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POLSON v. COTTRELL

May 18, 2005.

ROBERT POLSON and MARY POLSON, Plaintiffs,
v.
COTTRELL, INC., and GENERAL MOTORS CORPORATION, Defendants.



The opinion of the court was delivered by: DAVID HERNDON, District Judge

MEMORANDUM and ORDER

I. Introduction and Background

Pending before the Court is Defendant General Motors Corporation's motion for summary judgment (Doc. 33). General Motors argues that it is entitled to summary judgment on Plaintiffs' claims against it as General Motors is not liable to Plaintiffs on any of the theories of recovery asserted in the complaint. Plaintiffs oppose the motion (Doc. 43). Based on the pleadings, the applicable case law and the following, the Court grants the motion for summary judgment.

  On October 10, 2004, Plaintiffs Robert and Mary Polson filed a sevencount complaint in the Madison County, Illinois Circuit Court against Cottrell, Inc. ("Cottrell"), Jack Cooper Transport Company ("Jack Cooper") and General Motors Corporation ("General Motors") (Doc. 2). The Polsons' claims arise from a February 19, 2003 incident wherein Robert Polson ("Polson") was injured while operating the chain and ratchet tie down system of a rig designed and distributed by Cottrell as part of his duties as car hauler for Jack Cooper. Count I is against Cottrell for strict liability; Count II is against Cottrell for negligence; Count III is against Cottrell for breach of implied warranty; Count IV is against General Motors for negligence; Count V is against all Defendants based on a conscious disregard theory; Count VI is brought by Mary against all Defendants for loss of consortium and Count VII is against Jack Cooper for an intentional tort.

  On December 1, 2004, Cottrell removed the case to this Court based on the federal diversity statute, 28 U.S.C. § 1332 (Doc. 1). That same day, both Jack Cooper and General Motors filed consents to the removal (Docs. 3 & 4). On May 17, 2005, the Court dismissed Jack Cooper with prejudice finding that it was fraudulently joined (Doc. 62).

  On February 19, 2003, Robert Polson was hauling vehicles for his employer, Jack Cooper. Polson contends that he injured his neck, spine and related areas in the process of tying down a vehicle to the auto hauler. Polson claims that he was hauling General Motors vehicles at the time of the incident.*fn1 Polson also claims that his trailer did have quick release ratchets.*fn2

  The manufacturer of the automobile trailers at issue was Cottrell. The Polsons contend that General Motors is liable, however, because it placed certain requirements and restrictions on the manufacturers as to the type of securement system that could be used in hauling its vehicles and that it allegedly participated in the design, testing and approval of the auto hauler.

  II. Summary Judgment

  Summary judgment is proper where the pleadings and affidavits, if any, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); Wyatt v. UNUM Life Insurance Company of America, 223 F.3d 543, 545 (7th Cir. 2000); Oates v. Discovery Zone, 116 F.3d 1161, 1165 (7th Cir. 1997); See also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). The movant bears the burden of establishing the absence of fact issues and entitlement to judgment as a matter of law. Wollin v. Gondert, 192 F.3d 616, 621-22 (7th Cir. 1999). The Court must consider the entire record, drawing reasonable inferences and resolving factual disputes in favor of the non-movant. Schneiker v. Fortis Insurance Co., 200 F.3d 1055, 1057 (7th Cir. 2000); Baron v. City of Highland Park, 195 F.3d 333, 337-38 (7th Cir. 1999). In reviewing a summary judgment motion, the Court does not determine the truth of asserted matters, but rather decides whether there is a genuine factual issue for trial. EEOC v. Sears, Robuck & Co., 233 F.3d 432, 436 (7th Cir. 2000). No issue remains for trial "unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not sufficiently probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). Accord Starzenski v. City of Elkhart, 87 F.3d 872, 880 (7th Cir. 1996), cert. denied, 117 S. Ct. 683 (1997); Tolle v. Carroll Touch, Inc., 23 F.3d 174, 178 (7th Cir. 1994).

  IV. Analysis

  In Count IV, Polson asserts a negligence claim against General Motors. Polson claims that General Motors, by requiring a certain type of securement system as a condition of transporting its vehicles, owed a duty to Polson and others like Polson to ascertain whether said design use would be reasonably safe for the rig users and that General Motors was negligent in violating that duty.

  It is axiomatic that a necessary element of a negligence claim in Illinois is a duty owed by the defendant to the plaintiff. See, e.g. York v. Stiefel, 99 Ill. 2d 312, 320 (Ill. 1983). "Unless a duty is owed, there is no negligence." LaFever v. Kemlite Co., 185 Ill. 2d 380, 388 (Ill. 1998). Whether a duty exists is a question of law to be determined by the Court. Id. Illinois cases repeatedly rejected negligence theories of liability in situations like this one. For example, in Dowling v. American District Telegraph Co., 1988 WL 93939 (N.D. Ill. 1988), the district court rejected the claim of an injured employee of McKesson that ADT by contracting with McKesson to provide a security signaling service, had assumed a duty to protect employees from work injuries, pointing out "the very limited contractual obligation" involved there. Id. at *8. "ADT never agreed to take charge of the McKesson plant and provide (or insure) a safe workplace. . . . McKesson did not delegate to ADT, nor did ADT assume, a duty of care to protect McKesson employees from injury." Id. Likewise, in Yassin v. Certified Grocers of Illinois, Inc., 150 Ill. App. 3d 1052 (Ill.App. 1986), the court concluded that a grocery cooperative which provided inspection services was not liable to the injured child of a grocery store customer, finding "no indication that [defendant's inspection] was intended as a substitute for protection that the grocery store would otherwise provide its customers or its employees." Id. at 1070.

  Similarly here, there is no evidence that General Motors undertook, by training or otherwise, to instruct drivers employed by the independent hauling companies how to secure and unsecure vehicles in a manner that would avoid injury to the driver. In this case, it is clear that Polson's employer provided such training.

  Furthermore, General Motors is the customer of Jack Cooper, who in turn is the customer of the alleged defective product's designer and manufacturer, Cottrell. General Motors collaborated with trailer manufacturers and carriers through the General Motors Haulaway Committee to exchange ideas and discuss proper methods for hailing General Motors vehicles. General Motors did this as a customer. At most, in the course of communications with its "suppliers" (the auto haulers), General Motors obtained information concerning injuries to drivers. General Motors approved of the allegedly defective ratchet system for use in transporting its vehicles and disapproved of other designs which would have been safer for automobile haulers. It did not specify the design to be used, but merely accepted or rejected the tie down ...


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