Nagel v. N. Ind. Pub. Serv. Co.

• Decision Date: 23 January 2015
• Docket Number: No. 45A03–1403–CT–103.,45A03–1403–CT–103.
• Citation: 26 N.E.3d 30
• Parties: Adam NAGEL and Emily Nagel, Appellants–Plaintiffs, v. NORTHERN INDIANA PUBLIC SERVICE COMPANY, Appellee–Defendant.
• Court: Indiana Appellate Court

26 N.E.3d 30

Adam NAGEL and Emily Nagel, Appellants–Plaintiffs

v.NORTHERN INDIANA PUBLIC SERVICE COMPANY, Appellee–Defendant.

No. 45A03–1403–CT–103.

Court of Appeals of Indiana.

Jan. 23, 2015.

Robert D. Brown, Kenneth J. Allen Law Group, LLC, Valparaiso, IN, Attorney for Appellant.

Paul A. Rake, Robert H. Feldt, Eichhorn & Eichhorn, LLP, Hammond, IN, Attorneys for Appellee.

OPINION

BARNES, Judge.

Case Summary

Adam and Emily Nagel appeal the trial court's refusal to impose discovery sanctions against Northern Indiana Public Service Company (“NIPSCO”) and the trial court's grant of summary judgment in favor of NIPSCO. We affirm in part, reverse in part, and remand.

Issues

The issues before us are:

I. whether the trial court properly refused to enter default judgment against NIPSCO for its purported delays in responding to the Nagels' discovery requests; and

II. whether there is any designated evidence to show that NIPSCO owed a duty to Adam and breached that duty in connection with his personal injury negligence action against NIPSCO.

Facts

We first relate the available facts and designated evidence regarding Adam's accident and resulting injuries in a light most favorable to the Nagels.¹ Bailly Generating Station is a NIPSCO-owned coal-fired power plant located in Chesterton. On April 8, 2008, Adam was employed by ThyssenKrupp Safway, Inc. (“Safway”). Emily was married to Adam at the time, but they have since divorced. NIPSCO had hired Safway to erect scaffolding attached to a cooling tower at the Bailly Generating Station in preparation for routine maintenance of the plant.

In connection with construction of the scaffolding, Safway placed a parts rack nearby. Safway instructed a NIPSCO forklift driver where to place the parts rack. However, NIPSCO retained the general authority to direct contractors in their use of staging areas, and specifically it could have instructed Safway to move the parts rack if it believed its placement posed a safety hazard. Also, a NIPSCO project manager conducted daily walkthroughs of the site. Kurt Sangster, a NIPSCO project manager, would later state in a deposition that NIPSCO did not believe the parts rack was in an unsafe location.

Across the road from the cooling tower was a silo that collected fly ash, a byproduct of burning coal. Semi-tractors pulling tanker trailers frequently drove to the silo to collect fly ash and remove it from the site. The parts rack was placed a few feet away from a road that led to and from the fly ash silo. The road had no curb, and there was no barrier between the road and where the parts rack was located. Trucks removing fly ash from the silo would sometimes cross into the area where the parts rack was located, in part because of the narrow turning radius provided for entering or exiting the silo area. Aside from a stop sign at the entry to the plant, there were no traffic control signs on the Bailly Generating Station premises.

Adam was assigned to work as a “ground man” on the Safway scaffolding project. App. p. 1694. This meant that Adam was required to obtain parts from the parts rack and deliver them to the other individuals constructing the scaffold. On April 8, 2008, Adam was asked to retrieve a part from the parts rack. One of his co-workers saw Adam descend a ladder from the scaffolding catwalk but lost sight of him when he was about three feet from the ground. When Adam did not return with the part, his co-workers went looking for him and found him face down on the ground, unconscious and severely injured, about twenty-six feet away from the ladder he would have descended. Adam's hard hat and safety glasses were strewn in different directions several feet away from him. Tire tracks were observed near the parts rack. No witnesses recalled seeing what had happened to Adam.

Adam's recollection of the event was that he descended the ladder, then walked to the parts rack to obtain the needed part. He described what happened next as follows:

And then as I bent over to bend over towards the rack to look for the part, I caught out of the corner of my eye a glimpse of a truck tire passing behind me.

And as I caught that glimpse of the truck tire—it was close. As I caught the glimpse of that truck tire passing behind me, I jumped up and tried to twist—I may have yelled something even—to get out of the way of this truck when I felt—I felt something striking me in the—you know, which I think was the deck of the trailer.

Id. at 1715–16. As a result of the incident, Adam was in a coma for six weeks and continues to suffer from serious mental and physical problems.

Later, it was determined that a semi-truck pulling a tanker trailer driven by Matt Hren was the only vehicle that could have been near the parts rack at the time of the incident. Hren was employed by Whitcomb Trucking (“Whitcomb”) and Whitcomb owned the vehicle he was driving. Whitcomb, in turn, had leased both Hren and the vehicle to MCS Trucking on April 8, 2008. Hren had no recollection of that date and, thus, no recollection of having struck Adam.

The Indiana Occupational Safety and Health Administration (“IOSHA”) conducted an investigation of the accident. IOSHA issued a report on June 2, 2008, closing the investigation because of a lack of evidence or witnesses as to how Adam had been injured. The report noted that, as a “ground man,” Adam would not have been allowed to climb a scaffold, and “[n]o evidence shows if the employee was on the scaffold or if he just fell....” Id. at 1052. The report also related a phone interview with Emily while Adam was in the hospital, in which she said “that she thought there was more damage to him then [sic] what could be had if he had just tripped and fell.” Id. at 1051. It also related a statement by an EMS responder “that off the record they had thought that possibly someone hit Adam Nagel but like the accident, there was no evidence to prove this as happening.” Id. at 1052.

The Nagels retained counsel on April 16, 2008, but they did not file a complaint against NIPSCO until October 12, 2009, for Adam's personal injuries and Emily's loss of consortium. In the complaint, the Nagels alleged, “On or about April 8, 2008, Adam was injured by a vehicle, a piece of equipment, and/or other instrumentality while working at Bailly Plant.” App. p. 36. The Nagels specifically alleged that NIPSCO “[c]reated an unreasonably dangerous condition with respect to the vehicles, equipment, or other instrumentalities that were allowed to be used or employed at or very near the scaffold being erected by Safway....” Id. The complaint also asserted that NIPSCO was liable to the Nagels by reason of res ipsa loquitur.² The complaint did not name any defendants other than NIPSCO, nor did it state any claim that NIPSCO was vicariously liable for the negligence of any other party.

On January 8, 2010, the Nagels filed interrogatories and requests for production with NIPSCO. One of the interrogatories asked NIPSCO to “[p]rovide a complete description of all vehicles within the NIPSCO Plant on the date of the occurrence and identify any document reflecting such vehicles.” Id. at 282 (emphases in original). The Nagels also asked NIPSCO to “produce any documents reflecting logs for vehicles within the NIPSCO Plant on the date of the occurrence by attaching copies thereof to your response to this discovery request.” Id. at 281 (emphases in original). NIPSCO responded to this discovery request on March 31, 2010 as follows:

Objection; NIPSCO does not know as a matter of law if Mr. Nagel was injured at Bailly Generating Station on April 8, 2008, and the Plaintiffs' Interrogatory No. 22 and related “definitions” improperly require NIPSCO to assume/admit this. The phrase “any documents reflecting such vehicles” also is vague, unduly-burdensome, undefined and not reasonably calculated to lead to the discovery of admissible evidence and constitutes proprietary information. However, and without waiving its objections, NIPSCO refers the Plaintiffs to its security checkpoint log attached to its Responses to the Plaintiffs' Requests For Production.

Id. at 282.

Meanwhile, on March 15, 2010, the Nagels had responded to an interrogatory from NIPSCO asking them to clarify the nature of their complaint and specifically how they claimed Adam had been injured. The Nagels generally referred NIPSCO to their complaint, as well as the IOSHA report of June 2, 2008, and gave no further details as to how they believed Adam had been injured. On October 20, 2010, the Nagels supplemented their response to NIPSCO's interrogatories to state, “although Plaintiff has islands of memory about the events of that day, Plaintiff was working on and around the work site near the scaffolding and parts area when he was struck by a truck. Plaintiff was rendered unconscious and remains unaware of the identity of the vehicle's operator.” Id. at 473. This was the first explicit claim by the Nagels that Adam's injuries had been caused by a truck.

The NIPSCO Security Log provided with NIPSCO's March 31, 2010 discovery response only reflected vehicles that entered the Bailly Generating Station premises with a pre-issued security card. Bulk carriers, including semi-truck drivers, such as Hren, with tanker trailers going to the fly ash silo, did not have security cards and were not reflected on the Security Log. Instead, such drivers went to a scale to have their vehicles weighed upon entering and leaving and received a weight ticket after doing so, which tickets also reflected the material that the trucks were carrying. Such tickets were reflected on a log, the Chronological Transaction Log, which is completely separate from the Security Log maintained by NIPSCO. The Chronological Transaction Log is maintained by an independent contractor, Apollo Security, which operated the weight ticket system.³ NIPSCO produced this document to the Nagels on December 17, 2010 as a supplementary discovery response. The Chronological Transaction Log revealed that...