The opinion of the court was delivered by: Reagan, District Judge
On May 26, 2006, Plaintiff Anthony Hedge filed suit in the Circuit Court, Twentieth Judicial Circuit, St. Clair County, Illinois against three defendants: Pacific Trailer Repair Services, LLC ("Pacific"), Walt's Drive-A-Way Service, Inc. ("Walt's"), and Dino's Trucking ("Dino's"). On June 23, 2006 this matter was removed here on the basis of this Court's diversity jurisdiction pursuant to 28 U.S.C. § 1332 (see Doc. 2). Subsequently, on August 18, 2006, Plaintiff filed an amended complaint against all three defendants (see Doc. 19 ("Amended Complaint")).
In his complaint, Plaintiff asserts that each defendant is responsible for "significant injuries to [his] back and neck" that he sustained when unlocked tandems on a chassis he was pulling allowed the chassis to slide into the rear of his tractor. Specifically, in Count One, Plaintiff asserts that Walt's is responsible for injuries Plaintiff sustained on August 19, 2004 for being negligent in one or more of three ways: (a) failing to lock the tandems on the chassis in question before it was delivered to Union Pacific Railroad Yard; (b) failing to inspect the chassis before it was delivered to insure that the tandems were locked; and (c) failing to warn Plaintiff that the tandems were unlocked (see Amended Complaint, Count One). In Count Two, similar to Count One, Plaintiff asserts that Dino's is responsible for injuries Plaintiff sustained from a separate incident occurring on November 9, 2005 for being negligent in one or more of three ways: (a) failing to lock the tandems on the chassis in question before it was delivered to Union Pacific Railroad Yard; (b) failing to inspect the chassis before it was delivered to insure that the tandems were locked; and (c) failing to warn Plaintiff that the tandems were unlocked (see Amended Complaint, Count Two). Finally, in Count Three, Plaintiff asserts that Pacific is responsible for Plaintiff's injuries resulting from both the August 19, 2004 incident as well as the November 9, 2005 incident for "negligently [failing] to properly and adequately inspect its chassis to insure its tandems were locked and it was in proper working condition" (Amended Complaint, Count Three).
Now before the Court are motions for summary judgment submitted by each defendant: Dino's (Doc. 32), Walt's (Doc. 34) and Pacific (Doc. 38).
Plaintiff Anthony Hedge was employed as a hostler operator for Rail Terminal Services Inc. ("RTS") working at the Union Pacific rail yard in Dupo, Illinois. In this capacity, Hedge was responsible for hooking trailers loaded with cargo up to his tractor (called a hostler) and then pulling the loaded trailer to the nearby railroad tracks where a modular container would be removed from the trailer and placed on a train.
At the Dupo, Illinois facility, outside trucking companies, including Walt's and Dino's, deliver loaded trailers and chassis to the rail yard and park them in designated areas for later handling by the hostlers. Some of the 53-foot chassis used feature moveable rear tandems, which allow a truck driver to alter the distance between a trailer's front and rear axles in order to comport with varying state laws and axle load limits (see Deposition of Ken Pishna, Doc. 34-3, pp. 57-58). The tandems have a locking pin that can be pulled in order to move the tandem to the desired position. Once in position, the tandems can be locked in position by reinserting the pin into the designated hole.
Hedge claims that he was injured in two separate, but similar incidents. The first incident occurred on August 19, 2004, and involved a chassis/container which had been delivered to the Dupo rail yard by Walt's (see Amended Complaint, Count One). The second incident occurred on November 9, 2005 and involved a chassis/container combination that had been delivered to the rail yard by Dino's (see Amended Complaint, Count Two).
On both occasions, Hedge claims that he hooked into a chassis/container combination for the purposes of pulling it to the rail line to be unloaded onto an outbound rail car. He claims that after the container was removed from the chassis he then pulled the chassis to another location within the rail yard to drop it off. Hedge alleges that, on both occasions, the rear tandem had been left unlocked and when he applied his brakes, the rear tandem was allowed to slide forward with force, causing him to sustain whiplash-type injuries (see Deposition of Anthony Hedge, Doc. 34-2, pp. 28-30).
Defendant Pacific is under contract with Union Pacific Railroad to supply gate inspection services at the Dupo, Illinois facility. Gate inspectors are charged with the responsibility of checking all incoming trucks to make sure that the cargo is destined for an outbound Union Pacific train. The gate inspectors also perform a brief walk-around inspection of the chassis and container to insure and/or document any damage or problems with the container or the chassis. During this inspection, gate inspectors will also note if the tandems are locked. If tandems are unlocked, the drivers are instructed to make sure that the tandems are locked before they can proceed into the rail yard. Once a truck is checked into the rail yard, Pacific personnel have no further contact with or control over the chassis or containers (see Deposition of Charles Reynolds, Doc. 34-4, pp. 9-10).
Notably, however, Pacific yard personnel testified that sometimes outside truck drivers will pick up the wrong container, move that container toward the gate, either realize it's the wrong one before reaching the gate, or be told at the gate that it's the wrong container, and then return and re-park the container. Outside drivers picking up loads at the Dupo yard will sometimes unlock and move tandems to balance out their loads before leaving so as to be able to drive on public roadways. According to testimony of yard personnel, this activity happens often enough that it presents one reason that the supervisors have to physically check the location of loaded containers, on average, twice daily (see Deposition of Charles Reynolds, Doc. 34-4, pp. 18-20; Deposition of Randal Joe Lee, Doc. 34-6, p. 19; Deposition of Charles Yeargain, Doc. 34-7, pp. 12, 17; Deposition of Laurie Hermes-Greco, Doc. 34-8, pp. 18, 60, 118-119; Deposition of Michelle Meyers, Doc. 34-9, pp. 1-2). Laurie Hermes-Greco, Plaintiff's supervisor, testified that as few as ten and perhaps as many as twenty outside drivers visit the Dupo yard overnight from 10:00 p.m. to 6:00 a.m., and that "200 to 300" drivers may visit during the day (Deposition of Laurie Hermes-Greco, Doc. 34-8, pp. 103-104).
At all relevant times, Rail Terminal Services ("RTS"), Plaintiff's employer, had supervisors whose job it was to go out every morning and early afternoon to check the location of each container in the Dupo yard. If the container's location as shown in the supervisor's computer was correct, the supervisors need not make any computer input. However, if the location of the container was different from what the supervisor's computer showed, the supervisor would make inputs into the computer to correct the information to show the correct spot of the container. The supervisor could either make this entry called a "yard check", or he/she could make that entry as a "move."
Supervisors would check a certain area of the yard, the A, B, C, and D pads, at least twice a day because that is where loaded containers to be shipped were located, and it was important to make sure that the locations of the containers as shown in the RTS computer system were accurate (Deposition of Anthony Hedge, Doc. 34-4, pp. 26-27; Deposition of Randal Joe Lee, Doc. 34-6, pp. 14-20; Deposition of Charles Yeargain, Doc. 34-7, pp. 10-17; Deposition of Laurie Hermes-Greco, Doc. 34-8, pp. 9-12).
All entries made by RTS supervisors or any other employee related to a container or chassis would be entered into the RTS computer system and result in a "Unit Display Screen" or "Oasis Report" that show the complete activity related to that particular container. The Unit display can identify physical moves of a container if there was an entry made by an RTS employee (Deposition of Anthony Hedge, Doc. 34-4, pp. 22-24; Deposition of Randal Joe Lee, Doc. 34-6, pp. 42, 45; Deposition of Charles Yeargain, Doc. 34-7, pp. 13-15; Deposition of Laurie Hermes-Greco, Doc. 34-8, pp. 53-54).
The August 19, 2004 Incident
The August 19, 2004 incident involves a chassis which was delivered to the facility by Ken Pishna, an employee of Walt's Drive-A-Way Service. The gate inspector who checked in this particular truck was Pacific employee Tom O'Malley. O'Malley has no independent recollection of checking in that particular chassis/container combination; however, he testified that his policy and practice would have been to check the tandems to make sure that they were locked at the time that the driver was allowed entry into the rail yard (Deposition of Tom O'Malley, Doc. 34-10, pp. 5-6, 11-12).
Ken Pishna testified that he does have a specific recollection of the evening in question and recalls that the tandems were locked when he arrived at the inspection gate the night of August 18, 2004, but that he was required to move the rear tandems to their rearward position before being allowed into the rail yard. He testified that he got out of his truck and unlocked the tandem and then got back in the truck and moved his tractor forward moving the rear-wheeled tandem back. Pishna testified that he felt the tandem lock release and catch, and asked the gate inspector if the tandem was locked. According to Pishna, the gate inspector, O'Malley, who was standing right next to the location where the tandem locking pin was located, waved Pishna to go forward into the yard to park his unit (Deposition of Ken Pishna, Doc. 34-3, pp. 35-36, 39-40, 49-51, 53, 55-56).
Notably, an RTS "Oasis Report" submitted by Walt's indicates that the relevant chassis/container combination was parked in one location in the yard, "North B pad" on the evening of August 18, 2004 when Pishna left the Dupo yard, but was located in a different location, "North C pad," when the RTS Supervisor Laurie Hermes conducted her yard check the morning of August 19, 2004 (see Doc. 34-11, RTS "Oasis Report"). Records further show that the relevant chassis was on the Dupo facility for approximately ...