Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CT-1060 | April 28, 2017 Page 1 of 17

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this 

Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANTS

John P. Daly, Jr.

Golitko & Daly, PC

Indianapolis, Indiana 

ATTORNEYS FOR APPELLEE

Thomas M. Kimbrough

William A. Ramsey

Barrett McNagny LLP

Fort Wayne, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Ricky L. Baker and Victoria 

Baker,

Appellants-Plaintiffs,

v.

Fall Creek Housing Partners, 

LLC,

Appellee-Defendant. 

April 28, 2017

Court of Appeals Case No. 

49A02-1605-CT-1060

Appeal from the Marion Superior 

Court 

The Honorable John F. Hanley, 

Judge

Trial Court Cause No. 49D11-

1407-CT-24953

Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CT-1060 | April 28, 2017 Page 2 of 17

[1] On May 10, 2016, Ricky L. Baker and Victoria Baker (together, the “Bakers”) 

appealed the trial court’s entry of summary judgment in favor of Fall Creek 

Housing Partners (“Fall Creek”) and the denial of their motion to correct error. 

We reviewed the record before us, found the Bakers did not point to an order of 

the trial court which constituted a final judgment under Ind. Appellate Rule 

2(H)1 or an appealable interlocutory order, and dismissed the Bakers’ appeal. 

See Baker v. Fall Creek Hous. Partners, LLC, No. 49A02-1605-CT-1060 (Ind. Ct. 

App. Nov. 20, 2016). 

[2] The Bakers filed a petition for rehearing arguing they inadvertently failed to 

include a copy of the trial court’s March 7, 2016 order entering final judgment 

in favor of Fall Creek in their appendix, and they filed a motion for leave to 

supplement the appendix to include the court’s March 7, 2016 order. The 

March 7, 2016 order in the Bakers’ supplemental appendix is titled Entry of 

Judgment, grants Fall Creek’s request for summary judgment on the Bakers’ 

claims, and “determines that no just reason for delay exists and directs the entry 

of final judgment in favor of Fall Creek and against [the Bakers].” Appellants’ 

Supplemental Appendix, Volume 2, at 3. Based on the additional information 

provided in the Bakers’ supplemental appendix, we grant the Bakers’ petition 

for rehearing and motion to supplement the appendix and vacate our original 

opinion. See Meredith v. Meredith, 854 N.E.2d 942, 944-945 (Ind. Ct. App. 2006)

 

1 We noted there was an entry in the chronological case summary (“CCS”) dated March 8, 2016, which 

indicated an order was signed March 7, 2016, but that the record did not include a copy of the order. 
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(granting the appellant’s petition for rehearing and motion to file supplemental 

appendix following a dismissal of an appeal as untimely, finding that the 

additional information provided in the supplemental appendix showed the 

appeal was timely, and vacating the original opinion and addressing the merits 

of the appellant’s arguments). 

Issue 

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

favor of Fall Creek or abused its discretion in denying the Bakers’ motion to 

correct error. We affirm. 

Facts and Procedural History

[4] Ricky Baker, who was an employee of Waste Management, Inc. (“Waste

Management”), visited an apartment rental property in Indianapolis owned by 

Fall Creek to unload trash compactor containers on September 24, 2012, and 

was injured when his hand was smashed against a container. 

[5] The Bakers filed a complaint for damages in July 2014 and, with the court’s 

approval, an amended complaint for damages in September 2014 against

Buckingham Urban Properties, LLC (“Buckingham”), JV Manufacturing Inc. 

d/b/a Cram-A-Lot (“JV”), and Cram-A-Lot Logistics, LLC (“Cram-A-Lot”).

2

 

 

2 In their motion to amend the complaint, the Bakers stated they filed the original complaint against 

Buckingham and Cram-A-Lot, and that “Cram-A-Lot Logistics, LLC has properly identified themselves . . . 

as JV Manufacturing, Inc. d/b/a Cram-A-Lot,” and they sought leave to amend their complaint to add JV as 

a party to the action. Appellant’s Appendix, Volume 2, at 33. 
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The amended complaint alleged that Ricky was employed by Waste 

Management; that Buckingham purchased or leased from Cram-A-Lot and/or

JV a trash compactor for use at a property in Indianapolis; that Buckingham 

contracted with Waste Management for trash removal at the property including 

emptying the Cram-A-Lot and/or JV trash compactor; and that Ricky was a 

business invitee on the property working within the course and scope of his 

employment with Waste Management when he was injured. It further alleged 

that on or about September 24, 2012, Ricky was on the property to empty a 

trash compactor when the compactor moved, crushing his hand; that the 

compactor had been placed on a slope by employees and/or agents of 

Buckingham and/or Cram-A-Lot and/or JV; and that Ricky was seriously 

injured. 

[6] On October 9, 2014, Buckingham filed an Answer to Amended Complaint, 

Affirmative Defenses, Third Party Complaint, and Jury Demand. In its third 

party complaint, it alleged in part that Buckingham Management, LLC 

(“Buckingham Management”) is responsible for managing real estate including 

that occupied by Buckingham; that it entered into a Periodic Services 

Agreement with Waste Management for the collection and disposal of waste; 

and that Waste Management is required to defend and indemnify Buckingham 

from the claims of the Bakers. Waste Management filed a motion for leave to 

file a counterclaim against Buckingham to recover its attorney fees, costs, and 

expenses incurred in its defense to the third party complaint, and the court 

granted the motion and ordered that Waste Management’s counterclaim was 
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deemed filed as of the date of the order. On March 27, 2015, Buckingham filed 

a motion for judgment on the pleadings as to Waste Management’s 

counterclaim.

[7] On November 23, 2015, the parties filed a Joint Stipulation to Amend Caption 

and Substitute Parties, stating that at the time the action was initially filed 

confusion existed as to the location of the accident that is the subject of the 

Bakers’ complaint and Buckingham’s third party complaint, and that discovery 

has revealed the location of the incident. The Stipulation stated that the owner 

of the premises on which the incident occurred was Fall Creek and not 

Buckingham, and that Buckingham should be dismissed and Fall Creek 

substituted as a defendant on the Bakers’ claim, as the third party plaintiff on 

the third party complaint against Waste Management, and as the defendant on 

Waste Management’s counterclaim to the third party complaint. 

[8] On November 25, 2015, Fall Creek filed a motion for summary judgment, a 

memorandum in support of the motion, and a designation of evidence which 

included the deposition of Ricky and the Periodic Services Agreement between 

Waste Management and Buckingham Management as agent for property 

owners including Fall Creek. The Bakers filed their opposition and designated 

evidence. Fall Creek filed a motion to strike and reply in support of its 

summary judgment motion which stated in part that the Bakers cited to an 

owners’ manual that was not designated. 
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[9] On February 1, 2016, the court held a hearing on Fall Creek’s summary 

judgment motion.3

 On February 25, 2016, it entered an order of dismissal 

which stated that a joint stipulation of partial dismissal as to JV and Cram-ALot was before the court and ordered that JV and Cram-A-Lot be dismissed 

from the action. 

[10] On February 26, 2016, the court entered an order which: denied Fall Creek’s 

March 27, 2015 motion for judgment on the pleadings as to Waste 

Management’s counterclaim; granted Fall Creek’s motion to strike as to 

references made by the Bakers to an owners’ manual and denied it in all other 

respects; granted Fall Creek’s November 25, 2015 motion for summary 

judgment; and ordered that Fall Creek submit a proposed judgment entry to the 

court within ten days. On March 7, 2016, the court issued an Entry of 

Judgment granting Fall Creek’s request for summary judgment on the Bakers’ 

claims, stating there was no just reason for delay and directing the entry of final 

judgment in favor of Fall Creek and against the Bakers. The Bakers filed a 

motion to correct error, and after a hearing4 the court denied the motion. 

Discussion

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

favor of Fall Creek or abused its discretion in denying the Bakers’ motion to 

 

3 The record does not contain a transcript of the hearing. 

4 The record does not contain a transcript of the hearing. 
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correct error. We generally review rulings on motions to correct error for an 

abuse of discretion. Speedway SuperAmerica, LLC v. Holmes, 885 N.E.2d 1265, 

1270 (Ind. 2008), reh’g denied; Ind. Bureau of Motor Vehicles v. Charles, 919 N.E.2d 

114, 116 (Ind. Ct. App. 2009). 

[12] When reviewing a grant or denial of a motion for summary judgment our wellsettled standard of review is the same as it is for the trial court: whether there is 

a genuine issue of material fact, and whether the moving party is entitled to 

judgment as a matter of law. Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 

N.E.3d 384, 386 (Ind. 2016). The party moving for summary judgment has the 

burden of making a prima facie showing that there is no genuine issue of 

material fact and that the moving party is entitled to judgment as a matter of 

law. Id. Once these two requirements are met by the moving party, the burden 

then shifts to the non-moving party to show the existence of a genuine issue by 

setting forth specifically designated facts. Id. Any doubt as to any facts or 

inferences to be drawn therefrom must be resolved in favor of the non-moving 

party. Id. Summary judgment should be granted only if the evidence 

sanctioned by Indiana Trial Rule 56(C) shows there is no genuine issue of 

material fact and that the moving party deserves judgment as a matter of law. 

Id. 

[13] The Bakers argue that Fall Creek controlled the instrumentality of harm by 

moving a trash compactor on wheels from a level concrete pad onto a sloped 

drive where it rolled and injured Ricky and that summary judgment is not 

appropriate where the premises owner retains and exercises control over the 
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instrumentality of harm. They argue that Ricky never touched the compactor 

until it rolled down the slope. 

[14] Fall Creek contends that a landowner is generally not liable for injuries suffered 

by an employee of an independent contractor while the employee is doing work 

the independent contractor was hired to do, that Ricky knew the compactor 

was on wheels and sitting on an incline, and that, assuming the compactor and 

sloped arc of the land were dangerous, the conditions were obvious and 

undisputedly known to Baker. 

[15] To prevail on a claim of negligence the plaintiff must show: (1) a duty owed to 

plaintiff by defendant; (2) breach of duty by allowing conduct to fall below the 

applicable standard of care; and (3) compensable injury proximately caused by 

defendant’s breach of duty. Goodwin, 62 N.E.3d at 386. Absent a duty there 

can be no negligence or liability based upon the breach. Id. Whether a duty 

exists is a question of law for the court to decide. Id. at 386-387. A defendant 

may obtain summary judgment in a negligence action when the undisputed 

facts negate at least one element of the plaintiff’s claim. Pelak v. Ind. Indus. 

Servs., Inc., 831 N.E.2d 765, 769 (Ind. Ct. App. 2005), reh’g denied, trans. denied. 

Where the facts are undisputed and 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). 

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

contractor with a safe place to work. Id. (citing Zawacki v. U.S.X., 750 N.E.2d 
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410, 414 (Ind. Ct. App. 2001), trans. denied). However, the owner has a duty to 

maintain the property in a reasonably safe condition for business invitees, 

including employees of independent contractors. Id. (citing Merrill v. Knauf 

Fiber Glass GmbH, 771 N.E.2d 1258, 1264-1265 (Ind. Ct. App. 2002), trans.

denied; Zawacki, 750 N.E.2d at 414). The Restatement (Second) of Torts § 343 

(1965) 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.

(Emphasis added). See Pelak, 831 N.E.2d at 769; Merrill, 771 N.E.2d at 1265. 

[17] Section 343A of the Restatement, which is read in conjunction with Section 

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.” RESTATEMENT (SECOND) OF TORTS § 343A

(emphasis added); Merrill, 771 N.E.2d at 1265 (citing Ozinga Transp. Sys., Inc. v. 

Mich. Ash Sales, Inc., 676 N.E.2d 379, 385 (Ind. Ct. App. 1997), reh’g denied, 

trans. denied). “The word ‘known’ denotes not only knowledge of the existence 

of the condition or activity itself, but also appreciation of the danger it 
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involves.” 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 man, in the position of the visitor, exercising 

ordinary perception, intelligence, and judgment.” Id. The comparative 

knowledge of a possessor of land and an invitee regarding known or obvious 

dangers may properly be taken into consideration in determining whether the 

possessor breached the duty of reasonable care under Sections 343 and 343A. 

Smith v. Baxter, 796 N.E.2d 242, 245 (Ind. 2003). 

[18] Similarly, control over a premises is used to determine who is liable for injuries 

on the premises. Pelak, 831 N.E.2d at 769. The thread through the law 

imposing liability based on occupancy of a premises is control. Id. The 

rationale is to subject to liability the person who could have known of any 

dangers on the land and therefore could have acted to prevent any foreseeable 

harm. Id. at 769-770. The theory that a duty arises based on the control 

retained by the premises owner is consistent with the Restatement (Second) of 

Torts § 414, which provides: 

One who entrusts work to an independent contractor, but who 

retains the control of any part of the work, is subject to liability 

for physical harm to others for whose safety the employer owes a 

duty to exercise reasonable care, which is caused by his failure to 

exercise his control with reasonable care.

See Pelak, 831 N.E.2d at 770. Section 414 applies “where there is retention of

control over the operative detail of the work.” Id. (citation omitted). Comment 

c to Section 414 discusses the limits of the rule:
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In order for the rule stated in this Section to apply, the employer 

must have retained at least some degree of control over the 

manner in which the work is done. It is not enough that he has 

merely a general right to order the work stopped or resumed, to 

inspect its progress or to receive reports, to make suggestions or 

recommendations which need not necessarily be followed, or to 

prescribe alterations and deviations. Such a general right is 

usually reserved to employers, but it does not mean that the 

contractor is controlled as to his methods of work, or as to 

operative detail. There must be such a retention of a right of 

supervision that the contractor is not entirely free to do the work 

in his own way. 

RESTATEMENT (SECOND) OF TORTS § 414, cmt. c. 

[19] The designated evidence reveals that Waste Management entered into a 

Periodic Services Agreement Between Owner and Service Provider in 2011

pursuant to which it agreed to perform certain waste collection and disposal 

work. Waste Management agreed to provide at its sole expense all labor, 

materials, services, equipment, tools, scaffolds, and hoists required to fulfill its 

obligations and to complete the work; to at all times be responsible for 

initiating, maintaining and supervising all safety precautions and programs in 

connection with the work; and, to the extent doing so was within its control and 

authority, to provide all reasonable protection to prevent damage, injury, or loss 

to all employees of Waste Management performing services on the property. 

[20] In his deposition, Ricky testified that he began his employment with Waste 

Management in 1989, at some point he became a supervisor, he went back to 

driving a truck in 2003, and that, from 2003 until the date of the accident, he 
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was driving commercial front-load trucks. He testified that, as of the date of the 

accident, he had worked an established route for at least two years, he had the 

same route each Monday, and that the accident occurred on a Monday 

morning. Ricky indicated that he always drove the same truck and had been 

driving it for about three years. When asked if he had “been delivering to that 

specific location then for at least two years,” Ricky testified “[n]ot that specific 

location because it was a newer customer,” and when asked “I thought you said 

you did an established route for two years” and “was this something that was 

added to the route during that two years,” he replied “Yes. If we have a new 

customer, they just add it to the list. If we lose a customer, then they’ll just take 

it out of the list.” Appellant’s Appendix, Volume 3, at 40. When asked how 

long he had been picking up from the location where the accident occurred, 

Ricky answered “[p]robably three months.” Id. 

[21] When asked to describe what happened the day of the accident, Ricky testified 

that he arrived at the location, that “[t]hey were compactors, so they already 

had them separated and pulled out on like a little driveway area,” and that “the 

truck wouldn’t fit up there, so [he] actually had to park in the street and go get 

the containers and pull them down.” Id. at 39. He testified “I went up and got 

the first one” and “was pushing it down to the truck” and, “[w]hile I was still 

holding onto it, for some reason another one – and I didn’t see what happened 

behind me – just came rolling on its own and smashed my hand between the 

two, the one that I was holding and that one. It came from behind.” Id.
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[22] Ricky indicated that there were four wheels on the compactor containers that 

smashed his hand, one on each corner, and that the containers were designed to 

roll. When asked why the containers had wheels on them at that location, 

Ricky answered “[b]ecause they were in, like, a little garage area. So they had 

wheels so they could bring them out to the truck.” Id. at 42. Ricky indicated 

that he moved the containers on wheels into position so they could be 

hydraulically lifted to dump into the truck and that was something he did every 

time he went to this apartment complex. He testified that, when he went to the 

complex, the containers were “[u]p by the garage,” they were outside, he would 

have to move the containers “maybe 25 feet” to his truck, and that after he 

unloaded them he would roll them back up into that position. Id. at 46. When 

asked if, on the day of the accident, “the containers were in the same location 

where they would normally be any other time [he was] on a route,” Ricky 

responded affirmatively, and when asked “[s]o for the three months previous to 

that time, each time you got there the containers would be in the same 

location,” he answered “[y]es, pretty much.” Id. 

[23] When asked to describe the slope, Ricky stated “[i]t’s like a little drive that goes 

up to where the containers are inside the garage” and “[i]t’s just a slight grade.” 

Id. at 48. When asked “[s]o when you get there that day, are they on [a] flat 

surface or on the slope,” Ricky answered “[t]hey’re on the slope,” and when 

asked “[a]nd you knew that from all your times that you’ve been there before,” 

he answered “Yes.” Id. When asked “[a]nd when you got done unloading 

them all the times you’d been there before, you put them back on that slight 
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slope,” Ricky replied “Yes. I’d push them all the way into the garage for the 

customer.” Id. When asked “I’m confused. When you got there, were they in 

the garage,” he responded “No, they would be out. They had a guy who would 

unhook them and roll them out.” Id. When asked if he placed the containers 

back where he found them or back in the garage, Ricky testified “[s]ometimes I 

would put them back where I found them. Sometimes I would push them all 

the way in for the guy, for the customer.” Id. When asked “[s]o you clearly 

knew that slope was there,” Ricky replied “[y]es,” and when asked “[a]nd you 

clearly knew that the containers and compactors were on wheels,” he again 

replied “[y]es.” Id. 

[24] Fall Creek is not liable to its invitees for harm caused by any activity or 

condition “whose danger is known or obvious to them,” RESTATEMENT 

(SECOND) OF TORTS § 343A, cmt. b, and the designated evidence establishes

that the danger presented by the containers, including the fact they were on 

wheels and were placed on a drive which had a slight grade, was known and 

obvious to Ricky. Ricky indicated that he knew the slope existed and the 

containers were on wheels, at the time of the accident he had been picking up 

from the location for approximately three months, he had the same route each 

week, the containers were “pretty much” in the same location each time, and 

that when he arrived that day the containers were on the slope. Appellant’s 

Appendix, Volume 3, at 46. 

[25] In addition, Fall Creek did not have knowledge of any danger that Ricky did 

not possess and could not have informed him of any facts of which he was not 
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already aware. The placement of the wheeled containers did not constitute a 

condition that Fall Creek should have expected that Ricky would not discover 

or fail to protect himself against. See RESTATEMENT (SECOND) OF TORTS, § 343 

(a possessor of land is subject to liability only if it “should expect that [invitees] 

will not discover or realize the danger, or will fail to protect themselves against 

it”); Merrill, 771 N.E.2d at 1265-1267 (observing that Knauf hired a professional 

roofing contractor to perform roof repairs and an employee of the contractor fell 

into a skylight; discussing Sections 343 and 343A; noting the employee knew of 

the skylights on the roof and their attendant dangers, the employee fell into a 

skylight despite his knowledge and appreciation of the risks, and that Knauf 

could not have anticipated such events given the comparable knowledge of the 

parties; and holding there was no triable issue of fact regarding Knauf’s liability 

and that the trial court properly granted Knauf summary judgment) (citing

Zawacki, 750 N.E.2d at 415-416 (discussing Sections 343 and 343A and noting 

that the landowner’s comparative knowledge was no greater than that of an 

employee who worked for an independent contractor hired to perform repair 

work on its property); Ozinga, 676 N.E.2d at 386 (discussing Sections 343 and 

343A and observing a truck driver was employed by an independent contractor

to remove fly ash from a landowner’s property, that the employee fell on fly 

ash, and that the landowner’s comparative knowledge was no greater than that 

of the employee and the landowner could not have informed the employee of 

any facts of which he was not already aware)); Bethlehem Steel Corp. v. Lohman, 

661 N.E.2d 554, 558 (Ind. Ct. App. 1995) (noting that the premises owner 

established there was no evidence of a breach of duty, it is appropriate to 
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consider the comparative knowledge of the landowner and invitee, and the 

contractor’s employee was in a better position to discover any defects in a crane 

or the method of cleaning the engine). 

[26] Further, we cannot conclude that Fall Creek retained control or a right of 

supervision over the manner in which Waste Management performed its work

at the time the accident occurred to a degree sufficient to subject it to liability. 

See RESTATEMENT (SECOND) OF TORTS § 414, § 414, cmt. c. Ricky testified 

that, on the day of the accident, “I went up and got the first one” and “was 

pushing it down to the truck” and, “[w]hile I was still holding onto it, . . . 

another one . . . came rolling . . . and smashed my hand.” Appellant’s 

Appendix, Volume 3, at 39. The designated evidence demonstrates that Ricky 

had the opportunity to take any necessary safety precautions and, at a 

minimum, that Fall Creek did not maintain control of the work at the time the 

accident occurred. See Pelak, 831 N.E.2d at 773 n.8 (finding the designated 

evidence did not demonstrate the premises owner had sufficient control over the 

workplace to subject it to potential liability); Zawacki, 750 N.E.2d at 412 

(holding the work site was under the control of the contractor at the time the 

work was performed and the time of the accident); Bethlehem Steel, 661 N.E.2d 

at 557-558 (noting that, while the premises owner maintained some control as 

to the timing of repair work and the physical location of the cranes, it did not 

exercise any control over the actual manner or means by which the contractor 

repaired and maintained the cranes, and affirming summary judgment in favor 
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of the premises owner).5

 Also, even assuming Fall Creek had retained control 

of the premises to a sufficient degree, as noted the danger presented by the 

containers was known and obvious to Ricky and Fall Creek did not have 

knowledge of any danger that Ricky did not possess and could not have 

informed him of any facts of which he was not already aware. The trial court 

did not err in entering summary judgment in favor of Fall Creek. 

Conclusion

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

Fall Creek and against the Bakers. 

[28] Affirmed.

Robb, J., and Mathias, J., concur.

 

5 The Bakers cite to Huffman v. Dexter Axle Co., 990 N.E.2d 947 (Ind. Ct. App. 2013), and Beta Steel v. Rust, 

830 N.E.2d 62 (Ind. Ct. App. 2006). In Huffman, an employee of trucking company died when a bundle of 

axles which had not been strapped or secured to a flatbed trailer fell. 990 N.E.2d at 951. The premises 

owner argued it was not in control of its property at the time of the accident because it was not open for 

business, but the designated evidence did not show the premises owner had relinquished control of its 

property to the employee or the trucking company, and thus we found that the premises owner did not 

establish it did not owe the employee a duty as a matter of law. Id. at 953. In Beta Steel, the designated 

evidence showed that the premises owner had complete control over the design and installation of a faulty 

electrical control cabinet that allegedly caused the victim’s death. 830 N.E.2d at 71. Here, the designated

evidence does not demonstrate that Fall Creek exercised or retained sufficient control or the type of control

that the premises owners in Huffman and Beta Steel exercised or retained.