Vaughn v. Daniels Co.(West Virginia), Inc.

Decision Date04 November 2002
Docket NumberNo. 14A01-0111-CV-408.,14A01-0111-CV-408.
PartiesStephen L. and Melinda VAUGHN, Appellants-Plaintiffs, v. DANIELS COMPANY (WEST VIRGINIA) INC., and Solar Sources, Inc., Appellees-Defendants.
CourtIndiana Appellate Court

J. Kevin King, Cline King & King, P.C., Columbus, IN, Attorney for Appellants.

Jeffrey W. Ahlers, Todd C. Barsumian, Kahn, Dees, Donovan & Kahn, Evansville, IN, Attorneys for Appellee, Daniels Company (West Virginia), Inc.

R. Steven Johnson, Sacopulos, Johnson & Sacopulos, Terre Haute, IN, Attorney for Appellee, Solar Sources, Inc.

OPINION

BARNES, Judge.

Case Summary

This is an appeal from the granting of summary judgment in favor of the Defendants in a suit brought by Stephen Vaughn1 for injuries he sustained as a result of an accident while installing a pipe during the construction of a coal plant. We affirm in part and reverse in part.

Facts

Briefly summarized, the designated facts are that in 1995, Solar Sources, Inc. ("Solar") contracted The Daniels Company ("Daniels") to design, procure, and construct a coal preparation plant. Daniels in turn contracted with Trimble Engineers and Constructors, Inc. ("Trimble"). Trimble was responsible for the construction of the plant, including the assembly of three coal sumps, one of which was a heavy media sump. Daniels prepared the blueprints and specifications for the sump, which was manufactured by a company in West Virginia that is not a party in this case.

Vaughn was employed by Trimble as a pipe fitter. When construction of the plant was approximately halfway complete, Vaughn was injured in an accident, which occurred when two Trimble employees asked Vaughn to assist them in bringing a pipe in for installation on the sump. Vaughn climbed onto the sump, and the pipe was maneuvered through a hole in the wall of the plant with a forklift and raised to the level of the sump. Trimble employees wrapped a chain around the pipe, and the forklift pulled away, leaving the pipe supported by the chain alone. As the men maneuvered the pipe, a bolt that had braced the chain gave way, and the pipe slipped, pulling Vaughn off the sump and throwing him fifteen feet to the floor.2 Vaughn had removed his safety belt just prior to climbing onto the sump.

On December 11, 1997, Vaughn filed a complaint for personal injury damages against Daniels and Solar sounding in products liability, negligence, and nuisance.3 Two years later, Daniels filed a summary judgment motion. In March 2000, Vaughn filed a motion for leave to amend the complaint, which was granted. After a hearing on the summary judgment motion, the trial court entered an order denying the motion except as to the nuisance claim.

In May 2001, Solar filed a motion for summary judgment. Thereafter, Daniels filed a second summary judgment motion. After Vaughn filed responses to both motions, the trial court conducted a hearing. In October, the trial court issued an order granting Daniels' motion for summary judgment, Solar's motion for summary judgment, and Solar's motion to strike a paragraph from an expert's affidavit. Vaughn now appeals.

Issues

Vaughn raises several issues in his challenge to the entry of summary judgment, which we have reorganized and rephrased as:

I. whether an affidavit designated by him contains inadmissible evidence that should be stricken;

II. whether the trial court erroneously determined that he was not a foreseeable user or consumer of the sump pursuant to the Indiana Products Liability Act (the "Act");

III. whether the trial court erroneously determined that the sump was not defective or unreasonably dangerous under the Act;

IV. whether the trial court erroneously determined that he misused the sump and incurred the risk of injury under the Act; and

V. whether the trial court erroneously determined that Daniels and Solar did not owe or assume a duty toward him.4

Analysis

Our analysis proceeds from the premise that summary judgment is a lethal weapon and courts must be ever mindful of its aims and targets and beware of overkill in its use. Bunch v. Tiwari, 711 N.E.2d 844, 847 (Ind.Ct.App.1999). We analyze the issues, however, in the same way as a trial court would. Id. A party seeking summary judgment must show "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." Ind. Trial Rule 56(C). The movant must designate sufficient evidence to eliminate any genuine factual issues, and once the movant has done so, the burden shifts to the non-movant to come forward with contrary evidence. Butler v. City of Peru, 733 N.E.2d 912, 915 (Ind.2000). The court must accept as true those facts alleged by the nonmoving party, construe the evidence in favor of the non-movant, and resolve all doubts against the moving party. Shambaugh & Son, Inc. v. Carlisle, 763 N.E.2d 459, 461 (Ind.2002). In order to prevail on a motion for summary judgment in a negligence action, the defendant must demonstrate that the undisputed material facts negate at least one of the elements essential to plaintiff's claim or that the claim is barred by an affirmative defense. McClyde v. Archdiocese of Indianapolis, 752 N.E.2d 229, 232 (Ind.Ct.App.2001). In an appeal from summary judgment, the appellant bears the burden of persuasion, but we assess the trial court's decision to ensure that the parties were not improperly denied their day in court. Shambaugh, 763 N.E.2d at 461.

I. MacCollum's Affidavit

The primary piece of evidence upon which Vaughn relies in his opposition to the summary judgment motions filed by Daniels and Solar is the affidavit of David MacCollum, P.E., CSP. Before considering whether the trial court properly ruled on the summary judgment motions, we must first determine whether the MacCollum affidavit contains inadmissible evidence. If it does, we will not consider those portions in determining whether the entry of summary judgment was proper. See Ind. Trial Rule 56(E) (stating that "[t]he trial court may consider only evidence that can be admitted at trial in reaching a summary judgment determination"). When an exhibit to a summary judgment response would not be admissible at trial, the exhibit should not be considered when ruling on a summary judgment motion because the exhibit cannot create an issue of material fact. Kronmiller v. Wangberg, 665 N.E.2d 624, 627 (Ind.Ct.App.1996),trans. denied. The admissibility of the affidavit is thus a threshold question.

Daniels moved to strike portions of the affidavit on the basis that they were without foundation, consisted of inadmissible legal conclusions and speculation, and were based on otherwise inadmissible evidence. Daniels complained that MacCollum neither visited nor inspected the facility where Vaughn was injured and that he did not indicate he had any experience with the design and function of coal preparation plants. The trial court did not rule on Daniels' Motion to Strike. However, it did grant Solar's Motion to Strike one paragraph in the affidavit, which motion had been based upon the argument that the paragraph stated a legal conclusion without foundation and incorporated a conclusion that is not the type of information acceptable under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

MacCollum's affidavit details his education as a professional engineer and certified safety professional and outlines his experience as a safety engineer. The experience includes teaching, testifying before U.S. government bodies, serving on professional organization boards, and authoring books and articles. MacCollum's affidavit then states in relevant part:

11. I have reviewed the following information in this above captioned matter:

a. Defendants' Motions for Summary Judgment (and Affidavits);

b. Plaintiffs' Response to Defendant Daniels['] First Motion for Summary Judgment;

c. Plaintiff Stephen Vaughn's Deposition;

d. Design, Procurement, and Construction of the Cannelburg Preparation Plant for Solar Sources, Inc. Revised January 27, 1995;

e. Defendant Daniels[`] Health and Safety Policy;

f. Erection and Concrete Placement Contract between the Daniels Co. and Trimble Engineers & Constructors, Inc.;

g. Defendant Daniels' Daily Field Reports;
h. Portions of Diagrams Produced in Discovery.

i. December 14, 1995 information authored by Joe France, Solar Sources, Inc.'s Safety Director.

The above documents are the type of information normally relied upon by me in the field of my expertise in providing opinions.
12. Based upon my engineering expertise and review of the documents listed above, it is my opinion the design of the heavy media sump in question was not in conformity with reasonable safety engineering practices, and therefore, unreasonably dangerous. The design of the facility to house the heavy media sump did not include a beam to suspend a chain hoist to afford safe assembly and maintenance disassembly of heavy long pipe components. Such an unsafe design, which relies upon manhandling heavy and long components, becomes a foreseeable proximate injury to Mr. Vaughn.

Basic engineering required the heavy media sump in question to undergo a hazard and risk assessment to determine the hazards and risks to persons. An example of a hazard analysis is a failure mode and effect analysis (FMEA), fault tree analysis (FTA), and human error rate prediction. Defendant Daniels' Health and Safety Policy recognizes these hazard analyses. It states that its safety department personnel should be knowledgeable in a number of the more popular safety analysis techniques that may be used to recognize, evaluate, and control hazards. The policy further states that using these hazard analysis techniques would enable the Daniels' Safety Department Personnel to determine the safest, most efficient means of controlling hazards. Had Defendant Daniels implemented one of these hazard analyses relating to the design of the heavy...

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