ARMITAGE v. APEX CONTROL SYSTEMS, INC. et al

Filing 118

ENTRY for Partial Motion for Summary Judgment; For reasons explained in this Entry, Defendant Swindell Dressler's Motion for Partial Summary Judgment is GRANTED with regard to Plaintiff's neligence claim. The Plaintiff's claim under the Indiana Product Liability Act remains pending against Defendant Swindell Dresler. Signed by Judge William T. Lawrence on 5/13/2011. (NKD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
KEVIN ARMITAGE,
Plaintiff,
vs.
APEX CONTROL SYSTEMS, INC. d/b/a
APEX AUTOMATION, INC., et al.,
Defendants.

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Cause No. 2:08-cv-45-WTL-WGH

ENTRY ON PARTIAL MOTION FOR SUMMARY JUDGMENT
Before the Court is a Motion for Summary Judgment1 (Docket No. 80) filed by
Defendant Swindell Dressler International Company (“Swindell Dressler”) and the Plaintiff’s
response thereto. The Defendant has not filed a reply in support of its Motion and the time for
doing so has expired. The Court, being duly advised, now GRANTS the Defendant’s motion for
the reasons set forth below. This motion is fully briefed, and the
I. SUMMARY JUDGMENT STANDARD
Federal Rule of Civil Procedure 56(a) states:
A party may move for summary judgment, identifying each claim or defense – or
the part of each claim or defense – on which summary judgment is sought. The
court shall grant summary judgment 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.
In ruling on a motion for summary judgment, the admissible evidence presented by the nonmoving party must be believed and all reasonable inferences must be drawn in the non-movant’s

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Although not captioned as such, Swindell Dressler’s motion is really one for partial
summary judgment because it only seeks summary judgment on the Plaintiff’s negligence claim
and does not address his claim under the Indiana Product Liability Act.

favor. Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009). However, “[a] party who bears the
burden of proof on a particular issue may not rest on its pleadings, but must affirmatively
demonstrate, by specific factual allegations, that there is a genuine issue of material fact that
requires trial.” Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 490 (7th Cir. 2007). Finally,
the non-moving party bears the burden of specifically identifying the relevant evidence of
record, and “the court is not required to scour the record in search of evidence to defeat a motion
for summary judgment.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001).
II. BACKGROUND
Plaintiff Kevin Armitage, an employee of Brickcraft, LLC (“Brickcraft”), was injured on
January 16, 2006, when he attempted to change a piece of wire on Brickcraft’s setting machine.
The setting machine is a piece of equipment that cuts clay into brick-shaped pieces and places
these pieces onto a kiln car for firing. Brickcraft’s setting machine includes a “push up style
cutting machine” known as a “cutter.” Docket No. 81 at 3. The cutter itself is comprised of a
decel belt, a primary pusher, an elevator with a platen, a secondary pusher, and various steel
support structures.
Brickcraft hired Swindell Dressler to refurbish and install the brick making equipment at
Brickcraft’s Indiana plant. Although Swindell Dressler designed portions of the setting machine,
it subcontracted some of the work to Apex Control Systems, Inc. d/b/a Apex Automation, Inc.
(“Apex”). The contract between Brickcraft and Swindell Dressler stated that subcontracting was
permissible; however, Swindell Dressler “will remain responsible for any Work which is
subcontracted.” Docket No. 91 Ex. 1 at 2. Accordingly, Apex designed, fabricated, installed,
wired, and programmed the cutter. Apex also programmed the programmable logic controller

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(“PLC”), an industrial computer that controlled the setting machine. Swindell Dressler did not
inspect Apex’s installation of either the cutter or the PLC.
Neither Swindell Dressler nor Apex provided any written instructions explaining how to
safely change wires on the cutter. Nor did they provide written warnings concerning the dangers
associated with changing wires on the cutter.
Based on statements from other Brickcraft employees, Armitage believed that removing
two pins and moving the decel belt shut down the cutter and made it safe to change wires on the
machine. In reality, the machine actually needed to be shut off at the electrical control panel
before wires were changed. There were no instructions or warnings on the machine to inform
Armitage of this fact. In addition, the backup safety system on the cutter was not operational
because it had been bypassed by a “jumper” wire. Thus, on January 16, 2006, when Armitage
attempted to change the wire on the cutter, the machine activated, caught his right arm, and
severely fractured it.
Armitage ultimately filed suit in the Clay County Superior Court against Apex and
Swindell Dressler. The case was removed to this Court in February 2008. Swindell Dressler has
now moved for summary judgment as to Armitage’s negligence claim against it.
III. DISCUSSION
In Indiana, a negligence claim requires: (1) a duty owed to the plaintiff by the defendant;
(2) breach of that duty by allowing conduct to fall below the applicable standard of care; and (3)
a compensable injury proximately caused by the defendant’s breach of duty. Caesars Riverboat
Casino, LLC v. Kephart, 934 N.E.2d 1120, 1123 (Ind. 2010). “Absent a duty there can be no
negligence or liability based upon the breach.” Kephart, 934 N.E.2d at 1123. “It is the exclusive

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province of the court to determine whether the relation existing between the parties gives rise to
a duty to exercise care.” Gariup Constr. Co., Inc. v. Foster, 519 N.E.2d 1224, 1228 (Ind. 1988).
In its motion for summary judgment, Swindell Dressler argues that because it “did not
install the cutting bank portion of the brick making machine and did not design or implement the
safety systems which Plaintiff contends caused his injury,” then it “could not owe a duty to
Plaintiff.” Docket No. 81 at 12. In short, Swindell Dressler alleges that Armitage has not
established the duty element of his negligence claim so that claim must fail.
In response, Armitage points to the contract between Swindell Dressler and Brickcraft,
which provides: “Seller [Swindell Dressler] reserves the right to subcontract and/or assign any
portions of the Work covered by this Contract, but Seller [Swindell Dressler] will remain
responsible for any work which is subcontracted.” Docket No. 91 Ex. 1 at 2. According to
Armitage, even though Swindell Dressler did not design, manufacture, or install the cutter, by
virtue of its contract with Brickcraft, Swindell Dressler is liable for Apex’s allegedly negligent
installation.
The contract that Armitage cites was between Swindell Dressler and Brickcraft.
Armitage has not introduced any evidence indicating that he was a party to that contract and has
not argued that he is a third-party beneficiary of Swindell Dressler’s promise to remain
responsible for Apex’s work. Summary 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.” Schacht v. Wis. Dep’t of Corrs., 175 F.3d 497, 504 (7th Cir. 1999).
Because Armitage has failed to demonstrate that Swindell Dressler owed him a duty, Swindell
Dressler’s motion for summary judgment is GRANTED as to Armitage’s negligence claim.

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CONCLUSION
For the foregoing reasons, Defendant Swindell Dressler’s Motion for Partial Summary
Judgment (Docket No. 80) is GRANTED with regard to the Plaintiff’s negligence claim. The
Plaintiff’s claim under the Indiana Product Liability Act remains pending against Defendant
Swindell Dressler.
SO ORDERED: 05/13/2011

_______________________________

Copies to:

Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Paul Thomas Belch
Travelers Staff Counsel
[e-mail]
Gerald H. McGlone
McGlone Law
[e-mail]
Thomas Edward Rosta
Metzger Rosta LLP
[e-mail]

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