The opinion of the court was delivered by: Reagan, District Judge
A. Introduction and Facts
This lawsuit arises from an October 10, 2005 accident in Mt. Vernon, Illinois. On that date, James Smothers was driving his motorcycle west on Illinois Route 15, with his wife, Loretta, a passenger. Ronald Schaefer was driving a truck east on Route 15. A head-on collision occurred in a construction zone with barricades and lane markers that had been erected by Southern Illinois Asphalt, Inc. ("SIA").
James and Loretta filed suit in this Court one year ago against Delta Companies, Inc., who wholly owns and operates SIA. See Answer, Doc. 7 at ¶ 3. Subject matter jurisdiction lies under the federal diversity statute, 28 U.S.C. § 1332.
The complaint alleges that Delta (through its subsidiary, SIA) negligently placed the lane markers and barricades in a confusing manner such that both eastbound and westbound traffic were directed into the same lane of travel, proximately causing the collision which severely injured James (Count I) and Loretta (Count II).
A jury trial is set to commence October 29, 2007 before the undersigned District Judge, a final pretrial conference is scheduled October 5, 2007, and the dispositive motion deadline elapsed on June 22, 2007. The Court now rules on the single dispositive motion filed herein -- Plaintiffs' June 22nd motion for partial summary judgment (Doc. 24), with supporting and opposing briefs (Docs. 25 & 31). Analysis begins with reference to the standard governing this Court's review of the summary judgment motion.
B. Applicable Legal Standards
Under Federal Rule of Civil Procedure 56, summary judgment should be granted 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." Guzman v. Sheahan, -- F.3d --, 2007 WL 2241646, *3 (7th Cir. August 7, 2007). Accord Bevolo v. Carter, 447 F.3d 979, 982 (7th Cir. 2006), citingEzell v. Potter, 400 F.3d 1041, 1046 (7th Cir. 2005), and Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
In assessing whether summary judgment is warranted, this Court must construe all evidence, plus the inferences reasonably drawn from the evidence, in the light most favorable to the non-moving party. King ex rel. King v. East St. Louis School District 189, -- F.3d --, 2007 WL 2241649, * 3 (7th Cir. August 7, 2007). Accord Sallenger v. Oakes, 473 F.3d 731, 739 (7th Cir. 2007).
The complaint alleges that Delta's negligent erection of the construction zone caused the accident which injured James and Loretta Smothers. Delta denied that it was negligent and denied that Plaintiffs were injured to the extent alleged. Deltaalso counterclaimed against Plaintiffs, asserting that in the event Delta is found liable to Loretta (the passenger), Delta is entitled to contribution from James (the driver) "for that percentage of fault attributable to him for causing the incident" (Doc. 7, p. 3).
In their motion for partial summary judgment, Plaintiffs maintain that discovery in this case has established that there was nothing James Smothers could have done to avoid the accident, so there is no evidence Delta can rely upon to prove that James was contributorily negligent.
To support this argument, Plaintiffs tender excerpts from the deposition of Jim McPhail, SIA's regional manager. McPhail was present at the job site on the evening the accident occurred. During his deposition, McPhail testified as follows (McPhail Depo., p. 75):
Q: Okay. Now, Delta Companies has filed a claim back against Mr. Smothers in this case. Are you aware of ...