Appeal from the United States District Court for the Northern District of Indiana, Indianapolis Division. No. H 81-252 -- James T. Moody, Judge.
Cummings, Chief Judge, Bauer, Circuit Judge, and Marovitz, Senior District Judge.*fn*
This diversity complaint was filed by the Special Administratrix of the estate of Tyrone Bolden who sued Robins Engineering and Constructors ("Robins"), a Delaware corporation, for Bolden's wrongful death for "in excess of TEN THOUSAND ($10,000) DOLLARS."*fn1
Count I was based on a products liability theory and alleged that Bolden was an employee of Bethlehem Steel Corporation*fn2 in its Burns Harbor plant in Chesterton, Indiana. According to this Count, Robins designed and produced a vibrating feeder in a truck hopper as part of the bedding plant it constructed for Bethlehem Steel Corporation in Chesterton. Bolden was working near the feeder on May 23, 1979. The feeder was described by plaintiff "as unreasonably dangerous" because its gate was not remotely operable from the basement truck hopper, thus causing Bolden to be exposed to a rapid discharge of hot dust from the feeder, resulting in his death on May 24.*fn3
Count III repeated the chief allegations of Count I and described Count III as a "wrongful death action" brought pursuant to Indiana Code § 34-1-1-2 of the Wrongful Death Act. Damages in excess of $10,000 were sought in both these Counts.
On July 1, 1985, District Judge Moody granted Robins' Motion for Summary Judgment on the ground that the plant in question "posed an open and obvious danger" and on the additional ground that "Bethlehem's unforeseeable misuse" of the plant was the "efficient intervening cause of Bolden's injuries." As the Supreme Court recently pointed out in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, , 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, summary judgment is appropriate if the evidence "is so one-sided that one party [here defendant] must prevail as a matter of law." Our review of the evidence convinces us that this evidence is not "so one-sided" that defendant must prevail at trial. Indeed plaintiff has satisfied the preponderance of evidence standard of proof that governs the denial of summary judgment motions in this kind of case. In another summary judgment case decided the same day, the Court said a "Court of Appeals with its superior knowledge of local law is better suited than we [the Supreme Court] are to make these determinations [adequacy of plaintiff's showing opposing summary judgment and whether such a showing * * would be sufficient to carry plaintiff's burden of proof at trial] in the first instance." Celotex Corp. v. Catrett, 477 U.S. 317, , 106 S. Ct. 2548, 2555, 91 L. Ed. 2d 265. In accordance with these strictures, it is apparent that the summary judgment for defendant cannot stand.
The facts developed at trial showed that Bethlehem employed Robins to design and construct an Indiana bedding plant. The plant contained a large basement with a vibrating feeder with a truck hopper, various conveyor belts, screening stations, surge bins, a stacker, a reclaimer and several bays. The system was constructed to blend seven or eight materials into a pill for making sinter. At ground level, various materials were dumped through a grating into the hopper in the basement. The vibrating feeder then emptied the materials (usually flue dust and filter cake) onto a conveyor belt that runs beneath the hopper to other sections of the plant where the materials were deposited.
One of the materials employed is dust cake which is composed of flue dust and filter cake. Flue dust and filter cake are by-products from air pollution devices on Bethlehem's chimneys. When flue dust is removed from a blast furnace, it is 500 to 600 degrees Fahrenheit, and when it is placed in the dust catcher it is around 300 degrees. Contrary to Bethlehem's instructions, straight flue dust, instead of a mixture of flue dust and filter cake, was being dumped into the hopper on the evening in question and therefore it was hotter than normal, causing the wires in the vibrating feeder to short out.
At 6:30 p.m. on May 23, 1979, the vibrating feeder was malfunctioning and caused spillage. A bedding plant helper, Gerald Leggett, said when he opened the west door of the truck hopper building to investigate, there was a large amount of dust in the air, causing him to wait for five minutes before proceeding downstairs. He sent word to James Penrod, the front-end payloader operator, to stop dumping materials into the hopper because Leggett saw that the materials were spilling from the truck hopper to the basement floor. Consequently, Leggett shut the feeder down. Subsequently foreman George Tremmel and two electricians, Bolden and Thomas Beckley, entered the basement to determine why the vibrating feeder was malfunctioning and causing the spillage to occur.
Bolden and Beckley left the basement to check for a malfunction in the control room. Thereafter Bolden and Tremmel, but neither Leggett nor Beckley, returned to the basement but were unable to fix the feeder despite working on it for an hour and a half. Soon thereafter Bolden exited the basement and told other employees that he could not breathe. He was then hospitalized but died the next day. Foreman Tremmel died in the basement.
OPEN AND OBVIOUS DANGER NOT PRESENT
The first ground for the district court's granting summary judgment to Robins was that the basement with the truck hopper represented an open and obvious danger on May 23. As the court found, Bolden entered the basement twice even though he had encountered a large amount of hot dust on opening the basement door. The court concluded that Bolden's claim that the material handling system was unreasonably dangerous was barred by the open and obvious danger of the risk he incurred. The district judge stated, "as a matter of law in Indiana, an open and obvious danger bars an action under the Product Liability Act, § 33-1-1.5-1, et seq. "
As we pointed out in Estrada v. Schmutz Manufacturing Co., Inc., 734 F.2d 1218, 1220 (7th Cir. 1984), summary judgment based on an open and obvious danger is proper in Indiana only if "from the uncontested facts no reasonable jury properly instructed in Indiana law could infer that the danger was not open and obvious." We conclude that here a reasonable jury could infer that the danger was not open and obvious, so that summary judgment was improper. Bolden and Tremmel worked for an hour and a half amid the hot flue dust trying to repair the vibrating feeder. Two other Bethlehem employees also worked in the basement that evening. There were no warnings. As the plaintiff has aptly observed, "certainly, none [of the four employees] would have been bent on suicide" (Br. 15). Bolden and Beckley had often made electrical checks in the basement while the system was running, so that at the most, Bolden thought that he and Beckley should merely "wait a few minutes" before entering the ...