Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Paul T. Swearingen v. Momentive Specialty Chemicals

May 4, 2011

PAUL T. SWEARINGEN, PLAINTIFF,
v.
MOMENTIVE SPECIALTY CHEMICALS, INC., DEFENDANT.



The opinion of the court was delivered by: Hon. Amy J. St. Eve

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Court Judge:

On July 19, 2010, Plaintiff Paul T. Swearingen ("Swearingen" or "Plaintiff") filed a complaint against Defendant Momentive Specialty Chemicals, Inc.*fn1 ("Momentive" or "Defendant"), invoking this Court's diversity jurisdiction under 28 U.S.C. § 1332. (R. 1.) Swearingen, a truck driver employed by Transport Service Co. ("Transport"), alleges that, upon delivering chemicals to Defendant's Carpentersville, Illinois, plant, Defendant directed him to climb on top of his semi-tank truck to loosen the tank-dome lid so that air could enter the tank and the chemicals could flow into Momentive's receiving pipes. (Id. at 2-3.) Upon following these alleged directions, Swearingen fell from the top of his tank to the concrete floor, sustaining a variety of injuries. (Id. at 3-5.) Plaintiff alleges that the distance between the dome of his tank and the overhead piping system of Defendant's facility was insufficient for a delivery driver to open the dome cap, and further alleges that Defendant failed to provide any safety harness, platform, warning signs, mats, or pads. (Id. at 3.) Swearingen thus alleges that Momentive owed him a duty of care, which the latter breached in a manner that directly and proximately caused him injury. (Id. at 4-5.)

On March 8, 2011, Momentive filed a motion for summary judgment, contending that discovery has revealed that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law. (R. 27.) Specifically, Momentive argues that, because the undisputed facts show that any dangerous condition was "open and obvious," it owed no duty to Swearingen. (R. 28 at 5-9.)

For reasons discussed below, the Court grants Defendant's motion for summary judgment.

BACKGROUND

Swearingen, a citizen of Louisiana, is both an employee of Transport and a tanker-truck driver. (R. 37 at 1.) Momentive is a New Jersey Corporation with its headquarters in Ohio and is a manufacturer and distributor of binding, bonding, and coating products. (Id. at 1-2.) On March 29, 2010, Swearingen delivered a tank of chemicals to Defendant's Carpentersville, Illinois, facility, where he parked his trailer in an unloading bay and began preparing the tank for unloading. (Id. at 2.) Plaintiff testified at his deposition that Momentive personnel knocked on his truck door and said: "Excuse me. Please would you come back and open your dome lid so we can get started." (R. 39 at 45.) He further testified that no one from Momentive told him how he should open the dome lid. (Id.)

To open the dome seal on the top of his tank, Swearingen climbed the ladder attached to the tank. (R. 37 at 2.) When he got to the top of the ladder, Plaintiff saw bright red piping that was part of Momentive's fire-extinguishing system. (R. 39 at 45.) He testified that he saw that the piping was "extremely low," but concluded: "oh, well, I've been in these kind of situations before, and I know that I'm going to have to do it in the end anyway." (Id.) Swearingen testified as to what happened next as follows:

So I went ahead and crawled underneath of it and proceeded to try to open the dome lid. In the process of opening the dome lid, I stood up a little bit and bumped the backside of my head, knocking off my helmet and goggles. And then . . . it was like, I knew that I was falling, so I was grabbing for the Christmas tree*fn2 on the top of the trailer, hoping that I could stop my fall. And then I landed on the ground.

(R. 39 at 45-46.)

There is no dispute that Swearingen was aware of the hazard and that he did not have fall protection when he climbed onto the truck. (R. 37 at 2-3.) Nor is there any dispute that Plaintiff's employer, Transport, trained Swearingen in the manner in which to unload trucks. (Id. at 3.) The parties further agree that Swearingen did not ask anyone at Momentive for assistance or for fall protection during the unloading process. (Id. at 4.)

Swearingen filed a complaint in this Court on July 19, 2010, seeking damages in tort on account of injuries he sustained due to Momentive's alleged breach of its duty of care. (R. 1.) The Court subsequently ordered that the parties complete fact discovery by March 1, 2011. (R. 15.) On March 8, 2011, Momentive filed the instant motion for summary judgment. (R. 27.) For reasons explained below, the Court grants this motion.

LEGAL STANDARD

Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In determining whether a genuine dispute as to any material facts exists, the Court "must construe the facts and draw all reasonable inferences in the light most ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.