The opinion of the court was delivered by: Reagan, District Judge:
MEMORANDUM AND ORDER DENYING CONAGRA‟S POST-TRIAL MOTION (Doc. 515)
This consolidated action arises from a grain bin explosion that occurred at Defendant ConAgra Foods, Inc.‟s, facility in Chester, Illinois, on April 27, 2010. Plaintiff Justin Becker, an employee of Defendant West Side Salvage, Inc., and Plaintiffs John Jentz and Robert Schmidt, employees of A&J Bin Cleaning, Inc.,*fn1 were severely injured when the explosion occurred. Plaintiff Amber Becker, Justin‟s wife, filed suit for loss of consortium.*fn2 A jury found in favor of Plaintiffs and awarded compensatory and punitive damages.
Following the jury verdict, four post-trial motions were filed. The Court now takes up the first of these, ConAgra‟s motion, brought pursuant to Rules 50(a), and 59(a) and (e) of the Federal Rules of Civil Procedure, which seeks the following relief:
(a) judgment in ConAgra's favor and against all plaintiffs as to plaintiffs' claims, or in the alternative, as to plaintiffs' claims for punitive damages;
(b) judgment in ConAgra's favor and against West Side as to ConAgra's claims and West Side's claims;
(c) alternatively, a new trial as to all issues of liability and/or damages in the case;
(d) in the further alternative, a remittitur of the verdicts to the following amounts: Justin Becker [$8 million compensatory (prior to adjustment) and $0 punitive]; John Jentz [$12 million compensatory (prior to adjustment) and $0 punitive]; and Robert Schmidt: [$750,000 compensatory (prior to adjustment) and $0 punitive]; and
(e) such other and further relief that this Court deems just.
II. Whether ConAgra is entitled to judgment as a matter of law on liability and punitive damages
ConAgra asserts that there is no basis for a reasonable jury to find liability as a matter of law because (1) it owed no legal duty to persons hired to remediate dangerous conditions with respect to those very conditions, who assumed the risk of harm; (2) even if ConAgra did owe Plaintiffs an overarching duty to protect them from the very harm they were hired to remediate, ConAgra did not breach that duty; and (3) even if ConAgra owed Plaintiffs a duty and breached that duty, the breach was not the proximate cause of Plaintiffs' injuries. ConAgra contends that, for these same reasons, there is no basis for a reasonable jury to find the heightened standard for punitive damages satisfied as a matter of law.
Rule 50 of the Federal Rules of Civil Procedure allows a district court to enter judgment against a party who has been fully heard on an issue during a jury trial if "a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue." Fed.R.Civ.P. 50(a) (motion for judgment as a matter of law), (b) (renewed motion for judgment as a matter of law). Under Rule 50(b) a court may "(1) allow judgment on the verdict, if the jury returned a verdict; (2) order a new trial; or (3) direct the entry of judgment as a matter of law."
The contours of applicable law were defined by the Seventh Circuit Court of Appeals in Passananti v. Cook County, 689 F.3d 655 (7th Cir. 2012). Therein, the Court stated, "In deciding a Rule 50 motion, the court construes the evidence strictly in favor of the party who prevailed before the jury and examines the evidence only to determine whether the jury's verdict could reasonably be based on that evidence." Passananti, 689 F.3d at 659 (citing Tart v. Illinois Power Co., 366 F.3d 461, 464 (7th Cir. 2004), citing Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150--51 (2000)). "The court does not make credibility determinations or weigh the evidence." Id. (citing Waite v. Bd. of Trs. of Illinois Comm. College Dist. No. 508, 408 F.3d 339, 343 (7th Cir. 2005), citing Reeves, 530 U.S. at 150). The court reviews the entire record but "‛must disregard all evidence favorable to the moving party that the jury [was] not required to believe.‟" Id. (quoting Reeves, 530 U.S. at 151). "Because the Rule 50(b) motion is only a renewal of the preverdict motion, it can be granted only on grounds advanced in the preverdict motion." Id.
(citing Fed.R.Civ.P. 50(b), comm. note (2006 amend.); see also Unitherm Food Sys., Inc. v. Swift--Eckrich, Inc., 546 U.S. 394, 404--05 (2006) (party forfeited argument not presented in a Rule 50(a) motion and not renewed in a Rule 50(b) motion)).
1. Duty of care -- Waiver
On May 24, 2012, ConAgra filed a Rule 50(a) preverdict motion for judgment as a matter of law with supporting memorandum (Docs. 391, 392). After hearing argument on the motion on May 25, 2012, the Court briefly took the motion under advisement, then denied it in its entirety (Doc. 407). Plaintiffs contend that ConAgra did not raise the issue of duty of care in its Rule 50(a) motion and, consequently, the issue is forfeited.
ConAgra asserts that the issue is preserved because it argued in both its summary judgment memorandum and its Rule 50(a) motion and memorandum that it owed no duty to Plaintiffs.
The Court has reviewed the relevant documents and finds that, in ConAgra‟s memorandum in support of its Rule 50(a) motion, the company raised the following issues. First, ConAgra argued that it was entitled to judgment as a matter of law on punitive damage counts because its conduct did not constitute "willful and wanton" behavior. Second, ConAgra contended that its prior conduct should not be considered when determining the negligence and proximate causation of Plaintiffs‟ injuries by West Side. There, ConAgra argued that, under Illinois case law, a service provider must deal with the conditions presented to it, and it is irrelevant that the conditions might have been different or the job easier if the company had retained the provider earlier. According to ConAgra, once West Side started the job, it became West Side‟s duty to exercise ordinary care in dealing with the situation. Finally, ConAgra asserted that West Side‟s actions were the sole proximate cause of Plaintiffs‟ injuries. ConAgra maintained that the bin (Bin C-15) did not explode until the eighth day that West Side was on the job and after West Side had actual knowledge of the heat in the remaining pellets.
Leaving aside the question of whether ConAgra preserved this issue by raising it in its summary judgment motion, generally, under Passananti, only the above cited issues may be raised by ConAgra in its Rule 50(b) motion. And this is sufficient. Although not specifically styled "ConAgra did not owe a duty to Plaintiffs," the substance of ConAgra‟s Rule 50(a) argument, in part, goes to whether ConAgra owed a duty of care to Plaintiffs. ConAgra asserted that it owed no duty at all because the conditions that existed before West Side started the job were irrelevant in determining negligence and proximate causation. Citing Bd. of Trs. of Cmty. Coll. Dist. No. 508 v. Coopers & Lybrand, 803 N.E.2d 460 (Ill. 2003), ConAgra contended that "[w]hen a client hires a service provider to remedy a problem, the client‟s conduct prior the provider‟s start of work may not be considered in determining negligence" (Doc. 392, p. 14). In other words, ConAgra argued that the duty owed to Plaintiffs did not rest with ConAgra but was squarely on the shoulders of West Side, and it was West Side only which owed a duty of care to Plaintiffs. In sum, ConAgra did not waive the argument that it had no duty to Plaintiffs.
2. ConAgra‟s duty of care: assumption of risk, premises liability, open and obvious danger, deliberate encounter exception
ConAgra correctly asserts that it is not an insurer of the safety of all invitees on its property. In essence, ConAgra contends that it had no duty to protect Plaintiffs from the very harm that they were invited to the premises to remediate and that, even if it had such a duty, Plaintiffs would still be deemed to have assumed the risk of a grain-elevator fire. ConAgra points out that courts have applied the long-established "firefighters rule" to contractors, i.e., a landowner must exercise reasonable care to prevent injury that might result to the contractor from a cause independent of the work to be performed but has no duty to prevent injury from the very danger that was inherent in that work. Moreover, ConAgra maintains that Plaintiffs continued to work in the presence of an open danger which amount to an implied agreement to assume the risk of the danger.
As to this latter contention, ConAgra impermissibly treats assumption of risk as if it were an element of duty of care. But under Illinois law, assumption of risk is "an entirely distinct concept." LaFever v. Kemlite Co., a Div. of Dyrotech Indus., Inc., 706 N.E.2d 441, 448 (Ill. 1998) (characterizing assumption of risk as a concept distinct from a determination of duty). Consequently, whether ConAgra had a duty of care is not dependent on a determination of assumption of risk.
Furthermore, Plaintiffs did not assume the risk that the bin would explode and that they would suffer severe burns on this job. As the Court previously found, since the deliberate encounter exception applies to Plaintiffs‟ conduct, ConAgra is not excused from its legal duty. As reasonable persons, Plaintiffs made a deliberate choice to encounter the hazard because they could not otherwise do their jobs and that choice was reasonably foreseeable by ConAgra. See Kleiber v. Freeport Farm and Fleet, Inc., 942 N.E.2d 640, 648 (Ill.App.Ct. 2010) (citations omitted).
Illinois has adopted the rules set forth in sections 343(a) and 343A of the Restatement (Second) of Torts regarding the duty of possessors of land to their invitees. Rusch v. Leonard, 927 N.E.2d 316, 324-25 (Ill.App.Ct. 2010) (citing Restatement (Second) of Torts §§ 343(a), 343A (1965)). "[A] possessor of land owes its invitees a duty of reasonable care to maintain the premises in a reasonably safe condition. Id. (citing Restatement (Second) of Torts § 343(a) (1965) (additional citation omitted)). Under § 343A(1), a possessor of land cannot be liable for an invitee's injury if the condition that caused the injury was known or obvious to the invitee. Id. (citingRestatement (Second) of Torts § 343A(1) (1965)). Even if a danger is open and obvious, a landowner may still be liable if either the deliberate encounter or the distraction exception applies. Rusch, 927 N.E.2d at 324 (citation omitted).
Here, ConAgra is the owner of the property and has conceded that a dangerous condition existed when West Side arrived at the job site. See Doc. 515, p. 2, ¶ 2. Evidence adduced at trial could lead a reasonable jury to conclude that ConAgra created the dangerous condition by, inter alia, not cleaning the grain bin for 17 years and by allowing pellets to be stored that were too hot and too wet. ConAgra‟s expert, Dr. Robert Schroeder, testified that prior to the discovery of the problem, ConAgra did a "less than exemplary job" of managing and understanding what was going on in its bins. Doc. 368, Schroeder Trans., 5/21/12 p.m., at 144:4-8. He testified that ConAgra failed to have monitoring equipment available that would have assisted in evaluating the bin. According to Schroeder, ConAgra was aware that there were problems with the bin as early as December 2009 or January 2010. Id. at 109:2-19. Schroeder testified that he believed that "cold wall phenomena" caused the hot bin. But he also stated that prior to the explosion, ConAgra had concluded that to avoid a recurrence of the problem only pellets at the right temperature and moisture level should be placed in the bins, and bins should be cleaned more frequently. Id. at 109:5-14; 235:20-24.
Furthermore, the jury heard evidence that ConAgra‟s elevator operator, Sean Belcher, noticed a burning smell, saw smoke, was aware of elevated temperatures and referred to the bin as a "barbecue pit" weeks before West Side‟s arrival, but he did not inform West Side Salvage of his observations. Doc. 346, Belcher Trans., 74:5-77:11. Belcher also acknowledged that ConAgra‟s contractor work rules provided, "Contractor and its subcontractors shall be informed of the known or potential fire or explosion hazards that would be related to the contractor's work and work areas. ConAgra and its subcontractors will conduct their work in a manner that does not increase these hazards." Id. at 79:18-24.
Plaintiffs had no special training in firefighting or in dealing with hot bins. They were simply laborers hired to remove and salvage the pellets from Bin C-15. Plaintiffs Jentz and Schmidt were hired to remedy the condition in the bin only to the extent that they operated a bin whip. The jury could have believed that they had no knowledge of the risk of explosion encountered on this job, particularly since people who had authority over the condition of the bin and who were responsible for safety on the ConAgra site, e.g, Godfrey Friedt, ConAgra‟s director of elevator operations, and Anthony Yount, ConAgra‟s director in charge of environment, health and safety measures, did not shut the site down, call for an evacuation or place a timely 911 call to the fire department before the explosion.
For these reasons, a jury could reasonably conclude that ConAgra knew for weeks before Plaintiffs arrived at the site that the bin was dangerous and could explode but did not warn its subcontractor West Side or Plaintiffs of that danger. The jury could reasonably conclude that ConAgra, as landowner and as creator of the danger, did nothing to protect Plaintiffs from the danger, and, consequently, failed in its duty of care.
Illinois law does not require a different conclusion and does not hold, as ConAgra argues, that a landowner does not owe a duty to a contractor whose injuries stem from the work he is performing on the premises. See e.g., LaFever, 706 N.E.2d at 448 (finding landowner owed duty to contractor who was injured when he slipped on material he was hired to remove); Morrissey v. Arlington Park Racecourse, LLC, 935 N.E.2d 644 (Ill.App.Ct. 2010) (landowner owed duty to horse trainer where it could have anticipated that the plaintiff would deliberately encounter the open and obvious condition in order to do his job); Cihon v. Cargill, Inc., 689 N.E.2d 153, 158 (Ill.App.Ct. 1997) (citation omitted) (landowner, which controlled the work area and knew workers used unsecured plank to access construction site, owed a duty to contractor because it had reason to expect that the plaintiff would proceed to encounter the known or obvious danger "because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk").
The jury could then conclude that ConAgra violated its duty of care to maintain the premises in a reasonably safe condition. First, the jury could conclude that the danger was not open and obvious. Second, the jury could also conclude, or conclude in the alternative. that Plaintiffs could not do their jobs without working in and around the bin.
As set forth above, the jury could properly find that the danger was not open and obvious because of the conduct of men such as Friedt, who delayed calling the fire department and did not evacuate the site, and Mel Flitsch, West Side‟s foreman, who sent Jentz and Becker back into the tunnel to remove their equipment when the explosion was imminent. If the danger were open and obvious, a reasonable jury could scarcely conclude that these men would have found such risks acceptable.
Even if the risk were open and obvious, Plaintiffs could not do their jobs without working in and around the bin, so the deliberate encounter exception applies. LaFever 706 N.E.2d at 448 (the plaintiff was injured when he deliberately encountered a work area covered with very slick materials). "Under the deliberate-encounter exception, the open and obvious danger rule will not apply if the possessor of land has reason to anticipate or expect that the invitee will proceed to encounter an open and obvious danger because to a reasonable person in the invitee's position the advantages of doing so outweigh the apparent risk." Kleiber v. Freeport Farm and Fleet, Inc., 942 N.E.2d 640, 648 (Ill.App.Ct. 2010) (citations omitted). "The deliberate-encounter exception recognizes that individuals will make deliberate choices to encounter hazards when faced with employment concerns and that those encounters are reasonably foreseeable by possessors of property." Id.
(citations omitted). The focus in this analysis is on what the landowner anticipates or should anticipate the invitee will do. Id. (citations omitted).
ConAgra contends that it could not have foreseen Plaintiffs‟ injuries as a likely result of its conduct. Notwithstanding any alleged fault on its part, ConAgra argues that Flitsch placed Jentz and Becker in a position of great danger after they had evacuated and were in a position of safety. ConAgra also points out that it is common knowledge that one should never re-enter a burning building.
The evidence is that West Side was hired by ConAgra to salvage the pellets from Bin C-15. Plaintiffs had no choice but to work in and around the bin in order to do that job. ConAgra was aware of the hazard the bin presented and could anticipate that Plaintiffs would encounter it. Ample evidence supports the jury‟s finding that ConAgra owed a duty of care to Plaintiffs.
3. Breach of duty and proximate cause
ConAgra claims that even if it owed a duty of care to Plaintiffs, no reasonable jury could have found that it breached that duty. ConAgra argues that Plaintiffs came to the danger of their own volition, as part of their employment for companies that engaged in this dangerous kind of work. ConAgra asserts that it did not direct West Side‟s remediation operations and that the bin was safe for remediation when West Side began its work. According to ConAgra, if additional safety precautions were needed, then West Side should have implemented them because West Side did not need ConAgra‟s permission to implement those precautions or to call the fire department.
The jury heard evidence, however, that the bin was not in a safe condition when West Side began its operations and that ConAgra‟s almost six-week delay in addressing the problem exacerbated the danger. ConAgra was aware of a problem in the bin on March 12, 2010, six weeks before the explosion. According to the testimony of Plaintiffs‟ expert, Dr. Russell Ogle, on that date, under its own rules, ConAgra should have gotten everyone out and called the fire department. Doc. 339, 5/14/12 a.m., Ogle Trans., at 55:21--56:16. He testified that ConAgra has a one-man, one-fire-extinguisher rule, which requires employees to get out if a fire cannot be extinguished at a low level. Id. Dr. Ogle testified that "nothing good ... can come from letting a fire continue to burn." Id. at 50:9-10. Dr. Ogle noted that the exhibit shown to the jury revealed soot lines around the tops of the bins, indicating that ConAgra‟s attempt to extinguish the fire by shutting off oxygen to it was ineffective since not all openings to Bin C-15 were blocked. Id. at50:10-14. Dr. Ogle testified that waiting increased hazards because (1) it allowed continued growth of the fire; (2) smoldering tends to grow in different directions so that multiple smoldering areas -- or nests -- could occur; and (3) waiting causes the material to char and become harder, like concrete, so it becomes more difficult to get out, and workers are exposed to the potential for a fire and explosion for a longer period of time. Id. at 50:14-51:3.
The evidence showed that Ronald Sumner, West Side‟s Executive Vice-President, was on the site in Chester on March 13 and could have mobilized immediately, but ConAgra made a business decision to seek a cheaper contractor than West Side. This decision resulted in a delay of almost six weeks. During this period, ConAgra employees recorded high temperatures and other signs of fire in Bin C-15, but, according to Sumner, this information was not passed along to him. Doc. 332, Sumner Trans. at 209:6-10. Sumner further testified that Friedt told him in March to hold off mobilizing because the bin was cooling off and settling down, but, in the first part of April, Friedt asked him about the possibility of mobilizing because the bin was warming up again. Id. at 210:21-211:25. Additionally, Dr. Schroeder testified that ConAgra did not share with West Side and A&J the data it had collected prior to their arrival. Doc. 368, Schroeder Trans. 225:4-226:5. From this evidence, the jury could reasonably conclude that ConAgra was less than honest and forthcoming with West Side and A&J in describing the condition of the bin. As a result, West Side and A&J may have been less prepared for the conditions its ...