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August 19, 2005.


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 Cir. 1996).

  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' amended complaint.

  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 ...

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