Anderson v. PA Radocy & Sons, Inc.

• Decision Date: 15 September 1994
• Docket Number: No. 1:93-CV-287.,1:93-CV-287.
• Citation: 865 F. Supp. 522
• Parties: Kimberly ANDERSON, Personal Representative of the Estate of Terry Joe Anderson, Deceased, Plaintiff, v. P.A. RADOCY & SONS, INC., Miller Electric Mfg. Co., Waldrum Sign Co., and James W. Cunningham, Trustee for Waldrum Sign Co., Defendants.
• Court: U.S. District Court — Northern District of Indiana

865 F. Supp. 522

Kimberly ANDERSON, Personal Representative of the Estate of Terry Joe Anderson, Deceased, Plaintiff, v. P.A. RADOCY & SONS, INC., Miller Electric Mfg. Co., Waldrum Sign Co., and James W. Cunningham, Trustee for Waldrum Sign Co., Defendants.

No. 1:93-CV-287.

United States District Court, N.D. Indiana, Fort Wayne Division.

September 15, 1994.

COPYRIGHT MATERIAL OMITTED

Robert O. Vegeler, Beers Mallers Backs and Salin, Fort Wayne, IN, for Kimberly Anderson.

Edward L. Murphy, Jr., Miller Carson Boxberger and Murphy, Fort Wayne, IN, for P.A. Radocy & Sons, Inc.

James L. Peterson, Ice Miller Donadio and Ryan, Indianapolis, IN, for Miller Elec. Mfg., Co.

Charles B. Hendricks, Dawson Sodd Canazos and Hendricks, Dallas, TX, for Waldrum Sign Co.

ORDER

WILLIAM C. LEE, District Judge.

This matter is before the court on defendants Radocy's and Miller's Motions for Summary Judgment. For the following reasons, defendants' Motions for Summary Judgment are granted.

SUMMARY JUDGMENT

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). However, Rule 56(c) is not a requirement that the moving party negate his opponent's claim. Fitzpatrick v. Catholic Bishop of Chicago, 916 F.2d 1254, 1256 (7th Cir. 1990). Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery, against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and in which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The standard for granting summary judgment mirrors the directed verdict standard under Rule 50(a), which requires the court to grant a directed verdict where there can be but one reasonable conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). A scintilla of evidence in support of the non-moving party's position is not sufficient to successfully oppose summary judgment; "there must be evidence on which the jury could reasonably find for the plaintiff." Id. at 252, 106 S.Ct. at 2512; In Re Matter of Wildman, 859 F.2d 553, 557 (7th Cir.1988); Klein v. Ryan, 847 F.2d 368, 374 (7th Cir.1988); Valentine v. Joliet Township High School District No. 204, 802 F.2d 981, 986 (7th Cir.1986). No genuine issue for trial exists "where the record as a whole could not lead a rational trier of fact to find for the nonmoving party." Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317, 322 (7th Cir.1992) (quoting Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)).

Initially, Rule 56 requires the moving party to inform the court of the basis for the motion, and to identify those portions of the "pleadings, depositions, answers to interrogatories, and admission on file, together with the affidavits, if any, which demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. at 2553. The non-moving party may oppose the motion with any of the evidentiary materials listed in Rule 56(c), but reliance on the pleadings alone is not sufficient to withstand summary judgment. Goka v. Bobbitt, 862 F.2d 646, 649 (7th Cir.1988); Guenin v. Sendra Corp., 700 F.Supp. 973, 974 (N.D.Ind.1988); Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.), cert. denied, 464 U.S. 960, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983).

So that the district court may readily determine whether there are genuine issues of material fact, under Local Rule 56.1, the moving party is obligated to file with the court a "Statement of Material Facts" supported by appropriate citation to the record to which the moving party contends there is no genuine issue. In addition, the non-movant is obligated to file with the court a "Statement of Genuine Issues" supported by appropriate citation to the record all material facts to which the non-movant contends there are exists a genuine issue necessary to be litigated. See Waldridge v. American Hoechst Corp. et al., 24 F.3d 918 (7th Cir. 1994). In ruling on a summary judgment motion the court accepts as true the nonmoving party's evidence, draws all legitimate inferences in favor of the non-moving party, and does not weigh the evidence or the credibility of witnesses. Anderson, 477 U.S. at 249-51, 106 S.Ct. at 2511. However, "it is a gratuitous cruelty to parties and their witnesses to put them through the emotional ordeal of a trial when the outcome is foreordained," and in such cases summary judgment is appropriate. Mason v. Continental Illinois Nat'l Bank, 704 F.2d 361, 367 (7th Cir.1983).

Substantive law determines which facts are material; that is, which facts might affect the outcome of the suit under the governing law. Id. 477 U.S. at 248, 106 S.Ct. at 2510. Irrelevant or unnecessary facts do not preclude summary judgment even when they are in dispute. Id. The issue of fact must be genuine. Fed.R.Civ.P. 56(c), (e). To establish a genuine issue of fact, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356; First National Bank of Cicero v. Lewco Securities Corp., 860 F.2d 1407, 1411 (7th Cir.1988). The nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. Id. A summary judgment determination is essentially an inquiry as to "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. at 2512.

BACKGROUND

Terry Anderson (hereinafter Anderson) was employed by Burkhart Advertising, Fort Wayne Sign Division, as a service man. He became a journeyman sign electrician for the company in 1990. In this capacity, Anderson had a working knowledge of electricity. Scott West (hereinafter West) was also employed by Burkhart as a journeyman sign electrician.

On November 19, 1991, Anderson and West went to Builders Square in Fort Wayne, Indiana, to repair the Builders Square main I.D. sign. Anderson and West were using a Radocy crane/truck with a sixty-five (65) foot crane and a metal basket attached to it. The crane/truck was also equipped with a generator manufactured by Miller Electric. West was aware that the crane had a metal basket and that the crane arm was not insulated. West was also aware that the generator had no ground fault interrupter (hereinafter GFI).

Upon arriving at Builders Square, Anderson and West determined that a portion of the sign was unlighted, possibly due to a short. Anderson then went up in the bucket of the crane to inspect the sign. At this time, a portion of the sign was still illuminated. After removing the side trim and bottom trim from the sign, Anderson received a shock as he was taking the sign apart. After Anderson told West he had received a shock, West disconnected the power from the sign.

When the repair work on the sign was completed, West plugged the sign back into the generator on the truck. Anderson then reached into the sign, evidently to retrieve his tools, and was fatally electrocuted. At the time of the electrocution, Anderson was standing in the metal bucket.

DISCUSSION

I. Anderson's Negligence Claims Are Barred Under the Open and Obvious Danger Rule.

Radocy and Miller claim that the open and obvious danger rule is applicable in a products liability action based on common law negligence. They argue that the alleged defects in the crane/truck and generator were of such a nature that they were open and obvious to the ordinary user and consumer of the product, who in this case was Anderson. Specifically, Radocy and Miller contend that: (1) the danger of repairing charged electrical signs while standing in a metal basket was open and obvious; (2) the fact that the crane's boom arm was uninsulated and provided no protection to someone working on the crane was open and obvious; and (3) the absence of a GFI on the generator was also open and obvious to the ordinary consumer. Finally, Radocy and Miller claim that the danger "was made painfully obvious by the fact that Anderson was shocked while working on the sign ... shortly before the incident which caused his death." Radocy Brief, p. 7.

In response, the plaintiff claims that neither Anderson nor West contemplated the possibility of electrocution and that, given the safety measures that should have been followed, the crane/truck was more dangerous than contemplated by ordinary users such as Anderson and West. The plaintiff suggests that merely because Anderson had some working knowledge of electricity and was a journeyman sign electrician did not mean that he should have realized the crane/truck would not protect him from electrocution. Anderson also claims that Miller v. Todd, 551 N.E.2d 1139 (Ind.1990), is not applicable because it was decided before enactment of the Comparative Fault Act, IC 34-4-33, which governs the negligence count, and therefore defendants' reliance on Miller is misplaced. Anderson cites Moore v. Sitzmark Corp., 555 N.E.2d 1305 (Ind.App.1990), for the proposition that the alleged defect was latent and, therefore, not open and obvious. The plaintiff further contends that Anderson's appreciation and understanding of the possibility of electrocution is a question of fact for the jury to determine with respect to comparative fault. Anderson admits that "it is true that the metal basket, the metal crane arm, and the lack of a GFI in the Miller generator were reasonably apparent," but claims that the extent to which the combination...