UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT INDIANA 

RONALD BREWER, 

 Plaintiff, 

v. CAUSE NO.: 2:15-CV-437-TLS 

UNITED STATES STEEL 

CORPORATION, d/b/a U.S. STEEL, 

 Defendant. 

OPINION AND ORDER 

 The Plaintiff, Ronald Brewer, sued Defendant United States Steel Corporation for 

negligence after he slipped and fell inside a building on its premises. This matter is before the 

Court on the Defendant’s Motion for Summary Judgment [ECF No. 59]. For the reasons stated 

below, the Motion is denied. 

FACTUAL BACKGROUND 

On February 10, 2015, the Plaintiff’s job as a truck driver for MDI Transportation 

brought him to the Defendant’s premises, where he was scheduled to remove and transport an 

old copier machine. The Plaintiff, accompanied by a co-worker, drove onto the property and 

checked in with Mike Kramer, an employee of U.S. Steel in the IT department. Kramer was the 

Plaintiff’s contact at the Defendant’s facility. He authorized all the Plaintiff’s pickups and 

deliveries and provided relevant instructions. On February 10, 2015, Kramer, driving in his own 

vehicle, escorted the Plaintiff to the building several miles away that housed the copier. 

As instructed by Kramer, the Plaintiff backed his truck up to the building’s large 

overhead door. He exited the truck, walked to the back and assisted his co-worker in removing 
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the equipment from the truck that would be necessary to complete the pickup. This included a 

stair walker and a roll of shrink wrap. As the Plaintiff walked into the large warehouse type 

building with the stair walker, he noticed that none of the lights were on. After walking about 

fifteen feet, he also noticed snow and ice on the ground. In fact, the Plaintiff had already walked 

through a section of snow with ice underneath it.1 The Plaintiff asked Kramer if it cleared up 

further into the building. Kramer indicated that icy conditions existed throughout the building. 

The Plaintiff learned that the Defendant was not using the facility, and a pipe had burst inside the 

building. The Plaintiff expressed that it would not be safe to continue to retrieve the copier. 

Kramer and others who were on site discussed other potential options, but the Plaintiff had 

already decided that he would not be completing the job that day, especially since it involved 

bringing a heavy piece of equipment down a couple flights of stairs that was still another one 

hundred yards away from where he was standing. 

Having made his decision, the Plaintiff turned around and walked back toward his truck. 

As he walked through the section of snow, he lost his footing and fell. When asked during his 

deposition why he walked back through the snow, the Plaintiff replied, “we had to walk through 

it to get out” and there was “no other way.” (Mem. in Supp, of Mot. for Summ. J., Ex. A, Pl.’s 

Dep. 58, ECF No. 60-1; see also id., at 60 (“That was the only path to get back to the truck.”).) 

 

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 Photographs taken by the Plaintiff with his cellular telephone show a ribbon of snow covering what appears to be a 

larger section of dark ice. The Defendant designated these photographs as evidence in support of its Motion for 

Summary Judgment, stating that they were identified as Exhibits 1, 2 and 3 of the Plaintiff’s deposition. The 

Plaintiff, in response to the Defendant’s Motion for Summary Judgment, complained that the photographs submitted 

with the Defendant’s Motion for Summary Judgment “are not, in fact, the same photographs introduced as exhibits 

at the Plaintiff’s deposition.” (Pl.’s Resp. 5, ECF No. 61.) The Plaintiff did not elaborate on this assertion, or why it 

matters for purposes of the Court’s review. 

Because photographs identified as Exhibits 1, 2, and 3 were discussed during the Plaintiff’s deposition, but the 

photographs submitted by the Defendant do not contain the exhibit stickers, the Court presumes that the Plaintiff’s 

objection is that the designated photographs are copies of the photographs introduced during his deposition. In any 

event, the photographs with exhibit stickers have been submitted with the Defendant’s Reply, and they show the 

same scenes as the copies the Defendant designated as evidence. For his part, the Plaintiff does not suggest that the 

designated photographs are not accurate copies, or that they do not depict the same thing as Exhibits 1, 2, and 3. 
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When asked why he did not ask Kramer to make the conditions safe before walking through it, 

the Plaintiff explained, “that little area we didn’t think was dangerous enough at that time, you 

know. I didn’t think that the whole warehouse was gonna be iced and snowed down.” (Id. at 64.) 

He acknowledged that Kramer had, on previous occasions, responded to his request to clear an 

area, such as when water was puddled on the floor. He did not ask Kramer to clear up the patch, 

because he was just trying to leave, and did not think it would be hazardous to walk such a short 

distance, especially since he had already traversed it once and not lost his footing. He also 

considered the fact that Kramer had not thought it appropriate to clear it up beforehand, or taken 

the initiative to stop them from coming into to the warehouse in the first place as other reasons 

for not asking Kramer to clear the patch of ice and snow to exit.2

 

ANALYSIS 

 Summary judgment is proper when the moving party “shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 

Civ. P. 56(a). A “material fact” is one that “might affect the outcome of the suit.” Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court views the facts in the light most 

favorable to the non-moving party and all reasonable inferences are drawn in the non-movant’s 

favor. Ault v. Speicher, 634 F.3d 942, 945 (7th Cir. 2011). 

Because the Court’s jurisdiction over this case is predicated upon diversity, see 28 U.S.C. 

§ 1332, it “must apply the law of the state as it believes the highest court of the state would apply 

 

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 The Court notes that the facts, as they are set forth in this Opinion and Order, are from the perspective of the 

Plaintiff. They do not include the differing account from Kramer, as set forth in his deposition, such as the fact that 

the Plaintiff entered the facility before Kramer had completed his inspection and authorized it, and that there was an 

alternative path to the copier that did not require walking through ice and snow. The Defendant did not argue these 

differences, as they would have been issues for a jury to decide. Rather the Defendant’s arguments, and the Court’s 

analysis, focus on the facts regarding a known and obvious condition, which the Defendant maintains are not 

disputed and establish that the Defendant did not breach its duty as a matter of law. 
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it if the issue were presently before that tribunal.” State Farm Mut. Auto. Ins. Co. v. Pate, 275 

F.3d 666, 669 (7th Cir. 2001). “When the state Supreme Court has not decided the issue, the 

rulings of the state intermediate appellate courts must be accorded great weight, unless there are 

persuasive indications that the state’s highest court would decide the case differently.” Id.

The Plaintiff’s negligence claim requires him to prove that the Defendant owed him a 

duty and breached that duty, resulting in damages. Rhodes v. Wright, 805 N.E.2d 382, 385 (Ind. 

2004). The parties do not dispute that the Plaintiff’s status as a business invitee on the 

Defendant’s premises imposed on the Defendant a duty to exercise reasonable care for the 

Plaintiff’s protection. See Burrell v. Meads, 569 N.E.2d 637, 639–40 (Ind. 1991) (describing 

duties owed by landowner); Douglass v. Irvin, 549 N.E.2d 368, 369 (Ind. 1990) (holding that a 

property owner must maintain its property in a reasonably safe condition for business invitees). 

Indiana has borrowed from, and adopted, Section 343 of the Restatement (Second) of 

Torts to supply the features of that duty. It provides that a landowner is liable for personal 

injuries suffered by his invitee because of a condition on the land “if, but only if,” the landowner: 

(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. 

Burrell, 569 N.E.2d at 639–40 (quoting Restatement (Second) of Torts § 343, and stating it 

provides the “best definition” of the landowner’s duty to its invitee); see also Rogers v. Martin, 

63 N.E.3d 316, 322–23 (Ind. 2016) (confirming that when an injury is caused by a condition on 

the land, “the three elements described in Restatement (Second) of Torts section 343 accurately 

describe the landowner-invitee duty”). 
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 Additionally, § 343 is meant to be read in conjunction with § 343A of the Restatement 

(Second) of Torts, which addresses known and obvious dangers. See Countrymark Coop., Inc. v. 

Hammes, 892 N.E.2d 683, 688 (Ind. Ct. App. 2008). Section 343A provides that “[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. An 

invitee’s mental state of knowledge, appreciation, and voluntary acceptance of the risk demands 

a subjective analysis of actual knowledge. See Smith v. Baxter, 796 N.E.2d 242, 244 (Ind. 2003). 

 The Defendant argues that it is not liable under the above standards because the Plaintiff 

admitted that the dangerous condition was known and obvious to him, yet he decided to walk 

through the area anyway. This argument is grounded in the second element of the Restatement’s 

§ 343 duty inquiry and it implicates the “open and obvious danger” breach analysis addressed by 

§ 343A. The Plaintiff responds that, by the time he appreciated the danger, there was no other 

path for him to reasonably take but through the ice and snow. He could not get to his truck 

without walking through the area where he fell. 

If no reasonable jury could find that the Defendant breached the duty of care under §§ 

343 and 343A, the Court must grant judgment as a matter of law in favor of the Defendant. 

Because the Plaintiff “admitted that he was aware of the ice and recognized the danger,” the 

Defendant “is not liable unless [it] should have anticipated the harm despite [the Plaintiff’s] 

knowledge of the danger or the obviousness of the danger.” Countrymark Coop., 892 N.E.2d at 

691. Considering the facts in a light most favorable to the Plaintiff, the Court finds that a jury 

could conclude that, under the circumstances existing on February 10, 2015, the Defendant 

should have expected that the Plaintiff would fail to protect himself from the danger, and should 
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have anticipated the harm despite the Plaintiff’s knowledge of the danger or the obviousness of 

it. 

A jury could conclude, based on the facts before the Court, that it was unreasonable for 

the Defendant to believe that the Plaintiff would avoid the snowy area when he walked through it 

to return to his truck. The first time the Plaintiff walked through the snow, he was following 

Kramer’s lead. The Plaintiff had just entered the warehouse and did not realize that the 

conditions inside the warehouse were similar throughout. This prompted him to ask Kramer if it 

cleared up further into the building. When the Plaintiff learned that the entire warehouse was 

unlit and that the floor was ice-covered, he decided he was abandoning the job. The Plaintiff 

could not return to his truck and leave without traversing the small area of snow. A jury could 

find that it was unreasonable for the Defendant to believe that the Plaintiff, despite his awareness 

of the obvious danger, would not attempt to return to his truck parked fifteen feet away and leave 

the premises. He had no other business to conduct once he decided to abandon the job, which he 

only decided after learning that the entirety of the building was in a condition that would make 

retrieval of a large piece of machinery unsafe. The evidence is that the Plaintiff believed that 

leaving without completing the job was far safer than continuing further into the warehouse, and 

a jury could find that the Defendant should have anticipated this, and the attendant potential 

harm. 

The Defendant argues that the Plaintiff could have stayed in place and asked Kramer to 

clear the danger before walking back through the snowy area. There is no evidence regarding 

what efforts would have been necessary to make the area safe, or how long it would have taken. 

The Defendant had not previously cleared the area, and no evidence suggests that they were 

prepared to do so efficiently upon learning of the condition. The Defendant’s comparison to 
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previous times when Kramer had responded to requests, such as to clear puddles of water, does 

not account for the various factors that made the situation on February 10, 2015, dissimilar. The 

Defendant argues that the “Plaintiff’s conscious decision not to have the area cleared because he 

‘just wanted to make it out’ is insufficient to prove that [the] Defendant should have anticipated 

that [the] Plaintiff would walk back through the condition for a second time after he had 

specifically advised [the] Defendant that he believed the condition to be dangerous.” (Def.’s 

Reply 4–5, ECF No. 62.) The Court disagrees. It will be for a jury to determine whether the 

Defendant should have anticipated that the Plaintiff would attempt to leave despite what other 

measures he could have reasonably taken. The Plaintiff here is like the plaintiff in Miller v. 

Rosehill Hotels, LLC, 45 N.E.3d 15 (Ind. Ct. App. 2015), who “was not aware of the relative 

slickness of the parking lot and walkways on the Hotel’s property until after she had walked on 

the parking lot either part or all of the way to her vehicle.” 45 N.E.3d at 23 (denying summary 

judgment because “[a] reasonable jury could conclude that by the time [the plaintiff] had actual 

knowledge and appreciation of the risk or extent of the slick conditions on the Hotel’s property, 

there was no reasonable opportunity for her to avoid or escape the risk or the conditions under 

the circumstances”); see also Get-N-Go, Inc. v. Markins, 544 N.E,2d 484, 487 (Ind. 1989) 

(noting that continued exposure to danger does not amount to incurring the risk “where there is 

no reasonable opportunity to escape from it” where the plaintiff had already walked onto an icy 

parking lot before realizing the extent of the danger). 

 The Defendant has not established that the only conclusion a jury could reach is that the 

Defendant did not breach its duty to maintain the property in a reasonably safe condition for its 

business invitees because the Plaintiff accepted a known and obvious risk. 
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CONCLUSION 

 For the reasons stated above, the Court DENIES the Defendant’s Motion for Summary 

Judgment [ECF No. 59]. Further settings will be set by separate order. 

SO ORDERED on December 5, 2018. 

 s/ Theresa L. Springmann 

CHIEF JUDGE THERESA L. SPRINGMANN