IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
March 21, 2006
ALONZO DEMPSEY, PLAINTIFF,
GENERAL ELECTRIC CO. DEFENDANTS.
The opinion of the court was delivered by: John F. Grady, United States District Judge
This negligence case is before the court for ruling on defendant General Electric Co.'s motion for summary judgment. For the reasons that follow, the motion for summary judgment is denied.
In this diversity case,*fn2 plaintiff Alonzo Dempsey ("Dempsey") has sued defendant General Electric Co. ("GE") for negligence, seeking to recover for injuries he sustained on July 7, 2003 while cleaning a reactor at GE's plastics plant in Ottawa, Illinois (the "Ottawa Plant").
At the time of the incident, Dempsey was an employee and agent of Hydrotech, Inc. ("HTI"), a company that GE engaged to perform various tasks at the Ottawa Plant, including high-pressure water blasting. On July 7, 2003, Dempsey and other HTI employees came to the Ottawa Plant to clean certain tanks or reactors that GE used in its production of plastics.
Dempsey was working inside of a reactor (identified as reactor number 2) when he was injured. The reactor is a large piece of stainless steel machinery that has three blades connected to a shaft.*fn3 The agitator blades, which are used for mixing plastic and do not have sharp edges, are approximately 18 inches from the bottom of the reactor.*fn4 Dempsey climbed down a ladder into the reactor with a metal, high-pressure water gun that was hooked up to a high-pressure pump; he was wearing an oxygen mask, oxygen tank and a life line hooked up to a body harness. The water gun Dempsey was using to clean the inside of the reactor exerted 10,000 psi of pressure when the trigger was engaged. As he was water blasting the reactor, he noticed that his line (his life line, water hose, or both) was getting wrapped around the agitator blades. Additionally, the floor of the reactor was slippery from the water and the plastic material he was blasting off the reactor walls. According to Dempsey, as he slipped back, he noticed that the agitator blades had begun to rotate. The rotating blades pulled the water gun in his hand (because his line was wrapped around the blades), which jerked him backwards and caused him to engage the trigger on the water gun. The powerful water shot into and cut Dempsey's hand, penetrating along his little finger and exiting near his thumb.*fn5
Dempsey subsequently sued GE, alleging that GE's negligence caused his injuries. (The specific basis for the negligence claim is discussed below.) GE has moved for summary judgment, arguing that Dempsey's negligence claim fails because GE did not owe him a duty of care as a matter of law and was not the proximate cause of his injury.
A. Summary Judgment Standard
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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). In considering such a motion, the court construes the evidence and all inferences that reasonably can be drawn therefrom in the light most favorable to the nonmoving party. See Pitasi v. Gartner Group, Inc., 184 F.3d 709, 714 (7th Cir. 1999). "Summary judgment should be denied if the dispute is 'genuine': 'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Talanda v. KFC Nat'l Mgmt. Co., 140 F.3d 1090, 1095 (7th Cir. 1998) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). "[U]nless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party," there is no issue for trial. Anderson, 477 U.S. at 248.
To succeed on his common-law negligence claim against GE, Dempsey must prove: "the existence of a duty owed by the defendant to the plaintiff, a breach of that duty and an injury proximately resulting from the breach." Deibert v. Bauer Bros. Constr. Co., Inc., 566 N.E.2d 239, 241 (Ill. 1990). "Unless a duty is owed, there is no negligence." Buchaklian v . Lake County Family Young Men's Christian Assoc., 732 N.E.2d 596, 599 (Ill. App. Ct. 2000) (citation and internal quotation marks omitted). The two issues critical to resolving the motion for summary judgment are: 1) whether the court can conclude as a matter of law that GE did not owe Dempsey a duty of care under § 343 and § 343A of the Restatement (Second) of Torts, and (2) whether there is a genuine issue of material fact regarding the proximate cause of Dempsey's injury.*fn6 We address these issues in turn below.
1. GE's Failure to Lock Down Reactor Number 2 is Not Relevant to Dempsey's Negligence Claim
Before examining those issues, however, the court first explains why another issue raised by the parties is not relevant to Dempsey's negligence claim. In his complaint, Dempsey alleges that GE owed him a duty of care, which it breached by (a) failing to lock down reactor number 2 to prevent the agitator blades from rotating while being cleaned; (b) failing to discover that reactor number 2 was not locked down; (c) failing to warn Dempsey that reactor number 2 was not locked down; and (d) authorizing Dempsey to enter reactor number 2 when GE knew or should have known that reactor number 2 was not locked down. (See Compl. ¶ 7.) It is undisputed that reactor number 2 was not locked down.*fn7 However, as it turns out, the failure to lock down reactor number 2 is not relevant. Locking down the reactor essentially means cutting off the power. (See, e.g., Susan Walker Dep. at 27:1-11.) But even if the reactor were locked down, the agitator blades still could be moved manually if force were applied.*fn8
In fact, it is undisputed that the force of the water used during the water blasting could move the agitator blades even if the reactor were locked down. Furthermore, there is no evidence in the record that the agitator blades began to turn because the reactor was turned on.*fn9 It is therefore immaterial that GE neither locked down reactor number 2 nor informed Dempsey that it was not locked down: the failure to lock down the reactor did not cause Dempsey's injury.
Perhaps recognizing this flaw, in his sur-response brief Dempsey shifts the focus of his liability theory. Rather than continuing to focus on the fact that reactor number 2 was not locked down, Dempsey instead argues that GE had a duty to notify him that the agitator blades could move while he was in the reactor.*fn10 We will concentrate on this modified theory in ruling on the motion for summary judgment.
2. Duty Of Care
The first issue is whether GE correctly asserts that as a matter of law it owed no duty of care to Dempsey under §§ 343 and 343A of the Restatement (Second) of Torts.
Sections 343 and 343A, which Illinois courts have adopted, set forth the standards regarding the duty that property owners*fn11 owe to invitees such as the employees of independent contractors who are doing work on property in the interest of the property owner. Deibert, 566 N.E. 2d at 241; Longnecker v. Ill. Power Co., 381 N.E. 2d 709, 713 (Ill. App. Ct. 1978) (business invitees include independent contractors and their employees). Under both § 343 and the common law, a property owner generally "owes its invitees a duty of reasonable care to maintain the premises in a reasonably safe condition." Deibert, 566 N.E.2d at 242. Section 343 thus provides that a property owner is subject to liability for injuries to an invitee caused by a condition of its property only if the condition presents an unreasonable risk of harm to invitees and the property owner (a) knows of or by the exercise of reasonable care would discover the condition, (b) "should expect that [the invitee] will not discover or realize the danger, or will fail to protect [himself] against it," and (c) fails to protect the invitee against the condition. Id. at 241 (citing Restatement (Second) of Torts § 343, at 215- 216 (1965)). Section 343 must be read in conjunction with the open-and-obvious doctrine set forth in § 343A, however. Restatement (Second) of Torts § 343, comment a, at 216 (1965). The open-and-obvious doctrine provides that a property owner is not liable to an invitee for any physical injuries caused by a condition on the land if the danger "is known or obvious to [the invitee], unless the [property owner] should anticipate the harm despite such knowledge or obviousness."*fn12 Id. at § 343A(1), at 218. Accordingly, as a general rule under Illinois law, "'the owner or occupier may reasonably assume that invitees will exercise reasonable care for their own safety, and that ordinarily he need not take precautions against dangers which are known to the visitor or so obvious that the visitor may be expected to discover them.'" Mason v. Ashland Exploration, Inc., 965 F. 2d 1421, 1425-26 (7th Cir. 1992) (quoting Ward v. K Mart Corp., 554 N.E.2d 223, 231 (Ill. 1990)). If the danger is open and obvious, a property owner is not subject to liability unless one of the exceptions to the open-and-obvious doctrine applies. See Clifford v. Wharton Bus. Group, L.L.C., 817 N.E.2d 1207, 1215 (Ill. App. Ct. 2004).
GE contends that it owed no duty of care to Dempsey as a matter of law because any danger presented by the agitator blades was open and obvious and no exception to the open-and-obvious doctrine applies. Dempsey, however, counters that whether the danger was open and obvious is a question of fact to be determined by the jury. Additionally, Dempsey argues that even if the danger presented by the agitator blades was open and obvious, GE nevertheless owed him a duty of care because the distraction exception to the open-and-obvious doctrine applies.*fn13
Under the distraction exception, a property owner has a duty of care to protect an invitee from an open-and-obvious danger if the owner "'has reason to expect that the invitee's attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it.'" Mason, 965 F.2d at 1426; Restatement (Second) of Torts § 343A, comment f, at 220.
As a general matter, "[w]hether a duty exists is a question of law to be decided by the court, and if no duty exists there can be no recovery." Rangel v. Brookhaven Constructors, Inc., 719 N.E.2d 174, 176 (Ill. App. Ct. 1999). But in this case, whether GE owed Dempsey a duty of care depends on whether the danger presented by the agitator blades was open and obvious, which typically is a question of fact. See Perri v. Furama Rest., Inc., 781 N.E.2d 631, 637 (7th Cir. 2002) ("Whether a condition presents an open and obvious danger . . . is a question of fact."). For the reasons that follow, the court concludes that a genuine dispute of material fact exists regarding whether the danger presented by the agitator blades was open and obvious, thus precluding summary judgment on the issue of duty. We therefore need not resolve whether the distraction exception applies.
GE and Dempsey disagree whether the danger presented by the agitator blades was open and obvious. The term "obvious" means that "'both the condition and the risk are apparent to and would be recognized by a reasonable [person], in the position of the visitor, exercising ordinary perception, intelligence, and judgment.'" Deibert, 566 N.E.2d at 435 (quoting Restatement (Second) of Torts § 343A, comment b, at 219 (1965)). "[T]he issue of whether a condition is obvious is determined by the objective knowledge of a reasonable person, not the plaintiff's subjective knowledge." Buchaklian, 732 N.E.2d at 602 (internal quotation marks omitted). Thus, according to GE, the pertinent issue is "whether a reasonable person with plaintiff's background and experience would know and appreciate the potential for the agitator blade to start moving when sprayed with 10,000 psi of water . . . ." (Def.'s Sur-Reply at 3.) In GE's view, any dangerous condition presented by the agitator blades would have been open and obvious to a trained and experienced water blaster like Dempsey. In support of this argument, GE points out that Dempsey had several years of experience with high-pressure water blasting, and had received on the job training from a prior employer as well as a demonstration from HTI regarding how to properly perform water blasting. Additionally, based on testimony from its Safety Leader Allen Sather, GE asserts that people who perform high-pressure water cleaning "understand that they have to periodically move things, such as the agitator blades, in order to be able to properly clean the machinery."*fn14
(Def.'s Reply at 5.) Thus, according to GE, it makes no difference whether GE specifically informed*fn15 Dempsey or the other HTI employees that the agitator blades could move because they "would have been aware of this from their own training and experience and the nature of their work." (Id. at 6.) In other words, "a reasonable person in the plaintiff's position would appreciate the risk of the [agitator blades] moving if a 10,000 pounds per square inch jet of water were sprayed upon it." (Def.'s Sur-Reply at 3.)
GE may very well be correct that the condition and risk presented by the agitator blades would be open and obvious to a reasonable person in Dempsey's position. The court, however, cannot reach that conclusion based on the present record. GE has provided only general information - e.g., that Dempsey had experience doing high-pressure water blasting and had been instructed on how to perform the job properly. From that general information, the court cannot conclude that a person with Dempsey's experience and background would know that the force of the water pressure could cause the agitator blades to move. Although such a conclusion seems reasonable, it is not supported by specific evidence in the record. Likewise, the fact that a worker in the industry understands that he may have to move equipment like agitator blades to clean the machinery does not establish that he also understands that the force of water pressure could cause the agitator blades to move. It is undisputed that the force of the water used during the water blasting could move the agitator blades, but GE simply has not established that a reasonable person in Dempsey's position would know that fact.*fn16 That is the missing link, and without it the court cannot conclude as a matter of law that the condition and risk presented by the agitator blades was open and obvious, and thus cannot rule that GE owed no duty to Dempsey under §§ 343 and 343A.*fn17 We therefore deny the motion for summary judgment on the duty of care issue.
2. Proximate Cause
GE's alternate argument for summary judgment is that Dempsey cannot establish that any act or omission of GE was the proximate cause of Dempsey's injury. The issue of proximate cause "is ordinarily a question of fact determined by the trier of fact," but it "may be determined as a matter of law by the court where the facts as alleged show that the plaintiff would never be entitled to recover." Abrams v. City of Chicago, 811 N.E. 2d 670, 674 (Ill. 2004). GE's original proximate-cause argument was that the failure to lock down reactor number 2 did not proximately cause of Dempsey's injury. As explained above in section B.1, the court agrees and rules that as a matter of law, the failure to lock down reactor number 2 was not the proximate cause of Dempsey's injury. Under Dempsey's modified theory of liability, however, the court finds that the proximate cause issue is a factual question that cannot be resolved on summary judgment.
In the event that GE owed a duty of care to warn Dempsey of the possibility that the agitator blades could move and breached that duty, the issue will be whether GE's failure to warn Dempsey proximately caused his injury. There are two separate aspects of proximate cause: cause in fact and legal cause. Abrams, 811 N.E. 2d at 674.
A defendant's conduct is a "cause in fact" of the plaintiff's injury only if that conduct is a material element and a substantial factor in bringing about the injury. A defendant's conduct is a material element and substantial factor in bringing about the injury if, absent that conduct, the injury would not have occurred. "Legal cause," by contrast, is largely a question of foreseeability. The relevant inquiry is whether "the injury is of a type that a reasonable person would see as a likely result of his or her conduct.
Id. at 675 (internal citations omitted). To establish that GE was the cause in fact of his injury, Dempsey presumably would have to demonstrate that if he had been told the blades could move, he would have acted differently and avoided injury. Although it is unclear whether Dempsey could make such a showing, there is insufficient evidence in the record before the court to rule as a matter of law that Dempsey cannot recover.
Likewise, although GE argues that it was not the legal cause of Dempsey's injury because it could not reasonably foresee that plaintiff would injure himself in the manner he did if he were not warned that the agitator blade could move, we disagree that the foreseeability issue can be resolved on summary judgment.*fn18
Proximate cause issues typically present question of fact for the jury, see id. at 674, and GE has not persuaded the court that this case presents an exception.*fn19
For the reasons explained above, defendant's motion for summary judgment is denied.