Steel v. Rust, 64A03-0407-CV-327.

• Decision Date: 30 June 2005
• Docket Number: No. 64A03-0407-CV-327.,64A03-0407-CV-327.
• Citation: 830 N.E.2d 62
• Parties: Beta STEEL, Appellant-Defendant, v. Margaret M. RUST, Individually, and Margaret M. Rust, as Administrator of the Estate of Brian L. Rust, Appellee-Plaintiff.
• Court: Indiana Supreme Court

830 N.E.2d 62

Beta STEEL, Appellant-Defendant, v. Margaret M. RUST, Individually, and Margaret M. Rust, as Administrator of the Estate of Brian L. Rust, Appellee-Plaintiff.

No. 64A03-0407-CV-327.

Court of Appeals of Indiana.

June 30, 2005.

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Garrett V. Conover, Bokota Ehrhardt McCloskey Wilson & Conover, P.C., Merrillville, for Appellant.

Thomas F. Macke, Jeffrey S. Wrage, Blachly Tabor Bozik & Hartman, Valparaiso, for Appellee.

OPINION

BARNES, J.

Case Summary

Beta Steel ("Beta") appeals the trial court's denial of its motion for summary judgment in Margaret Rust's negligence action against it for the wrongful death of her husband, Brian Rust. We affirm.

Issues

We restate and reorder the issues before us as:

I. whether there is any evidence Beta owed a duty of due care to Brian, an employee of an independent contractor hired by Beta to perform work at Beta's facility;

II. whether, if such a duty was owed, there is any evidence Beta breached that duty; and

III. whether, if Beta owed a duty to Brian and breached that duty, the alleged negligence of the independent contractor was the intervening cause of Brian's death as a matter of law.

Facts

Beta contracted with Hyre Electric to complete a project at its steel mill that involved the relocation, in the mill's electrical control room, of certain equipment onto an elevated steel rack. On January 28, 2000, Brian was working above an electrical control cabinet, the top of which is about six feet above the floor, installing and welding part of the steel rack. At some point, he stepped down onto the metal top of the cabinet, which then buckled and came into contact with energized components inside the cabinet. This resulted in Brian's electrocution and death, as well as several explosions in the control room that lasted for three to five minutes before power could be shut off. It is unclear from the designated evidence whether Brian stepped on the cabinet intentionally or inadvertently.

The electrical control cabinet Brian stepped on had been installed at Beta's mill in 1991. There is designated evidence in the record that Phillip Doolittle, an electrical engineer/consultant, advised Beta at the time that its electrical control cabinets lacked ground fault protection, as required by electrical safety regulations, to cut the flow of electricity within a fraction of a second in the event of a problem. Without installing such a system, Doolittle told Beta representatives, they were risking human life and damage to hundreds of thousands of dollars worth of equipment. Doolittle also testified in his deposition that a Beta employee responded to his recommendation to install a ground fault protection system, "We'll do that later." App. p. 166. However, when Doolittle inspected Beta's electrical control room after Brian's death, he found to his "shock, disbelief, and extreme disappointment" that it had not installed the recommended system. Id. at 184. Doolittle also opined that such a system could have prevented Brian's death, and the most that might have happened would have been Brian's being startled by a loud clap and falling to the ground after he stepped on top of the cabinet. Doolittle also stated that all other steel mills in Northwest Indiana "without exception" have ground fault protection systems such as he recommended to Beta Id. at 183.

There is also designated evidence in the record that electricians routinely walk on top of metal electrical control cabinets without difficulty in performing their work. Edward McCorkle of Hyre, Brian's foreman, testified in a deposition that in his thirty years as an electrician, every metal electrical control cabinet he was aware of had been strong enough to walk on top of. He also testified, "We work on metal clad switch gear all the time that is energized, and if there was a problem we should have been told." Id. at 742.

Brian Green, Beta's Electrical Maintenance Supervisor, was aware that electricians sometimes walked on top of electrical control cabinets to perform their work, and he had done so himself on previous occasions. He also claimed, however, that he had told McCorkle the top of at least one of the particular cabinets in Beta's control room was too weak to be walked on. The specific cabinet Green pointed out to McCorkle was slightly different and located in a different part of the control room from the cabinet Brian later stepped on. Additionally, there is no evidence Green advised McCorkle of the lack of ground fault protection for the cabinets.

Margaret, individually and as administrator of Brian's estate, sued Beta for negligence in causing his death. She did not sue Hyre or any other party, but Beta did name Hyre as a nonparty defendant in its answer. Beta subsequently moved for summary judgment, which the trial court denied on June 9, 2004. Beta now appeals.¹ Additional facts will be provided as necessary.

Analysis

Initially, the parties debate the proper appellate standard of review for a trial court's ruling on a summary judgment motion. Neither party disputes the general proposition that summary judgment is appropriate only if the evidence shows there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C); Gunkel v. Renovations, Inc., 822 N.E.2d 150, 152 (Ind.2005). It is also clear that we must construe all facts and reasonable inferences drawn from those facts in favor of the nonmoving party. Gunkel, 822 N.E.2d at 152. The review of a summary judgment motion is limited to those materials designated to the trial court and we must carefully review decisions on summary judgment motions to ensure that parties are not improperly denied their day in court. Id.

The dispute in this case over the standard of review arises from language in opinions from this court and our supreme court that arguably is inconsistent. It has been said, "The party appealing from a summary judgment decision has the burden of persuading the court that the grant or denial of summary judgment was erroneous." Owens Corning Fiberglass Corp. v. Cobb, 754 N.E.2d 905, 908 (Ind.2001); see also Nance v. Holy Cross Counseling Group, 804 N.E.2d 768, 771 (Ind.Ct.App.2004), trans. denied. It has also been said, "On appeal from summary judgment, the reviewing court analyzes the issues in the same fashion as the trial court, de novo." LCEOC, Inc. v. Greer, 735 N.E.2d 206, 208 (Ind.2000) (emphasis added); see also Indiana Bell Telephone Co., Inc. v. Time Warner Communications of Indiana, L.P., 786 N.E.2d 301, 305 (Ind.Ct.App.2003). We can understand why the parties might be confused as to how a trial court ruling can be reviewed de novo, while at the same time the appellant has the burden of demonstrating error.

To the extent opinions sometimes say that the appellant bears the burden of persuading the appellate court that the trial court's summary judgment ruling was erroneous, such burden is largely symbolic and nominal. All trial court rulings should be presumed to be correct, but in the context of summary judgment proceedings we will not hesitate to reverse a trial court's ruling if it has misconstrued or misapplied the law, failed to consider material factual disputes, or improperly considered immaterial factual disputes. We also give no deference to a trial court's ability to weigh evidence and judge witness credibility, because no such weighing or judging is permitted when considering a summary judgment motion. See Gunkel, 822 N.E.2d at 152. Instead, we view the designated evidence independently and with an eye toward construing it most favorably to the nonmovant. See id.

Before turning to the merits of this case, we also address Beta's motion to strike several portions of Margaret's appellee's brief. Under Indiana Appellate Rule 42, we "may order stricken from any document any redundant, immaterial, impertinent, scandalous or other inappropriate matter." We see no basis to strike any portion of Margaret's brief.

First, Beta contends that Margaret's "Statement of the Case" is argumentative and does not cite to the record. We note that she does cite to the record. On the other hand, we agree that Margaret's "Statement of the Case" goes beyond describing "the nature of the case, the course of the proceedings relevant to the issues presented for review, and the disposition of these issues by the trial court...." Ind. Appellate Rule 46(A)(5). Still, we see nothing grossly inappropriate or impertinent in the "Statement of the Case" and decline to strike it.

Second, Beta requests that we strike numerous factual assertions in Margaret's brief because they contain citations to memoranda filed with the trial court, not the designated summary judgment evidence. It would have better facilitated our review if Margaret had cited us directly to the designated evidence in her appellate brief, rather than to her trial court memoranda. As she points out, however, the trial court memoranda that she has cited to in her appellate brief do, in turn, contain citations to the designated evidence that support the factual assertions both in the memoranda and her appellate brief. We decline to strike the factual assertions in Margaret's brief.

Third, Beta specifically requests that we strike portions of Margaret's brief that refer to the deposition of Doolittle, the electrical engineer who opined that Brian's death might have been prevented had Beta installed an adequate ground fault protection system for the electrical control cabinet. Beta argues on appeal that this effectively constituted a medical opinion and Doolittle was not qualified to provide such an opinion. Beta contends that it objected to Doolittle's testimony on this point during his deposition; however, it directs us to nothing in the record demonstrating that it asked the trial court to rule on this objection, nor requesting that it...