Hudson v. ArcelorMittal LLC et al

Filing 68

OPINION AND ORDER: GRANTING 38 MOTION for Summary Judgment by Defendant Arcelormittal Burns Harbor LLC; DENYING AS MOOT 46 MOTION to Exclude or Bar Plaintiff's Expert Gregory Pestine Under FRE 702 by Defendant Arcelormittal Indiana Harbor LL C; DENYING AS MOOT 47 MOTION to Strike References to Inadmissible Subsequent Remedial Measures in Plaintiff's Motion for Summary Judgment by Defendant Arcelormittal Burns Harbor LLC. The Clerk is ORDERED to DISMISS this case WITH PREJUDICE and to CLOSE this case. Signed by Judge Rudy Lozano on 1/9/2018. (lhc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
TODD HUDSON, as personal
representative of the Estate
of WILLIAM HUDSON, Deceased,
Plaintiff,
vs.
ARCELORMITTAL BURNS HARBOR,
LLC, formerly known as ISG
BURNS HARBOR, LLC,
Defendant.

)
)
)
)
)
)
) CAUSE NO. 2:16-cv-41
)
)
)
)
)
)

OPINION AND ORDER
This matter is before the Court on the: (1) Defendant’s Motion
for Summary Judgment, filed by Defendant, ArcelorMittal Burns
Harbor LLC (“ArcelorMittal”), on May 25, 2017 (DE #38); (2)
Defendant’s Motion to Exclude or Bar Gregory Pestine, filed by
Defendant ArcelorMittal on July 10, 2017 (DE #46); and (3) Motion
to Strike Plaintiff’s Reference to Subsequent Remedial Measures
From Its Brief In Opposition to Defendant’s Motion for Summary
Judgment, filed by Defendant ArcelorMittal on July 10, 2017 (DE
#47).

For the reasons set forth below, the Motion for Summary

Judgment (DE #38) is GRANTED; the Motion to Exclude or Bar Gregory
Pestine (DE #46) is DENIED AS MOOT; and the Motion to Strike
Plaintiff’s Reference to Subsequent Remedial Measures (DE #47) is
DENIED AS MOOT.

The Clerk is ORDERED to DISMISS this case WITH

PREJUDICE and to CLOSE this case.

BACKGROUND
This premises liability case revolves around the death of
William Hudson, an employee of Tranco Industrial Services, Inc.,
Defendant ArcelorMittal’s snow removal contractor.

Hudson died

from a fatal heart attack that occurred after his loader/backhoe
ran into a raised manhole cover that was buried under 17 inches of
snow.
There has been extensive briefing in this case.

Defendant

moves for summary judgment. (DE #38.) It argues that a landowner is
not required to warn its independent contractors about known facts.
Additionally, it contends that the alleged hazard (the snow-covered
manhole) only existed because of the very condition that Tranco was
hired to address on ArcelorMittal’s premises; therefore, the hazard
was specific to the work Tranco was performing. Finally, Defendant
argues that ArcelorMittal did not have “superior knowledge” of the
hazard, and therefore cannot be liable for failing to instruct or
warn Hudson.
In response, Plaintiff claims that ArcelorMittal had a duty to
provide Hudson with a reasonably safe work place and to warn him of
the presence and hazard of the buried manhole. Plaintiff also
argues that superior knowledge is not required here, because Hudson
was not killed by the very condition he was employed to address.
2

(DE #42.)
Defendant filed a reply brief on July 10, 2017 (DE #45).
also filed a sur-reply on September 14, 2017 (DE #57).

It

In the sur-

reply, ArcelorMittal identified a case recently decided by Judge
Cherry

in

the

Northern

District

of

Indiana,

Strominski

v.

ArcelorMittal USA, LLC, No. 2:15-cv-122-PRC, 2017 WL 3034975 (N.D.
Ind. Jul. 17, 2017), and urges this Court to follow the logic in
Strominski.

Strominski also involved a plaintiff who was injured

at a different ArcelorMittal facility. While operating a payloader
and clearing snow, his machine struck a protruding manhole cover
and Strominski was injured.

In Strominski, the Court granted

summary judgment in favor of ArcelorMittal. In its sur sur-response
(DE #62), Plaintiff attempts to distinguish Strominski by pointing
out

that

the

Daily

Work

Authorization

in

this

case

made

identification of hazards a joint responsibility between Tranco and
ArcelorMittal, in contrast to the Daily Work Authorization in
Strominski, which did not contain a requirement for hazards to be
jointly identified by Tranco and ArcelorMittal. Plaintiff also
filed with the Court the Daily Work Authorization to be part of the
record.

(DE #66.)

Defendant counters by maintaining that control

or responsibility of the premises is not a material factor, but
rather the issue of superior knowledge is dispositive.

(DE #65.)

Aside from the motion for summary judgment, ArcelorMittal also
filed a motion to exclude or bar Gregory Pestine, claiming he lacks
3

the requisite training, education, experience, and knowledge to
offer an expert opinion about warnings (DE #46).

In response,

Plaintiff argues that he is qualified and his expert report
comports with Federal Rule of Evidence 702 and Daubert.
Defendant filed a reply on August 14, 2017.
Finally,

ArcelorMittal

also

filed

(DE #50.)

(DE #52.)
a

Motion

to

Strike

Plaintiff’s reference to subsequent remedial measures from its
brief in opposition to Defendant’s motion for summary judgment.
(DE #47.)

Defendant argues that citing the fact that reflective

posts and slag were installed after the accident to mark the
manhole covers is inadmissible under Federal Rule of Evidence 407.
In opposition, Plaintiff claims that the evidence is relevant in
proving control and the feasibility of precautionary measures. (DE
#51.)

Defendant filed a reply brief on August 14, 2017 (DE #53).
All

three

motions

are

fully

briefed

and

ready

for

adjudication.

DISCUSSION
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

dispute 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, 106 S. Ct.
4

2505, 91 L. Ed. 2d 202 (1986).

Not every dispute between the

parties makes summary judgment inappropriate; “[o]nly disputes over
facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.”

Id. To

determine whether a genuine dispute 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.

See Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir. 2010).

However, “a court may not make credibility determinations, weigh
the evidence, or decide which inferences to draw from the facts;
these are jobs for a factfinder.”

Payne v. Pauley, 337 F.3d 767,

770 (7th Cir. 2003) (citations omitted).
A party opposing a properly supported summary judgment motion
may not rely on allegations in his own pleading but rather must
“marshal and present the court with the evidence [he] contends will
prove [his] case.”
651,

654

(7th

Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d

Cir.

2010).

“[I]nferences

relying

on

mere

speculation or conjecture will not suffice.” Stephens v. Erickson,
569 F.3d 779, 786 (7th Cir. 2009) (citation omitted).

If the non-

moving party fails to establish the existence of an essential
element on which he bears the burden of proof at trial, summary
judgment is proper.

See Massey v. Johnson, 457 F.3d 711, 716 (7th

Cir. 2006).

5

Undisputed Facts1
ArcelorMittal contracted with Tranco to maintain the railroad
tracks

used

to

ship

products

and

materials

in

and

out

of

ArcelorMittal’s steel mill in Burns Harbor, Indiana, including
plowing snow. Ryan Hopkins, a general foreman of Tranco, was known
as the “snow commander.”

As the snow commander, Hopkins took care

of the thoroughfares, roads, and parking lots.

Another Tranco

foreman, Juan Luna, took care of the railroad tracks and switches.
Tranco performed work on ArcelorMittal’s premises every day,
and had an on-site trailer on ArcelorMittal’s site.

Tranco

purchased its own equipment and determined which equipment should
be used by its employees, including the payloader Hudson was
operating on the day in question.

Tranco monitored the weather

patterns to anticipate the scope of its snowplowing work, and then
Hopkins

(the

“snow

specific areas.

commander”),

designated

personnel

to

plow

Each snow plowing shift had to be authorized by a

written work authorization from ArcelorMittal, and ArcelorMittal
did give Tranco some direction on the work they needed done.
(Hopkins Dep. at 111; Beck Dep. at 50.) Ultimately, staffing a job
was authorized and approved by ArcelorMittal.

Moreover, the Daily

Work Authorization form specifically states that “[h]azards must be

1

For the sake of brevity, the Court has not included the
record citations for each undisputed fact. However, it has
verified each in the record, and has noted the citation where
facts are disputed.
6

jointly identified and reviewed by ArcelorMittal representative and
contractor representative.”

(DE #42-14.)

The possibility of a plow striking a snow-covered object is a
hazard that is present in Tranco’s snow removing work.

Tranco

provided training to its employees about snow removal, including
how to operate in snow at safe speeds and how to avoid contact with
covered obstructions in the snow. Tranco also held safety meetings
a couple times per month, and one meeting addressed “Cold Weather
Hazards” and included specific training on taking caution near
stationary objects while plowing snow.
Hudson was a heavy equipment operator and at the time of the
accident, had been employed by Tranco as an operator for at least
seven years.

Prior to working for Tranco, Hudson had worked other

jobs on ArcelorMittal’s premises for many years.

Hudson was

described as one of Tranco’s best operators and Hopkins reported
that Hudson knew the whole mill.
Beck Dep. at 46-47.)

(Hopkins Dep. at 14-15,47-48;

Hudson typically worked five to seven shifts

a week, starting at 7:00 a.m.

In the weeks before the incident, he

was working twelve to sixteen hour shifts, including at night, to
address the snowfall.
On the day of the incident, about 17 inches of snow had
accumulated on ArcelorMittal’s premises.

At about 7:30 p.m. on

January 9, 2014, Hopkins instructed Hudson to clear snow from the
area to the east of the 110 plate mill next to the railroad switch.
7

Hudson had plowed the area in question many times over the course
of many years before the incident, including on days when there was
a substantial amount of snow.

While the parties dispute whether

this area was an authorized roadway or not, they do agree that
Tranco, ArcelorMittal, and other independent contractor employees,
used it as access to the rail switches and the railcars.
The actual incident was not witnessed by anyone.

However,

Hopkins told Tim Beck that Hudson hit something, and he told Pete
Kinsler that Hudson’s machine hit a manhole.

Hudson’s machine

stopped abruptly within an inch of a buried, raised manhole cover,
which is to the north of switch number 784.

When discovered, the

backhoe had a broken windshield, it was found running, in reverse,
with the backup alarm on, and the bucket was down and full of snow.
The parties do not dispute that Hudson struck the raised manhole
cover platform with his payloader, hit the windshield, and died of
a fatal heart attack on the scene.
Regarding the manhole cover, it had been present on the
property for approximately 40-50 years.

It is used to provide

access to an underground pipe system. The manhole is situated
within a concrete platform that is approximately 4 or 5 inches
above grade. While there is some disagreement about how many other
vaults or platforms are on ArcelorMittal’s premises, ArcelorMittal
did a survey after the incident and located 65 valve pits and 12
electrical boxes on the property.
8

(James Dep. at 25.)

There is evidence in the record showing that Hudson, his
employer, his supervisor, and his co-workers all knew of the
existence of the concrete platform and raised manhole cover to the
north of switch 784.

Indeed, Hopkins testified that Hudson had

removed snow in that area on numerous occasions and that Hudson
knew of the existence of the manhole cover.

(Hopkins Dep. at 48-

49.) Plaintiff argues that while they might have been aware of
where the manhole was, it was totally invisible on the night in
question because it was buried under 17 inches of snow.

(DE #42 at

10.)
Hopkins testified that, prior to the accident at issue, he did
not have any knowledge that any Tranco operator ever struck the
manhole in question during snow removal. (Hopkins Dep. at 44, 49.)
However, there is testimony from Edward G. Reinke, a Tranco
mechanic, who testified in his deposition about “a couple of times
or an incident where it happened,” meaning the snowplow came into
contact with the manhole covers, and someone from Tranco would have
told someone from ArcelorMittal. (DE #42-9 at 40, 74-75.) Hopkins
did not consider the manhole cover a hazard, even with 17 inches of
snow.

(Hopkins Dep. at 45.)
A few days after the accident, Pete Kinsler of Tranco, with

ArcelorMittal’s authorization, brought the raised manhole up to
grade.

ArcelorMittal also conducted a survey, and marked with

raised reflective markers the manhole at issue and other manholes.
9

Gregory Pestine, Plaintiff’s retained expert, opines that the
raised manhole, which was within a roadway where vehicles and snow
removal equipment were expected to travel, was an “unreasonably
dangerous

condition

because

it

was

unmarked

and

it

was

not

identifiable under 17 inches of snow.” (Pestine Expert Report, Ex.
R, at ¶ B.2.)
Plaintiff argues that, at a minimum, there are disputed facts
and allegations regarding control of the area at issue, and this
should preclude summary judgment.

I.

Premises Liability
The parties agree that the complaint sounds in negligence,

and this case is based upon allegations of premises liability. The
Supreme Court of Indiana has specified, “[a]s a general rule, a
property

owner

has

no

duty

to

furnish

the

employees

of

an

independent contractor a safe place to work, at least as that duty
is imposed on employers.”

PSI Energy, Inc. v. Roberts, 829 N.E.2d

943, 957 (Ind. 2005) (abrogated on other grounds). However, the
property owner must maintain the property “in reasonably safe
condition for business invitees including independent contractors
and their employees.”
liability

to

an

Id.

Yet a “landowner ordinarily has no

independent

contractor

or

the

contractor’s

employees for injuries sustained while addressing a condition as to
which the landowner has no superior knowledge.”

10

Id. at 961.

“[F]acts showing only that a landowner knows of a condition
involving a risk of harm to an invitee, but could reasonably expect
the invitee to discover, realize, and avoid such risk, may be
insufficient to prove breach of the duty.”

Douglass v. Irvin, 549

N.E.2d 368, 370 (Ind. 1990).
Indiana

has

adopted

the

Restatement

(Second)

of

Torts

formulation of landowners’ liability to workers on the premises,
which 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.
Restatement (Second) of Torts, § 343. Further, section 343A(1)
should be read in conjunction with § 343 and it states that:
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.
Restatement (Second) of Torts, § 343A(1).
Magistrate Judge Paul R. Cherry recently decided a very
similar case, involving a snow plow accident at a different
11

ArcelorMittal plant.

Strominkski v. Arcelormittal USA, LLC, 2:15-

cv-122-PRC, 2017 WL 3034975 (N.D. Ind. July 17, 2017).

In that

case, an employee of Tranco was injured when he struck a raised
manhole cover while plowing snow.

Judge Cherry recapped the

Restatement law as subjecting a landowner to liabilities for
injuries to invitees caused by a condition on the land only if the
landowner meets three requirements:
(1) the landowner “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 landowner
should expect that the invitee “will not discover
or realize the danger, or will fail to protect
themselves against it;” and (3) the landowner
“fails to exercise reasonable care to protect [the
invitee] against the danger.”
Strominski, 2017 WL 3034975, at *4 (quoting Restatement (Second) of
Torts § 343); and citing Smith v. Baxter, 796 N.E.2d 242, 244 (Ind.
2003).
In Strominski, ArcelorMittal argued that it could not be held
liable for the injuries because the employee was injured while
performing the specialized work that Tranco was hired to do, and
because ArcelorMittal had no superior knowledge of the raised
manhole cover. ArcelorMittal makes the identical arguments in this
case.
A landowner cannot be liable where the alleged liability
relates to a hazard associated with the condition or activity that
is the very reason for the independent contractor’s presence on the

12

property.

PSI Energy, Inc., 829 N.E.2d at 958. Plaintiff argues

that PSI Energy requires a showing that a landowner has superior
knowledge of the dangerous conditions on the premises only when an
employee of the independent contractor is injured by the very
condition he was employed to address – and in this case, he argues
Hudson was not killed by the very condition he was employed to
address. (DE #42 at 16.)

Plaintiff argues that Hudson “was killed

due to an unreasonably dangerous condition on the premises, not by
the snow.”

(DE #42 at 17.)

In arguing Hudson was not injured by the condition he was
employed to address, Plaintiff relies heavily on Myers v. Bremen
Casting, Inc., 61 N.E.3d 1205 (Ind. Ct. App. 2016). In Myers, the
plaintiff was an electrician who contracted mesothelioma after
exposure to asbestos while working on defendant’s property.

The

court described Myers’ work as follows:
[Myers’] duties generally included installing and
maintaining
wire,
conduit,
light
fixtures,
transformers, junction boxes, and circuit breakers.
In carrying out these duties, [Myers] occasionally
worked near asbestos insulation and with products
containing asbestos. [Myers] was not warned of the
dangers associated with asbestos exposure.
In
addition, he was neither trained nor hired to
handle asbestos, and he did not wear any protective
gear.
Id. at 1210.

In Myers, the Court found “the Defendants have not

designated sufficient evidence to establish [Myers] was injured by
the very condition he was employed to address” and there was a
question of fact regarding whether the plaintiff was injured by the
13

condition he was hired to address, because it was undisputed that
the plaintiff had no specialized knowledge about asbestos and was
not trained about how to handle it or avoid its associated risks.
Id.

at

1215-16.

In

stark

contrast,

Hudson

worked

with

the

potentially hazardous snow daily (not occasionally like Myers), and
he was trained by Tranco regarding the potential risks of impacting
snow-covered objects, and taught how to avoid them.
provided the equipment for Hudson.

Tranco also

It is clear that Hudson died

while doing the very work Tranco was contracted to do, and while
addressing the condition (the snow) that allegedly caused the
raised platform to be hidden and cause a risk.
Strominski addressed the identical argument, and distinguished
Myers too:
The relevant condition on the land that Tranco was
hired to address was the snow cover.
Unlike in
Myers, there is sufficient evidence before the
Court indicating that encountering objects under
the snow is inherent in snow plowing, that
Strominski knew to prepare for this possibility,
and that Tranco instructed Strominski to take
caution when plowing due to the chance of objects
being buried under the snow. . . . Tranco and
Strominski both admittedly knew of the potential
for objects to be buried under the snow cover and
to allow for this possibility in plowing snow.
Strominski was injured by the condition that he was
hired to address.
Strominski, 2017 WL 3034975, at *5.

This Court concurs with Judge

Cherry’s reasoning, and finds that Hudson’s death was the result of
the condition he was hired to address.
Plaintiff

also

argues

that
14

summary

judgment

is

improper

because

it

has

raised

a

question

of

fact

as

to

whether

ArcelorMittal had “superior knowledge” of the raised manhole cover.
(DE #42 at 18.) Specifically, Plaintiff points to the testimony of
ArcelorMittal’s

Manager

Carl

Pfiefer,

who

Plaintiff

alleges

testified “even before Hudson’s death he intended to have the
manholes marked in some way so that they could be visible during
snow

events,

fatality.”

but

did

not

get

(DE #42 at 18.)

around

to

it

until

after

the

However, when viewed in the full

context of his deposition, Pfeifer testified:
Even before this incident, it had come to my
attention - - it had come to my attention that
there were times when manholes and valve pits
were difficult to located on the property;
particularly in the winter when there was more
than a couple of inches of snow. And under
those
circumstance[s]
those
were
circumstance[s] where the Air, Gas & Water
folks would have to get at these locations to
shut off a valve or repair a leak or whatever.
And it had taken some time to locate those. .
. . sometime in the first quarter of ‘14, I
asked Mike to have these valve pit covers and
manhole covers and et cetera located and
marked; primarily so our people could see them
and find them more easily and execute a repair
or, whatever they are trying to do, more
easily.
(Pfeifer

Dep.

at

45-46.)

In

other

words,

the

main

reason

ArcelorMittal considered marking the manholes and valve pits prior
to the accident was to facilitate access to them for repairs.
Pfeifer also testified that elevated manhole covers and valve pits
are very noticeable, even when covered by reasonable amounts of
snow, and that he believed a manhole platform only would pose a
15

hazard if someone is not intimately familiar with them.

Id.

In

this case, Hopkins (Tranco’s snow commander), testified that Hudson
was very experienced and familiar with the plant, Hudson had
removed snow there many times over the course of years, and that
Hudson knew of the existence of the manhole cover. (Hudson Dep. at
46-49.)

“A duty to warn is predicated on the understanding that

individuals who have superior knowledge of the dangers posed by a
hazard must warn those who lack similar knowledge.

When an

individual is already aware of the danger, a warning is not
necessary.”

Carter v. American Oil Co., 139 F.3d 1158, 1164 (7th

Cir. 1998).
Regarding

superior

knowledge,

Judge

Cherry

found

Strominski:
[N]o warning from ArcelorMittal to Tranco or
Strominski was necessary. Tranco and Strominkski
were invited onto the property to plow snow, and
both Tranco and Strominski had years of experience
plowing snow.
The evidence shows that Tranco
plowed the area at issue here hundreds, or perhaps
thousands, of times before the event at issue. The
pathway where the raised manhole cover is located
is not a main roadway for ArcelorMittal. The snow
cover was easily observable, so ArcelorMittal was
entitled to expect Tranco and Strominski to take
due precaution to protect themselves against the
dangers presented in plowing snow, which Tranco and
Strominski both testified includes the potential of
striking objects buried beneath the snow cover.
ArcelorMittal did not have superior knowledge of
the raised manhole’s condition and could not have
told Tranco anything about it that Tranco did not
already know.
Strominski, 2017 WL 3034975, at *6.
16

in

Similarly, the Tranco employees operated in this area daily
and at the time of the accident, Hudson had plowed snow on this
site for at least seven years.

There is evidence in the record

that Tranco was aware of the risks posed by striking snow-covered
objects, and that Tranco conducted training specifically about how
to avoid contact with covered obstructions in the snow. Tranco was
a specialized contractor that had specific knowledge about the
risks inherent in plowing work.

There are no facts in the record

suggesting that ArcelorMittal was involved in determining how to
safely conduct snowplowing on its premises.

With regard to the

specific manhole at issue in this case, Plaintiff cites testimony
that ArcelorMittal “didn’t even know [the platform] was there.”
(DE #42 at 10.)
investigation

on

Tranco’s vice president testified about the
the

night

of

the

occurrence

and

answered,

“[Hopkins] said that he thought there was a manhole there, yeah. .
. . We were aware that there was something there.”

(Beck Dep. at

83.) As such, this Court concurs with the analysis of Judge Cherry
and also finds that ArcelorMittal does not have superior knowledge
in this case.
Plaintiff attempts to distinguish Strominski, relying on the
Daily Work Authorization Form.

(DE #62-4.)

It argues there is a

“stark difference” between Strominski and this case because the
Daily Work Authorization Form for the night of Hudson’s death
required the identification of hazards regarding snow plowing as a

17

joint responsibility between ArcelorMittal and Tranco.

(Id. at 1;

DE #42-14.) The work authorization in Strominski did not require
ArcelorMittal to jointly identify the hazards with Strominski’s
employer.

(DE

#66-2.)

It

is

true

that

the

Daily

Work

Authorization Form in Hudson’s case includes the phrase “hazards
must

be

jointly

identified

and

reviewed

by

ArcelorMittal

representative and contractor representative,” while the Strominski
authorization does not include the same language.

This issue,

which seems like one of control, was not an issue dealt with by
Strominski. Rather, recall that the Strominski Court recited that
a

landowner

contractor

.

“ordinarily
.

.

for

has

no

injuries

liability
sustained

to

an

while

independent
addressing

a

condition as to which the landowner has no superior knowledge.”
Strominski, 2017 WL 3034975, at *5 (quoting PSI Energy, Inc., 829
N.E.2d at 961.)

A joint responsibility for identifying hazards

does not necessarily mean that ArcelorMittal had superior knowledge
of the hazard in question.

Moreover, “[f]acts showing only that

a landowner knows of a condition involving a risk of harm to an
invitee, but could reasonably expect the invitee to discover,
realize, and avoid such risk, may be insufficient to prove breach
of the duty.”
In

this

Id. (quoting Douglass, 549 N.E.2d at 370).
case,

there

is

no

evidence

in

the

record

that

ArcelorMittal had a superior knowledge of the manhole cover or
potential hazard associated with it.

18

Instead, there is evidence

that Tranco could have reasonably discovered and avoided any such
risk.

As Judge Cherry said, “ArcelorMittal did not have superior

knowledge of the raised manhole’s condition and could not have told
Tranco anything about it that Tranco did not already know.”
Strominski, 2017 WL 3034975, at *6.

The same is true in this case.

As such, this Court also reaches the “single inference” that
ArcelorMittal did not breach a duty to Hudson. Id.
Finally, the Court notes that consideration of the subsequent
remedial measures and the testimony by Plaintiff’s expert, Gregory
Pestine, does not alter the superior knowledge analysis set forth
in Strominski and followed by this Court.

As such, the motions to

exclude and strike are denied as moot.

CONCLUSION
For the reasons set forth above, the Motion for Summary
Judgment (DE #38) is GRANTED; the Motion to Exclude or Bar Gregory
Pestine (DE #46) is DENIED AS MOOT; and the Motion to Strike
Plaintiff’s Reference to Subsequent Remedial Measures (DE #47) is
DENIED AS MOOT.

The Clerk is ORDERED to DISMISS this case WITH

PREJUDICE and to CLOSE this case.
DATED: January 9, 2018

/s/ RUDY LOZANO, Judge
United States District Court

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