United States District Court, S.D. Illinois
August 19, 2005.
MICHELLE LEWIS, Plaintiff,
THE TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, and UNITED STATES STEEL CORPORATION, Defendants.
The opinion of the court was delivered by: MICHAEL J. REAGAN McCUSKEY, District Judge
MEMORANDUM and ORDER
Now pending before this Court are two summary judgment motions
(Docs. 36, 38), a motion to voluntarily dismiss this case with
prejudice (Doc. 40), and a motion for leave to file a belated
response to the summary judgment motions (Doc. 47).*fn1
Both of the named Defendants oppose Plaintiffs' motion for
voluntary dismissal (see Docs. 45, 46). The Court still could
permit the voluntary dismissal under FEDERAL RULE OF CIVIL
PROCEDURE 41(a)(2) "upon such terms and conditions as the court
deems proper," but that path is problematic for several reasons.
First, the crucial deadlines have elapsed and the settlement
conference, final pretrial conference, and trial loom near.
Defendants both of whom filed summary judgment motions could
be prejudiced by the dismissal and refiling of the suit at this
late date. Moreover, Plaintiff already has submitted a response
to the summary judgment motions (Doc. 51 and attachments to Doc.
48), so the Court can resolve those on the merits. Accordingly, the Court DENIES Plaintiff's motion for leave to
voluntarily dismiss this case without prejudice (Doc. 40) and
GRANTS Plaintiff's motion for leave to file a slightly belated
memorandum opposing summary judgment (Doc. 47). Which brings the
Court to the two summary judgment motions themselves. Analysis
begins with the legal standard governing such motions.
Summary judgment is proper if the pleadings, depositions,
interrogatory answers, admissions, and affidavits leave no
genuine issue of material fact, and the moving party is entitled
to judgment as a matter of law. FED. R. CIV. P. 56(c). The
moving party bears the burden of establishing both the absence of
fact issues and entitlement to judgment as a matter of law.
Santaella v. Metropolitan Life Ins. Co., 123 F.3d 456, 461
(7th Cir. 1997).
In determining whether a genuine issue of material fact exists,
the Court reviews the record in the light most favorable to the
non-moving party (here, Plaintiff Lewis) and makes all reasonable
inferences in her favor. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986); Ulichny v. Merton Community School
Dist., 249 F.3d 686, 699 (7th Cir. 2001); Miranda v.
Wisconsin Power & Light Company, 91 F.3d 1011, 1014 (7th
Because the primary purpose of summary judgment is to isolate
and dispose of factually unsupported claims, the non-movant may
not rest on the pleadings but must respond, with affidavits or
otherwise, setting forth specific facts showing that there is a
genuine issue for trial. Oest v. IDOC, 240 F.3d 605, 610
(7th Cir. 2001); Moore v. J.B. Hunt Transport, Inc.,
221 F.3d 944, 950 (7th Cir. 2000).
Lewis' November 2, 2004 amended complaint contains two counts
against the Terminal Railroad Association of St. Louis ("TRRA")
(Count 1 asserting negligence and Count 2 pleading res ipsa loquitur) plus one count against United States
Steel Corporation ("USS") (Count 3, which pleads negligence).
More specifically, Lewis alleges that on September 29, 2003,
she was walking along Edwardsville Road in Granite City, Illinois
(lawfully crossing TRRA's property at the intersection of
Edwardsville Road and a set of railroad tracks that run between
14th Street and 20th Street), when she slipped on an
accumulation of iron ore pellets and was injured. Lewis maintains
that TRRA who owns railroad cars, tracks, and equipment in the
Granite City, Illinois area had a contractual relationship with
Defendant USS, under which TRRA would pick up loaded hopper cars
from USS' Granite City facility and transport those cars. Lewis
further alleges that TRRA owned, operated, and maintained the
stretch of railroad track on which she fell and was hurt.
In Count 1, Lewis claims that TRRA negligently failed to: (a)
maintain its premises in a reasonably safe condition, (b) inspect
its premises, (c) correct a dangerous condition on the premises,
(d) warn Lewis of this dangerous condition, (e) properly load its
hopper cars, (f) inspect its hopper cars, (g) maintain its hopper
cars, and (h) repair the ground alongside Edwardsville Road
crossing. In Count 2, Lewis asserts that "in the ordinary course
of things" she would not have slipped, fallen, and sustained
injury, if TRRA had not been negligent in inspecting and
maintaining its premises.
In Count 3, Lewis claims that USS who is in the business of
producing and distributing steel negligently failed to properly
(a) load the hopper cars with iron ore pellets, (b) train its
employees in the proper method of loading hopper cars to prevent
iron ore pellets from accumulating, (c) inspect the hopper cars
before they left USS' possession, (d) remove accumulated iron ore
pellets from the tops and sides of the cars, and (e) warn Lewis
of this condition. In its August 1, 2005 summary judgment motion (Doc. 36),
Defendant TRRA argues that it neither owned nor maintained the
tracks in question and thus cannot be held liable under a theory
of premises liability. TRRA further argues that it did not own or
load the hopper cars in question and, therefore, cannot be held
liable for negligently loading or repairing those cars. Finally,
TRRA argues that summary judgment is merited on Count 2 (the res
ipsa loquitur claim), because Lewis cannot establish that TRRA
was in exclusive control of the instrumentality that caused the
injury or that TRRA possessed or controlled the property on which
the incident occurred.
In her deposition, Lewis testified that she fell between the
two rails of track one or possibly between track one and track
two at the Edwardsville Road crossing. TRRA has submitted
deposition excerpts from Brag Ragland (TRRA's Superintendent and
corporate representative) and Rick McQueen (Director of
Engineering Services and Administration for TRRA), both of whom
testified that the tracks in question are not owned by TRRA.
Plaintiff Lewis has presented no evidence demonstrating that
TRRA owned these tracks. TRRA cannot be held liable, on a theory
of premises liability, for property TRRA neither owns nor
maintains. Thus, TRRA is entitled to summary judgment on
allegations (a), (b), (c), (d), and (h) of Count 1 of Lewis'
Count 1 also contains allegations that TRRA negligently
overloaded its hopper cars, negligently failed to inspect its
hopper cars, and negligently failed to maintain/repair its hopper
cars (see Count 1, allegations (e), (f), and (g)). But TRRA has
presented evidence that it did not own the hopper cars and did
not load the cars with iron ore pellets.*fn2 Plaintiff has
presented no evidence to counter this testimony. The record
before the Court reveals that TRRA did not load the hopper cars, so TRRA cannot be held liable under allegation (e) of Count 1.
TRRA did not own the cars, had no duty to repair the cars, and
cannot be held liable under allegation (g) of Count 1.
Which (as to Count 1) leaves only allegation (f) that TRRA
negligently failed to inspect the hopper cars. The record
discloses the following as to this claim. TRRA takes loaded
hopper cars from Burlington Northern near Hoyt Junction
(approximately three miles from the Edwardsville Road crossing
where Lewis fell). TRRA moves the cars to a point east of
Edwardsville Road. USS empties the cars and brings them back to
TRRA, who then moves the empty cars back across Edwardsville
Road. TRRA does not do any inspection of the hopper cars when
they receive them from Burlington Northern (Ragland Depo. pp.
29-30). TRRA does have control of the cars while iron ore pellets
could be leaking from them (Id., p. 34), TRRA is not supposed
to transport a hopper car that is leaking materials (Id., pp.
33-34), TRRA has been aware of pellets constituting a slipping
hazard (Id., pp. 41-42), and TRRA has a contract service that
"comes in and vacuums" up loose pellets (Id., p. 35).
Construing all facts and reasonable inferences in the light
most favorable to Plaintiff Lewis, and even assuming that TRRA
carelessly inspected loaded hopper cars at some point, this
negligence claim as to TRRA still fails, because Lewis has
presented no evidence whatsoever that causally links an allegedly
negligent inspection by TRRA with the injury Lewis suffered on
September 29, 2003. Indeed, Lewis has presented no evidence that
the pellets on which she slipped leaked out of cars operated by
To succeed on a negligence claim under Illinois law, a
plaintiff must allege that the defendant owed her a duty, that
the defendant breached that duty, and that the defendant's breach
proximately caused the plaintiff's damages. Dardeen v.
Kuheling, 821 N.E.2d 227, 231 (Ill. 2004), citing Boyd v. Travelers Ins. Co., 652 N.E.2d 267 (Ill.
1995). Stated simply, Lewis has adduced no evidence that TRRA
owed her a duty, that TRRA breached that duty, and that TRRA's
breach proximately caused her damages. No genuine issue of
material fact remains, and TRRA is entitled to judgment as a
matter of law on Count 1 of Lewis' first amended complaint.
The Court reaches the same conclusion as to Count 2 of the
first amended complaint Lewis' res ipsa loquitur claim. The
Supreme Court of Illinois has described this doctrine as "a
species of circumstantial evidence permitting the trier of fact
to draw an inference of negligence if plaintiff demonstrates that
he or she was injured (1) in an occurrence that ordinarily does
not happen in the absence of negligence, (2) by an agency or
instrumentality within the defendant's exclusive control."
Collins v. Superior Air-Ground Ambulance Service, Inc.,
789 N.E.2d 394, 397 (Ill.App. 2003), quoting Gatlin v. Ruder,
560 N.E.2d 586 (Ill. 1990).
When res ipsa loquitur is invoked, the plaintiff bears the
burden of proving that (1) the occurrence is one that would not
ordinarily occur in the absence of negligence, and (2) the
defendant had exclusive control of the instrumentality that
caused the event. Cosgrove v. Commonwealth Edison Co.,
734 N.E.2d 155, 159 (Ill.App. 2000).
In the instant case, Plaintiff Lewis cannot sustain her burden
as to the second prong that TRRA had exclusive control of the
instrumentality that caused her to slip and fall. TRRA did not
own the tracks on which Lewis fell, did not own the hopper cars
from which the iron ore pellets allegedly spilled, and did not
load the pellets into the cars. No genuine issue of material fact
remains, and TRRA is entitled to judgment as a matter of law on
Count 2 (the res ipsa claim).
Analysis now turns to Count 3 Lewis' negligence
claim against USS. Lewis alleges that USS (a) failed
to properly load the hopper cars with iron ore pellets, (b) failed to properly train its employees
in loading methods, (c) failed to inspect the hopper
cars before they left USS' possession, (d) failed to
remove accumulated pellets from the hopper cars
before they left USS' possession, and (e) failed to
warn Lewis and others of this defective condition. In
seeking summary judgment, USS argues that Lewis has
adduced no evidence regarding the condition of the
hopper cars before loading, the identity of the
railroad that transports the cars, the ownership of
the cars used to transport the iron ore pellets, and
the events that occurred during transport of the cars
from Minnesota (where USS mines iron ore and
processes it into pellets) to the point when they are
delivered to TRRA in Illinois.
As stated above, to prove negligence under Illinois law, a
plaintiff must establish that the defendant owed a duty to the
plaintiff, that the defendant breached that duty, and that the
breach proximately caused the plaintiff's injuries. Gray v.
National Restoration Systems, Inc., 820 N.E.2d 943
(Ill.App. 2004). Whether a duty exists is a question of law for
resolution by the Court. Id., citing First Springfield Bank &
Trust v. Galman, 720 N.E.2d 1068
In the case at bar, USS correctly notes that Lewis has not
presented evidence to establish who owned the hopper cars or how
the cars were loaded, much less evidence demonstrating that USS
improperly loaded the cars, improperly inspected the cars, or
improperly trained employees in this procedure.
The Ragland deposition does indicate that USS takes possession
of the loaded hopper cars from TRRA and empties them. But nothing
in the record now before the Court (including USS' interrogatory
answers, Exh. 9 to Doc. 48) shows that USS owned the
tracks/crossing at the spot where Lewis fell, owned the hopper
cars from which the iron ore pellets allegedly spilled, or
otherwise created the dangerous condition alleged to have caused
Lewis' fall. Lewis' counsel insists that "discovery is not complete in this
case" (Doc.51, p. 3) and suggests that additional discovery will
reveal that USS owned track number 4 and that Lewis fell on track
4. But Lewis' own deposition testimony states that she fell on
track 1 (or possibly the space between track 1 and track 2):
Q. And did you walk over the first rail of the first
Q. Did you pass over the second rail of the first
A. I believe that's when I fell.
Q. Okay. So you were trying to get over the second
rail of the very first track closest here to the meat
packing company when you slipped, your foot went out
from under you, and you fell, is that correct?
A. When my foot, yes.
Q. And you think your foot slipped on whatever that
substance was that was on the ground by the second
Q. Could you have tripped over the second rail?
Q. Are you sure about that?
Q. Why do you say that?
A. Because I had already crossed the track, one
track, and I knew the tracks were there. I was aware
of where I was actually walking at. . . .
Q. When your left foot slipped out from under you,
were you trying to step over the second rail of the
A. I believe I was right between.
Q. Between the two rails?
Q. So you hadn't quite gotten to the second rail of
the first track, is that correct?
Lewis Depo., Exh. 2 to Doc. 37, pp. 73-77.
As to the statement that discovery is not yet complete, the
Court notes that the discovery deadline (already extended once by
Magistrate Judge Wilkerson) expired July 22, 2005. This Court must review the summary judgment motions on the
evidence before it. Construing all facts and reasonable
inferences in the light most reasonable to Lewis, she has not
shown that USS owed her a duty or that USS breached that duty.
This dooms her negligence claim against USS (Count 3). The record
contains no genuine issue of material fact, and USS is entitled
to judgment as a matter of law.
For the above-stated reasons, the Court GRANTS Defendant
TRRA's motion for summary judgment (Doc. 36), DIRECTS the Clerk
of Court to enter judgment in favor of Defendant TRRA and against
Plaintiff Lewis as to Counts 1 and 2 of the first amended
complaint, GRANTS USS' motion for summary judgment (Doc. 38),
and DIRECTS the Clerk of Court to enter judgment in favor of
Defendant USS and against Plaintiff Lewis on Count 3 of the first
amended complaint. No claims or Defendants remain, so judgment
may be prepared and entered immediately.
IT IS SO ORDERED.
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