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Geraty v. Northeast Illinois Regional

March 29, 2010

LALEE GERATY, PLAINTIFF,
v.
NORTHEAST ILLINOIS REGIONAL, COMMUTER CORP. D/B/A METRA, DEFENDANT/THIRD-PARTY PLAINTIFF,
v.
ABLE ACQUISITION CORPORATION D/B/A ABLE ENGINEERING SERVICES, ET AL., THIRD-PARTY DEFENDANTS.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Before the Court is Third-Party Defendant, Able Acquisition Services d/b/a Able Engineering Services' ("Able Engineering") motion for summary judgment [213]. For the reasons set forth below, the motion for summary judgment is denied.

I. Background

Plaintiff, Lalee Geraty ("Geraty"), filed this lawsuit in 2006, naming as the sole Defendant, Northeast Illinois Regional Commuter Railroad d/b/a Metra ("Metra"). Geraty seeks to recover under "FELA," the Federal Employers Liability Act, for injuries that she allegedly sustained within Metra's downtown, underground Chicago Millennium Station. Geraty contends that Metra was negligent in the steps that it took following the discovery of a leak in the ceiling at the station. In response to the leak, plastic sheeting-what one witness described as "a huge amount of plastic"-was draped from the ceiling into a trash can. When Geraty encountered the sheeting more than a week later while walking through the station's police office, the sheeting had become dislodged from the trash can and found its way onto the floor. Geraty tripped on the sheeting, sustained injuries, and ultimately filed this lawsuit. Additional background information related to the accident itself is set out in the Court's March 16, 2009, memorandum opinion and order [204], denying Metra's summary judgment motion on Geraty's claim.

To guard against the possibility that Metra is found liable, Metra filed a third-party complaint [35] pursuant to the Illinois Joint Tortfeasors Contribution Act (740 ILCS 100/0.01 et seq.) (the "Act"), seeking contribution from several third-party defendants. The Act allows a would-be tortfeasor to establish a right of contribution even before it is established that the person is, in fact, a tortfeasor. Therefore, even though Metra denies that it is liable for Geraty's injuries, Metra alleges that the third-party defendants helped cause Geraty's injuries when they breached "legal duties arising out of their ownership, control, management, possession and maintenance of the facilities located at One Prudential Plaza in Chicago, Illinois * * *." Third Party Compl. ¶ 13. The One Prudential Building sits above the underground Metra station police office. According to Metra, Able Engineering negligently put up the plastic sheeting on which Geraty tripped (id. ¶¶ 35, 38, 50).

II. Facts

The Court takes the relevant facts primarily from the parties' respective Local Rule ("L.R.") 56.1 statements: Able Engineering's Statement of Facts ("Able SOF") [213-5], Metra's Response to Able Engineering's Statement of Facts ("Metra Resp. SOF") [223], Metra's Statement of Additional Facts ("Metra SOAF") [224], and Able's Response to Metra's Statement of Additional Facts ("Able Resp. SOAF") [235].*fn1 Note 1, supra, incants important guidance for litigants regarding L.R. 56.1 fact statements. Litigants often founder upon L.R. 56.1's at-times perilous (though always prominent and spotlighted) shoals, and that is why the Court includes roughly identical information in each summary judgment opinion. In this case, however, the Court must re-emphasize two points in particular. It is improper for a party to cite to an earlier summary judgment opinion when it was not a party to the motion, or to another party's prior L.R. 56.1 fact statement, in support of a factual proposition. Fact statements must refer to documents that represent admissible record evidence. Because there were not many factual disputes in this case, the non-compliance produced few difficulties and did not undermine either party's case-but that was good luck rather than foreordination.

Onto the facts themselves: Roughly one week before Geraty's workplace accident, a leak appeared in the ceiling of the police office at Millennium Station. Metra Resp. SOF ¶¶ 1-3. When the leak appeared, Michael McCray ("McCray"), an engineering supervisor for Metra, contacted security at the Prudential Building, the apparent source of the leak. Metra Resp. SOF ¶ 4. Several people responded, including staff from Able Engineering, the Prudential Building's engineering company. Metra Resp. SOF ¶ 5. Others were there, too, including McCray and a representative of Shorenstein Company LLC ("Shorenstein"). (In the Third-Party Complaint, Metra says that Shorenstein owns and controls the Prudential Building, but the parties have not introduced other facts related to Shorenstein.)

Plastic sheeting was hung from the ceiling of the Metra police office. The parties agree that it was "possible" that one of the workers from Able Engineering hung the plastic. More important, however, the only admissible record evidence indicates that the plastic was put up by Louis Gutierrez ("Gutierrez"), an employee of Able Engineering. See Gutierrez Dep. at 8 (employee of Able Engineering); id. at 23 ("I believe it was me [sic] that put [the plastic] up in the ceiling."). After the plastic was installed, McCray, Metra's engineering supervisor, never came back to the police office until after Geraty's accident. The matter "completely slipped his mind." Metra Resp. SOF ¶¶ 8-9.

Gutierrez says that he asked McCray to call Able Engineering when the ceiling stopped dripping.*fn2 See Gutierrez Dep. at 29-33. Although McCray did not remember being asked to make such a call, he acknowledged that this could have occurred, at least as an epistemological matter. Metra Resp. SOF ¶ 15. During his deposition, McCray stated, "[I]t could have happened, sure." Id. However, Able does not point to any indication that McCray ever acknowledged, assented to, or even heard what Gutierrez said.

The parties agree that the Metra police station is a "secured facility:" the workers from Able Engineering could not get into the facility without an escort from someone from Metra. Metra Resp. SOF ¶¶ 13-14. The day after Gutierrez hung the plastic, Mike Woulfe, an Able Engineering engineer, tried unsuccessfully to find McCray-Woulfe knocked on the door of the police station several times and received no response. Metra Resp. SOF ¶ 16. Woulfe subsequently went to the information desk in the Metra station to ask for McCray, which was his normal way of contacting McCray, but that effort proved unsuccessful as well. Metra Resp. SOF ¶¶ 17-18. Metra does not dispute that Woulfe was unable to gain entry, nor does Metra dispute that McCray never called to have the sheeting removed until after Geraty was injured. Metra Resp. SOF ¶ 21. But Able Engineering does not dispute that people other than McCray could have provided an escort to Able Engineering's workers. Able Resp. SOAF ¶ 9 And the record indicates that Woulfe was looking for McCray rather than attempting to gain access to the site of the leak. The parties do agree that, after looking for McCray on the day after Gutierrez put up the plastic, Woulfe made no further attempts to find McCray. Able Resp. SOAF ¶¶ 6, 14. The parties dispute, however, whether it was the typical practice between Able Engineering and Metra for the former to wait for the latter to call before attempting to follow-up on a leak. Compare Metra SOAF ¶ 11, with Able Resp. SOAF ¶ 11.

III. Legal Standard on Summary Judgment

Summary judgment is proper where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Factual disputes that are irrelevant to the outcome of the suit "will not be counted." Palmer v. Marion County, 327 F.3d 588, 592 (7th Cir. 2003) (quotation marks and citations omitted).In determining whether there is a genuine issue of fact, the Court "must construe the facts and draw all reasonable inferences in the light most favorable to the nonmoving party." Foley v. City of Lafayette, 359 F.3d 925, 928 (7th Cir. 2004). To avoid summary judgment, the opposing party must go beyond the pleadings and "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (internal quotation marks and citation omitted).

A genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. The party seeking summary judgment has the burden of establishing the lack of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is proper against "a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In other words, the "mere existence of ...


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