United States District Court, S.D. Illinois
May 18, 2005.
ROBERT POLSON and MARY POLSON, Plaintiffs,
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
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).
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
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
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 systems developed by the designers. It did
this to ensure the safety of its products. By doing so, however,
General Motors did not undertake to participate in the design or
manufacture of the tractor-trailer.
Further, the Polsons have failed to demonstrate that General
Motors assumed the duty of making the tractor-trailers safe for
drivers. General Motors left the design of the system up to the
manufacturer's designers. It merely rejected certain tie down
systems as not meeting its needs as a customer. While General
Motors was the only company that could approve such systems for
the equipment that carried its cars and trucks, the Polsons have
failed to show that General Motors determined or undertook in any
way to determine how other automobile manufacturers secured and
transported their cars and trucks.
Extension of liability for negligence is inappropriate because
General Motors did not render safety services to the drivers.
General Motors did not provide services to the drivers which were
necessary for their protection and are not liable under the
theory of negligence. Nor did it train the drivers who utilized
the allegedly defective ratchet system.
The Polsons fail to articulate a basis in Illinois law for
any duty by General Motors to Polson or any employee of the
companies that General Motors hires to transport its automobiles.
Thus, the Court grants General Motors' motion for summary
judgment on Count IV, the negligence claim.
In Count V, Polson asserts a conscious disregard claim for
punitive damages. Polson's punitive damages are improper. Any
conduct by General Motors was extra-territorial. Continental
Trend Resources, Inc. v. OXY USA, Inc., 101 F.3d 634, 636-637
(10th Cir. 1996), cert. denied, 520 U.S. 1241 (1997) ("[T]he
punitive damages must relate to conduct occurring within the
state"). Here, Polson has not produced any evidence that General
Motors "profited" from its alleged misconduct, whether in
Illinois or elsewhere. Indeed, as a customer of the car haulers,
General Motors would have paid for the shipment of its cars and
trucks. Therefore, the Court grants General Motors' motion for
summary judgment on Count V, the conscious disregard claim.
In Count VI, Mary Polson alleges a claim for loss of consortium
against General Motors. Because the Court finds that General
Motors is entitled to summary judgment on Polson's negligence and
conscious disregard claims, the Court also finds that General
Motors is entitled to summary judgment on her claim. To recover
on a loss of consortium claim, the deprived spouse must prove
"liability on the part of the defendant . . ." Seaman v.
Wallace, 561 N.E.2d 1324, 1338 (Ill.App. 1990). A loss of consortium claim is derivative in nature, thus
its viability depends on the success of the injured spouse's
claims. See McCreary v. Libbey-Owens-Ford Co., 132 F.3d 1159,
1167 (7th Cir. 1997). Accordingly, the Court grants General
Motors' motion for summary judgment on Count VI, the loss of
Moreover, the Polsons have not offered anything new that would
warrant this Court to deviate from its past rulings finding that
General Motors is not liable under very similar circumstances.
See Sweeney v. Ryder, 98-CV-4213-DRH (November 6, 2000 Doc.
219); Gruber v. Ryder, 99-CV-0310-DRH (November 6, 2000, Doc.
231); Sanders v. Ryder, 00-CV-0302-DRH (April 5, 2001, Doc.
64). Thus, the Court finds that General Motors is entitled to
summary judgment on all of the Polsons' claims against it: Counts
IV, V and VI.
V. Motion in Limine
In the event that the Court granted General Motors' motion for
summary judgment, the Polsons moved in limine to preclude
attempts by Cottrell to blame auto manufacturers, or the trailer
purchasers which ordered trailers in conformity with auto
manufacturer requirements or to reference industry standards at
A manufacturer's obligation to manufacture and sell a product
which is not unreasonably dangerous cannot be delegated, so it is
not a defense to the manufacturer that another person, including
the claimant's employer failed to make it free from unreasonably
dangerous conditions. Turney v. Ford Motor Co., 94 Ill. App.3d 678, 684 (Ill.App. 1981). The defense that contributory
fault or negligence of a worker's employer was the sole or
proximate cause of a claimant's injury cannot be asserted when
defendant did not file a third-party action. Robertson v.
General Tire and Rubber Co., 123 Ill.App.3d 11, 16-17
(Ill.App. 1984). Because this Court's grant of summary judgment in
favor of General Motors removes General Motors as a party to this
case, the remaining Defendant Cottrell cannot proceed with the
"empty chair" defense. Thus, the Court GRANTS the Polsons'
motion in limine.
Accordingly, the Court GRANTS General Motors Corporation's
motion for summary judgment (Doc. 33). The Court DIRECTS the
Clerk of the Court to enter judgment in favor of General Motors
Corporation and against Robert and Mary Polson on Counts IV, V
and VI at the close of the case. Further, the Court GRANTS the
Polsons' alternative motion in limine (Doc. 42). Lastly, the
Court DENIES the Polsons' motion to strike (Doc. 47).
IT IS SO ORDERED.