The opinion of the court was delivered by: MICHAEL J. REAGAN McCUSKEY, District Judge
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 ...