Herrera v. BP Global Special Products (America) Inc
Filing
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OPINION AND ORDER: GRANTING 43 MOTION for Summary Judgment by Defendant BP Products North America Incorporated. GRANTING 59 RULE 56 MOTION to Strike Portions of Plaintiff's Response in Opposition to BP's Motion for Summary Judgment by Defendant BP Products North America Incorporated. DENYING 45 MOTION for Hearing re 43 MOTION for Summary Judgment by Defendant BP Products North America Incorporated. Signed by Judge William C Lee on 3/28/2016. (lhc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
JOSE HERRERA,
Plaintiff,
v.
BP PRODUCTS NORTH AMERICA, INC.,
Defendant.
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CIVIL NO. 2:13cv418
OPINION AND ORDER
This matter is before the court on a motion for summary judgment filed by the defendant,
BP Products North America, Inc., (“BP”), on May 18, 2015. The plaintiff, Jose Herrera
(“Herrera”), filed his response on September 10, 2015, to which BP replied on September 28,
2015. Also before the court is a motion for hearing, filed by BP on May 18, 2015.
Additionally, BP filed a motion to strike on September 28, 2015. Herrera responded to
the motion to strike on October 5, 2105, to which BP replied on October 9, 2015.
As the other dispositive motions in this procedurally convoluted case have finally been
briefed out and ruled upon, the court will now turn its attention to these last two pending
motions.
Summary Judgment
Summary judgment must be granted when “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). A genuine
issue of material fact exists when “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Not every dispute between the parties precludes summary judgment, however, since “[o]nly
disputes over facts that might affect the outcome of the suit under the governing law” warrant a
trial. Id. To determine whether a genuine issue of material fact exists, the court must construe all
facts in the light most favorable to the non-moving party and draw all reasonable inferences in
that party’s favor. Heft v. Moore, 351 F.3d 278, 282 (7th Cir. 2003). A party opposing a properly
supported summary judgment motion may not rely merely on allegations or denials in its own
pleading, but rather must “marshal and present the court with the evidence she contends will
prove her case.” Goodman v. Nat’l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010).
Discussion
On October 17, 2011, Herrera fell at the BP Refinery in Whiting, Indiana. Herrera alleges
his fall was caused by BP’s failure to provide a safe and adequate walkway.
BP’s Whiting Refinery spans 1,400 acres. Herrera’s accident occurred in the “outside
battery limits” (OSBL”) section of the Refinery. The OSBL section had two tents designated
“ABF North” and “ABF South”. At the time of the accident, Herrera’s employer, The American
Group (“TAG”), occupied and worked from the ABF South tent. Numerous other contractors
occupied and worked from the ABF North tent.
Herrera’s accident occurred at approximately 6:151 in the evening of October 17, 2011.
Herrera left the northeast entrance/exit of the ABF South tent to attend a meeting in the adjacent
ABF North tent. While exiting, Herrera tripped on a steel flange or base that was designed to
hold an orange plastic lane divider. According to BP, the lane dividers were installed earlier that
same day to separate the tent entrance from the exit to minimize accidents caused by persons
going different directions simultaneously through the same door. The steel bases were roughly
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Herrera, in his brief, states that the accident occurred at 6:05 pm.
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six inches in diameter and three inches high, and were secured to the ground in a “four-bolt”
pattern. The orange dividers were approximately two or three inches in diameter and three feet
tall. The bases and dividers were installed by either Superior Construction or Fluor, two other
contractors working at the Refinery.
Herrera tripped on a steel base that did not contain an orange lane divider. BP claims,
however, that no more than 30 minutes before the accident an orange lane divider was, in fact,
installed in the steel base. According to BP, TAG Night Shift Safety Supervisor Timothy Price
saw the orange lane dividers in the bases at 5:45 pm. By 6:15 pm, an unidentified contractor had
removed the orange lane divider. BP concludes that an unidentified person removed the orange
lane divider at some point between 5:45 and 6:15 pm. BP states that before the accident, it was
unaware of other incidents of contractors removing orange lane dividers from the steel bases.
Under Indiana law, a landowner, like BP, owes an invitee, like Herrera, a duty to exercise
reasonable care for his protection while he is on the landowner’s premises. Burrell v. Meads,
569 N.E.2d 637, 642-44 (Ind. 1991). However, BP is not the insurer or Herrera’s saafety, and
before liability may be imposed on BP, it must have actual or constructive knowledge of the
danger. Schulz v. Kroger Co., 963 N.E.2d 1141, 1144 (Ind. App. 2012). If BP did not have
actual or constructive knowledge of the danger, it has not breached its duty of care to Herrera.
Carmichael v. Kroger Co., 654 N.E.2d 1188, 1191 (Ind. App. 1995).
BP characterizes the dangerous condition as the missing orange divider and argues that it
did not have actual nor constructive notice of the dangerous condition. As the orange divider had
allegedly only been removed minutes before Herrera’s accident, BP contends it did not have
actual knowledge. BP also asserts that Herrera cannot show that it had constructive knowledge
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of the dangerous condition. A defendant has constructive knowledge of a dangerous condition
when the condition “has existed for such a length of time and under such circumstances that it
would have been discovered in time to have prevented injury” if the defendant had used ordinary
care. Schulz, supra, 963 N.E.2d at 1144. BP argues that, even construing, the facts in the light
most favorable to Herrera, the dangerous condition existed for 30 minutes prior to the accident.
In Schulz, the plaintiff slipped on water in the defendant’s grocery store. 963 N.E.2d at
1144. The evidence indicated that, at most, the dangerous condition was present for ten minutes.
Id. at 1145. The court determined that ten minutes was insufficient to establish the defendant’s
constructive notice, as doing so would be tantamount to “imposing a strict liability standard or
mandating an employee’s presence in every aisle at all times”. Id.
BP acknowledges that 30 minutes is longer than ten minutes, but points out that the
sprawling BP Refinery is larger than a grocery store. BP argues that Indiana law appreciates the
distinction, as Schulz requires an examination of the surrounding circumstances when addressing
a defendant’s potential constructive notice. 963 N.E.2d at 1144. BP asserts that retail stores
have greater amounts of customer traffic and much higher rates of persons per square foot and,
thus, constructive notice in a grocery store is more easily established than constructive notice on
a large industrial site. BP argues that imposing constructive notice on BP on these facts would
impose a strict liability standard or mandate an excessive BP presence throughout the Refinery, a
position that Schulz warned against. Id. at 1145.
BP also notes that even in retail store settings other jurisdictions have determined that 30
minutes is insufficient to establish constructive notice. In Randall v. K-Mart Corp., the court
concluded that the potential that birdseed (the hazard) was present on the defendant’s floor for up
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to 30 minutes did not establish constructive notice. 150 F.3d 210, 212-13 (2d Cir. 1998)
(applying Vermont law). Similarly in Millers of Jackson, Medowbrook Road, Inc. F. Newell, the
court refused to find constructive notice when a toy, which caused the plaintiff’s fall, was present
on the defendant’s floor for half an hour before the accident. 341 So.2d 101, 102 (Miss. 1976).
And in Mergendahl v. C.J. Gayfer & Co., Inc., two hours was deemed insufficient to establish
constructive notice in similar circumstances. 659 F. Supp. 351, 352-53 (S.D. Miss. 1987).
BP concludes that Herrera cannot establish that BP had constructive notice of the
dangerous condition and, thus, Herrera cannot establish that BP breached the duty of care owed
to Herrera.
Herrera primarily relies on Jackman v. Arcelormittal USA LLC, 2015 U.S. Dist. LEXIS
22422 (N.D. Ind. 2015), which, as BP points out, is readily distinguishable. In Jackman, the
plaintiff claimed he slipped on a stair because the paint on the stairs did not contain “grip
material” that would have created traction. Id. at *2-3. The evidence showed that the stairs were
repainted with the allegedly inadequate paint in February 2010, three months before the plaintiff
fell on May 10, 2010. Id. at * 2-3. Since the defendant had three months to discover the slippery
step, the court found there was an issue of material fact whether the defendant was on
constructive notice of the step’s dangerous condition. Id. at *11-14. Clearly, the present case is
distinguishable, as the tripping hazard (i.e. the base with its lane divider removed) existed at most
30 minutes, far less than the three months the defendant in Jackman had to identify the dangerous
step. Jackman therefore offers no support to Herrera’s argument that BP was on constructive
notice of the trip hazard posed by the lane divider base.
The rest of the cases Herrera cites are similarly unavailing. Barsz v. Max Shapiro, Inc.,
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600 N.E.2d 151 (Ind. Ct. App. 1992), addressed the issue of whether the defendant restaurant
owner was on constructive notice of water on the floor that caused the plaintiff to slip. Id. at 153.
However, in Barsz the restaurant’s general manager testified that he knew customers would spill
their food and drinks on their way from the serving line to their seats, and admitted that these
spills were “commonplace.” Id. In the present case there is no evidence that the removal of the
lane dividers was commonplace before the accident such that BP should have known of the
practice. Indeed, the lane dividers were installed for the first time only a few hours before the
accident, thus there was no basis for BP to appreciate that they would be removed by an
unknown person, creating a tripping hazard. (Bergstrom Dep., 1 58: 16 – 59: 9.)
The last case Herrera cites, Peterson v. Wal-Mart Stores, Inc., 241 F.3d 603 (7th Cir.
2000), is also distinguishable. Peterson applied Illinois, not Indiana, law, making it irrelevant to
the Court’s analysis. Id. at 604. It is also factually distinguishable. In Peterson, there was
evidence that the defendant’s “employees patrol[led] the aisles constantly for signs of spills.” Id.
at 605. Under that level of scrutiny, the court accordingly held there was a material issue of fact
as to whether the employees should have seen the spilled lotion that caused the plaintiff to slip
and fall. Id. There is no such evidence in this case of constant BP surveillance of the area where
Herrera fell. In fact, there is no evidence that any BP employees walked by the northeast entrance
of TAG’s tent during the maximum of a 30-minute period of time that the lane dividers were
removed from their bases. Moreover, the court cannot ignore the difference in size between a
typical Wal-Mart, a building with a relatively small footprint with greater amounts of customer
traffic compared to a massive oil refinery like BP’s Whiting Refinery. Peterson consequently
offers no support for Herrera’s interpretation of Indiana law.
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With respect to the facts, BP argues that Herrera has failed to cite any evidence creating
an issue of material fact that BP knew or should have known of the alleged trip hazard. BP also
claims that Herrera’s recitation of the facts misrepresents several witnesses’ testimony. These
misrepresentations are the subject of a motion to strike. The court will evaluate the arguments
pertaining to the motion to strike in conjunction with the motion for summary judgment.
BP claims that Herrera’s most glaring misrepresentation is that the lane dividers posed a
safety risk when first installed the late morning of the date of the accident. BP points out that
there is no such evidence. TAG’s day-shift Field Safety Representative, Travis Bergstrom, did
testify that the day-shift workers complained about the lane dividers when they were first
installed that day. (Bergstrom Dep, 31: 18 – 33: 3.) However, the issue the workers had with the
lane dividers was not that they were unsafe, but that they would slow the flow of workers to and
from the tents at break time, cutting into their break. (Bergstrom Dep., 31: 18 – 33: 3.) Moreover,
contrary to Herrera’s claim in his brief, TAG’s night-shift Field Safety Representative, Tim
Price, testified that he heard no complaints to him or BP about the lane dividers as fully installed.
(Price Dep., 52: 6-18.) Even if the TAG employees had raised a safety issue with the lane
dividers when fully installed, Herrera has failed to point to any evidence suggesting anyone from
TAG ever complained about the issue in the presence of any BP employees. Such evidence
showing that BP knew or should have known of the dangerous condition is necessary to show
breach of duty under Indiana premises law. Schmidt, 963 N.E.2d at 1144.
Since the lane dividers were not dangerous when fully installed in their bases, the crucial
issue is the time period that the lane dividers were not fully installed at the northeast entrance of
TAG’s ABF South tent where Herrera fell. There is no material issue of fact that this time period
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was 30 minutes or less. Herrera claims that TAG’s night-shift Field Safety Representative, Tim
Price, testified that when he entered the northeast entrance some of the lane dividers were not in
their bases. In actuality, Price testified with certainty in his deposition that all three lane dividers
were present when he entered the northeast entrance to TAG’s ABF South tent at 5:45 pm and no
other witness has testified to the contrary. Herrera allegedly fell at around 6:05 or 6:15 pm on
October 17, 2011. This means that at most only 30 minutes, and perhaps as little as 20 minutes,
passed at which time the lane dividers at the northeast entrance where Herrera fell were not fully
installed in their bases, creating the alleged tripping hazard. Given the sheer size of BP’s 1400acre oil refinery, even if the lane dividers had been removed for an hour, this would not be
sufficient to show the dangerous condition “existed for such a length of time and under such
circumstances that it would have been discovered in time to have prevented injury . . . .” Schulz,
963 N.E.2d at 1144.
Only one witness testified that he saw lane dividers missing from the bases before the
accident: TAG laborer Ronald Smith. While Herrera is quick to point this out, he fails to mention
that Ron Smith entered the TAG ABF South tent at a different door than Herrera, and thus does
not have personal knowledge whether any lane dividers were missing at the northeast entrance
before Herrera tripped. (Smith Dep., 28: 10-17; 32: 2-14.) Even then, Smith only saw missing
lane dividers at the southwest entrance to the TAG ABF South tent when he walked in with
coworker Robert Cunningham 30-45 minutes before the accident. (Smith Dep., 45: 24 – 46: 8.)
There is no evidence any BP employees walked by that entrance during that short time period
such that BP would have had notice of the potential trip hazard. Herrera’s next misrepresentation
is that BP employees were in and around TAG’s South ABF tent in the moments before the
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accident. There is no evidence supporting this claim. In fact, Tim Price testified that the only BP
employees in the area of the tents were Roger Croft and Gino Martinez, and they did not enter
TAG’s South ABF tent before the accident. (Price Dep., 63: 19-23.) Price further testified that
Croft and Martinez only entered the ABF North tent before the accident, and would have entered
the north tent at entrances on its north side. (Price Dep., 63: 1-6; 66: 3-12.) Price testified that
given the layout of the north and south tents, Croft and Martinez therefore would not have had an
opportunity to view the northeast entrance of TAG’s ABF South tent before the accident. (Price
Dep., 67: 7-14.) A drawing that Price drew of the tents’ configuration further demonstrates that
the BP employees would not have had an opportunity to observe the northeast entrance. ( Ex. 9 to
Price Dep., Price authenticated the drawing at Price Dep., 120: 20 – 121:6.)
In his deposition, Herrera claimed that he was told that a BP employee was following him
out of the ABF South tent when he fell, but the only basis for this testimony was that an
unidentified nurse2 told him this after they heard an announcement over a radio. (Herrera Dep.,
Vol. 1, 73: 6-25.) Herrera admitted he had no personal knowledge whether this was true (Herrera,
73: 6-25), and Herrera never deposed anyone able to verify this claim. Such testimony lacks any
foundation and is hearsay, is consequently inadmissible, and cannot be considered by the Court
on summary judgment. Sow v. Fortville Police Dep't, 636 F.3d 293, 301 (7th Cir. 2011) (“a court
may consider only admissible evidence in assessing a motion for summary judgment.”).
Although Herrera generally testified that BP kept a presence at the construction areas to ensure
2
In his response to the motion to strike, Herrera argues that the statement is admissible as
the admission of a party opponent. However, as Herrera has not presented any evidence that any
of the hearsay declarants were BP employees, it is clear that the statement does not meet the
exception to the hearsay rule.
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work proceeded safely (Herrera Dep., 28: 2-25), he never testified that he personally saw any BP
personnel in or around the areas that did not have ongoing construction, such as TAG’s tent, on
the date of the accident before the accident occurred.
Clearly, there is no evidence Croft or any other BP employees walked by the northeast
entrance of the South ABF tent (or any other entrances to the tent) at a point in time when lane
dividers were missing such that they could have witnessed a tripping hazard. For this reason,
Herrera cannot show that BP knew or should have known of the alleged tripping hazard posed by
the missing lane dividers.
Herrera has also argued that the lighting outside the northeast entrance of TAG’s ABF
South tent was poor, which Herrera claims is evidence that BP breached its duty of care. BP,
however, counters that the purported lack of adequate lighting is irrelevant because Herrera never
testified that he tripped because he could not see the flange due to poor lighting. Rather, Herrera
testified that he exited the northeast entrance of TAG’s tent directly behind and in front of a mass
of people who were also exiting. (Herrera Dep., 45: 17-23.) Herrera admits that as he exited the
tent, he was looking “straight ahead of me to go to the next tent on the left.” (Herrera Dep.,
60:14-21.) Since Herrera was looking straight ahead when he exited the tent, and was
sandwiched between other workers, BP argues that even if the lighting had been perfect Herrera
would not have seen the object on which he allegedly tripped. This court agrees that the
testimony about the lighting is irrelevant and inadmissible. Sow, 636 F.3d at 301.
This court finds that Herrera has failed to show that there is a material issue of fact that
BP knew or should have known of a dangerous condition at the northeast entrance of TAG’s
ABF South tent. It follows that Herrera cannot demonstrate that BP breached a duty of care.
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Accordingly, summary judgment is appropriate in favor of BP. Further, as BP has conclusively
shown that certain evidence presented by Herrera is inadmissible, as discussed above, BP’s
motion to strike will also be granted.
Conclusion
On the basis of the foregoing, BP’s motion for summary judgment [DE 43] is hereby
GRANTED. Further, BP’s motion to strike [DE 59] is also hereby GRANTED.
As the court
was able to decide the issues on the basis of the well-written briefs, BP’s motion for hearing [DE
45] is hereby DENIED.
Entered: March 28, 2016.
s/ William C. Lee
William C. Lee, Judge
United States District Court
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