractual. Expanding the identity of interest principle to conclude that any
two parties who have contracted for business services are sufficiently related to impute notice would
11

relieve the concept of “identity of interest” of any meaning. Plaintiff has not provided any evidence
that indicates that Savage and TRANSFLO have anything like the kind of close relationship that is
required in order for there to be relation back to the original Complaint under Rule 15(c). Cf.
Joseph, 638 F.3d at 560 (finding identity of interest where “[t]he two corporations are pieces of a
dizzying array of corporate entities all of which, it seems . . are managed out of the same office” and
have nearly identical names, and the employee on whom the original complaint was served “was a
de facto employee of [the proper defendant] when supervising [plaintiff]’s performance of his
contract with that firm” and “had to know, as soon as he received the complaint, that [the plaintiff]
meant to sue Elan Inc. rather than Elan Corp.”)
To the extent that Plaintiff is also arguing that Savage had actual notice that it would have
been named as a defendant absent Plaintiff’s mistake, this argument also fails. Plaintiff suggests that
Savage must have learned about the lawsuit because it has offices on the TRANSFLO site and knew
about the accident when it happened, but provides no evidence that Savage had actual knowledge
that Plaintiff intended to name Savage as a party defendant.
There is no indication that Defendant Savage received notice of the action or should have
known it was a defendant within the applicable time period. Accordingly, Plaintiff’s claims against
Defendant Savage are barred by the statute of limitations.
C.

TRANSFLO and CSX Defendants’ Motion for Summary Judgment
I.

Proper Defendants

Defendants argue that only TRANSFLO and Savage are the proper party defendants because
CSX Corporation, Inc., CSX Transportation, Inc., and CSX Intermodal Terminals, Inc., have no
connection with the claims in the lawsuit. Defendants explain that none of the CSX Defendants have
12

any connection with the operation of the terminal. Plaintiff argues that the evidence Defendants
present is insufficient to determine if the CSX Defendants bear any liability, but does not present any
evidence of her own. Plaintiff has had plenty of opportunity
The party contesting summary judgment has an obligation “to highlight which factual
averments are in conflict as well as what record evidence there is to confirm the dispute.” Waldridge
v. Am. Hoechst Corp., 24 F.3d 918, 921-922 (7th Cir. 1994); see also Little v. Cox's Supermkts, 71
F.3d 637, 641 (7th Cir. 1995). Plaintiff cannot just assert that the CSX Defendants might be liable
without any evidence to support her claims, especially since she has had notice since Defendants’
Answer on September 24, 2010, that the CSX Defendants are taking the position that they “are not
proper party defendants in this case, as they did not own, control, or otherwise owe any duty to
maintain or inspect the premises or instrumentalities involved in the incident described in Plaintiff’s
Amended Complaint.” Defs.’ Ans. at 2 [DE 41]. “[S]ummary judgment ‘is the “put up or shut up”
moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact
to accept its version of events.’” Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir.
2003) (quoting Schacht v. Wisconsin Dep't of Corr., 175 F.3d 497, 504 (7th Cir.1999)). Because
Plaintiff has not identified any evidence to counter Defendants’ supported assertion that the CSX
Defendants are not proper party defendants, Defendants’ Motion is granted as to these parties and
Defendants CSX Corporation, Inc., CSX Transportation, Inc., and CSX Intermodal Terminals, Inc.,
are dismissed as party defendants.
II.

Duty Owed to Alvarez

Defendants argue that they did not breach any duty owed to Alvarez so there can be no
liability under Indiana tort law for failure to provide a safe workplace or under a theory of premises
13

liability. Plaintiff argues that the jury should decide whether there was a breach of duty.
To prevail on a claim for negligence, a plaintiff must establish that (1) the defendant owed
a duty to the plaintiff, (2) the defendant breached that duty, and (3) the breach of duty proximately
caused the injury to the plaintiff. Harradon v. Schlamandinger, 913 N.E.2d 297, 300 (Ind. Ct. App.
2009). Under Indiana law, “[a] landowner's liability to persons on the premises depends on the
person's status as a trespasser, licensee, or invitee.” Kopczynski v. Barger, 887 N.E.2d 928, 931 (Ind.
2008). The question of what duty is owed to the plaintiff is a question of law for the Court. Wingett
v. Teledyne Industries, Inc., 479 N.E.2d 51, 54 (Ind. 1985). However, a jury typically must
determine whether there has been “a breach of duty, which requires a reasonable relationship
between the duty imposed and the act alleged to have constituted the breach,” so summary judgment
is rarely appropriate in negligence cases. Kroger Co. v. Plonski, 930 N.E.2d 1, 9 (Ind. 2010) “Only
where the facts are undisputed and lead to but a single inference or conclusion may the court as a
matter of law determine whether a breach of duty has occurred.” Id. Defendants argue that the
undisputed material facts lead to the single conclusion that Defendants did not breach any duty owed
to Alvarez. Plaintiff argues that the question is properly one for a jury.
In general, the owner of property “is under a duty to keep the property in a reasonably safe
condition for business invitees, including employees of independent contractors.” Merrill v. Knauf
Fiber Glass GmbH, 771 N.E.2d 1258, 1264-65 (Ind. Ct. App. 2002). The extent of the duty is
related to the circumstances under which the independent contractor is invited onto the land,
Bateman v. Cent. Foundry Div., Gen. Motors Corp., 822 F. Supp. 556, 563 (S.D. Ind. 1992); and the
owner’s duty to an independent contractor is not as extensive as the duty of an employer to furnish
a safe workplace for an employee. Merrill, 771 N.E.2d at 1264-65.
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Plaintiff also refers to the Master Terminal Services Agreement between Savage and
TRANSFLO, apparently intending to imply that the Agreement creates a greater duty of care. The
Agreement governs the relationship between TRANSFLO and Savage, describing the services
provided by Savage for TRANSFLO and the division of responsibilities in that relationship. Plaintiff
does not develop an argument that the Agreement creates a duty of care to independent contractors.
The sections of the Agreement cited to by Plaintiff merely lay out which of the two parties bears
responsibility for specific components of terminal operation and requires the parties to comply with
industry standards and applicable laws. There is no apparent creation of any duty beyond that
created by Indiana law. See Marks v. N. Ind. Pub. Serv. Co., 954 N.E.2d 948, 954 (Ind. Ct. App.
2011) (“[Indiana] courts have refused to extend a specific duty to an owner where the contract
merely prescribes safety rules and requires the independent contractor to observe those rules or any
laws relating to safety.”) (quoting Merrill, 771 N.E.2d at 1269-70).
The Restatement (Second) of Torts, adopted in Indiana, subjects a possessor of land to
liability for injuries to invitees caused by a condition on the land only if the possessor meets three
requirements: (1) the possessor “knows or by the exercise of reasonable care would discover the
condition, and should realize that it involves an unreasonable risk of harm” to the invitee; (2) the
possessor should expect that the invitee “will not discover or realize the danger, or will fail to protect
themselves against it;” and (3) the possessor “fails to exercise reasonable care to protect [the invitee]
against the danger.” Restatement (Second) of Torts § 343 (1965); see also Smith v. Baxter, 796
N.E.2d 242, 244 (Ind. 2003) (applying Section 343 of the Restatement). The Restatement provides
that the possessor of land bears no liability if the harm is caused to the invitee “by any activity or
condition on the land whose danger is known or obvious to them, unless the possessor should
15

anticipate the harm despite such knowledge or obviousness.” Restatement (Second) of Torts § 343A
(1965). “The comparative knowledge of a possessor of land and an invitee regarding known or
obvious dangers may properly be taken into consideration in determining whether the possessor
breached the duty of reasonable care under Sections 343 and 343A of the Restatement (Second) of
Torts.” Baxter, 796 N.E.2d at 245.
Accordingly, the breach occurs and “[a] landowner is liable to an independent contractor if
it actively participates in the negligent act causing injury or if it fails to warn of hidden dangers on
the premises that it knew of or ought to have known of and that the contractor did not know of.”
Bafia v. N. Ind. Pub. Serv. Co., 993 F.2d 1306, 1309 (7th Cir. 1993) (citing Persinger v. Marathon
Petrol. Co., 699 F. Supp. 1353, 1361-62 (S.D. Ind. 1988); Nagler v. U.S. Steel Corp., 486 F.2d 794,
797 (7th Cir. 1973)). “Landowners often hire independent contractors to take advantage of the
special skill or knowledge the contractor possesses,” so in situations where the invitee is an
independent contractor, there is only landowner liability if “the landowner has unique knowledge
not imparted to the independent contractor.” PSI Energy, Inc. v. Roberts, 829 N.E.2d 943, 960 (Ind.
2005), aff'd on reh'g, 834 N.E.2d 665 (Ind. 2005), abrogated on other grounds by Helms v. Carmel
High Sch. Vocl. Bldg. Trades Corp., 854 N.E.2d 345 (Ind. 2006).
The question before the Court, then, is whether there is a question of material fact as to
whether Defendants had or should have had unique knowledge of a dangerous condition that they
did not impart to Alvarez. Defendants argue that they had no superior knowledge of any of the
conditions that Plaintiff’s expert has identified as hazardous. Plaintiff argues that Defendants should
have discovered the dangerous condition, should have expected that Alvarez would not discover or
protect himself against it, and failed to exercise reasonable care to protect Alvarez from the
16

dangerous condition.
Plaintiff’s primary argument is that Defendants should have anticipated injury because the
ungrounded electrical system is inherently dangerous when used without a ground detector.
Defendants argue that, even assuming the system is unsafe, neither TRANSFLO nor Savage is an
expert in electricity. The companies depend on contractors such as Meade for electrical repairs, but
no electrician or electrical company had recommended the installation of a ground detector or
indicated to either TRANSFLO or Savage that the system was unsafe. Defendants also argue that
the system is not inherently unsafe, noting that ungrounded facilities are common. Furthermore,
Defendants assert, and Plaintiff’s expert agrees, that the system was in compliance with the National
Electric Code at the time of the accident. Despite conceding that fact, Plaintiff argues that “[u]nder
the applicable legal standards, Defendant cannot simply hide behind the grand fathered nonrequirement provisions of the Code.” Pl. Resp. Br. 22 [DE 94]. Plaintiff does not, however, identify
these applicable legal standards, nor does she cite to any precedent or point to any actual knowledge
Defendants had or reasonably should have discovered indicating that, despite the fact that it met the
Code, the system was inherently unsafe. Adoption of Plaintiff’s contention would lead to an absurd
expansion of liability, essentially requiring landowners to hire external auditors to examine their
property for any possible perceived weakness, even if all systems on the property comply with
applicable safety and statutory guidelines.
Plaintiff argues that Alvarez did not have any superior knowledge or at the very least that
there is a dispute of fact as to whether he had superior knowledge about the electrical system. In
particular, Plaintiff argues that there is “conflicting evidence” that Alvarez knew of specific
problems on the Terminal premises, but that since Defendants were responsible for maintaining the
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premises Defendants had or should have had knowledge of the electrical problems. However, as
Defendants argue, Plaintiff does not cite to any evidence to support the proposition that Defendants
would or should have discovered any alleged defects even if they had taken what she deems “proper
actions to determine the overall condition of the Terminal’s electrical system,” Pl. Resp. Br. 16-17
[DE 94], nor does Plaintiff describe what those “proper actions” might have been. Furthermore, to
the extent that Plaintiff is asserting that the electrical problem Alvarez was called to fix was itself
a dangerous condition, there is no indication that Defendants should expect that Alvarez, an
electrician hired to fix an electrical problem, would “not discover or realize the danger, or will fail
to protect themselves against it,” in the words of the Restatement. Restatement (Second) of Torts
§ 343 (1965). Rather, “a landowner who employs a contractor to perform specialized work . . . is
entitled to rely on the contractor to comply with appropriate safety standards.” PSI Energy, 829
N.E.2d at 959. It appears that Plaintiff is arguing that Defendants should have fixed the problems
with the electrical system before paying Alvarez, an electrician working for an independent
contractor electric company, to fix the electrical problems. The Court will not so hold.
Even assuming that the electrical system could be considered inherently dangerous, Plaintiff
does not point to any information indicating that any of the Defendants had actual knowledge of the
danger, and certainly no information indicating that Defendants knew more about the particular
system and its particular tendencies or dangers than did Alvarez, an electrician. Plaintiff also
identifies other problems she alleges Defendants knew or should have known about the Terminal
premises, but does not include any argument or citation to the record indicating that Defendants did
know about those things, nor that they had any knowledge superior to that of Alvarez. This is not
a situation where an electrician called to fix an electrical problem was injured by “a condition not
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created or addressed by the contractor ([like] a preexisting hole in the roof) or an activity conducted
by somebody other than the plaintiff or the plaintiff's employer ([such as] demolition work by
another contractor),” situations where it is appropriate to hold the possessor liable for injury to an
independent contractor. PSI Energy, 829 N.E.2d at 958.
As described above, summary judgment is the “put up or shut up” moment in a lawsuit.
Plaintiff has not identified any evidence sufficient to create a dispute of fact indicating that
Defendants knew or should have known more about the faults in the electrical system than did the
electrician they hired to fix it. Accordingly, Defendants are not liable for the injury to Alvarez, the
employee of the independent contractor hired by Defendants.
CONCLUSION
For the foregoing reasons, the Court hereby: GRANTS Savage Services Corporation’s
Motion to Dismiss [DE 77]; GRANTS Defendants’ Joint Motion for Summary Judgment [DE 75];
GRANTS TRANSFLO and CSX Defendants’ Motion to Strike Inadmissible Evidence Cited in
Response to Defendants’ Motion for Summary Judgment [DE 102]; GRANTS Savage Services
Corporation’s Objection to and Motion to Exclude Exhibit B [DE 106], filed by Defendant Savage
on January 10, 2013, and STRIKES the document labeled Exhibit B at [DE 104-3].
The Court DIRECTS the Clerk of Court to enter judgment in favor of Defendants and
against Plaintiff as to all claims in Plaintiff’s Complaint.
The Trial setting, the Final Pre-Trial Conference setting, and all other previously established
dates and deadlines in this case are hereby VACATED.
So ORDERED this 2nd day of May, 2013.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT
cc: All counsel of record