Persinger v. Marathon Petroleum Co., IP 83-1915C.

• Court: United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
• Writing for the Court: McKINNEY
• Citation: 699 F. Supp. 1353
• Parties: Jean PERSINGER, as Special Administratrix of the Estate of Lionel Persinger, Deceased, Plaintiff, v. MARATHON PETROLEUM COMPANY, Defendant.
• Docket Number: No. IP 83-1915C.,IP 83-1915C.
• Decision Date: 18 November 1988

699 F. Supp. 1353

Jean PERSINGER, as Special Administratrix of the Estate of Lionel Persinger, Deceased, Plaintiff,
v.
MARATHON PETROLEUM COMPANY, Defendant.

No. IP 83-1915C.

United States District Court, S.D. Indiana, Indianapolis Division.

November 18, 1988.

699 F. Supp. 1354

Michael W. Holland, Holland & Holland, Morris Klapper, Klapper & Isaac, Indianapolis, Ind., for plaintiff.

Michael R. Conner, Jack M. Freedman, Barnes & Thornburg, Indianapolis, Ind., for defendant.

ORDER ON DEFENDANT'S SECOND MOTION FOR SUMMARY JUDGMENT

McKINNEY, District Judge.

This cause comes before the Court on the second motion for summary judgment of Marathon Petroleum Company, the plaintiff's response in opposition to summary judgment, and Marathon's reply thereto. Neither party has requested oral argument, and the Court, in accordance with Local Rule 11, does not find it either necessary or worthwhile in this instance. After considering the briefs and the record developed in this case, and for the reasons set forth below, the Court now GRANTS the defendant's second motion for summary judgment and ENTERS JUDGMENT for the defendant and against the plaintiff accordingly.

I. Background of the Case:

This wrongful death action began back on August 23, 1983, when plaintiff filed her Complaint in the Marion County Superior Court. On petition of defendant Marathon, the action was removed to this Court in December 1983. The plaintiff's amended complaint charges Marathon with negligence in the death of Lionel Persinger, who was found dead on August 25, 1981, in a petroleum storage tank owned and operated by Marathon.

After completion of the initial discovery in this action, defendant Marathon filed its first motion for summary judgment on February 28, 1985. Marathon argued that Persinger had been contributorily negligent and incurred the risk of entering the petroleum tank as a matter of law. On November 7, 1987, on the record developed in this action at that time, this Court denied Marathon's first motion for summary judgment on the grounds that it could not be concluded as a matter of law that Persinger had incurred any risk. This Court reasoned that it could be inferred from the record "that when Persinger entered the tank he

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intended to be in it for only a short period of time and therefore believed he would be safe without breathing apparatus."

Since November of last year, the record in this case has been further developed through discovery. Moreover, the standards governing summary judgment practice that were clarified by the Supreme Court in 1986 have been interpreted by the Seventh Circuit to encourage disposition of insufficient claims under Rule 56 where appropriate. In light of both these changes, Marathon filed its second motion for summary judgment on September 15, 1988, arguing additional grounds for summary judgment. Specifically: (1) that Marathon did not owe any duty to Persinger because of his superior knowledge of the hazards which caused his death; (2) that even if a duty existed, there is no evidence that his death was caused by any negligence of Marathon; (3) that Persinger was contributorily negligent as a matter of law; and, (4) that Persinger incurred the risk of his death as a matter of law.

In her response to the defendant's motion, plaintiff first argues that Marathon has misconstrued the law in Indiana with respect to the duty owed to business invitees. Second, plaintiff points to the recent deposition of Tim Greene, a Marathon employee, and an inspection of the storage tank conducted by Samuel McCan depicting internal defects in the tank in an attempt to show that there are genuine issues of fact whether Marathon was negligent. Finally, plaintiff argues that there are questions of fact as to the issues of contributory negligence and assumption of risk.

II. Undisputed Facts:

The undisputed facts as set forth in the parties' pleadings and exhibits are as follows:

Plaintiff, a domiciliary of Indiana, is the widow of Lionel Persinger and the Special Administratrix of his estate. Defendant Marathon is a corporation incorporated under the laws of Ohio with its principal place of business in Ohio as well. As of August 25, 1981, Lionel Persinger was 58 years old and was the founder, owner, director, and operator of National Piping Contractors, Inc. National Piping was incorporated in 1963 and for eighteen years prior to Persinger's death performed contract work at petroleum products terminals for Marathon and other oil companies such as Shell Oil, Texaco, Phillips Petroleum, Chevron, and others.

On August 25, 1981, Persinger was found dead in a large enclosed petroleum products storage tank (Tank T-6) owned and operated by Marathon at its terminal located at 1304 Olin Avenue in Speedway, Indiana. Persinger's body was resting on a circular floating roof that rests on top of the stored petroleum product. There was no breathing apparatus or retrieval equipment found on or near Persinger's body, nor was any "stand-by man" present. Persinger's death resulted from inhalation of toxic fumes.

At the time of Persinger's death, Marathon had plans to clean the interior of Tank T-6. Because of the dangers involved in this line of work, Marathon usually hired expert independent contractors such as National Piping to perform such work. On the date of his death, Persinger's company was not under any written contract with respect to the tank in which he died, although his company was under an unrelated contract to install two small gasoline storage tanks elsewhere on Marathon's premises. The work under this contract would not have involved working inside tanks that had previously held petroleum products or that were filled with petroleum products. Mr. Persinger did not go to the Marathon terminal on the date of his death for the purpose of performing work inside any tanks. Persinger did not have any equipment or tools with him at the terminal that day. Persinger went to Marathon to discuss the contract concerning the small gasoline storage tanks and then planned to return home to pick up his luggage before departing for Champaign, Illinois, later in the day. Persinger was the only agent or employee from National Piping present at the Marathon terminal that day.

At some point on August 25, 1981, Tim P. Greene, a field engineer of Marathon,

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requested that Persinger raise the legs on the floating roof inside Tank T-6. It is a common practice to adjust the legs on floating roofs up or down, and this was often done so that the tank could be cleaned. In order to raise the legs on a floating roof there must be a certain amount of product in the tank so that the roof floats upon the product. Generally the lowering or raising of the legs requires the use of a hammer and a pair of pliers. On the morning of Persinger's death, Greene and Persinger were together for some period of time. Persinger agreed to raise the roof, but was not going to do this until the following day. Greene advised Persinger to notify him prior to entering the tank, and to use breathing apparatus, a retrieval line, and a standby man when he went into the tank. Persinger did not notify Greene prior to entering the tank. Greene has no recollection of telling Persinger what was contained in Tank T-6. At the time of Persinger's death, the floating roof of Tank T-6 was resting on approximately 20,000 gallons of petroleum product, comprised of approximately 95% gasoline and 5% diesel fuels

In August, 1981, it was Tim Greene's responsibility to convey safety instructions and provide direction to contractors. Greene considered himself to be knowledgeable with regard to the dangers involved in working in enclosed petroleum storage tanks. Prior to requesting that Persinger go down into the tank, Greene himself had never before asked a person to go down into such a storage tank. Other Marathon employees, including William Pierce, had been inside such storage tanks on other occasions. On the date of Persinger's death, Greene knew that the atmosphere in Tank T-6 could be asphyxiating, toxic, and flammable. Greene also knew that the oxygen level inside the tank could be below a safe working level. In August 1981, Greene was unaware of any written company rules concerning safety apparatus or precautions for persons going into enclosed storage tanks.

At some time before or around midday on August 25, 1981, Persinger asked Nancy Thompson, then a summer employee working in maintenance for Marathon, if he could borrow a ladder that belonged to Marathon. Ms. Thompson gave Persinger the ladder which he requested. Ms. Thompson did not know why Persinger wanted the ladder. At some time between noon and 3:00 P.M. on August 25, 1981, Persinger climbed down into the floating roof inside Tank T-6. No witnesses report seeing Persinger descend into Tank T-6.

Around 3:00 P.M. on August 25, 1981, Willard Morris, a former maintenance employee of Marathon, observed that Persinger's truck was still parked in the pipeline manifold area of the terminal with its door still open. Morris and Ms. Thompson then began to look for Persinger. Upon noticing that the hatch on top of Tank T-6 was open, Morris and Thompson climbed on top of Tank T-6 and looked in through the east opening of the roof where they discovered Persinger lying on the floating roof inside the tank. Persinger was not wearing breathing apparatus nor was there any breathing equipment located near the tank or in his truck. There is no evidence that Persinger asked anyone to serve as a standby man or otherwise help him, nor is there any evidence that such a standby man or assistant was ever present.

At the time of his death, Persinger was an experienced independent contractor who had worked in and about petroleum products storage tanks for Marathon and other companies for a number of years. Persinger had raised the legs of floating roofs inside enclosed tanks at Marathon's...