                                                                                   FILED
                                                                               Nov 17 2017, 8:56 am

                                                                                   CLERK
                                                                               Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Douglas A. Mulvaney                                     PRAXAIR, INC.
Stutsman & Mulvaney                                     Angela Kelver Hall
Elkhart, Indiana                                        Matthew R. Kinsman
                                                        Faegre Baker Daniels LLP
                                                        South Bend, Indiana

                                                        Brian J. Paul
                                                        Faegre Baker Daniels LLP
                                                        Indianapolis, Indiana

                                                        ATTORNEY FOR APPELLEE
                                                        ANTIBUS SCALES & SYSTEMS, INC.
                                                        Andrew T. Glier
                                                        State Auto Insurance House Counsel
                                                        Carmel, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Marvin Podemski,                                        November 17, 2017
Appellant-Plaintiff,                                    Court of Appeals Case No.
                                                        71A03-1608-CT-1927
        v.                                              Appeal from the St. Joseph Superior
                                                        Court
Praxair, Inc. and Antibus Scales                        The Honorable Jenny Pitts Manier,
& Systems, Inc.,                                        Judge
Appellees-Defendants.                                   Trial Court Cause No.
                                                        71D05-1302-CT-21



Brown, Judge.

Court of Appeals of Indiana | Opinion 71A03-1608-CT-1927 | November 17, 2017                           Page 1 of 15
[1]   Marvin Podemski appeals the trial court’s entry of summary judgment in favor

      of Praxair, Inc. (“Praxair”) and Antibus Scales & Systems, Inc. (“Antibus”) and

      the denial of his motion to correct error. Podemski raises two issues which we

      revise and restate as whether the court erred in entering summary judgment in

      favor of Praxair and Antibus (together, the “Defendants”) and abused its

      discretion in denying his motion to correct error. We affirm.


                                       Facts and Procedural History

[2]   At approximately 9:00 or 9:15 p.m. on August 17, 2011, Podemski was working

      as a truck driver for his employer, the Linde Group, hauling industrial gases

      when he pulled into the Praxair facility in East Chicago. After he pulled the

      day cab and trailer up on the scales and parked it, Podemski unhooked the air

      supply line from the truck to the trailer, turned around, grabbed the white air

      line from a post, hooked it up, and started to walk in the dark toward the back

      of the trailer. His foot caught a portion of a black supply line running from the

      post and downward into a grate, and he fell.


[3]   On February 1, 2013, Podemski filed a complaint against Praxair alleging in

      part that it had a duty to maintain its premises in a reasonably safe condition for

      its invitees, that it failed to do so, that it was negligent in the maintenance of its

      property in that it failed to maintain the area where deliveries of gas were made

      by ensuring the area was well lit and any potential dangers were corrected or

      warned of, and that it was otherwise negligent. After Praxair removed the case

      to federal court on the basis of diversity jurisdiction, Podemski filed an

      amended complaint adding Antibus, a company that services the scales at
      Court of Appeals of Indiana | Opinion 71A03-1608-CT-1927 | November 17, 2017   Page 2 of 15
      Praxair’s facility, as a party defendant, and the case was remanded to state

      court. The amended complaint alleged in part that Antibus had a duty to

      perform its work in a safe and workmanlike manner, to warn of any dangers it

      created, and to maintain the work area in a safe condition.


[4]   Praxair filed a motion for summary judgment on October 31, 2014, and

      Antibus filed its own motion for summary judgment on May 11, 2015. The

      court granted both the stipulated extension of time of the parties, filed on

      November 26, 2014, allowing Podemski until March 2, 2015 to respond to

      Praxair’s motion, and the follow-up request, filed on March 4, 2015, continuing

      the response deadline until a new schedule for discovery was set. At a status

      hearing held on February 24, 2016, the trial court set a hearing on both motions

      for March 29, 2016. On March 4, 2016, Podemski filed a designation of facts

      and brief in response to Defendants’ motions for summary judgment, as well as

      a motion to publish the depositions of certain individuals.


[5]   In his deposition, as designated by Praxair, Podemski testified that he started

      working for the Linde Group as a truck driver on February 17, 1987, was

      continuously employed as a truck driver through the time of the accident, and

      that ninety-five percent of the time he was getting his loads out of the Praxair

      facility and was there roughly every day. When asked about the air line,

      Podemski testified that the air supply hoses for the brakes come off the back of

      the cab of the trunk and hook to the front driver’s side corner of the trailer, that

      when he parked on the scale, “you take the supply line off, put it on the deck

      plate of the truck, just lay it there. You get the supply line from the post next to

      Court of Appeals of Indiana | Opinion 71A03-1608-CT-1927 | November 17, 2017   Page 3 of 15
      the truck and hook it up.” Praxair Appendix Volume 2 at 17. When asked

      about where he was in the Praxair yard when the fall happened, he answered he

      was on the scales and had just pulled and parked the day cab and trailer on the

      scales and that it was dark. When asked how he came to fall, he responded that

      he had unhooked the “air supply line from the truck to the trailer, turned

      around, grabbed the air line from the post and hooked it up and started around

      the post again.” Id. at 19. He stated that, in his estimation, the setup of the air

      supply line that came out of the grate was not typical, that he did not recall ever

      seeing it look like that before, and that “there’s three scales there. And I’m not

      saying I pulled on this scale every time. But, you know, . . . they’ve had work

      done on the scales over the five-plus years.” Id. at 24.


[6]   Podemski also testified that the closest light from where he fell was “45, 50

      feet” at the “back side of . . . the loading dock,” there were lights on the front

      side of the loading dock, and that, prior to the accident, he never felt he needed

      more light when he was performing his duties at Praxair. Id. at 25-27. When

      asked if he felt “like if you had more light that night you would have seen the

      line that you tripped over,” he answered affirmatively; when asked if he thought

      that “the lights that were 35 feet away would’ve helped you be able to see the

      grate and the air supply line issue,” he answered affirmatively; and, after

      confirming that he had a flashlight in the truck, Podemski stated he used it on

      his “pre-trip and post-trip, you know, to look around. Other than that, for

      unhooking and hooking up, no.” Id. at 28. When asked how often he was able

      to see well enough to do the things he needed, Podemski testified that “[i]t’s


      Court of Appeals of Indiana | Opinion 71A03-1608-CT-1927 | November 17, 2017   Page 4 of 15
      gonna sound stupid, and you’re probably not gonna understand. But you can

      close your eyes and do it.” Id. at 27. He also testified that he has “hooked and

      unhooked trailers for 40-plus years. It’s just – (Indicating.).” Id.


[7]   Antibus designated an affidavit stating that it did not perform any work on the

      grate, the air hose, or the post between May of 2011 and the date of Podemski’s

      fall on August 17, 2011. Antibus designated a deposition stating that during its

      normal inspections at Praxair, the employees of Antibus would not go below

      the scales to make adjustments, but rather could do so “at the top of the scale.”

      Corrected Antibus Appendix Volume 2 at 50.


[8]   In his brief opposing Defendants’ motions for summary judgment, Podemski

      cited several depositions and stated that there


              were two separate hoses used to fill the tank. There was the hose
              for the hydrogen itself and then an air line which was used to
              keep pressure in the tank . . . . Several Praxair employees
              testified that the air supply line should have come up through the
              grating next to a metal post and zip tied with plastic ties to the
              post. . . . The practice was to zip tie the hose to the post. . . .
              The air hose should have . . . come up at the base of the post and
              been fastened to the post.


      Id. at 83-85.


[9]   On March 28, 2016, Podemski filed an additional motion to supplement the

      record with Mitchell Mullins’s deposition, stating that it was “newly discovered

      evidence which was not available at the time [Podemski] filed his response to

      [Defendants’] motions for summary judgment.” Second Corrected Appellant’s

      Court of Appeals of Indiana | Opinion 71A03-1608-CT-1927 | November 17, 2017   Page 5 of 15
Appendix Volume 3 at 2. The following day, the court held its scheduled

hearing on the summary judgment motions. At the beginning of the hearing,

the court stated “I’ve read the motions, I’ve read the responses, read the

Replies. . . . I’ve not combed through the designated evidence yet. I’m

interested to hear your arguments.” Transcript at 28. Counsel for Podemski

tendered the motion to supplement, and Praxair’s counsel stated Mullins was a

“wayward” witness who “came out of nowhere,” a “former co-worker of Mr.

Podemski who [Praxair] deposed when we first learned about his intent to

testify that he had also, the night before the Podemski fall, had stubbed his toe

on this hose and that he had reported it to someone at Praxair,” and that his

testimony was “frankly just unbelievable,” given “the trip records from Linde,

his employer, show that he was not at the Praxair facility the night before the

fall, as he says he was.” Transcript at 37-38. The court responded that there is

“no motion to publish. You just file them with the Court and they’re available

for use. . . . We’ve done that with a bunch of them already,” and,


        I have granted multiple extensions of time to respond to the
        various motions for summary judgment. So it’s a little distressing
        to get these Designation of Facts the day before . . . the hearing, .
        . . I mean, as it is we’re right up on the trial because I’ve kept
        continuing the Response date. I don’t have a whole lot of time . .
        . between now and the trial, but I will . . . let you argue about
        why this should be filed as part of your address.


Id. at 39. Counsel for Podemski stated:


        We were just able to get his deposition scheduled and taken on
        March 16. We did not get a copy of the transcript until

Court of Appeals of Indiana | Opinion 71A03-1608-CT-1927 | November 17, 2017   Page 6 of 15
               yesterday. So that is why we unfortunately had to file the . . .
               Motion to Supplement so close to the hearing date today,
               because there was a delay in getting the deposition transcribed,
               and we apologize for that. But we took his deposition as soon as
               he was identified and supplied a copy of the transcript as soon as
               we had it.


       Id. at 42. When the court asked whether Podemski’s counsel disagreed that

       “there’s a report showing [Mullins] was not at the facility? Or presumably

       showing he was somewhere else,” Podemski’s counsel stated that he did not

       recall seeing any trip report, and Praxair’s counsel stated, “we just got them.

       [Podemski does not] have them.” Id. at 43.


[10]   On March 31, 2016, the court entered an order granting summary judgment in

       favor of Praxair and Antibus. In part, the order states:


               Nowhere in [Podemski’s] Response or any of his earlier Motions
               for (or Stipulations to the) Extension of Time did [Podemski]
               alert the Court that there were additional witnesses sought, or
               whose depositions were yet to be taken. Further, once the affiant
               was identified or his deposition scheduled, [Podemski] did not
               seek relief under Rule 56(e) of the Indiana Rules of Trial
               Procedure. . . . [Podemski’s] Motion to File Supplemental
               Designation is denied.


       Second Corrected Appellant’s Appendix Volume 2 at 17. The order also found

       Praxair owed the duty to Podemski that it did to a business invitee, that the

       configuration of the air hose, although a danger, was not an unreasonable

       danger, and,



       Court of Appeals of Indiana | Opinion 71A03-1608-CT-1927 | November 17, 2017   Page 7 of 15
        it was open and obvious to observation that the air hose was not
        affixed to the pole and that some greater degree of care should be
        taken to avoid catching one’s foot.


        [Podemski] was very familiar with Praxair’s facility and had used
        the equipment many times. He was using the equipment that he
        believes caused him to trip immediately prior to the fall. Praxair
        could not reasonably anticipate that he would not take notice of
        the equipment he was using or that he would fail to look where
        he was walking, in an area covered by floor grates and furnished
        with supply hoses.


        Although [Podemski] has designated evidence that the lighting in
        the area in question was not adequate or was not adequate in
        light of the fact that the hose was black, [Podemski] has not
        designated evidence that he failed to see the hose. The factual
        question of the degree of illumination at the location where the
        trip occurred is not material under these circumstances.


Id. at 19-20. On April 29, 2016, Podemski filed a motion to correct error. At a

hearing on the motion on July 29, 2016, Podemski’s counsel was asked by the

court if the “conversation . . . about how the parties worked cooperatively

through the course of [these proceedings], that addresses my previous decision

to not allow the supplemental designation. That’s your response to my ruling,

basically,” and Podemski’s counsel responded that “we don’t feel it’s necessary

to address that, that particular ruling in connection – that’s not the basis for our

motion.” Transcript at 70. The court entered an order affirming its grant of

summary judgment on August 5, 2016, stating:


        At the July 29, 2016 hearing, [Podemski] asserted that the
        Court’s decision to deny [Podemski’s] Motion to File

Court of Appeals of Indiana | Opinion 71A03-1608-CT-1927 | November 17, 2017   Page 8 of 15
        Supplemental Designation was not a basis upon which
        [Podemski’s] Motion to Correct Error [was] made.


        Nonetheless, the Court affirms its conclusions about the timing
        and nature of the deposition testimony sought by [Podemski] to
        “supplement” his designation. Additionally, the Court questions
        whether the deposition testimony of Mitchell Edward Mullins
        constitutes “supplementation” as contemplated by T.R. 56. See
        Fort Wayne Lodge, LLC vs. EBH Corporation and Edward A. White,
        805 N.E.2d 876 (Ind. Ct. App. 2004)[.]


        Publication of Depositions


        [Podemski’s] Motion also expresses concern . . . about the
        Court’s “failure to properly admit and consider depositions
        tendered to the Court as part of plaintiff’s summary judgment
        response.” . . . Again, as noted at the July 29, 2016 hearing, all
        depositions, save the deposition of Mitchell Edward Mullins, are
        published and available for use as appropriate. . . .


        The Court, in its review of [Podemski’s] brief took the referenced
        portions of the deposition as true, but determined that while
        suggesting the existence of a dangerous condition, they did not
        suggest the existence of an unreasonable danger or a basis for
        finding that Plaintiff would not fail to protect himself against any
        such danger, under all of the facts designated to the Court.


Second Corrected Appellant’s Appendix Volume 2 at 21-23. It also stated that

Podemski’s “designated evidence does not create any issue of fact as to whether

the condition of [Praxair’s] premises were unreasonably dangerous,” that even

assuming “that the lighting was inadequate,” Podemski “proceeded into the

dark, without using his flashlight, without attending to his surroundings,” and


Court of Appeals of Indiana | Opinion 71A03-1608-CT-1927 | November 17, 2017   Page 9 of 15
       that Podemski “has not established a genuine issue of fact as to whether

       Defendants were in a better position than was [Podemski] to be aware of the

       condition of the air hose.” Id. at 8.


                                                    Discussion

[11]   The issue is whether the trial court erred in entering summary judgment in

       favor of Praxair and Antibus or abused its discretion in denying Podemski’s

       motion to correct error. We generally review rulings on motions to correct

       error for an abuse of discretion. Ind. Bureau of Motor Vehicles v. Charles, 919

       N.E.2d 114, 116 (Ind. Ct. App. 2009); Speedway SuperAmerica, LLC v. Holmes,

       885 N.E.2d 1265, 1270 (Ind. 2008), reh’g denied. An abuse of discretion occurs

       if the trial court’s decision is against the logic and effect of the facts and

       circumstances before it, or the reasonable inferences drawn therefrom. Lighty v.

       Lighty, 879 N.E.2d 637, 640 (Ind. Ct. App. 2008), reh’g denied.


[12]   We review an order for summary judgment de novo, applying the same standard

       as the trial court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). The

       moving party bears the initial burden of making a prima facie showing that there

       are no genuine issues of material fact and that it is entitled to judgment as a

       matter of law. Manley v. Sherer, 992 N.E.2d 670, 673 (Ind. 2013). Summary

       judgment is improper if the moving party fails to carry its burden, but if it

       succeeds, then the nonmoving party must come forward with evidence

       establishing the existence of a genuine issue of material fact. Id. We construe

       all factual inferences in favor of the nonmoving party and resolve all doubts as

       to the existence of a material issue against the moving party. Id. In the
       Court of Appeals of Indiana | Opinion 71A03-1608-CT-1927 | November 17, 2017   Page 10 of 15
       summary judgment context, we are not bound by the trial court’s specific

       findings of fact and conclusions of law. Rice v. Strunk, 670 N.E.2d 1280, 1283

       (Ind. 1996). They merely aid our review by providing us with a statement of

       reasons for the trial court’s actions. Id.


[13]   Podemski contends the court erred when it excluded the deposition testimony

       of Mullins and when it granted summary judgment. He argues questions of fact

       exist as to whether the configuration of the air hose was unreasonably

       dangerous and whether the danger posed by the configuration of the black hose

       and inadequate lighting was open and obvious.


[14]   Praxair contends that the court did not abuse its discretion by “denying

       Podemski’s eleventh-hour attempt to supplement his designation with the

       deposition” of Mullins, correctly concluded that Praxair had no duty to protect

       Podemski, and did not abuse its discretion by denying Podemski’s amended

       motion to correct errors. Brief of Appellee Praxair at 18.


[15]   Antibus contends that the court correctly denied Podemski’s attempt to

       supplement his response with the deposition of Mullins, correctly determined

       that Podemski failed to show there was a duty owed or assumed by Antibus,

       and did not err in denying Podemski’s amended motion to correct errors.


[16]   First, we address the preliminary procedural issue involving Podemski’s motion

       to supplement his designation of evidence with Mullins’s deposition. Given the

       length of time between Podemski’s identification of Mullins as a potential

       witness in his October 10, 2013, and August 7, 2014 responses to the

       Court of Appeals of Indiana | Opinion 71A03-1608-CT-1927 | November 17, 2017   Page 11 of 15
       Interrogatories sent by Praxair and Antibus, respectively, and the March 28,

       2016 motion to supplement the record with Mullins’s deposition, and in light of

       the multiple extensions granted to Podemski, we cannot say the trial court

       abused its discretion in denying Podemski’s motion. See Scripture v. Roberts, 51

       N.E.3d 248, 254 (Ind. Ct. App. 2016) (holding no abuse occurred in a denial of

       the defendants’ attempt to file supplemental affidavits the day before the

       hearing on the motion for summary judgment and eighty-one days after the

       plaintiff’s reply to the defendants’ response to the summary judgment motion).


[17]   We now turn to Podemski’s claims of negligence. To recover on a negligence

       theory, the plaintiff must establish: (1) a duty owed by the defendant to the

       plaintiff; (2) a breach of that duty; and (3) injury to the plaintiff resulting from

       the defendant’s breach. Rhodes v. Wright, 805 N.E.2d 382, 385 (Ind. 2004).

       Absent a duty there can be no negligence or liability based upon the breach.

       Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016).

       Whether a duty exists is a question of law for the courts to decide. Id. at 386-

       387. A defendant is entitled to summary judgment by demonstrating that the

       undisputed material facts negate at least one element of the plaintiff’s claim.

       Countrymark Coop., Inc. v. Hammes, 892 N.E.2d 683, 688 (Ind. Ct. App. 2008),

       trans. denied. Generally, summary judgment is rarely appropriate in negligence

       cases because they are particularly fact-sensitive and are governed by a standard

       of the objective reasonable person, which is best applied by a jury after hearing

       all the evidence. Kramer v. Catholic Charities of Diocese of Fort Wayne-S. Bend, Inc.,

       32 N.E.3d 227, 231 (Ind. 2015). However, where the facts are undisputed and


       Court of Appeals of Indiana | Opinion 71A03-1608-CT-1927 | November 17, 2017   Page 12 of 15
       lead to but a single inference or conclusion, the court as a matter of law may

       determine whether a breach of duty has occurred. King v. Ne. Sec., Inc., 790

       N.E.2d 474, 484 (Ind. 2003).


[18]   Generally, an owner of property is under no duty to provide an independent

       contractor with a safe place to work. Pelak v. Ind. Indus. Servs., Inc., 831 N.E.2d

       765, 769 (Ind. Ct. App. 2005) (citing Zawacki v. U.S.X., 750 N.E.2d 410, 414

       (Ind. Ct. App. 2001), trans. denied). However, a property owner must maintain

       its property in a reasonably safe condition for business invitees, including

       employees of independent contractors. Id. (citing Douglass v. Irvin, 549 N.E.2d

       368, 369 (Ind. 1990)). Indiana has adopted the formulation of landowners’

       liability to business invitees expressed in the Restatement (Second) of

       Torts. Id. (citing Douglass, 549 N.E.2d at 370); see also Smith v. Baxter, 796

       N.E.2d 242, 244 (Ind. 2003). The Restatement provides:


               A possessor of land is subject to liability for physical harm caused
               to his invitees by a condition on the land if, but only if, he:


                        (a) knows or by the exercise of reasonable care would
                        discover the condition, and should realize that it involves
                        an unreasonable risk of harm to such invitees, and


                        (b) should expect that they will not discover or realize the
                        danger, or will fail to protect themselves against it, and


                        (c) fails to exercise reasonable care to protect them against
                        the danger.



       Court of Appeals of Indiana | Opinion 71A03-1608-CT-1927 | November 17, 2017   Page 13 of 15
       Restatement (Second) of Torts § 343. Under this section, an invitee is “entitled

       to expect that the possessor will take reasonable care to ascertain the actual

       condition of the premises and, having discovered it, either to make it reasonably

       safe by repair or to give warning of the actual condition and the risk involved

       therein.” Merrill v. Knauf Fiber Glass GmbH, 771 N.E.2d 1258, 1265 (Ind. Ct.

       App. 2002) (citing Restatement (Second) of Torts § 343, cmt. d), trans. denied.


[19]   In addition, Restatement (Second) of Torts § 343A(1), which addresses known

       and obvious dangers and is meant to be read in conjunction with § 343,

       provides: “A possessor of land is not liable to his invitees for physical harm

       caused to them by any activity or condition on the land whose danger is known

       or obvious to them, unless the possessor should anticipate the harm despite

       such knowledge or obviousness.” The word “known” denotes not only

       knowledge of the existence of the condition or activity itself, but also

       appreciation of the danger it involves, and thus the condition or activity must

       not only be known to exist, it must also be recognized that it is dangerous, and

       the probability and gravity of the threatened harm must be

       appreciated. Restatement (Second) of Torts § 343A, cmt. b. “Obvious” means

       that both the condition and the risk are apparent to and would be recognized by

       a reasonable person, in the position of the visitor, exercising ordinary

       perception, intelligence, and judgment. Id.


[20]   The designated evidence establishes that the condition presented by the air hose

       and the illumination of the area around the hose was known and obvious. At

       the time of his fall, Podemski had been a truck driver for many years and had

       Court of Appeals of Indiana | Opinion 71A03-1608-CT-1927 | November 17, 2017   Page 14 of 15
       been at the Praxair facility roughly every day during these years prior to the

       time of his accident. Podemski knew that the Praxair facility had not had

       lighting in the area of the hose for over five years, and he carried a flashlight in

       the truck which he used to “look around” at other times. Praxair Appendix

       Volume 2 at 28. Additionally, we cannot say that Defendants should have

       expected that Podemski would not discover or fail to protect himself against the

       condition presented by the configuration of the air hose. See Restatement

       (Second) of Torts § 343 (“A possessor of land is subject to liability for physical

       harm caused to his invitees by a condition on the land if, but only if, he [ . . . ]

       should expect that they will not discover or realize the danger, or will fail to

       protect themselves against it . . . .”); Merrill, 771 N.E.2d at 1265-1267 (“Merrill

       knew of the skylights on the roof and their attendant dangers and had already

       avoided at least one skylight while walking on the roof. Despite his knowledge

       and appreciation of the risks, Merrill proceeded down the roof, was distracted,

       and fell into a skylight. Knauf could not have anticipated such events given the

       circumstances surrounding the invitation and the comparable knowledge of the

       parties.”).


                                                    Conclusion

[21]   For the foregoing reasons, we affirm the entry of summary judgment in favor of

       Praxair and Antibus and against Podemski.


[22]   Affirmed.


       May, J., and Pyle, J., concur.

       Court of Appeals of Indiana | Opinion 71A03-1608-CT-1927 | November 17, 2017   Page 15 of 15
