Armstrong v. Cerestar USA, Inc.

775 N.E.2d 360, 2002 Ind. App. LEXIS 1535, 2002 WL 31058024
CourtIndiana Court of Appeals
DecidedSeptember 17, 2002
Docket45A03-0109-CV-314
StatusPublished
Cited by46 cases

This text of 775 N.E.2d 360 (Armstrong v. Cerestar USA, Inc.) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Armstrong v. Cerestar USA, Inc., 775 N.E.2d 360, 2002 Ind. App. LEXIS 1535, 2002 WL 31058024 (Ind. Ct. App. 2002).

Opinions

OPINION

MATHIAS, Judge.

Rick Armstrong (“Armstrong”) appeals the Lake Circuit Court’s decision to grant Cerestar USA, Inc. f/k/a American Maize, Inc.’s (“Cerestar”) Motion to Strike expert testimony submitted by Armstrong and Cerestar’s Motion for Summary Judgment. Armstrong’s issues on appeal are reordered and restated as:

I. Whether the trial court abused its discretion when it granted Ceres-tar’s Motion to Strike expert testimony submitted by Armstrong;
II. Whether the trial court erred when it granted Cerestar’s Motion for Summary Judgment after determining that there was no genuine issue of material fact with regard to three of the five exceptions to the general rule that an employer is not liable for the negligence of an independent contractor; and,
III. Whether the trial court erred when it granted Cerestar’s Motion for Summary Judgment after determining that there was no genuine issue of material fact with regard to whether Cerestar, as a landowner, failed to maintain its property in a reasonably safe manner for business invitees.

We affirm.

Facts and Procedural History

The facts most favorable to the nonmov-ant .reveal that in April of 1996, Cerestar executed a Purchase Order with Wheelab-rator Water Technologies, Inc. (“Wheelab-rator”), under which Wheelabrator agreed to remove sludge from two lagoons located at Cerestar’s corn wet milling plant in [364]*364Hammond, Indiana.1' Wheelabrator contracted with Luther Daugherty & Sons Trucking, Inc. (“Daugherty”) for drivers and trucks, and Daugherty, in turn, contracted with E. Feddeler & Sons Trucking, Inc. (“Feddeler”) for drivers and trucks. Feddeler leased several trucks and drivers to Daugherty, including Armstrong, whom it employed as a truck driver. On May 7, 1996, Armstrong fell from atop a tanker trailer while working on the Wheelabrator project at the Cerestar plant.

Under the purchase order agreement between Cerestar and Wheelabrator, Wheelabrator was required to remove sludge from lagoons number three and four, and dispose of it by land application. Appellant’s App. p. 394. Cerestar had a Land Application Permit from the Indiana Department of Environmental Management that authorized land application of the sludge. Br. of Appellant at 5-6. The terms and conditions on the back of the purchase order specified, in pertinent part, that Wheelabrator was working as an independent contractor, Wheelabrator was to maintain all necessary insurance coverage, to request advice from Cerestar’s safety director about Cerestar’s safety regulations and to conform to these regulations. The purchase order also contained an indemnity clause from Wheelabrator to Cerestar. Appellant’s App. p. 396. In addition to the requirement of the purchase order, the usual course of dealing between Wheelabrator and Cerestar was such that Wheelabrator would make temporary improvements at Cerestar’s facility by constructing all of the dredging and pumping equipment during the time period that it performed the lagoon dredging.

On May 7, 1996, the day of Armstrong’s fall, he made three trips to the Hammond plant. On his third trip, he checked in with a security guard at the Cerestar entrance, and then drove to the lagoon area, where he waited in line behind other drivers also working on the project. Once at the sludge pump, Armstrong followed his usual routine: he climbed the ladder on the side of the tanker to the top, put the pipe from the pump into the tanker’s hatch, which was about the size of a manhole, and motioned to the pump operator to begin filling the tanker with sludge. Armstrong did not hold the tube while the tanker filled, but had to be aware of when the tanker was full. While his tanker filled, he sat on the flat edging atop the tanker near the hatch. When he noticed that the tanker was adequately full, he stood up to tell the pump operator to shut off the pump. After he signaled to the pump operator, Armstrong began to feel light-headed and sat down again. Appellant’s App. p. 264. It was at this approximate time that Armstrong fell from atop the trailer.

During his deposition, Ronald Musch (“Musch”), a Wheelabrator employee who also worked on the project, testified that all of the equipment used on the project in question was owned by Wheelabrator, including the load stand, the hose, the cam lock fitting, the pump, the holding tank, the dredge, and all the pipes and hoses connecting the dredge to the load stand. Id. at 94-95. Additionally, Musch testified that Cerestar never directed Wheelabrator [365]*365in any manner with regard to the dredge operations. Cerestar never provided Wheelabrator with tools, equipment, training, instructions or requirements with regard to removing the sludge. Id. at 97-98. Robert Sternberg (“Sternberg”), the Regional Safety Manager for Wheelabrator at the time of Armstrong’s accident, also testified that all of the equipment used in the dredging project at the Cerestar plant was owned by Wheelabrator, that Cerestar employees had no control of the operations of the dredging project, and that even though Cerestar, as the client, always had the right to exercise control, it never did at that project because Wheelabrator was the dredging expert. Id. at 116-17. Cerestar did however maintain a security guard at the entrance of the facility, an employee to perform traffic control of the trucks entering the facility to haul the sludge, and employees in a nearby lab that had no view of the lagoons.

On April 29, 1998, Armstrong filed a complaint against Cerestar, Wheelabrator, and Daugherty alleging negligence in failing to provide Armstrong with adequate supervision, instruction and/or warning regarding the removal and loading of the sludge onto the tanker trailer. Br. of Appellant at 2. Cerestar denied the allegations and filed a Motion for Summary Judgment on April 16, 2001, including designated evidence. Cerestar argued that it did not owe Armstrong a duty because it did not participate in the removal of the sludge and retained no control over the sludge removal project.

On June 7, 2001, Wheelabrator filed a response to Cerestar’s summary judgment motion with attached designated evidence. On June 8, 2001, Armstrong filed a response to Cerestar’s summary judgment motion, and also attached designated evidence. Armstrong’s designated evidence included a Preliminary Report, created by Kenneth Yotz, Armstrong’s expert witness, and excerpts of Yotz’s deposition testimony. Cerestar filed a reply brief on July 19, 2001.

On July 31, 2001, Cerestar filed a Motion to Strike Yotz Preliminary Report and Deposition and Memorandum in Support thereof. Cerestar alleged that two of Yotz’s opinions were inadmissible under Indiana Evidence Rule 702. Armstrong filed a response to Cerestar’s Motion to Strike on August 15, 2001. Cerestar filed a reply brief on the day the trial court heard argument on Cerestar’s Motion for Summary Judgment and Motion to Strike, August 24, 2001. After the hearing, in pertinent part, the trial court granted Cerestar’s Motion for Summary Judgment and Motion to Strike. The trial court entered its order on September 11, 2001. It is from this order that Armstrong now appeals. Additional facts will be provided as necessary.

I. Motion to Strike

Armstrong argues that the trial court abused its discretion when it granted Cerestar’s motion to strike opinions of Armstrong’s expert witness, Yotz.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

AL-KASSAR v. JULIAN
S.D. Indiana, 2023
Charlotte Robinson v. Davol, Inc.
913 F.3d 690 (Seventh Circuit, 2019)
Joseph L. LeClair v. Hector LeClair
2017 VT 34 (Supreme Court of Vermont, 2017)
Liter's of Indiana, Inc. v. Earl E. Bennett and Daniel L. Bodine
51 N.E.3d 285 (Indiana Court of Appeals, 2016)
G.M. v. Petsmart, Inc.
127 F. Supp. 3d 960 (S.D. Indiana, 2015)
Higgins v. Koch Development Corp.
794 F.3d 697 (Seventh Circuit, 2015)
5200 Keystone Ltd. Realty, LLC v. Filmcraft Laboratories, Inc.
30 N.E.3d 5 (Indiana Court of Appeals, 2015)
Rednour v. Wayne Township
51 F. Supp. 3d 799 (S.D. Indiana, 2014)
John Kryza v. State of Indiana
Indiana Court of Appeals, 2014
Shawnee Construction & Engineering, Inc. v. Stanley
962 N.E.2d 76 (Indiana Court of Appeals, 2011)
Marks v. Northern Indiana Public Service Co.
954 N.E.2d 948 (Indiana Court of Appeals, 2011)
Person v. Shipley
949 N.E.2d 386 (Indiana Court of Appeals, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
775 N.E.2d 360, 2002 Ind. App. LEXIS 1535, 2002 WL 31058024, Counsel Stack Legal Research, https://law.counselstack.com/opinion/armstrong-v-cerestar-usa-inc-indctapp-2002.