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Russell J. Swift and Bobbi Swift v. Bpi Energy

September 7, 2011

RUSSELL J. SWIFT AND BOBBI SWIFT, PLAINTIFFS,
v.
BPI ENERGY, INC. AND BPI ENERGY HOLDINGS, INC., DEFENDANTS,
AND BPI ENERGY, INC. AND BPI ENERGY HOLDINGS, INC., THIRD-PARTY PLAINTIFFS,
v.
TRI-S EXCAVATING, L.L.C., THIRD-PARTY DEFENDANT.



The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge:

E-FILED

Wednesday, 07 September, 2011 08:11:57 PM Clerk, U.S. District Court, ILCD

OPINION

This matter comes before the Court on Third-Party Defendant Tri-S Excavating, L.L.C.'s Motion for Summary Judgment (the "Motion") (d/e 46). For the reasons stated below, the Motion is GRANTED IN PART AND DENIED IN PART.

I. INTRODUCTION

This case arises out of Plaintiff Russell Swift's August 28, 2006, alleged fall from a platform (a/k/a the "platform" or "Shelby #10 platform") that stood approximately five feet above the ground. The fall injured Mr. Swift's back and caused Mrs. Swift to suffer a consequential loss of consortium. Third-Party Plaintiffs BPI Energy, Inc. and BPI Energy Holdings, Inc. (collectively "BPI") built the platform to support an above-ground engine and pump. Tri-S provided personnel to operate the pump. That personnel included Mr. Swift. At all times, Mr. Swift was Tri-S's employee but he worked at the direction of BPI. Mr. and Mrs. Swift sued BPI. In turn, BPI sued Tri-S under Illinois' Contribution Act, 740 ILCS 100/1, et seq. (West 2002). BPI alleges that Tri-S: failed to properly train and educate Mr. Swift; failed to instruct Mr. Swift about dangers associated with the platform; failed to properly supervise Mr. Swift; negligently hired the "inexperienced" Mr. Swift; and negligently allowed Mr. Swift to work on the platform since Mr. Swift's pre-existing "low back condition" made him unsuitable for the work.

II. FACTS

Tri-S hired Mr. Swift in July 2001. Tri-S promoted Mr. Swift from an apprentice to a journeyman in 2005. On August 28, 2008, Mr. Swift was working as a "pumper"-basically a person who maintains the pumps mounted on the platforms. Mr. Swift was on the Shelby #10 platform when one of his feet slipped from underneath him and he lost his balance. To avoid falling into certain belts and pulleys-which were mounted on the platform and in motion at the time-Mr. Swift jumped off the platform to the ground. Mr. Swift suffered a back injury as a result of leaping from the platform.

During his March 23, 2010, deposition, Mr. Swift stated that he had received some training from Tri-S. He testified that: "We would receive on a regular basis OSHA training, dig training" which was to ensure a competent person could make sure the dig was safe.*fn1 Mr. Swift never asked anyone at Tri-S for training on how to do the pumper job, how to climb up onto the platform, or how to get down from the platform. Mr. Swift stated that "based on [his] years of experience and training and just the fact that [he] had worked with these wells", he was "able to decide what [he] thought was the best way to get up and down."

Because the Shelby #10 platform did not have stairs, a ladder, etc. attached to it, Mr. Swift ascended and descended the platform via a portable ladder or by climbing the platform's support beams. He further testified that he received "a lot of hands-on training from Tri-S as far as the plumbing side." Mr. Swift stated that the training he received from Tri-S with respect to elevated platforms came during morning meetings that Tri-S employees had in the field. There is no evidence of record to show what that training entailed.

Mr. Swift had "somewhat" low back pain prior to the August 28, 2006, incident. He received occasional chiropractic adjustments.

However, Mr. Swift did not have any restrictions on his physical activities. He did not think "there was anything about [his] medical condition prior to the incident . . . that made it unsafe for [him] to work on an elevated structure like Shelby #10."

Mr. Swift had worked on pumps and elevated structures before his fall. For several weeks prior to his fall, Mr. Swift worked daily as a pumper on the platform. He was aware there were some dangers in working with these pumps and especially on the elevated structures. In addition to lacking stairs or an attached ladder, the Shelby #10 platform had no railings and no guards covering the pulleys, belts, etc. which moved while the platform's pump was in use. Mr. Swift thought it was unsafe to work on the Shelby #10 platform and, as supervisor of a crew of workers, had told his subordinates not to work on the platform because it lacked railings.

One of Tri-S's co-owners, Steve Sanders, and Tri-S employee, Thomas Sanders, have testified that they never knew of any safety issues related to the platform prior to Mr. Swift's accident. Contrary to Steve Sanders' testimony, Mr. Swift stated during his deposition testimony that he had "brought up" safety issues with both Steve Sanders and another Tri-S co-owner, Travis Sanders. Mr. Swift said he had told both men about the dangers of accessing the Shelby #10 platform via climbing. Despite Tri-S having a policy which prohibited employees from working in any unsafe area, Steve Sanders allegedly told Mr. Swift to "deal with it". In addition to speaking with Steve Sanders and Travis Sanders about having to climb the platform, Mr. Swift alleges that he e-mailed Tri-S about ...


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