Del Signore v. Asphalt Drum Mixers

• Decision Date: 07 January 2002
• Docket Number: No. 1:00-CV-292.,1:00-CV-292.
• Citation: 182 F.Supp.2d 730
• Parties: Thomas DEL SIGNORE, et al., Plaintiffs, v. ASPHALT DRUM MIXERS, Defendant.
• Court: U.S. District Court — Northern District of Indiana

182 F.Supp.2d 730

Thomas DEL SIGNORE, et al., Plaintiffs, v. ASPHALT DRUM MIXERS, Defendant.

No. 1:00-CV-292.

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

January 7, 2002.

COPYRIGHT MATERIAL OMITTED

Richard McQuade, Swanton, OH, mediator.

Matthew C. Huffman, Gooding Huffman Kelley and Becker, Lima, OH, for plaintiffs.

Patrick G. Murphy, Michael H. Michmerhuizen, Barrett and McNagny, Fort Wayne, IN, for defendant.

MEMORANDUM OF DECISION AND ORDER

COSBEY, United States Magistrate Judge.

I. INTRODUCTION

This matter is before the Court¹ on the Motion for Summary Judgment filed by the Defendant, Asphalt Drum Mixers ("ADM"), on September 4, 2001.

On October 4, 2001, Thomas Del Signore ("Plaintiff") and Teri Del Signore (collectively "the Plaintiffs"), filed a response.

On October 18, 2001, ADM filed a reply which mentioned that the affidavit of the Plaintiff (Pl.'s Ex. 11) filed in opposition to the Motion for Summary Judgment should be stricken. The Court then ordered ADM to file a separate Motion to Strike directed to the Plaintiff's affidavit and they did so on October 29, 2001. The Plaintiff filed a response to the Motion to Strike on November 13, 2001, and ADM filed no reply.

After the briefing on the Motion for Summary Judgment the Court requested additional briefing on whether Count I of the Plaintiff's complaint (the alleged negligent failure to warn claim) was subsumed by Count II (the alleged defective design claim), since the latter was allegedly brought under the Indiana Product Liability Act ("IPLA"), IND.CODE § 34-20-1-1, et seq. (See November 14, 2001 Order.) That resulted in simultaneously filed opening briefs on November 27, 2001, and two response briefs: the Plaintiffs' on December 10, 2001, and the Defendant's on December 11, 2001.

The record consists of various affidavits and deposition excerpts submitted by the parties, and this Court has jurisdiction based on diversity.² See 28 U.S.C. § 1332(a).

For the reasons hereinafter provided, the Motion to Strike will be DENIED and ADM's Motion for Summary Judgment will be GRANTED in part and DENIED in part.

II. DEFENDANT'S MOTION TO STRIKE

ADM in its Motion to Strike contends that portions of the Plaintiff's affidavit is directly at odds with his prior deposition testimony and should therefore be stricken. See Kalis v. Colgate-Palmolive Co., 231 F.3d 1049, 1055 (7th Cir.2000) (party should not be allowed to create a genuine issue of material fact by submitting an affidavit contradicting a prior deposition).

The Plaintiff, in his response (and a supplemental designation of evidence, containing pages 33-39 of the Plaintiff's deposition), contends that a close reading reveals there is no inconsistency between the two, and at most, the Plaintiff's affidavit simply clarifies or explains the earlier deposition testimony. The Plaintiff suggests that at least part of the problem is that his deposition was actually taken in the Plaintiff's pending worker's compensation case and not by counsel for ADM.

Indeed, an examination of the affidavit and deposition transcripts indicates that there is no direct conflict between the Plaintiff's earlier deposition testimony and his affidavit. While perhaps some of the earlier deposition testimony is a bit ambiguous on certain points (leaving room for the explanatory statements in the affidavit) on summary judgment these ambiguities must be construed in the Plaintiff's favor. Aviles v. Cornell Forge Co., 183 F.3d 598, 602-03 (7th Cir.1999) (ambiguities in deposition must be resolved in favor of non-moving party on summary judgment). Therefore, the Motion to Strike will be denied. Id.

III. THE PROCEDURAL AND FACTUAL BACKGROUND

A. The Procedural Background

ADM, a manufacturer of stationary and portable asphalt plants, contracted with the Plaintiff's employer, Barlow Marketing, Inc. ("Barlow Marketing") for a promotional video to demonstrate how its products perform in the field. Barlow Marketing assigned one of its new employees the Plaintiff, the job of going to Mexico to videotape some of ADM's plants where he was met by ADM's Latin American sales manager, Rolando Haddad ("Haddad"). Haddad was to direct the Plaintiff's activities and they eventually arrived at an asphalt producing complex owned and operated by Abraham Gonzales Martel ("Martel") near the village of Queretaro, Mexico.³ (Pl. dep. at 30.)

Martel's facility utilized a "wet wash pond" air cleaning system, essentially a hole in the ground which receives a mixture of hot water and fine dust, "particulate," during the asphalt making process. While video taping in the complex, the Plaintiff slipped and fell into the pond, sustaining severe injuries from the very hot water.

Count I of the complaint alleges some post-manufacture negligence on the part of ADM; that is, ADM, through Haddad, committed to take care of the Plaintiff in Mexico, but failed to warn him of the location, existence or potential hazard of the unmarked, unrestricted and essentially camouflaged pond on Martel's facility. (See Pl.'s Nov. 27, 2001 Br. at 4.) Under Count II,⁴ brought under the IPLA, the Plaintiff alleges that ADM "designed" the location and dimensions of Martel's wet wash pond, and was therefore negligent in failing to design or specify the installation of some kind of railings, fences or warning signs around it. (See Pl.'s Nov. 27, 2001 Br. at 2; Pl.'s Dec. 10, 2001 Br. at 4.)⁵

In ADM's Motion for Summary Judgment it argues it neither had, nor assumed a duty to warn the Plaintiff about the pond (particularly since the pond was an "open and obvious" danger), it cannot be held liable under any theory of premises liability since it did not own or control Martel's property, and it cannot be liable on the product liability claim since it did not manufacture the pond or otherwise deliver a defective product to Martel.

The Plaintiff contends that ADM did have a duty to warn, perhaps by gratuitously assuming that duty, is liable on a theory of premises liability having effectively possessed or controlled Martel's property, the pond was not open and obvious because it was essentially camouflaged, and the product liability claim exists because the pond was a component of ADM's product, the asphalt plant. (See Pl.'s Nov. 27, 2001 Br. at 2-3.)

With these positions staked out, we recite the following facts as drawn from the record, viewed in a light most favorable to the Plaintiffs.

B. The Factual Background

The Plaintiff, a relatively new employee of Barlow Marketing, was responsible for marketing communication projects. (Pl. dep. at 12; B. Barlow dep. I at 12.) Barlow Marketing does almost all of its work for construction equipment manufacturers, and was contacted by ADM to create a marketing video featuring its asphalt plants. (B. Barlow dep. I at 15, 33; B. Barlow dep. II at 2; Pl. dep. at 24; Dieffenbach dep. at 12-13.) Approximately one-half of ADM's sales are to Latin America. (Dieffenbach dep. at 11.)

The plants sold by ADM are designed to interface with either a Bag House filter system or a wet wash pond system, each of which filter the air within the plant.⁶ (Haddad dep. at 22.) Martel's Queretaro facility was his second ADM wet wash plant. (Haddad dep. at 8, 49.)

During the wet wash process, the aggregate travels through the plant and is coated with liquid asphalt. (Parsons dep. at 5.) However, not all particulate sticks to the liquid asphalt and some falls into a duct where it is sprayed with hot water. (Id.) The hot water traps the particulate and eventually both empty into the wet wash pond. (Id.; Haddad dep. at 22-23.)

Typically the owner will construct one pond with three separate chambers. (Cardenas dep. at 8; Parsons dep. at 6; Haddad dep. at 31.) Most of the particulate settles to the bottom of the first chamber, and as the water flows into each successive chamber it becomes cleaner before recycling through the plant. (Cardenas dep. at 8; Parsons dep. at 14, 18; Haddad dep. at 49.) The water in the pond is hot, at least while the plant is in operation, but the temperature, which can range from ninety (90) to two hundred (200) degrees, depends on the size of the pond (i.e., the volume of water in the pond), and the rate of recirculation. (Cardenas dep at 8, 9; Dieffenbach dep. at 22.) However, after four or five hours of operation the water can reach one hundred and eighty degrees (180°). (Cardenas dep. at 8; Parsons dep. at 13.)

An ADM engineer will typically prepare a concrete foundation drawing for the customer and elevations depicting the layout of ADM's equipment, together with some suggested pond dimensions.⁷ (Dieffenbach dep. at 5, 9; Haddad dep. at 13; Munro dep. at 4-5; Cardenas dep. at 12, 14; Parsons dep. at 14.) The foundation drawing offers only a footprint of ADM's plant and equipment so the customer will know how much space will be needed, and while ADM will advise the customer about the size of the pond, this ultimately depends on the size of the plant. (Haddad dep at 9, 13, 74; Cardenas dep. at 11-12; Munro dep at 4.) ADM will also tell the owner the maximum distance the pond can be from the plant, although it can be as far as a quarter of a mile away. (Haddad dep. at 13; Cardenas dep. at 19-20.) When the drawing is done, ADM will show it to the customer, as they did to Martel here (Munro dep. 6-8, 28), including a representation of what most ponds look like, and generally the customer will develop a roughly similar pond. (Cardenas dep. at 10-12.)

However, no two plants end up alike because in every instance the customer controls the placement, building and connection of the ponds to the plant, which means that the complex can be configured many different ways. (Cardenas dep. at 12, 15, 20; Haddad dep. at 9, 13, 16.) Nevertheless, almost all wet wash pond plants have the same basic layout in that they are co-located with either a pond or another water source, such as a river. (Haddad dep. at 46.) However,...