The opinion of the court was delivered by: Herndon, District Judge
I. Introduction and Background
Now before the Court is Cottrell Inc.'s motion for summary judgment (Doc. 85) and Plaintiff's motion to strike (Doc. 95). Based on the applicable case law, the pleadings and the following, the Court denies both motions.
On October 10, 2004, Plaintiffs Robert and Mary Polson filed a seven-count 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. Specifically, Polsons' complaint alleges that the design of the Cottrell rig is defective because the rig was equipped with vehicle securement systems unreasonably prone to sudden releases and which require excessive force to operate. 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 with prejudice Jack Cooper finding that it was fraudulently joined (Doc. 62). The next day, the Court granted summary judgment in favor of General Motors and granted Plaintiffs' motion in limine finding that Cottrell could not proceed with the "empty chair" defense (Doc. 63). Subsequently, Cottell filed a motion for summary judgment (Doc. 85). The Court now turns to address the merits of that motion.
On February 19, 2003, Robert Polson was hauling vehicles for his employer, Jack Cooper. He was at a the Super 8 parking lot in McClean, Illinois when he tried to tighten a chain that had come loose in transport on a Chevrolet Tahoe he was hauling on his rig manufactured by Cottrell. Polson was securing the Tahoe to the A-5 position (the rearmost, lower deck position on the rig) when the tie down chain gave, he slipped on the frozen gravel and hurt his back.
Polson testified that he found a loose chain on the left rear of the Tahoe during his pre-trip inspection. His testimony states that he "went to the cab and got a tie down bar, came back to tighten the chain." (Doc. 85-1, p. 90). He further testified that he "went to pull on the chain and something gave. I -- I don't know whether the chain fell off a bolt or whether the bottom of the roller was wore or -- but the chain give and my feet give, and I let go of the bar with one hand and reached around to my left with my right hand on the bar trying to catch myself, and I never fell to the ground. I caught myself with my hand, and -- ... felt my back give away." (Doc. 85-1, p. 91).
Polson also testified that he does not know exactly what happened. (Doc. 85-1, p. 92). "All I know for sure is that the bar slipped and allowed me to go, and the bar didn't -- the bar popped like that and let me go." (Doc. 85-1, p. 95). Polson thinks that the bar he was holding jerked about two inches at the most (Doc. 85-1, p. 92). Polson also testified that he was pulling hard enough on the bar to take the slack out of the chain and make sure the vehicle was secure. (Doc. 85-1, p. 103-104).
In her report, Linda Weseman, Polsons' expert, opines that "Polson's injury was a direct result of the ratchet system design requiring the operator to exert excessive force levels to operate it." (Doc. 85-4, p. 8). She also states that Cottrell's design "is defective and unreasonably dangerous due to the high force levels typically used in its operation in conjunction with the design being such that it permits sudden releases." (Doc. 85-4, p.9). She further opines that the system, as designed, is prone to sudden releases. (Doc. 85-4, p. 4). Her report indicates that sudden releases can be caused by a number of system malfunctions, including chains breaking or dislodging from the cargo unit, chains slipping, chains settling, wearing of the idlers and other system components . (Doc. 85-4, p. 4). These malfunctions are a result of the system design and should be classified as similar sudden releases (Doc. 85-4, p. 4).*fn1 She also animadverts that "it is clear that alternate feasible designs that would have prevented accidents have been around for many years and were available at the time any car hauling unit on the road today was manufactured." (Doc. 85-4, p. 9).
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 alsoCelotex 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 ...