The opinion of the court was delivered by: Robert M. Dow, Jr. United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs Margaret and Howard Jones brought this action against Defendant Marriott Hotel Services, Inc. ("Marriott") claiming negligence and loss of consortium as a result of an injury that Plaintiff Margaret Jones allegedly sustained after exiting through an automatic revolving door at the Chicago Downtown Marriott Hotel. Marriott later filed a three-count third party complaint for contribution against Tee-Jay Service Co., alleging negligence, implied indemnification and breach of contract. See . Third-party defendant Tee-Jay Service, Co. ("Tee Jay") moved for summary judgment on all three counts. Shortly after the briefing on Tee Jay's motion was complete, Plaintiffs filed an amended complaint in which they set forth a revised theory of their negligence claim. Significantly for present purposes, the amended complaint omitted the allegations that gave rise to at least some, if not all, of Marriott's third party claims against Tee Jay. In particular, the amended complaint is devoid of any reference to allegedly improper inspection, repair, service, or maintenance of the automatic revolving door. As explained below, the filing of the amended complaint raises significant questions concerning the continued viability of Marriott's third-party complaint and the appropriate disposition of Tee Jay's motion for summary judgment as to which the Court respectfully requests the views of the parties.
As an initial matter, the Court sets out the procedural background in this case as it relates to Tee Jay's motion for summary judgment. Marriott removed Plaintiffs' initial complaint to this Court from the Circuit Court of Cook County on September 12, 2005. See . In their initial complaint, Plaintiffs alleged two counts: negligence and loss of consortium. In Count I for negligence entitled "premises liability," Plaintiffs asserted that "Marriott . . . negligently maintained the subject matter of the premises including, but not limited to one or more of the following particulars: (a) Failed to properly inspect the 'automatic' revolving doors and/or door operating systems at the entrance to the hotel; (b) Failed to properly repair the 'automatic' revolving doors and/or door operating systems at the entrance to the hotel; (c) Failed to properly maintain the 'automatic' revolving doors and/or door operating systems in a safe condition for guests and customers; (d) Failed to properly and adequately supervise and inspect the hotel so as to prevent the development of dangerous and unsafe conditions; and (e) Failed to inform and warn plaintiffs and other person coming upon the premises of damage and unsafe conditions then and there existing." Complaint ¶ 7.
In its answer filed on September 16, 2005, Marriott denied all substantive allegations in the complaint. See . On June 30, 2006, Marriott filed a third-party complaint against Tee Jay. See . In that third-party complaint, Marriott alleged that: (1) Tee Jay owed a duty to exercise reasonable care and caution in the service, maintenance, inspection, and repair of the automatic revolving door, and that if it were found that Plaintiffs' injuries were caused by an unsafe condition in the door or that any maintenance, repair, service, inspection, or warning issued associated with the door itself, then Marriott would be entitled to contribution from Tee Jay for related negligence in maintaining and inspecting the door, among other allegations; (2) a pre-tort relationship existed between Marriott and Tee Jay and Tee Jay had orally agreed to perform and in fact did perform all maintenance, repair, service and inspection of the automatic revolving door, and thus Marriott is entitled to indemnification from Tee Jay for any failure to complete its work in a reasonable workmanlike manner; and (3) Tee Jay failed to secure the appropriate insurance for work related to the automatic revolving door, and therefore breached its oral promise to Marriott to do so. Id. Tee Jay denied the substantive allegations in Marriott's third-party complaint on September 5, 2006. See , T.J. Answer.
On June 29, 2007, Marriott filed a motion for summary judgment on Plaintiffs' claims. See . Neither Marriott nor Tee Jay pursued summary judgment on Marriott's third-party claims against Tee Jay at that time. Judge Gettleman, to whom this case was then assigned, denied Marriott's motion for summary judgment in a memorandum opinion and order on November 26, 2007. See  ("Order"). In that opinion, Judge Gettleman summarized Plaintiffs' allegations of negligence as follows: (1) failure to properly inspect, repair and maintain the automatic revolving doors; (2) failure to properly and adequately supervise and inspect the hotel so as to prevent the development of dangerous and unsafe conditions on the premises; and (3) failure to inform and warn Plaintiffs and other persons entering the premises of dangerous and unsafe conditions. Order at 5. The Court noted, however, that "Plaintiffs have abandoned the first argument that Marriott failed to properly inspect, repair, and maintain the automatic door. Rather, in their briefs, they focus on Marriott's failure to properly and adequately supervise the hotel so as to prevent the development of dangerous and unsafe conditions." Id. n.1 (emphasis added). The Court later remarked that Plaintiffs' "theory differs somewhat from the negligence theory stated in the complaint, which is based primarily on failure to inspect and repair the door. During discovery, however, the parties recognized that the claim was based on the fact that Margaret's compelled use of the automatic revolving door caused her injuries. Although plaintiffs should have sought leave to amend their complaint to allege this revision in theory, defendant was not prejudiced by such failure, and the court will allow such an amendment." Id. at 10 n. 4.
In denying Marriott's motion, Judge Gettleman found that a genuine issue of fact existed as to whether "alternate exits were reasonable alternatives and whether the revolving door presented an unsafe and dangerous condition. These questions turn on differing interpretations of the facts and require a weighing of the evidence by the trier of fact." Id. at 11. The Court did not address the merits of Plaintiffs' "failure to properly inspect, repair, and maintain" claim that it believed had been "abandoned."
Tee Jay filed the motion for summary judgment currently pending before this Court on January 9, 2008. See . With respect to Marriott's first two counts, Tee Jay argues that Plaintiffs' alleged accident did not arise out of Tee Jay's work as a matter of law because the evidence demonstrates that the automatic revolving door at issue functioned properly at the time of Plaintiff Margaret Jones' accident, and "as such, the accident did not arise out of any malfunction of the door or Tee Jay's work upon the door prior to the occurrence." Id. at 4. With respect to Count III, Tee Jay asserts that the evidence shows it complied with the terms of its oral contract to Marriott to procure the requisite insurance coverage. In the alternative, Tee Jay argues that if the Court determines that Tee Jay did not procure the insurance, Marriott waived its claim for breach of contract under Count III because Marriott accepted Tee Jay's certificate of insurance and allowed Tee Jay to work on the premises. Id. at 11.
In its opposition to Tee Jay's motion for summary judgment, Marriott agrees with Tee Jay that "the record is devoid of any evidence demonstrating that Ms. Jones' accident was caused by a malfunction or defect in the operation of the door." , Mar. Resp. at 3. Marriott notes, however, that despite making this very same argument in its motion for summary judgment on Plaintiffs' negligence claim, Judge Gettleman denied summary judgment for Marriott. Accordingly, Marriott has raised the concern that Plaintiffs still may pursue a theory of improper inspection, maintenance, service, and repair, notwithstanding Judge Gettleman's observation that Plaintiffs appeared to have "abandoned" that argument and should have filed an amended complaint to effectuate their revised negligence theory. Id. Finally, Marriott asserts that unless this Court reconsiders or clarifies the previous summary judgment order, Tee Jay cannot be dismissed from the case because Plaintiffs would not be barred from raising the underlying allegations of negligence related to improper inspection, maintenance, service, and repair at trial. See id. at 4. In addition, Marriott argues that Tee Jay should not be granted summary judgment on Count III for breach of contract because (i) there is a genuine issue of fact as to whether Tee Jay procured the proper insurance coverage for Marriott related to the automatic revolving door*fn1 and (ii) as a matter of law, Marriott has not waived its right to enforce the contract. Mar. Resp. at 8-10.
After the initial status hearing following the transfer of the case to this Court's initial docket and the Court's review of the case file, this Court issued a minute order on February 5, 2008. In that order, the Court stated that in light of Judge Gettleman's comments in the order denying summary judgment, Plaintiffs would be given leave to file an amended complaint that reflected the revised theory of negligence discussed in the summary judgment briefing and Judge Gettleman's Order denying summary judgment. See .
Plaintiffs filed an amended complaint on February 29, 2008 -- less than a week after Tee Jay filed its reply brief in support of its motion for summary judgment on Marriott's third-party claims. See . Plaintiffs' amended complaint reflects their revised theory of negligence, and alleges, in relevant part, that Plaintiff Jones sustained substantial and permanent injuries due to fact that Marriott: (1) failed to provide a safe means of exiting the hotel; (2) failed to comply with the Illinois Accessibility Code requiring alternate exits; (3) negligently posted signs prohibiting the use of the only exits other than the automatic revolving door; (4) failed to anticipate that handicapped guests would be required to use the automatic revolving doors due to the signs prohibiting the use of the only alternate exits as "emergency use only"; (5) failed to properly and adequately supervise and inspect the hotel so as to prevent dangerous and unsafe conditions on the premises; and (6) failed to inform and warn Plaintiffs and other persons on the premises of the dangerous and unsafe condition. Am. Complaint ¶ 21. Notably absent from the allegations is any reference to improper inspection, repair, or maintenance of the automatic revolving door, the basis for most, if not all, of Marriott's third-party complaint against Tee Jay.
Marriott denied the substantive allegations in Plaintiffs' amended complaint. See , Mar. Am. Answer.
For the reasons set forth below, the Court believes that Plaintiffs' amended complaint may moot some or all of the claims asserted in Marriott's third-party complaint against Tee Jay and, correspondingly, may preclude a determination by this Court on the merits ...