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W.A. TAYLOR & CO. v. GRISWOLD & BATEMAN WAREHOUSE

December 19, 1990

W.A. TAYLOR & CO., Plaintiff,
v.
GRISWOLD & BATEMAN WAREHOUSE CO., QUALITY DISTRIBUTION SYSTEMS, INC., FRANK PAGONE, SR., FRANK PAGONE, JR., AND JOE PAGONE, Defendants


Milton I. Shadur, United States District Judge.


The opinion of the court was delivered by: SHADUR

MILTON I. SHADUR, UNITED STATES DISTRICT JUDGE

 W.A. Taylor & Co. ("Taylor") has sued Griswold & Bateman Warehouse Co. ("Griswold"), Quality Distribution Systems, Inc. ("Quality") and three of Quality's officers under various claims relating to the damage and destruction to Taylor's products stored at Quality's Copenhagen warehouse in Franklin Park, Illinois (the "Warehouse"). Count I of Taylor's most recent complaint (the "Complaint") charges Quality with negligence. Both Quality and Taylor now move for summary judgment on Count I under Fed. R. Civ. P. ("Rule") 56. *fn1" For the reasons set forth in this memorandum opinion and order, Taylor's motion is denied while Quality's is granted in part and denied in part.

 Taylor's Count I

 Count I of Taylor's Complaint puts forth a standard negligence claim:

 
17. Under common law and Ill. Rev. Stat. Ch. 111 2/3, para. 131, Quality owed Taylor the duty to use reasonable care and diligence to protect Taylor's property, to maintain suitable premises to store the property and to not misrepresent the true identity of the warehouse owners and operators. Quality also owed Taylor the duty, pursuant to Ill. Rev. Stat. Ch. 26, ยง 7-204, to exercise such care in regard to Taylor's product as a reasonably careful person would exercise in like circumstances. Quality breached these duties in at least the following respects:
 
a. it failed to take necessary and proper precautions to prevent the flooding which occurred in August 1987;
 
b. it failed to undertake necessary and sufficient efforts, after the flooding, to salvage and reclaim Taylor's product;
 
c. it conducted clean-up of the flooding in such a manner as to further damage Taylor's product;
 
d. it conducted clean-up of the flooding in such a manner as to make it impossible to determine the extent of water damage to Taylor's product;
 
e. it failed to timely notify Taylor of the damage to Taylor's product;
 
f. it failed to take precautions to prevent substantial amounts of Taylor's product from being lost or stolen;
 
g. it failed to disclose to Taylor that the warehouse was located in a flood plain; *fn2"
 
h. it located the warehouse in a flood plain; and,
 
i. it failed to inform Taylor of the true identity of the warehouse owners and operators and the fact that Griswold was not "affiliated" with Quality and was not involved in any way in the ownership or operation of the warehouse. *fn3"
 
18. As a direct and proximate result of Quality's negligence, Taylor suffered substantial damage.

 Although it has been clear to both sides from the outset that Quality -- a warehouseman -- was the bailee of Taylor's stored products, it is equally clear that the claim as asserted in Count I undertakes the burden, incumbent on every negligence plaintiff in Illinois (and elsewhere), of Taylor's proving Quality's negligence.

 But now on its Rule 56 motion Taylor has shifted gears from its own pleading, attempting to frame its claim instead in terms of a special brand of negligence law applicable to bailment relationships -- under which Taylor asserts the burden is not its own to prove negligence, but is rather Quality's to prove its own freedom from negligence. Taylor's problem in that respect is a function of the familiar principle that a party's pleadings (and a fortiori the party's proof) cannot of course be amended by its legal memoranda (see, e.g., Thomason v. Nachtrieb, 888 F.2d 1202, 1205 (7th Cir. 1989) and Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984)).

 Under the special theory of recovery that Taylor now advances -- abandoning its Complaint para. 17 allegations of specific negligence by Quality in favor of a presumed negligence approach -- it must first make out a prima facie case so that the burden of proof switches to the bailee (Quality) to show its freedom from negligence (Illinois Code Comment Paragraph (b) to Ill. Rev. Stat. ch. 26, para. 7-403(1)(b) ("Code Comment"); Allis-Chalmers Corp. v. Pekin Foundry & Mfg. Co., 31 Ill. App. 3d 1005, 1007-08, 335 N.E.2d 97, 99-100 (3d Dist. 1975)). And in that respect Mueller v. Soffer, 160 Ill. App. 3d 699, 704, 513 N.E.2d 1198, 1201, 112 Ill. Dec. 589 (5th Dist. 1987) (citation omitted) states:

 
In order properly to plead the existence of and the right to recovery under a bailment theory, the following elements must be alleged: an agreement, express or implied, to create a bailment; delivery of the property in good condition; acceptance of the items bailed by the bailee; and nonreturn or redelivery of the property in a damaged condition.

 One component of Taylor's newly-asserted predicate for liability on Quality's part is thus Taylor's need both to plead and to prove that its goods were delivered in good condition. Taylor bears the burden of showing that in order to make out a prima facie case (Code Comment; Miles v. International Hotel Co., 289 Ill. 320, 327-28, 124 N.E. 599, 602 (1919)).

 Here Taylor is deficient not only in its pleading (for nowhere in Count I does it allege that the goods were delivered to Quality in good condition) but also in its Rule 56 proof (for it advances nothing whatever in support of that essential ingredient). Under Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) that is fatal to Taylor's summary ...


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