United States District Court, N.D. Illinois
November 17, 2004.
The opinion of the court was delivered by: PHILIP REINHARD, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Rodney A. Shaw, brings his third-amended complaint
against defendants, Schweinfurth Transfer, Inc. ("Schweinfurth"),
Manuel R. Miller, James L. Grier, Skippers Shipper, Inc.
("Skippers"),*fn1 Kaos Unlimited, Inc. (Kaos), Kayla Harper,
Bernard M. Stotz ("Bernard") and Krista S. Stotz ("Krista") for
injuries arising out of a traffic accident. Plaintiff is a
citizen of Illinois. Miller is a citizen of Iowa. Grier, Harper,
Bernard and Krista are citizens of Florida. Schweinfurth is an
Iowa corporation with its principal place of business in Iowa.
Kaos is Florida corporation with their principal place of
business in Florida. The amount in controversy exceeds $75,000.
The court has diversity of citizenship jurisdiction.
28 U.S.C. § 1332 (a)(1). Kaos, Krista, Bernard, and Harper (collectively,
"Skipper Defendants") move for summary judgment. Plaintiff has
not filed a response to the Skipper Defendants' LR 56.1 (a)
statement of undisputed material facts nor a brief in opposition.
The facts set forth by the Skipper Defendants are, therefore,
deemed admitted. LR 56.1 (b) (3) (B).
According to the facts deemed admitted, Grier was
self-employed, doing business as Reliable Flag Car Escourt. He
was certified to perform escort services for oversized vehicles
by the State of Florida. His training was designed to qualify him
to provide such services nationwide. Kaos contracted with Grier
to provide escort services for a Kaos truck hauling a boat from
Florida to Minnesota. Kaos had no control over Grier's
performance of this service. Grier billed Kaos for the service he
provided at the completion of the job. During the trip, Grier,
driving the lead escort vehicle (which was owned by Grier),
determined that a portion of the route designated by the Illinois
Department of Transportation to be followed was closed due to
construction. Grier instructed the driver of the truck hauling
the boat and the driver of the trailing escort vehicle to pull
off the road until a new route could be established. Grier
received a suggestion from an unknown individual via CB radio on
a possible route which included use of Interstate 90 ("I-90").
Grier led the hauling vehicle to I-90 and they proceeded
northbound on I-90 passing under the Prairie Hill overpass. A
state police officer approached the scene and advised the boat
would not fit under an upcoming overpass. The hauling vehicle and
trailing escort vehicle pulled to the side of northbound I-90.
Grier proceeded to an emergency turn-around and returned
southbound on I-90. He proceeded to the Prairie Hill overpass on
the southbound side of I-90 and slowed his vehicle to measure
whether the boat would fit under it when he became aware of the
collision which is the subject of this suit occurring behind him
between a tractor-trailer and a pickup truck.
Plaintiff's claim against the Skipper defendants is premised
completely on the alleged negligence of Grier while acting in the
course of his employment as an employee of the Skipper Defendants
or as an agent under the control of the Skipper Defendants. The
facts show Grier was not an employee of the Skipper Defendants
nor an agent under their control. He was an independent
contractor. Under Illinois law, which no one disputes applies, a
person who contracts with an independent contractor is not liable
for the independent contractor's acts or omissions unless he
retains the control of part of the work and the injury is caused
by his failure to exercise his control with reasonable care.
See Rangel v. Brookhaven Constructors, Inc., 719 N.E.2d 174,
179 (Ill.App. 1999) appeal denied, 724 N.E.2d. 1274 (Ill.
2000). The record contains no evidence the Skipper Defendants
retained any control over Grier that could have led to
plaintiff's injuries. The evidence shows Grier was in control of
the decisions made leading up to and at the time of the collision
between the other vehicles. Plaintiff has offered no facts, and
because he has not filed a brief in opposition as required by LR
56.1 (b) (2), no argument, to support liability against the
Skipper Defendants as an employer of Grier or one who controlled
Grier as its agent as pled.
For the foregoing reasons, the Skipper Defendants' motion for
summary judgment is granted. Skippers Shipper, Inc. is stricken
as a defendant. Kaos Unlimited, Inc., Krista S. Stotz, Bernard M.
Stotz and Kayla Harper are dismissed as defendants in this case.
This order is not final and appealable and no judgment shall
enter until all claims involving all parties have been
adjudicated. See Fed.R. Civ. P. 54 (b).