United States District Court, N.D. Illinois
April 16, 2004.
WILLIAM SIKORA, Plaintiff,
AFD INDUSTRIES, INC. and VERTO STAALKABEL BV, INC., d/b/a UNITED ROPES, Defendants
The opinion of the court was delivered by: JAMES MORAN, Senior District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff William Sikora brought this action against defendants
arising from injuries he received while cleaning elevator ropes.
Defendants filed a series of summary judgment motions and two motions
in limine. Plaintiff filed a motion to strike certain portions of
defendants' expert report. For the following reasons, defendants' summary
judgment motions 3 and 4 are granted and the remaining motions are
William Sikora was employed by Montgomery Elevator Company (Montgomery)
as an assistant elevator repairmen. In late 1991, Montgomery installed
the elevator system in the new Sheraton Hotel & Towers in Chicago,
Illinois, using wire cables that were manufactured by defendant Verto
Staalkabel B.V. (Verto) and distributed by AFD Industries, Inc. (AFD). On
March 1, 1992, the hotel opened for business and public use of the
Shortly thereafter, a black tar-like substance (commonly referred to as
"gunk") began accumulating on the elevator ropes. While gunk is not
unusual, the substance on the ropes in the Sheraton had a different consistency, texture and volume than
that usually encountered by Montgomery personnel. It is also apparently
unusual for gunk to appear so quickly after installation. While there is
substantial disagreement as to the usefulness of different cleaning
methods, plaintiff claims that the character of gunk on the Sheraton
ropes required Montgomery employees to clean the sheaves as well as the
ropes. Additionally, he alleges that the only way to do so adequately was
to hold a putty knife against the sheave grooves while the system was
On April 15, 1993, employees of AFD and Verto inspected the elevators
and noticed that the diameter of the ropes had decreased by 4 to 5 per
cent. Plaintiff claims that defendants should have realized at that time
that an extraordinary cleaning method was necessary to address the
problem. Employees of Montgomery recommended that the ropes be removed
and replaced because they were defective, but defendants declined to do
so and Montgomery employees continued to clean the ropes.
On April 30, 1993, plaintiff was using a putty knife to remove gunk
from the sheave when his hand got caught in the ropes. When he was unable
to remove his hand from the ropes, his right hand and arm were amputated
and his left hand was seriously damaged.
Summary Judgment Motions
The court's function in ruling on a motion for summary judgment is
merely to determine if there is a genuine issue of material fact for
trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Only if
the evidence on file shows that no such issue exists, and that the moving
party is entitled to judgment as a matter of law, will the court grant the
motion. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Bennett v.
Roberts, 295 F.3d 687, 694 (7th Cir. 2002).
Plaintiffs complaint consists of four counts. In count I, he alleges
strict liability against Verto as the manufacturer of the ropes. In count
II, he claims that defendants' employees negligently performed the April
14, 1993, inspection. Counts III and IV contain allegations of breach of
implied warranty for an ordinary purpose, and breach of implied warranty
for a particular purpose.
Verto's Summary Judgment Motion No. 1
Defendant Verto first argues that it did not owe a duty to the
plaintiff because he was injured while trying to repair the very condition
that he was hired to repair. Verto cites to Shanks v. Insurance Co. of
North America. 211 So.2d 729 (La. Ct. App. 2nd Cir. 1968) for the
proposition that, particularly where the product manufactured by the
defendant was the component of a larger system, a manufacturer owes no
duty in this situation.
In Illinois, the general rule is that a manufacturer of a product owes
a duty in strict liability to any reasonably foreseeable plaintiff. Court
v. Grzelinski, 379 N.E.2d 281, 283 (Ill. 1978). This may include parties
who are outside the purchasing line of the product, such as a repairman.
Id; see also Skarski v. Ace-Chicago Great Dane Corp., 485 N.E, 2d 1312,
1317 (Ill.App. 1st Dist 1985). A majority of out-of-state authorities,
including many of the cases relied upon by defendant, agree with this
general rule. See, e.g., Bich v. General Elec. Co., 614 P.2d 1323, 1326
(Wash. Ct. App. 3rd Div. 1980).
In Shanks, a mechanic employed by an automobile dealership was
attempting to repair a defective transmission in a truck in order to
prepare the vehicle for delivery to its purchaser. 211 So.2d at 730. While doing so, the defect in the transmission caused
the truck to move, injuring the mechanic. Id. In affirming the dismissal
of the plaintiff's complaint, the court held that the defendant owed no
duty to the plaintiff because the defect should have been obvious to a
person in the plaintiff's position. Id. at 731.
Defendant argues that we should follow Shanks in finding an exception
to the general rule because the ropes, even if defective, were merely a
component of the elevator system and plaintiff was specifically called
upon to repair a defect in the ropes. Shanks, however, is easily
distinguishable from the present case. First, while plaintiff was hired
to clean the ropes in question, he was not actually injured by the
specific defect that he was trying to correct. In fact, as is the subject
of defendants third, fourth, fifth and sixth summary judgment motions,
plaintiff does not point to a specific defect in the product. While it is
possible that the injuries were caused by the excessive gunk on the
ropes, this was a result of the alleged defect rather than the defect
itself. Also, unlike in Shanks, the ropes here had already entered the
stream of commerce. By manufacturing and selling the ropes, Verto
impliedly assured subsequent users and repairmen that the ropes were
sound. By doing so, it assumed a duty to the plaintiff.
Verto's Summary Judgment Motion No. 2
Defendant Verto next claims that any defect in the ropes was merely a
condition of the accident rather than the proximate cause. Under Illinois
law this concept contains two distinct requirements: cause-in-fact and
legal cause. First Springfield Bank & Trust v. Galman, 720 N.E.2d 1068,
1072 (Ill. 1999). Whether proximate cause exists is generally a question
for the jury. Palay v. United States, 349 F.3d 418, 432-33 (7th Cir.
2003). Defendant does not dispute that the alleged defect was a "but for"
cause of plaintiff's injuries, but instead argues that plaintiff fails to present any facts indicating that his injuries were
reasonably foreseeable in light of the circumstances. See Thompson v.
County of Cook, 609 N.E.2d 290, 294 (Ill. 1993) ("Illinois courts have
long distinguished . . . between condition and causation"). Verto claims
that plaintiff and Montgomery made a choice to clean the ropes while they
were moving and, in so doing, broke the chain of causation.
In First Springfield, employees of the defendant illegally parked a
truck approximately 40 feet from an intersection. 720 N.E.2d at 1070.
Instead of proceeding to the crosswalk at the intersection, a woman
attempted to cross the street in front of the truck. Id. While crossing,
however, she was struck by a car and killed. Id. The Illinois Supreme
Court held that, though the illegal parking of the truck was a
cause-in-fact of the woman's death, it was not a proximate cause. Id. at
1072. The court determined that the injuries were not a foreseeable
result of parking the car in that spot because the woman's decision to
jaywalk broke the causal chain. Id.
While certain choices by a plaintiff may defeat causation, many
decisions do not have this effect. See McShane v. Chicago Inv. Corp.,
601 N.E.2d 1238, 1249 (HL App. 1st Dist. 1992). In McShane, the plaintiff
filed a wrongful death action against the sublessee of a building after a
firefighter was killed while responding to an alarm. Id. at 1241. The
defendants claimed that the proximate cause of the injury was not the
fire, but rather the firefighter's decision to use an elevator, in
violation of public policy. Id. at 1249. The court found that, although
this decision was a contributing factor, the fire was still a proximate
cause of the plaintiff's injury, because the death of the fireman was a
foreseeable consequence of the fire. Id.
This case is closer to McShane than First Springfield. While the
decision to clean the ropes while moving was certainly a "but for" cause of plaintiff s
injuries, it was a foreseeable result of the alleged defect in the
ropes. Like in McShane, plaintiff's employers made a decision as to how
to react to a problem allegedly caused by the defendants. This decision
and the resulting injuries were foreseeable results of defendant placing
a defective product in the stream of commerce. To hold otherwise would
effectively shield manufacturers from liability in cases where the user
of a defective product made some decision as to how to use the product.
Verto's Summary Judgment Motions Nos. 3.4. 5 & 6
Motions 3, 4, 5 and 6 are all related. Verto argues that plaintiff
fails to produce any evidence of a specific design or manufacturing
defect in the ropes and that he fails to produce evidence that the ropes,
even if defective, could have caused plaintiff's specific injuries.
Finally, defendant claims that, in the absence of any such evidence,
plaintiff cannot prevail on his claims for breach of implied warranties.
A plaintiff may establish a prima facie case for product liability by
establishing facts showing that, despite no abnormal use and no
reasonable secondary cause, the product failed to perform as could be
expected. Tweedy v. Wright Ford Sales, Inc., 357 N.E.2d 449, 452 (Ill.
1976). This method allows a plaintiff to prove a non-specific defect in
the product through circumstantial evidence. Weedon v. Pfizer, Inc.,
773 N.E.2d 720, 724 (Ill.App. 1st Dist. 2002). Because plaintiff does not
attempt to introduce evidence of a specific defect, we grant motions 3
Applying the standard set forth in Tweedy, plaintiff produces evidence
sufficient to withstand summary judgment motion no. 5. He concedes that
he does not attempt to prove a specific defect in the design or
manufacturing of the ropes, but instead argues that the ropes must have malfunctioned and therefore caused his injuries.*fn1 Contrary
to defendant's assertions, plaintiff does not need to prove a specific
causal link at this time in order to prevail under Tweedy. It is enough
that the facts show no reasonable secondary cause. Obviously, defendant
may prevail at trial if it is able to prove that some factor, other than
a product defect, led to the malfunction and to plaintiff's injuries. At
this stage, however, it makes no attempt to do so.
AFD's Summary Judgment Motion
Defendant AFD also seeks summary judgment as to the negligence claim,
arguing that plaintiff fails to prove facts establishing that AFD owed a
duty to the plaintiff, that it breached that duty, or that any breach of
duty was a proximate cause of plaintiff's injuries.
When a party voluntarily undertakes to act, it becomes subject to
liability in negligence if it fails to exercise due care in the
performance of that undertaking. Wakulich v. Mraz, 785 N.E.2d 843, 854
(Ill. 2003). On April 14, 1993, an AFD employee participated in the
inspection of the elevator ropes at the Sheraton. While there are still
questions of fact as to the extent of the role assumed by AFD at that
time, it may have assumed a duty to perform the inspection and follow up
on that inspection with due care. Plaintiff presents facts that may
establish defendant failed to do so when it failed to recommend an
extraordinary measure and failed to accept Montgomery's suggestion that
the ropes be removed.
In Nelson v. Union Wire Rope Corp. 199 N.E.2d 769, 778-80 (Ill.
1964)*fn2 the Illinois Supreme Court found that an insurance company that had voluntarily
inspected an elevator system owed a duty of care to workmen who were
injured when that elevator failed. This duty extends to all parties who
could reasonably be injured by a failure to perform the inspection with
care. Id. at 779. When Verto agreed to participate in the inspection, it
impliedly agreed to use due care. It was foreseeable that a failure to do
so would lead to the injury of a person working on the elevator system.
Plaintiff presents facts showing that defendant breached this duty by
failing to recognize the seriousness of the problem with the ropes and
take corresponding action. As stated above, Montgomery's decision to
clean the ropes while moving may have added to the risk, but it did not
break the chain of causation dating back to the alleged negligence by
Defendant's attempts to distinguish this case from Nelson are
unconvincing. While it is true that the undertaking by AFD was not
actually gratuitous but was at the request of Montgomery, this actually
strengthens plaintiff's claim. When agreeing to perform the inspection
(if it is so agreed), defendant should have known that Montgomery
expected it to do so using care. Next, although it is true that the
inspection in this case was not a planned periodic inspection, as was the
case in Nelson, this distinction does not make a difference here. Again,
if it agreed to perform the inspection, it assumed a duty. Plaintiff's
claims rest on the idea that his injuries, occurring only a few weeks
later, occurred because AFD breached that duty when it negligently
performed the inspection.
Verto's motions in limine
Defendant Verto seeks to limit the testimony of plaintiffs expert
witness, Richard Bertz. Specifically, defendant claims that Bertz should
not be able to testify that the gunk could only be removed while the ropes were moving. An expert opinion is
generally admissible if it is based on sufficient facts or data, is the
product of reliable principles and methods, and the witness reliably
applied the methods and principles to the relevant facts. Cummins v. Lyle
Industries, 93 F.3d 362, 367 (7th Cir. 1996).
The testimony covered by defendant's motion in limine is exactly the
type contemplated by Federal Rule of Evidence 702 and Cummins. Bertz is
an expert in elevator repair and has substantial knowledge as to the
various methods of repair and cleaning. In applying this knowledge to the
gunk, his opinion is that other methods of cleaning would have been
impractical. He based this conclusion on information he received about
the gunk from those who actually saw it. While defendants may, and
undoubtedly will, cross examine Bertz on his lack of actual first-hand
contact with the gunk, this lack of contact does not disqualify his
testimony because it is based on facts relevant to the case.
Plaintiff's motion to strike
Defendant Verto's expert witness, George Gibson, is expected to testify
that the excessive and unusual gunk was not caused by a defect in the
ropes, but was instead the result of slippage caused by the structure of
the elevator system. If the "required traction" exceeds the "available
traction" of a particular elevator system, the elevator is likely to
slip. This may cause metal fines to form, leading to the formation of
gunk. Plaintiff seeks to strike parts of Gibson's report and bar him from
testifying about conclusions he made that were based on the assumption
that the rope-to-groove angle of contact in the Sheraton's elevators was
22.5 ° or π 8 radians.
The available traction of an elevator system is a function of the
apparent coefficient of friction and the angle of contact between the rope and the sheave.*fn3
The angle of contact between the rope and sheave at the Sheraton is 315
° or 5.5 radians. The only variable is the apparent coefficient of
friction. This value is itself a function of the actual coefficient of
friction between a specific rope and groove surface and the actual angle
of contact of that rope and groove.*fn4 If the actual angle of contact
or the actual coefficient of friction reduces, the apparent coefficient
of friction and, therefore, the available traction also reduces. In other
words, a calculation using a lower value for the angle of contact between
the rope and sheave groove is more likely to lead to an inference of
possible slippage by the elevator system.
Plaintiff argues that Gibson steadily reduced the values he used for
the actual coefficient of friction and the angle of contact until he
arrived at an available traction that was less than the required traction
so that he could claim that slippage was likely. He claims that the final
value used by Gibson (22.5 ° or π 8 radians) is not supported by
Gibson's conclusions do not rest on his mathematical model of the
elevator alone. He also relied on an investigation by Montgomery of 28 of
its elevators that allegedly showed traction problems and the fact that
after this investigation Montgomery made changes to its groove design in
As we understand it, Gibson's use of ¶ 8 radians is for a very limited
purpose. He does not claim that the value was ¶ 8 radians. He does claim
that the total evidence establishes that there was slippage, and
plaintiff does not dispute that he may so testify. He further claims that the evidence of values for the relevant elevator at the time of the
accident are inherently unreliable, and the exact values are now
impossible to ascertain. It could possibly be that the values were about
¶ 8; that cannot be ruled out. If that were so, it would explain the
slippage. If that were not so, it would not. But slippage there was.
Framed that way, we think Gibson can use his ¶ 8 assumption
and in cross examination plaintiff can point out that other and equally
plausible assumptions would result in mathematical models that do not
support any explanation of slippage.
Defendants Verto and AFD also filed a series of motions seeking to join
in each other's motions. We grant AFD's motion to join Verto's summary
judgment motions 3 and 4, and deny the remaining motions as moot.
For the foregoing reasons, Verto's motions 3 and 4 for summary
judgment, and AFD's motion to join those motions are granted. Verto's
remaining motions, AFD's motion for summary judgment, Sikora's motion to
strike, and the remaining motions to join are denied.