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Creek v. Mittal Steel USA

April 14, 2008


The opinion of the court was delivered by: Nora Barry Fischer United States District Judge



Pending before the Court is Defendants' Mittal Steel US, Inc. ("Mittal"), International Steel Group ("ISG"), and Pristine Resources' (collectively, "Defendants") Motion for Summary Judgment [64]. For the following reasons, said motion is DENIED.


Plaintiffs Decedents David Creek and Lori Creek drowned in Pigeon Creek located on Defendants' abandoned mine (hereinafter "Mine 51") in Bentleyville and Ellsworth Boroughs in Washington County, Pennsylvania on May 8, 2005. (Docket No. 66 at ¶1, 2) (hereinafter "SOF"). Plaintiffs were riding on an all terrain vehicle (hereinafter "ATV") which went over a blind cliff, and fell sixty feet into Pigeon Creek below. (Docket No. 67 at p.1 ¶2). It is alleged Defendants' wanton, willful and reckless disregard to guard or warn Plaintiffs of a dangerous condition on Mine 51, described as a blind cliff, proximately caused their injuries and deaths.

(Docket No. 1-3, ¶ 20). Plaintiffs allege that such cliff constituted a trap, that there are no warnings or danger signs warning of such cliff, and that as a result of the Defendants' reckless, willful and wanton negligence, David and Lori Creek drove over the cliff and died. (Id. at ¶ 23, 25, 33).

It is undisputed that a similar accident occurred in 2000 on Mine 51 in which two cars drove over the cliff and landed in Pigeon Creek. (SOF at ¶ 25). At the time of the 2000 accident, Mine 51 was owned by Beth Energy. After the accident Beth Energy contracted with MineVironment to monitor Mine 51 and to place danger and warning signs on the property to prevent the occurrence of another such accident. (SOF at ¶ 26). The Beth Energy employee responsible for Mine 51, Jay Hasbrouck, then retired in 2003. (SOF at ¶ 32). Thereafter, Larry Neff, Mr. Hasbrouck's former subordinate, took over his responsibility for Mine 51. (SOF at ¶ 32). The mine was then sold by Beth Energy to Defendantsin April of 2003. (SOF at ¶ 33). MineVironment continued to provide its services to Defendants until November of 2003, and the services were terminated because the parties determined that the attempts to keep recreational users off of Mine 51 was futile. (SOF at ¶ 26 ). Larry Neff continued to be responsible for Mine 51 when the accident involving Plaintiffs occurred in May of 2005. (SOF at ¶ 32).

In addition to the accident in 2000, there was another accident that occurred in April of 2005 on the same cliff, prior to the accident involving the Creeks. That accident also resulted in a lawsuit which is currently pending before this Court, captioned Vorhes v. Mittal Steel USA, Inc., et al., Civil Action No. 06-1130.


Plaintiffs originally filed a complaint in the Court of Common Pleas of Allegheny County alleging negligence against the Defendants on March 15, 2006. (Docket No. 1-3). On May 26, 2006, said complaint was removed to this Court based on diversity of citizenship under 28 U.S.C. § 1332. (Docket No. 1).

On October 16, 2006, Judge Thomas M. Hardiman consolidated Vorhes v. Mittal Steel USA, Inc., et al., with this case for discovery purposes only. (See Civil Action No. 06-1130, Docket No. 8). The cases then proceeded through discovery, which is now completed.*fn1

On August 28, 2007, Plaintiffs filed their First Amended Complaint to include a claim for piercing the corporate veil. (Docket No. 46). Thereafter, the Defendants stipulated to certain facts related to the piercing the corporate veil claim and Plaintiffs withdrew their Amended Complaint. (Docket No. 58; Docket No. 60). On November 26, 2007, Defendants filed their Motion for Summary Judgment (Docket No. 64.) to which, the Plaintiffs filed their Brief in Opposition to Defendants' Motion for Summary Judgment on December 19, 2007. (Docket No. 74). Subsequently, Defendants filed their Reply Brief in Support of their Motion for Summary Judgment (Docket No. 77) and Plaintiffs filed a sur-reply brief on February 5, 2008. (Docket No. 83).

Defendants have filed a Motion for Summary Judgment arguing that they are entitled to immunity from liability under the Pennsylvania Recreational Land and Water Use Act, and also that Plaintiffs are not able to meet their burden of proving how the accident occurred. (Docket No. 65).


Summary judgment may only be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Pursuant to Rule 56, the Court must enter summary judgment against the party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A motion for summary judgment will not be ...

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