The opinion of the court was delivered by: Stiehl, District Judge
Before the Court are defendant Powerscreen USA, LLC's motion for summary judgment (Doc. 70), to which plaintiff has responded (Doc. 86), and defendant replied (Doc. 89), and third-party defendant Baur Trucking Company, Inc.'s motion for summary judgment (Doc. 75), to which third-party plaintiff Powerscreen has responded (Doc. 83), and third-party defendant Baur Trucking has replied (Doc. 91). For the reasons set forth below, both motions are denied.
Plaintiff's third amended complaint (Doc. 51) alleges that while attempting to remove a piece of angle iron from a conveyor system that was part of a screening plant-the Powerscreen Chieftain-plaintiff's arm became entangled in the drum shaft, causing serious injury to plaintiff. The third amended complaint further alleges: that the screening plant was "sold, distributed, manufactured, designed, modified, or substantially constructed or altered" by defendant; that defendant was negligent in that it failed to ensure that the screening plant's access panel was interlocked, failed to provide a disabling feature on the screening plant, and failed to provide adequate warnings of the dangers associated with the screening plant; and that defendant's negligence caused plaintiff's injuries. Defendant filed a third-party complaint against Baur Trucking Company, Inc. ("Baur Trucking"), plaintiff's employer, alleging a right to contribution. According to Ray Baur, the equipment was owned by Baur Equipment Company. Ray Baur is the sole shareholder of both Baur Trucking and Baur Equipment. (See, Doc. 61, Ex. 1 at pp. 6, 8, Ex. 2). Defendant and third-party defendant both move for summary judgment. By Order dated June 29, 2006, the parties were granted additional time to conduct further discovery and to supplement their summary judgment pleadings. (Doc. 98). To date, none of the parties has taken advantage of this opportunity. Accordingly, the motions will be decided based on the original pleadings.
Summary judgment is appropriate "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 a judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party initially bears the burden to demonstrate an absence of genuine issues of material fact, indicating judgment should be granted as a matter of law. See, Lindemann v. Mobil Oil Corp., 141 F.3d 290, 294 (7th Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Once a motion for summary judgment has been made and properly supported, however, the non-movant has the burden of setting forth specific facts showing the existence of a genuine issue for trial. See, id. In determining whether a genuine issue of material fact exists, the Court construes all facts in the light most favorable to the nonmoving party and draws all reasonable and justifiable inferences in that party's favor. Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 931 (7th Cir. 1995).
Defendant Powerscreen's Motion for Summary Judgment
Defendant Powerscreen moves for summary judgment on the grounds that it has not breached its duty as a supplier of chattels because a proper warning and instructions for use were provided with the product and were actually read by plaintiff prior to the accident, plaintiff had full knowledge of the danger and with that knowledge decided to risk putting his hand in the area of the danger, and had either the instructions and warnings been followed or the plaintiff's own knowledge been heeded, there would have been no accident. Plaintiff asserts that under the doctrine of apparent manufacturer, defendant owed plaintiff the duty imposed upon manufacturers of products, and is therefore responsible for the allegedly negligent design of the product at issue. Plaintiff further argues that even if defendant only owed plaintiff a duty as a supplier of chattels, the defendant breached that duty.
This motion turns on what duty should be applied to defendant Powerscreen's conduct-whether defendant should be held accountable as a supplier of chattels or as a manufacturer. If defendant is merely a supplier of chattels, section 388 of the Restatement (Second) of Torts applies as follows:
One who supplies directly . . . a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the matter for which and by a person for whose use it is supplied, if the supplier
(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and
(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.
Whereas, if defendant is held liable as a manufacturer, section 398 of the Restatement (Second) of ...