Maynard by Maynard v. Indiana Harbor Belt R. Co., 2:96-CV-536-RL.

• Decision Date: 05 March 1998
• Docket Number: No. 2:96-CV-536-RL.,2:96-CV-536-RL.
• Citation: 997 F.Supp. 1128
• Parties: David MAYNARD b/n/f Douglas MAYNARD and Douglas Maynard, Individually, Plaintiffs, v. INDIANA HARBOR BELT RAILROAD COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Indiana

997 F.Supp. 1128

David MAYNARD b/n/f Douglas MAYNARD and Douglas Maynard, Individually, Plaintiffs, v. INDIANA HARBOR BELT RAILROAD COMPANY, Defendant.

No. 2:96-CV-536-RL.

United States District Court, N.D. Indiana, Hammond Division.

March 5, 1998.

COPYRIGHT MATERIAL OMITTED

Wanda E. Jones, Cappas and Jones, Highland, IN, for Plaintiffs.

Harold Abrahamson, Abrahamson, Reed and Adley, Hammond, IN, for Defendant.

ORDER

LOZANO, District Judge.

This matter is before the Court on Defendant's Motion for Summary Judgment, filed on October 31, 1997. For the reasons set forth below, the motion is GRANTED IN PART and DENIED IN PART.

BACKGROUND

Between 5:30 and 5:45 p.m. on May 23, 1994, 13-year-old David Maynard ("David") injured himself climbing between railroad cars owned by Indiana Harbor Belt Railroad Company ("IHB"). David was biking home from Hermits Park in Hammond when he decided to take a new route because a train was blocking his usual route home. The new route took him to Gibson Yard, property owned by IHB. At that point, a long train was on the tracks. David decided against taking a nearby overpass that was in view because he had never gone that way before. David waited for the train to move for approximately five minutes, but became impatient. He decided to cross through the train between the railcars.

David placed his mountain bicycle on his shoulder and climbed onto the coupling between two of the railcars. He did not observe any railroad employees before or while he began crossing through the train. David stepped on the arm of the coupling that slides in between the coupling and the car itself with his left foot. He heard banging and loud booms, and the train started moving. The arm upon which he stood slid into the coupling, smashing his left foot. David's foot became stuck, so he threw the bicycle forward and called for help. The train again moved, releasing David's foot. He jumped off the train, landing on his right foot. As a result of the accident, David's big toe was amputated and underwent skin grafts.

The IHB train upon which David alleges to have injured himself was involved in a normal switching operation at the west end of Gibson Yard, which has twelve tracks. A switching operation is moving a train engine and any attached railcars back and forth, switching tracks between movements to pick up different cars from the various tracks. Before each switching movement, Engineer Buford Painter allegedly rang the bell from the locomotive engine which powered the movements.

On September 27, 1996, Plaintiffs filed a negligence action against IHB in the Indiana state court, claiming personal injury, loss of consortium, companionship, and services. IHB removed the case to this Court based on diversity of citizenship under 28 U.S.C. section 1332.

DISCUSSION

The standards generally governing summary judgment motions are familiar. Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper only if it is demonstrated 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. See Nebraska v. Wyoming, 507 U.S. 584, 590, 113 S.Ct. 1689, 123 L.Ed.2d 317 (1993); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In other words, the record must reveal that no reasonable jury could find for the nonmovant. Karazanos v. Navistar Int'l Transp. Corp., 948 F.2d 332, 335 (7th Cir.1991); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In deciding a motion for summary judgment, a court must read all facts in the light most favorable to the nonmovant. Anderson, 477 U.S. at 255; Nucor Corp. v. Aceros Y Maquilas de Occidente, 28 F.3d 572, 583 (7th Cir.1994).

The burden is on the movant to identify those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits," if any, which it believes demonstrate an absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Once the moving party has met this burden, the nonmoving party may not rest upon mere allegations but "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Becker v. Tenenbaum-Hill Assoc., Inc., 914 F.2d 107, 110 (7th Cir.1990); Schroeder v. Lufthansa German Airlines, 875 F.2d 613, 620 (7th Cir.1989). "Whether a fact is material depends on the substantive law underlying a particular claim and `only disputes over facts that might affect the outcome of the suit under governing law will properly preclude the entry of summary judgment.'" Walter v. Fiorenzo, 840 F.2d 427, 434 (7th Cir.1988) (citing Anderson, 477 U.S. at 248).

"[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 which requires trial." Beard v. Whitley County REMC, 840 F.2d 405, 410 (7th Cir. 1988); see also Hickey v. A.E. Staley Mfg., 995 F.2d 1385, 1391 (7th Cir.1993). Therefore, if a party fails to establish the existence of an essential element of its case on which it bears the burden of proof at trial, summary judgment will be appropriate. In this situation, there can be "`no genuine issue as to any material fact', since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 323.

Count I

Plaintiffs allege that IHB's negligence caused David's injury. Plaintiffs must prove three things to succeed on a negligence claim: (1) IHB owed a duty to David; (2) IHB breached that duty; and (3) IHB's breach was the proximate cause of David's injuries. Perry v. Norfolk & Western Ry. Co., 865 F.Supp. 1292, 1297 (N.D.Ind.1994). The question of whether a duty is owed to a plaintiff is a question of law for the courts. Id.; Jump v. Bank of Versailles, 586 N.E.2d 873, 875 (Ind.Ct.App.1992).

Because David was injured while on IHB property, the Court must analyze Indiana's premises liability law to determine IHB's duty to David. Perry, 865 F.Supp. at 1297. A landowner's duty to one entertaining the landowner's property depends upon the entrant's status. Burrell v. Meads, 569 N.E.2d 637, 639 (Ind.1991). An entrant could be a trespasser, a licensee, and an invitee. Id. A trespasser enters the premises for his or her own convenience, curiosity, or entertainment without the landowner's permission. Id. at 640. "The general rule as regards the owner or occupant of premises is that no duty is owed to a trespasser thereon except to refrain from willfully or intentionally injuring him after discovery of his presence." Chicago, South Shore & South Bend Ry. Co. v. Sagala, 140 Ind.App. 650, 221 N.E.2d 371, 374 (1966); Cleveland C., C. & St. L. Ry. Co. v. Means, 59 Ind.App. 383, 104 N.E. 785, 788 (1914); see also Burrell, 569 N.E.2d at 639.

A railroad company does not have a duty to anticipate a trespasser and may assume that there are no trespassers on its property. Freitag v. Chicago Junction Ry., 46 Ind.App. 491, 89 N.E. 501 (1909). Moreover, "a railroad company owes no duty to children living in the vicinity of its switchyards to erect fences or other barriers to prevent their trespassing ... Nor is it obligated to have a watchman to keep children off its right-of-way and cars ... Signs are not required. The tracks themselves are a danger warning." Perry, 865 F.Supp. at 1297 (quoting Ind. Harbor Belt Co. v. Jones, 220 Ind. 139, 41 N.E.2d 361, 363 (1942)).

David climbed between the cars for his own convenience, i.e., to cross the tracks without waiting for the train to pass. Therefore, David was a trespasser, and if he was an adult, IHB would owe him no duty except to refrain from willfully or intentionally injuring him after discovering his presence. Plaintiffs claim only negligence, and provide no evidence of intent to harm David. Thus, the claim would be dismissed. However, David was thirteen years and seven months old at the time of the accident, and as such, he may fall under the Means exception to Indiana's general rule.

[W]here the person on the track is a child non sui juris of whose presence the railroad company has knowledge, actual or constructive, ... the company must operate its cars on such tracks with reference to the probable presence of such child and use some care to avoid injuring it; otherwise no additional care is imposed on the company over that which it owes the adult trespasser on its tracks.

Means, 104 N.E. at 792; Perry, 865 F.Supp. at 1300-01; Sagala, 221 N.E.2d at 375. According to Black's Law Dictionary, non sui juris means "lacking legal capacity to act for oneself as in the case of a minor or mentally incompetent person." BLACK'S LAW DICTIONARY 1058 (6th ed.1990). "Where a child is sui juris, it is held to be capable of exercising some care and discretion, but it is not necessarily held to the same degree of care required of a person of mature years." Cole v. Searfoss, 49 Ind.App. 334, 97 N.E. 345, 348 (1912).¹

Unfortunately, whether Indiana has a presumption as to a child's capacity to exercise care and discretion is unclear. In the event that there is such a presumption, the Court would be obligated to follow it pursuant to Federal Rule of Evidence 302, "Applicability of State Law in Civil Actions and Proceedings." Plaintiffs argue that children between the ages of seven and fourteen are presumed to be non sui juris, or incapable of exercising some care and discretion. IHB argues that these children are presumed to be sui juris, or capable of exercising some care and discretion. No Indiana supreme court case is directly on point regarding this issue. "If the forum state's highest court has not ruled on a particular issue, decisions of the intermediate appellate courts of that state constitute the next best indicia...