Decision Date09 March 1992
Docket NumberNo. NA 90-30-C.,NA 90-30-C.
Citation822 F. Supp. 556
PartiesRosalee BATEMAN and Merrill Bateman, Plaintiffs, v. CENTRAL FOUNDRY DIVISION, GENERAL MOTORS CORPORATION, Defendant.
CourtU.S. District Court — Southern District of Indiana



Bruce A. Smith, Washington, IN, David V. Scott, New Albany, IN, for plaintiffs.

Wendell R. Tucker, Byron K. Mason, Mary Jo Hunter Wedding, Richard L. Norris, Norris, Choplin & Johnson, Indianapolis, IN, for defendant.


NOLAND, District Judge.

I. Factual Background

Central Foundry Division, General Motors Corporation (hereinafter "defendant"), is an industrial facility in Lawrence County, Indiana. Complaint, ¶ 2; Answer, ¶ 2. On April 15, 1988, the defendant hired Jungclaus-Campbell Company, Inc. (hereinafter "Company") to provide all labor, equipment, material, tools, and services for the installation of a two million dollar ($2,000,000.00) die cast research and development center at the defendant's facility. Complaint, ¶ 3, Exh. A, Contract, Art. I; Rombalski Dep., pp. 12-13. Pursuant to their contract, by May, 1988, the Company had constructed twenty-three (23) pier holes, approximately ten (10) feet deep. Wilkerson Dep., pp. 21, 59-60; cf. Rombalski Dep., p. 42. All pier holes were kept covered, except a few that the Company employees would work in during the day. Rombalski Dep., p. 47-48.

Rosalee Bateman (hereinafter "plaintiff") was employed by the Company as a construction laborer. Complaint, ¶ 4; Plaintiffs' Contentions, ¶ 3. She and other Company employees had been working on the pier holes for approximately one (1) week, pouring concrete, drilling holes, excavating, and backfilling. Wilkerson Dep., pp. 17-18, 60, 62, 68. On May 31, 1988, the plaintiff fell while climbing into a pier hole. Complaint, ¶ 5. She sustained a herniated disk, injured her head, neck and back, has suffered pain and loss of earnings, and is permanently impaired, which will require future medical treatment. Complaint, ¶ 7; Bateman Dep., pp. 40-41. Damages are unspecified. The plaintiff had neither been instructed to use nor provided with a ladder to climb down into or out of the pier holes. Bateman Dep., pp. 34-39. Instead, she used an inch wide metal bracing on the walls of the pier holes as a ladder. Bateman Dep., p. 29-30, 34-35, 41-42, 49-52. The plaintiff's husband, Merrill Bateman, seeks compensation for the loss of his wife's services and companionship. Complaint, ¶ 8.

II. Jurisdiction

The Court has jurisdiction over citizens of different states, where the matter in controversy exceeds $50,000. 28 U.S.C. § 1332(a)(1). Under the factual background of the present case, the plaintiffs are citizens of the State of Indiana. The defendant is an unincorporated division of a corporation organized and existing under the laws of the State of Delaware, with its principal place of business in the State of Michigan. Answer, p. 1, ¶ 2; Defendant's Allegation of Diversity, p. 2. The plaintiffs seek compensation for head and neck injuries, pain and suffering, loss of earnings, and future medical treatment. Complaint, ¶ 7; Plaintiffs' Contentions, ¶ 5. Thus, the amount in controversy is above fifty thousand dollars ($50,000.00), exclusive of interest and costs. The Court finds that it has jurisdiction to entertain and resolve the present case.

III. Standard of Review

The present case is now before the Court on the defendant's Motion for Summary Judgment. Rule 56 of the Federal Rules of Civil Procedure states in pertinent part that summary judgment shall be granted forthwith if the pleadings and affidavits "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Under this standard, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The purposes of Rule 56 are to "prevent vexation and delay, improve the machinery of justice, promote the expeditious disposition of cases, and avoid unnecessary trials when no genuine issues of fact have been raised." 10 Wright, Miller & Kane, Fed.Civ.Prac. and Proc., Civil, § 2712, pp. 564-67 (1983).

In determining whether a genuine issue of material fact exists, the district Court must view the record and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party. Spring v. Sheboygan Area School District, 865 F.2d 883, 886 (7th Cir.1989). At the summary judgment stage, the trial Court's function is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249, 106 S.Ct. at 2511. "A genuine issue of material fact exists only where `there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.'" Wolf v. City of Fitchburg, 870 F.2d 1327, 1329 (7th Cir.1989) (quoting Anderson, 477 U.S. at 249, 106 S.Ct. at 2511). Summary judgment may be granted if the evidence favoring the nonmoving party "is merely colorable or is not significantly probative." Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2511 (citation omitted).

Rule 56(e) itself provides that a party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.... The plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment.

Anderson, 477 U.S. at 256-257, 106 S.Ct. at 2514.

Thus, the summary judgment inquiry addresses "whether the evidence presents 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. If the case requires weighing the credibility of witnesses or the material facts in question, summary judgment is not appropriate. United Association of Black Landscapers v. City of Milwaukee, 916 F.2d 1261, 1265-66 (7th Cir.1990). In making this inquiry, the trial Court "should neither `look the other way' to ignore genuine issues of material fact, nor `strain to find' material fact issues when there are none." Secretary of Labor v. Lauritzen, 835 F.2d 1529, 1534 (7th Cir.1987), cert. den. sub nom, 488 U.S. 898, 109 S.Ct. 243, 102 L.Ed.2d 232 (1988) (quoting Mintz v. Mathers Fund, Inc., 463 F.2d 495, 498 (7th Cir.1972)). The plaintiff is responsible for building and supporting a record adequate to meet the challenge of defendant's summary judgment motion; otherwise, the burdens of a trial are not justified. Landscapers, 916 F.2d at 1268.

IV. Choice-of-Law

A Federal District Court exercising diversity jurisdiction must apply the substantive law of the State in which it sits, to determine the sufficiency of the claim for relief and whether a material factual dispute exists. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); see 10 Wright, Miller & Kane, Fed.Civ.Prac. and Proc., Civil, § 2712, p. 592 (1983). The Court must also follow the choice-of-law rules of the forum State to determine which State's substantive law applies. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Accordingly, this Court must apply the choice-of-law rules of the State of Indiana. In contract cases, Indiana applies the law of the State with the most significant contacts to the relevant facts of the case. W.H. Barber Co. v. Hughes, 223 Ind. 570, 63 N.E.2d 417, 423 (1945); Hubbard Mfg. Co. Inc. v. Greeson, 515 N.E.2d 1071, 1073 (Ind.1987). In negligence cases, Indiana considers the place where the injury occurred, where the conduct causing the injury occurred, where the parties conduct business, and where the relationship is centered. Hubbard Manufacturing Co., Inc. v. Greeson, 515 N.E.2d 1071, 1073-74 (Ind.1987). In the present case, all contacts and considerations direct the Court to Indiana. It is the place where the parties negotiated and signed employment contracts, where the injuries were sustained, and where the parties are present or engage in business. Whether the plaintiffs' claims sound in contract or tort, the Court must apply the substantive law of the State of Indiana.

V. Discussion
A. Independent Contractor Liability

Generally, one is not liable for the acts of another unless the relation of master servant exists between them. Allison v. Huber, Hunt and Nichols, Inc., 173 Ind.App. 41, 362 N.E.2d 193 (1977). For example, where a landowner employs a person, and retains a sufficient right to control the work, the relationship of master servant arises. The master is vicariously liable for the servant's negligence under the doctrine of respondeat superior. Smith v. P & B Corporation, 179 Ind.App. 693, 386 N.E.2d 1232, 1235 (1979), citing Hale v. Peabody Coal Co., 168 Ind. App. 336, 343 N.E.2d 316, 320 (1976). "`Control' is the essence of the respondeat superior doctrine;" Smith, 386 N.E.2d at 1238; most notably, whether the landowner can select the employee to perform the job. Id., 386 N.E.2d at 1238-39.

In contrast to master servant, a person employing a party that performs independently will not be vicariously liable. "The general rule in Indiana is that an owner is not liable for the torts of one he hires to perform his construction as an independent contractor," Cummings v. Hoosier Marine Properties, Inc., 173 Ind.App. 372, 363 N.E.2d 1266, 1277 (1977), or of the contractor's employees. Jones v. Indianapolis Power & Light Co., 158 Ind.App. 676, 304 N.E.2d 337, 342 (1973).

It is well settled that where one lets a contract to another to do a

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