Marvin Podemski v. Praxair, Inc. and Antibus Scales & Systems, Inc. , 87 N.E.3d 540 ( 2017 )


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  •                                                                                    FILED
    Nov 17 2017, 8:56 am
    CLERK
    Indiana Supreme Court
    Court of Appeals
    and Tax Court
    ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
    Douglas A. Mulvaney                                     PRAXAIR, INC.
    Stutsman & Mulvaney                                     Angela Kelver Hall
    Elkhart, Indiana                                        Matthew R. Kinsman
    Faegre Baker Daniels LLP
    South Bend, Indiana
    Brian J. Paul
    Faegre Baker Daniels LLP
    Indianapolis, Indiana
    ATTORNEY FOR APPELLEE
    ANTIBUS SCALES & SYSTEMS, INC.
    Andrew T. Glier
    State Auto Insurance House Counsel
    Carmel, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Marvin Podemski,                                        November 17, 2017
    Appellant-Plaintiff,                                    Court of Appeals Case No.
    71A03-1608-CT-1927
    v.                                              Appeal from the St. Joseph Superior
    Court
    Praxair, Inc. and Antibus Scales                        The Honorable Jenny Pitts Manier,
    & Systems, Inc.,                                        Judge
    Appellees-Defendants.                                   Trial Court Cause No.
    71D05-1302-CT-21
    Brown, Judge.
    Court of Appeals of Indiana | Opinion 71A03-1608-CT-1927 | November 17, 2017                           Page 1 of 15
    [1]   Marvin Podemski appeals the trial court’s entry of summary judgment in favor
    of Praxair, Inc. (“Praxair”) and Antibus Scales & Systems, Inc. (“Antibus”) and
    the denial of his motion to correct error. Podemski raises two issues which we
    revise and restate as whether the court erred in entering summary judgment in
    favor of Praxair and Antibus (together, the “Defendants”) and abused its
    discretion in denying his motion to correct error. We affirm.
    Facts and Procedural History
    [2]   At approximately 9:00 or 9:15 p.m. on August 17, 2011, Podemski was working
    as a truck driver for his employer, the Linde Group, hauling industrial gases
    when he pulled into the Praxair facility in East Chicago. After he pulled the
    day cab and trailer up on the scales and parked it, Podemski unhooked the air
    supply line from the truck to the trailer, turned around, grabbed the white air
    line from a post, hooked it up, and started to walk in the dark toward the back
    of the trailer. His foot caught a portion of a black supply line running from the
    post and downward into a grate, and he fell.
    [3]   On February 1, 2013, Podemski filed a complaint against Praxair alleging in
    part that it had a duty to maintain its premises in a reasonably safe condition for
    its invitees, that it failed to do so, that it was negligent in the maintenance of its
    property in that it failed to maintain the area where deliveries of gas were made
    by ensuring the area was well lit and any potential dangers were corrected or
    warned of, and that it was otherwise negligent. After Praxair removed the case
    to federal court on the basis of diversity jurisdiction, Podemski filed an
    amended complaint adding Antibus, a company that services the scales at
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    Praxair’s facility, as a party defendant, and the case was remanded to state
    court. The amended complaint alleged in part that Antibus had a duty to
    perform its work in a safe and workmanlike manner, to warn of any dangers it
    created, and to maintain the work area in a safe condition.
    [4]   Praxair filed a motion for summary judgment on October 31, 2014, and
    Antibus filed its own motion for summary judgment on May 11, 2015. The
    court granted both the stipulated extension of time of the parties, filed on
    November 26, 2014, allowing Podemski until March 2, 2015 to respond to
    Praxair’s motion, and the follow-up request, filed on March 4, 2015, continuing
    the response deadline until a new schedule for discovery was set. At a status
    hearing held on February 24, 2016, the trial court set a hearing on both motions
    for March 29, 2016. On March 4, 2016, Podemski filed a designation of facts
    and brief in response to Defendants’ motions for summary judgment, as well as
    a motion to publish the depositions of certain individuals.
    [5]   In his deposition, as designated by Praxair, Podemski testified that he started
    working for the Linde Group as a truck driver on February 17, 1987, was
    continuously employed as a truck driver through the time of the accident, and
    that ninety-five percent of the time he was getting his loads out of the Praxair
    facility and was there roughly every day. When asked about the air line,
    Podemski testified that the air supply hoses for the brakes come off the back of
    the cab of the trunk and hook to the front driver’s side corner of the trailer, that
    when he parked on the scale, “you take the supply line off, put it on the deck
    plate of the truck, just lay it there. You get the supply line from the post next to
    Court of Appeals of Indiana | Opinion 71A03-1608-CT-1927 | November 17, 2017   Page 3 of 15
    the truck and hook it up.” Praxair Appendix Volume 2 at 17. When asked
    about where he was in the Praxair yard when the fall happened, he answered he
    was on the scales and had just pulled and parked the day cab and trailer on the
    scales and that it was dark. When asked how he came to fall, he responded that
    he had unhooked the “air supply line from the truck to the trailer, turned
    around, grabbed the air line from the post and hooked it up and started around
    the post again.” 
    Id. at 19.
    He stated that, in his estimation, the setup of the air
    supply line that came out of the grate was not typical, that he did not recall ever
    seeing it look like that before, and that “there’s three scales there. And I’m not
    saying I pulled on this scale every time. But, you know, . . . they’ve had work
    done on the scales over the five-plus years.” 
    Id. at 24.
    [6]   Podemski also testified that the closest light from where he fell was “45, 50
    feet” at the “back side of . . . the loading dock,” there were lights on the front
    side of the loading dock, and that, prior to the accident, he never felt he needed
    more light when he was performing his duties at Praxair. 
    Id. at 25-27.
    When
    asked if he felt “like if you had more light that night you would have seen the
    line that you tripped over,” he answered affirmatively; when asked if he thought
    that “the lights that were 35 feet away would’ve helped you be able to see the
    grate and the air supply line issue,” he answered affirmatively; and, after
    confirming that he had a flashlight in the truck, Podemski stated he used it on
    his “pre-trip and post-trip, you know, to look around. Other than that, for
    unhooking and hooking up, no.” 
    Id. at 28.
    When asked how often he was able
    to see well enough to do the things he needed, Podemski testified that “[i]t’s
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    gonna sound stupid, and you’re probably not gonna understand. But you can
    close your eyes and do it.” 
    Id. at 27.
    He also testified that he has “hooked and
    unhooked trailers for 40-plus years. It’s just – (Indicating.).” 
    Id. [7] Antibus
    designated an affidavit stating that it did not perform any work on the
    grate, the air hose, or the post between May of 2011 and the date of Podemski’s
    fall on August 17, 2011. Antibus designated a deposition stating that during its
    normal inspections at Praxair, the employees of Antibus would not go below
    the scales to make adjustments, but rather could do so “at the top of the scale.”
    Corrected Antibus Appendix Volume 2 at 50.
    [8]   In his brief opposing Defendants’ motions for summary judgment, Podemski
    cited several depositions and stated that there
    were two separate hoses used to fill the tank. There was the hose
    for the hydrogen itself and then an air line which was used to
    keep pressure in the tank . . . . Several Praxair employees
    testified that the air supply line should have come up through the
    grating next to a metal post and zip tied with plastic ties to the
    post. . . . The practice was to zip tie the hose to the post. . . .
    The air hose should have . . . come up at the base of the post and
    been fastened to the post.
    
    Id. at 83-85.
    [9]   On March 28, 2016, Podemski filed an additional motion to supplement the
    record with Mitchell Mullins’s deposition, stating that it was “newly discovered
    evidence which was not available at the time [Podemski] filed his response to
    [Defendants’] motions for summary judgment.” Second Corrected Appellant’s
    Court of Appeals of Indiana | Opinion 71A03-1608-CT-1927 | November 17, 2017   Page 5 of 15
    Appendix Volume 3 at 2. The following day, the court held its scheduled
    hearing on the summary judgment motions. At the beginning of the hearing,
    the court stated “I’ve read the motions, I’ve read the responses, read the
    Replies. . . . I’ve not combed through the designated evidence yet. I’m
    interested to hear your arguments.” Transcript at 28. Counsel for Podemski
    tendered the motion to supplement, and Praxair’s counsel stated Mullins was a
    “wayward” witness who “came out of nowhere,” a “former co-worker of Mr.
    Podemski who [Praxair] deposed when we first learned about his intent to
    testify that he had also, the night before the Podemski fall, had stubbed his toe
    on this hose and that he had reported it to someone at Praxair,” and that his
    testimony was “frankly just unbelievable,” given “the trip records from Linde,
    his employer, show that he was not at the Praxair facility the night before the
    fall, as he says he was.” Transcript at 37-38. The court responded that there is
    “no motion to publish. You just file them with the Court and they’re available
    for use. . . . We’ve done that with a bunch of them already,” and,
    I have granted multiple extensions of time to respond to the
    various motions for summary judgment. So it’s a little distressing
    to get these Designation of Facts the day before . . . the hearing, .
    . . I mean, as it is we’re right up on the trial because I’ve kept
    continuing the Response date. I don’t have a whole lot of time . .
    . between now and the trial, but I will . . . let you argue about
    why this should be filed as part of your address.
    
    Id. at 39.
    Counsel for Podemski stated:
    We were just able to get his deposition scheduled and taken on
    March 16. We did not get a copy of the transcript until
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    yesterday. So that is why we unfortunately had to file the . . .
    Motion to Supplement so close to the hearing date today,
    because there was a delay in getting the deposition transcribed,
    and we apologize for that. But we took his deposition as soon as
    he was identified and supplied a copy of the transcript as soon as
    we had it.
    
    Id. at 42.
    When the court asked whether Podemski’s counsel disagreed that
    “there’s a report showing [Mullins] was not at the facility? Or presumably
    showing he was somewhere else,” Podemski’s counsel stated that he did not
    recall seeing any trip report, and Praxair’s counsel stated, “we just got them.
    [Podemski does not] have them.” 
    Id. at 43.
    [10]   On March 31, 2016, the court entered an order granting summary judgment in
    favor of Praxair and Antibus. In part, the order states:
    Nowhere in [Podemski’s] Response or any of his earlier Motions
    for (or Stipulations to the) Extension of Time did [Podemski]
    alert the Court that there were additional witnesses sought, or
    whose depositions were yet to be taken. Further, once the affiant
    was identified or his deposition scheduled, [Podemski] did not
    seek relief under Rule 56(e) of the Indiana Rules of Trial
    Procedure. . . . [Podemski’s] Motion to File Supplemental
    Designation is denied.
    Second Corrected Appellant’s Appendix Volume 2 at 17. The order also found
    Praxair owed the duty to Podemski that it did to a business invitee, that the
    configuration of the air hose, although a danger, was not an unreasonable
    danger, and,
    Court of Appeals of Indiana | Opinion 71A03-1608-CT-1927 | November 17, 2017   Page 7 of 15
    it was open and obvious to observation that the air hose was not
    affixed to the pole and that some greater degree of care should be
    taken to avoid catching one’s foot.
    [Podemski] was very familiar with Praxair’s facility and had used
    the equipment many times. He was using the equipment that he
    believes caused him to trip immediately prior to the fall. Praxair
    could not reasonably anticipate that he would not take notice of
    the equipment he was using or that he would fail to look where
    he was walking, in an area covered by floor grates and furnished
    with supply hoses.
    Although [Podemski] has designated evidence that the lighting in
    the area in question was not adequate or was not adequate in
    light of the fact that the hose was black, [Podemski] has not
    designated evidence that he failed to see the hose. The factual
    question of the degree of illumination at the location where the
    trip occurred is not material under these circumstances.
    
    Id. at 19-20.
    On April 29, 2016, Podemski filed a motion to correct error. At a
    hearing on the motion on July 29, 2016, Podemski’s counsel was asked by the
    court if the “conversation . . . about how the parties worked cooperatively
    through the course of [these proceedings], that addresses my previous decision
    to not allow the supplemental designation. That’s your response to my ruling,
    basically,” and Podemski’s counsel responded that “we don’t feel it’s necessary
    to address that, that particular ruling in connection – that’s not the basis for our
    motion.” Transcript at 70. The court entered an order affirming its grant of
    summary judgment on August 5, 2016, stating:
    At the July 29, 2016 hearing, [Podemski] asserted that the
    Court’s decision to deny [Podemski’s] Motion to File
    Court of Appeals of Indiana | Opinion 71A03-1608-CT-1927 | November 17, 2017   Page 8 of 15
    Supplemental Designation was not a basis upon which
    [Podemski’s] Motion to Correct Error [was] made.
    Nonetheless, the Court affirms its conclusions about the timing
    and nature of the deposition testimony sought by [Podemski] to
    “supplement” his designation. Additionally, the Court questions
    whether the deposition testimony of Mitchell Edward Mullins
    constitutes “supplementation” as contemplated by T.R. 56. See
    Fort Wayne Lodge, LLC vs. EBH Corporation and Edward A. White,
    
    805 N.E.2d 876
    (Ind. Ct. App. 2004)[.]
    Publication of Depositions
    [Podemski’s] Motion also expresses concern . . . about the
    Court’s “failure to properly admit and consider depositions
    tendered to the Court as part of plaintiff’s summary judgment
    response.” . . . Again, as noted at the July 29, 2016 hearing, all
    depositions, save the deposition of Mitchell Edward Mullins, are
    published and available for use as appropriate. . . .
    The Court, in its review of [Podemski’s] brief took the referenced
    portions of the deposition as true, but determined that while
    suggesting the existence of a dangerous condition, they did not
    suggest the existence of an unreasonable danger or a basis for
    finding that Plaintiff would not fail to protect himself against any
    such danger, under all of the facts designated to the Court.
    Second Corrected Appellant’s Appendix Volume 2 at 21-23. It also stated that
    Podemski’s “designated evidence does not create any issue of fact as to whether
    the condition of [Praxair’s] premises were unreasonably dangerous,” that even
    assuming “that the lighting was inadequate,” Podemski “proceeded into the
    dark, without using his flashlight, without attending to his surroundings,” and
    Court of Appeals of Indiana | Opinion 71A03-1608-CT-1927 | November 17, 2017   Page 9 of 15
    that Podemski “has not established a genuine issue of fact as to whether
    Defendants were in a better position than was [Podemski] to be aware of the
    condition of the air hose.” 
    Id. at 8.
    Discussion
    [11]   The issue is whether the trial court erred in entering summary judgment in
    favor of Praxair and Antibus or abused its discretion in denying Podemski’s
    motion to correct error. We generally review rulings on motions to correct
    error for an abuse of discretion. Ind. Bureau of Motor Vehicles v. Charles, 
    919 N.E.2d 114
    , 116 (Ind. Ct. App. 2009); Speedway SuperAmerica, LLC v. Holmes,
    
    885 N.E.2d 1265
    , 1270 (Ind. 2008), reh’g denied. An abuse of discretion occurs
    if the trial court’s decision is against the logic and effect of the facts and
    circumstances before it, or the reasonable inferences drawn therefrom. Lighty v.
    Lighty, 
    879 N.E.2d 637
    , 640 (Ind. Ct. App. 2008), reh’g denied.
    [12]   We review an order for summary judgment de novo, applying the same standard
    as the trial court. Hughley v. State, 
    15 N.E.3d 1000
    , 1003 (Ind. 2014). The
    moving party bears the initial burden of making a prima facie showing that there
    are no genuine issues of material fact and that it is entitled to judgment as a
    matter of law. Manley v. Sherer, 
    992 N.E.2d 670
    , 673 (Ind. 2013). Summary
    judgment is improper if the moving party fails to carry its burden, but if it
    succeeds, then the nonmoving party must come forward with evidence
    establishing the existence of a genuine issue of material fact. 
    Id. We construe
    all factual inferences in favor of the nonmoving party and resolve all doubts as
    to the existence of a material issue against the moving party. 
    Id. In the
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    summary judgment context, we are not bound by the trial court’s specific
    findings of fact and conclusions of law. Rice v. Strunk, 
    670 N.E.2d 1280
    , 1283
    (Ind. 1996). They merely aid our review by providing us with a statement of
    reasons for the trial court’s actions. 
    Id. [13] Podemski
    contends the court erred when it excluded the deposition testimony
    of Mullins and when it granted summary judgment. He argues questions of fact
    exist as to whether the configuration of the air hose was unreasonably
    dangerous and whether the danger posed by the configuration of the black hose
    and inadequate lighting was open and obvious.
    [14]   Praxair contends that the court did not abuse its discretion by “denying
    Podemski’s eleventh-hour attempt to supplement his designation with the
    deposition” of Mullins, correctly concluded that Praxair had no duty to protect
    Podemski, and did not abuse its discretion by denying Podemski’s amended
    motion to correct errors. Brief of Appellee Praxair at 18.
    [15]   Antibus contends that the court correctly denied Podemski’s attempt to
    supplement his response with the deposition of Mullins, correctly determined
    that Podemski failed to show there was a duty owed or assumed by Antibus,
    and did not err in denying Podemski’s amended motion to correct errors.
    [16]   First, we address the preliminary procedural issue involving Podemski’s motion
    to supplement his designation of evidence with Mullins’s deposition. Given the
    length of time between Podemski’s identification of Mullins as a potential
    witness in his October 10, 2013, and August 7, 2014 responses to the
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    Interrogatories sent by Praxair and Antibus, respectively, and the March 28,
    2016 motion to supplement the record with Mullins’s deposition, and in light of
    the multiple extensions granted to Podemski, we cannot say the trial court
    abused its discretion in denying Podemski’s motion. See Scripture v. Roberts, 
    51 N.E.3d 248
    , 254 (Ind. Ct. App. 2016) (holding no abuse occurred in a denial of
    the defendants’ attempt to file supplemental affidavits the day before the
    hearing on the motion for summary judgment and eighty-one days after the
    plaintiff’s reply to the defendants’ response to the summary judgment motion).
    [17]   We now turn to Podemski’s claims of negligence. To recover on a negligence
    theory, the plaintiff must establish: (1) a duty owed by the defendant to the
    plaintiff; (2) a breach of that duty; and (3) injury to the plaintiff resulting from
    the defendant’s breach. Rhodes v. Wright, 
    805 N.E.2d 382
    , 385 (Ind. 2004).
    Absent a duty there can be no negligence or liability based upon the breach.
    Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 
    62 N.E.3d 384
    , 386 (Ind. 2016).
    Whether a duty exists is a question of law for the courts to decide. 
    Id. at 386-
    387. A defendant is entitled to summary judgment by demonstrating that the
    undisputed material facts negate at least one element of the plaintiff’s claim.
    Countrymark Coop., Inc. v. Hammes, 
    892 N.E.2d 683
    , 688 (Ind. Ct. App. 2008),
    trans. denied. Generally, summary judgment is rarely appropriate in negligence
    cases because they are particularly fact-sensitive and are governed by a standard
    of the objective reasonable person, which is best applied by a jury after hearing
    all the evidence. Kramer v. Catholic Charities of Diocese of Fort Wayne-S. Bend, Inc.,
    
    32 N.E.3d 227
    , 231 (Ind. 2015). However, where the facts are undisputed and
    Court of Appeals of Indiana | Opinion 71A03-1608-CT-1927 | November 17, 2017   Page 12 of 15
    lead to but a single inference or conclusion, the court as a matter of law may
    determine whether a breach of duty has occurred. King v. Ne. Sec., Inc., 
    790 N.E.2d 474
    , 484 (Ind. 2003).
    [18]   Generally, an owner of property is under no duty to provide an independent
    contractor with a safe place to work. Pelak v. Ind. Indus. Servs., Inc., 
    831 N.E.2d 765
    , 769 (Ind. Ct. App. 2005) (citing Zawacki v. U.S.X., 
    750 N.E.2d 410
    , 414
    (Ind. Ct. App. 2001), trans. denied). However, a property owner must maintain
    its property in a reasonably safe condition for business invitees, including
    employees of independent contractors. 
    Id. (citing Douglass
    v. Irvin, 
    549 N.E.2d 368
    , 369 (Ind. 1990)). Indiana has adopted the formulation of landowners’
    liability to business invitees expressed in the Restatement (Second) of
    Torts. 
    Id. (citing Douglass
    , 549 N.E.2d at 370); see also Smith v. Baxter, 
    796 N.E.2d 242
    , 244 (Ind. 2003). The Restatement 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.
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    Restatement (Second) of Torts § 343. Under this section, an invitee is “entitled
    to expect that the possessor will take reasonable care to ascertain the actual
    condition of the premises and, having discovered it, either to make it reasonably
    safe by repair or to give warning of the actual condition and the risk involved
    therein.” Merrill v. Knauf Fiber Glass GmbH, 
    771 N.E.2d 1258
    , 1265 (Ind. Ct.
    App. 2002) (citing Restatement (Second) of Torts § 343, cmt. d), trans. denied.
    [19]   In addition, Restatement (Second) of Torts § 343A(1), which addresses known
    and obvious dangers and is meant to be read in conjunction with § 343,
    provides: “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.” The word “known” denotes not only
    knowledge of the existence of the condition or activity itself, but also
    appreciation of the danger it involves, and thus the condition or activity must
    not only be known to exist, it must also be recognized that it is dangerous, and
    the probability and gravity of the threatened harm must be
    appreciated. Restatement (Second) of Torts § 343A, cmt. b. “Obvious” means
    that both the condition and the risk are apparent to and would be recognized by
    a reasonable person, in the position of the visitor, exercising ordinary
    perception, intelligence, and judgment. 
    Id. [20] The
    designated evidence establishes that the condition presented by the air hose
    and the illumination of the area around the hose was known and obvious. At
    the time of his fall, Podemski had been a truck driver for many years and had
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    been at the Praxair facility roughly every day during these years prior to the
    time of his accident. Podemski knew that the Praxair facility had not had
    lighting in the area of the hose for over five years, and he carried a flashlight in
    the truck which he used to “look around” at other times. Praxair Appendix
    Volume 2 at 28. Additionally, we cannot say that Defendants should have
    expected that Podemski would not discover or fail to protect himself against the
    condition presented by the configuration of the air hose. See Restatement
    (Second) of Torts § 343 (“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 [ . . . ]
    should expect that they will not discover or realize the danger, or will fail to
    protect themselves against it . . . .”); 
    Merrill, 771 N.E.2d at 1265-1267
    (“Merrill
    knew of the skylights on the roof and their attendant dangers and had already
    avoided at least one skylight while walking on the roof. Despite his knowledge
    and appreciation of the risks, Merrill proceeded down the roof, was distracted,
    and fell into a skylight. Knauf could not have anticipated such events given the
    circumstances surrounding the invitation and the comparable knowledge of the
    parties.”).
    Conclusion
    [21]   For the foregoing reasons, we affirm the entry of summary judgment in favor of
    Praxair and Antibus and against Podemski.
    [22]   Affirmed.
    May, J., and Pyle, J., concur.
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