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AMERICAN PFAUTER, LTD. v. FREEMAN DECORATING COMPA

July 22, 1992

AMERICAN PFAUTER, LTD., Plaintiff,
v.
FREEMAN DECORATING COMPANY/THE FREEMAN COMPANY, CHICAGO I & D SERVICE, INC., SOUTH END CARTAGE COMPANY, CURTIS WAREHOUSE CO., CURTIS COMPANIES, WILLIAM J. CURTIS CO., CURTIS MACHINERY MOVERS, INC., W.J. CURTIS MACHINERY MOVERS, INC. and ANTHONY FRAGALE, Defendants. FREEMAN DECORATING COMPANY/THE FREEMAN COMPANY, Cross-Plaintiff, v. SOUTH END CARTAGE COMPANY, ANTHONY FRAGALE, CHICAGO I & D SERVICE, INC. and W.J. CURTIS MACHINERY MOVERS, INC., Cross-Defendants.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 Plaintiff American Pfauter, Ltd. ("American Pfauter") seeks to recover damages incurred when its gear-shaping machine fell off a flatbed trailer. In Count I of its second-amended complaint, American Pfauter alleges that defendant Freeman Decorating Company ("Freeman") negligently loaded the machine onto the flatbed and, as such, is liable for the damages. *fn1" Presently before the court is Freeman's motion for summary judgment. For the reasons stated below, the motion is denied.

 I. Summary Judgment Standard

 Under the Federal Rules of Civil Procedure, summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). This standard places the initial burden on the moving party to identify "those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986) (quoting Rule 56(c)). Once the moving party has done this, the non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(c). In deciding a motion for summary judgment, the court must read all facts in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202 (1986); Griffin v. Thomas, 929 F.2d 1210, 1212 (7th Cir. 1991).

 II. Background

 From September 5, 1990 to September 13, 1990, American Pfauter, an Illinois corporation engaged in the business of manufacturing and selling machinery, displayed a Lorenz gear-shaping machine, Model No. LS 154 CNC, at a trade show held at McCormick Place in Chicago, Illinois. According to American Pfauter, it retained Chicago I & D Services ("Chicago I & D"), an Illinois corporation engaged in the business of trade-show management, to dismantle the machine after the show and transport it to a specified warehouse. American Pfauter contends that on or about September 18, 1990, Chicago I & D employed defendant Freeman to dismantle and load the machine onto a truck owned and operated by South End Cartage Company ("South End").

 Once the machine appeared to be secure, Fragale proceeded to move the trailer to one of the warehouse's dock areas. In order to reach this area, Fragale was forced to pull out onto Central Avenue, execute a u-turn and then back the truck into the dock area. While Fragale was making a wide right turn, the flatbed trailer "jackknifed," sending the machine tumbling to the ground. American Pfauter claims to have sustained property damages in excess of $ 300,000.

 III. Discussion

 Freeman has advanced two arguments in support of the instant motion for summary judgment. First, Freeman argues that no evidence has been set forth indicating that Freeman was responsible for the loading of the machine onto the flatbed trailer at McCormick Place. Second, Freeman asserts that the allegedly negligent acts did not proximately cause the ensuing damage to the machinery. We address each issue seriately.

 1. The Initial Loading

 In response to Freeman's demand for "evidentiary facts" suggesting that it had any involvement in the loading, rigging or transporting of the machine in question, American Pfauter proffers three specific groupings of evidence: (1) the unsworn statement of Larry Gibas, an employee of Chicago I & D; (2) the deposition testimony of Thomas Angarola, a former employee of Freeman; and (3) two work orders suggesting that Freeman was responsible for the loading of the machine. Freeman contends, however, that the exhibits described above do not meet the requirements of Fed R. Civ. P. 56, permitting consideration of "any material that would be admissible or usable at trial." 10A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil § 2721, at 40 (1983). While we agree that this court may not consider in opposition to the instant motion for summary judgment the unsworn statement of Larry Gibas, see Adickes v. S.H. Kress & Co., 398 U.S. 144, 159 n.19, 90 S. Ct. 1598, 1609 n.19, 26 L. Ed. 2d 142 (1970) (unsworn statements do not meet the requirements of Rule 56(e)); Pfeil v. Rogers, 757 F.2d 850, 859 (7th Cir. 1985) (same), cert. denied, 475 U.S. 1107, 106 S. Ct. 1513, 89 L. Ed. 2d 912 (1986), the same cannot be said of the deposition testimony of Thomas Angarola nor the work orders.

 Taken under oath, Angarola's deposition meets the certification requirement of Rule 59(e). See Pfeil, 757 F.2d at 860. Further, Angarola's testimony implicates Freeman in the loading of American Pfauter's gear-shaping machine. See Angarola Deposition at 49-52. To counter this implication, Freeman essentially attacks Angarola's credibility. Additionally, Freeman points out that Angarola mentioned another company who was responsible for loading machines from the trade show. In determining whether to accept deposition testimony for the purposes of a motion for summary judgment, however, a court should not resolve conflicts or questions of credibility "unless the opponent's evidence is too incredible to be believed by reasonable minds." Baltz v. Shelley, 661 F. Supp. 169, 179 (N.D. Ill. 1987). ...


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