The opinion of the court was delivered by: Jeanne E. Scott, District Judge
This matter comes before the Court on Defendant Don Mattox Trucking, LLC's (Mattox Trucking) Motion for Partial Summary Judgment on Plaintiffs' Claim of Willful and Wanton Conduct and Plaintiffs' Claim for Lost Wages (d/e 96) (Motion). For the reasons set forth below, the Motion for Summary Judgment is ALLOWED in part. Partial summary judgment is entered on the willful and wanton conduct claim, but denied on the claim for lost wages.
On March 26, 2005, Mattox Trucking's truck driver Kent Johnson delivered a trailer to the loading dock at the Wal-Mart Supercenter on Dirksen Parkway in Springfield, Illinois (Dirksen Store). Johnson had previously attended a Wal-Mart training session in Kansas where he was informed of Wal-Mart's procedures for truck drivers delivering trailers to Wal-Mart facilities. Johnson stated that he had been directed to deliver the trailer to the Dirksen Store and to pick up an empty trailer parked there to be delivered elsewhere. Motion, Exhibit A, Affidavit of Kent Johnson (Johnson Affidavit), ¶¶ 2, 4, 9.
The loading dock at the Dirksen Store had three bays. At least one other trailer was parked at the dock that day. Each bay had a pliable black skirt or shroud (Skirt) that covered the top and sides of the rear end of the trailer to protect products from the weather during loading and unloading. The Skirt made it difficult to see the rear of a trailer from the outside dock area. The Skirt, however, was pliable and so could be pulled manually to allow a person to see into the bay. A person could also walk underneath the Skirt and look up into the loading dock. Johnson Affidavit, ¶¶ 12-13; Dereak's Response to Mattox Motion for Partial Summary Judgment on Plaintiffs' Claim of Willful and Wanton Conduct (d/e 100) (Plaintiffs' Response), Exhibit A, Kelly Kile Deposition at 40.
Once Johnson parked, he states he walked around and entered the Dirksen Store from the front and walked through the retail area to the loading and unloading area. There he spoke with Plaintiff Mark Dereak (Dereak). Dereak was Co-Manager of General Merchandise at the Dirksen Store. Johnson states he told Dereak which trailer he would be taking away from the dock. Johnson also states he told Dereak that all of the trailers parked at the dock did not have pin locks. Johnson Affidavit, ¶ 15. A pin lock is a device that goes around the pin on the trailer that is used to hook to a tractor. The pin lock prevents a trailer from being hooked to a tractor. Johnson Affidavit, ¶ 5, 8; Kile Deposition, at 47. According to Johnson, he learned at the Wal-Mart training sessions that pin locks were to be used on all trailers that were backed up to loading docks. Johnson Affidavit, ¶ 5.
After this conversation, Johnson went back out to the outside of the loading dock area. He saw a slip of paper on the air hose connectors on the trailer in the middle bay (Trailer) which said, "3-26-05-1600 1st TRL." Johnson understood this slip to mean the Trailer: (1) was the first to be removed from dock and (2) was to be removed at 1600 hours (or 4 p.m.), on that day, March 26, 2005. Johnson Affidavit, ¶¶ 16-19. Dereak states that the note actually meant that the Trailer was the first trailer to be unloaded that day and that the unloading was to begin at 4:00 p.m. Plaintiffs' Response, Exhibit B, Affidavit of Mark Dereak (Dereak Affidavit), ¶ 15.
According to Johnson, the Trailer had no pin lock. Johnson states that he interpreted the lack of a pin lock to mean that the trailer could be safely moved. Johnson states that he then backed his tractor up to the Trailer and hooked his tractor to the Trailer. Johnson Affidavit, ¶ 17.
Dereak disagrees with Johnson's sequence of events. According to Dereak, he and other Dirksen Store employees started unloading the Trailer at 4:00 p.m. According to Dereak, the Trailer was not scheduled to be moved for another two hours. Dereak states that Johnson delivered another trailer to the loading dock at about 4:00 p.m. Dereak states that he and the other employees felt a jerk when Johnson backed the tractor into the Trailer and hooked the two together. Dereak Affidavit, ¶ 4-7.
According to Dereak, Johnson appeared at the inside area of the dock about five to ten minutes after Dereak and his crew felt Johnson hook up his tractor to the Trailer. Dereak agrees that he had a brief conversation with Johnson at that time, but Dereak states that the conversation concerned procedures for handling paperwork related to the load that Johnson delivered. Dereak Affidavit, ¶ 8. Dereak states that he was in the Trailer during their conversation, and Johnson stood about ten feet away from him. Dereak states that a roller conveyor had been set up from the dock into the Trailer to assist in unloading the Trailer. Id., ¶ 8. Johnson left the inside portion of the loading area after their conversation. Id.
Johnson pulled the Trailer out of the dock at about 4:15 p.m. Dereak and other employees were still in the back of the Trailer. When the Trailer moved, Dereak fell out of the back of the trailer onto the pavement and was injured. Dereak Affidavit, ¶ 9.
Dereak presents evidence that Johnson violated a number of Wal-Mart policies when he pulled the Trailer out. Wal-Mart policies required that, before pulling an empty trailer away from a Wal-Mart dock, a truck driver must personally inspect the inside of a trailer to confirm that it was empty and to personally inspect the back door of the trailer to confirm that it was properly closed and locked. Johnson took neither of these steps. The agreement between Mattox Trucking and Wal-Mart required Johnson to follow Wal-Mart policies. Kile Deposition, at 11-13, 15-16; Dereak Affidavit, ¶ 10, 16-21, 23-24; Plaintiffs' Response, Exhibit D, Agreement between Wal-Mart and Mattox Trucking.
As a result of his injuries, Dereak was off work for about three months. During this time, Wal-Mart continued to pay Dereak an amount equivalent to his full salary. Dereak stated that the payments came from the WalMart's manager benefit package. Dereak did not know whether the benefits were paid by an insurance carrier or directly by Wal-Mart. Motion, Exhibit D, Deposition of Mark Dereak, ...