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Jentz v. Conagra Foods, Inc.

United States District Court, Seventh Circuit

February 8, 2013

CONAGRA FOODS, INC., et al., Defendants.



I. Introduction

Following a 17-day trial, the jury entered its verdicts in favor of Plaintiffs John Jentz and Robert Schmidt and against Defendants ConAgra Foods, Inc., and West Side Salvage, Inc. The jury awarded Jentz compensatory damages in the amount of $41, 585, 000.00 and apportioned 45% of the legal responsibility for proximately causing Jentz's injuries to West Side (Doc. 460). The jury also awarded punitive damages in favor of Jentz and against West Side in the amount of $1, 000, 000.00 (Doc. 454). The jury awarded Schmidt compensatory damages in the amount of $2, 915, 000.00 and apportioned 35% of the legal responsibility for proximately causing Schmidt's injuries to West Side (Doc. 472). The jury awarded no punitive damages against West Side as to Schmidt (Doc. 470).

West Side now renews its motion for judgment as a matter of law on Count III (Negligence) and Count IV (Willful and Wanton) of Jentz's Fifth Amended Complaint, pursuant to Fed.R.Civ.P. 50(b), or, in the alternative, for a new trial, pursuant to Fed.R.Civ.P. 59(a)(1)(A) (Doc. 516). West Side also moves for judgment as a matter of law on Count III (Negligence) of Schmidt's Second Amended Complaint or, in the alternative for a new trial (Doc. 517). Because most of the issues raised in these motions overlap, the Court will address them together, discussing separately those issues pertinent to Jentz alone.

II. Judgment as a matter of law pursuant Fed.R.Civ.P. 50(b)

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 Cmty. 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.

Rule 50(a)(2) provides that a motion for judgment as a matter of law “must specify the judgment sought and the law and facts that entitle the movant to the judgment.” Plaintiffs submit that West Side does not cite to the record to support any of its arguments. Furthermore, as to Jentz, West Side cites case law in only two of its 13 arguments, and 10 of its arguments consist of one sentence. As to Schmidt, West Side raises 11 bases as to why it is entitled to judgment as a matter of law but does not cite to the record to support any of its arguments, and all but one of the arguments consist of one sentence. Plaintiffs assert that all arguments lacking in specificity, i.e., all but two of West Side's arguments as to Jentz and all of West Side's arguments as to Schmidt, should be denied for failure to comply with the Rule.

In support of Plaintiffs' contentions, they cite Nobelpharma Ab v. Implant Innovations, Inc., 930 F.Supp. 1241 (N.D.Ill. 1996), where the Court observed,

Failure to state the grounds or the motion with specificity may provide grounds for denying the motion. But the requirement is not a technical one. 5A James Moore, Moore's Federal Practice ¶ 50.04 (2d ed. 1995). Its purposes are twofold: (1) to assure that the trial court has an adequate basis for its decision; and (2) to afford the adverse party the opportunity to correct any possible infirmities in the proof presented.930 F.Supp. at 1249) (quoting Moore's Federal Practice ¶ 50.04 (additional citation omitted).

Clearly, providing no more than a single sentence as grounds for relief fails in the two crucial ways noted in Nobelpharma, apprising neither the Court nor opposing counsel of the reasons that West Side believes judgment as a matter of law is appropriate. The Court is not required to sift through the record in search of facts pertinent to West Side's position. See United States of America by and through Joseph E. Garst v. Lockheed-Martin Corp., 328 F.3d 374, 378 (7th Cir. 2003) (“[J]udges ... need not try to fish a gold coin from a bucket of mud.”).

However, that is not the end of the analysis because a failure to expressly state a sufficient argument in a Rule 50(b) motion does not result in waiver if previously presented arguments have made the movant's position clear for the Court and opposing counsel. Laborers' Pension Fund v. A & C Environmental, Inc., 301 F.3d 768, 777-78 (7th Cir. 2002) (additional citations omitted)). West Side's motion does not explain where and how it has previously argued these issues in greater depth, nor did West Side file a reply, which could have been allowable under Local Rules, since this would arguably constitute an exceptional circumstance. SDIL-LR 7.1(c)(2).

The Court, in an abundance of caution, reviewed West Side's Rule 50(a) motion and finds that it, too, suffers from the same lack of specificity - only three of 14 arguments developed beyond a single sentence (Doc. 405). Turning then to West Side's oral argument on its Rule 50(a) motion, the Court finds that West Side addressed only punitive damages. Counsel argued that no submissible case had been made for punitives because the only basis for punitives - Flitsch's decision to send the men back into the tunnel - was safety-driven rather than money-driven and was made without forethought in the heat of the moment (Doc. 411, p. 7). Beyond that single argument, counsel chose to stand on the written motion. The Court sees no reason to delve more deeply, particularly since West Side did not file a reply, indicating where in the record these issues were raised more fully. In sum, the Court finds nothing in the record beyond the cursory arguments advanced in West Side's motion.

1. Compensatory damages: Jentz and Schmidt

The foregoing notwithstanding, the Court concludes that legally sufficient evidence supports the jury's findings regarding the first five of West Side's statements: (1) Plaintiffs were injured because of West Side's negligence; (2) Plaintiffs' claims against West Side were neither speculative, conjectural nor based on surmise; (3) Plaintiffs' injuries were the direct and proximate result of an act or acts by West Side; (4) West Side negligently failed to properly inspect and monitor the bin for self-heating, smoldering or fire and the presence of combustible gases or vapors; and (5) West Side was otherwise negligent.

Evidence adduced at trial shows that Jentz suffered second, third and fourth degree burns over 70% to 75% of his body. Schmidt had second-degree burns over 3% of his body, including his hands, neck and face. Jentz had evacuated and was in a place of safety until West Side's foreman, Mel Flitsch, told him to return to the bin tunnel to remove his tools so they would not obstruct firemen who were being called to the site. Particularly compelling was Dr. Ogle's testimony:

Q. And it was after Mr. Schmidt ordered the evacuation that Mr. Flitsch sent Mr. Jentz and Mr. Becker back into the tunnel, is that correct?
A. That's correct.
Q. If that doesn't happen, those gentlemen are not injured, correct?
A. If they don't go back in the tunnel, they don't get injured, correct.

Doc. 351, Ogle Trans., 230:14-21.

Flitsch himself testified that he made a mistake sending the men back into the tunnel. Doc. 396, Flitsch Trans., 201:18-21. The jury could have reasonably found that West Side, through Flitsch's conduct, was, at least, negligent, in that Flitsch deemed the situation so dangerous that he had asked ConAgra to call the fire department, yet he sent Jentz and Becker back into the bin. Flitsch also testified that he knew for a minimum of two hours prior to the explosion that there was a fire in the bin, but he did not tell ConAgra's director of elevator operations Godfrey Friedt nor did he call the fire department or order an evacuation. Doc. 396, Flitsch Trans., 163:4-21.

Furthermore, Dr. Ogle was critical of West Side's actions in removing the pellets while they were still on fire, failing to monitor the scene and failing to follow accepted practices in fighting the fire. Doc. 339, 69:19-71:15. During Dr. Ogle's testimony, West Side's website was discussed, on which West Side holds itself out to be an expert on hot bins and fighting elevator fires. See pp. 98, et seq.

Finally, evidence offered at trial showed that West Side's Vice-President, Ron Sumner, believed in March, when he visited the site, that the bin was “a ticking time bomb, ” but that this dangerous condition was not conveyed to A&J and to Plaintiffs.

The evidence recounted shows that the jury had a sufficient basis to conclude that Plaintiffs were seriously injured and that those injuries were caused by West Side's negligence. Decisions by West Side, particularly Flitsch's decisions, were a proximate cause of Plaintiffs' injuries.

For its sixth ground, West Side asserts that Plaintiffs were aware of the alleged fire and explosion hazards, which were open and obvious. This cannot fail to bring to mind the exchange between the Beckers' counsel, Mr. Taxman, and ConAgra's counsel, Mr. Patton, during closing arguments, where Mr. Taxman took Mr. Patton to task for suggesting that there was some stupidity, overconfidence or negligence on the part of Plaintiffs for their injuries.[1] The Court is struck afresh by the failure of those in authority, Flitsch and Friedt (and, by extension, Yount, ConAgra's safety director, who repeatedly spoke with Friedt on the day of the explosion), to detect this allegedly “open and obvious” hazard, call the fire department and evacuate the site.

Jentz testified that he had no experience in fire fighting or bin management, believed that his gas monitor was to keep him from passing out rather than to indicate of presence of explosive gases, and that a “hot bin” was a bin that was warming up. Doc. 409, Jentz Trans., 15:13-16; 17:9-22; 19:1-5. Jentz also testified that he understood that a hot bin potentially presented a danger of fire which could cause an explosion. Id. at 61:21-62:2. Jentz sensed no danger and was not worried about anything until the time that Flitsch told him to return to the tunnel to get his tools. Id. at 19-25. He knew the fire department had been called, but he had worked beside the fire department before, so that did not cause him to believe that an explosion was imminent. Id. at 98:1-7. When asked why he returned to the tunnel, Jentz responded, “Nobody expressed any concern to me about anything being wrong.” Id. at 37:19-23. To Jentz, the danger was not open and obvious because he had no idea that there was a risk of explosion.

Schmidt testified that he was not trained to do temperature monitoring for bins or to determine if there was a fire in a bin. Doc. 350, Schmidt Trans., 44:19-25. He had never been on a job where a fire or an explosion occurred. Id. at 46:9-14. Neither Schmidt's employer nor West Side provided any information to him that caused him to be concerned about working on the bin. Id. at 49:23-50:13. West Side did not tell Schmidt that he was working on a “ticking time bomb.” Id. at 50:11-13.

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. (citing Restatement (Second) of Torts § 343A(1) (1965)). But the danger here was not open and obvious because Plaintiffs were unaware that a risk of explosion existed. And, as stated above, if the danger were open and obvious, Friedt or Flitsch would have detected it, called the fire department and evacuated the site.

Even if a danger is open and obvious, a landowner may still be liable if the deliberate encounter exception applies. Rusch, 927 N.E.2d at 324 (citation omitted). The deliberate encounter exception applies here because, even if the risk were open and obvious, Plaintiffs could not do their jobs - operate the bin whip -without working in and around the bin. See LaFever v. Kemlite Co., 706 N.E.2d 441, 448 (1998) (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).

Plaintiffs had no choice but to work in and around the bin to do their jobs. It bears repeating: West Side was aware of the hazard in the bin and could anticipate that Plaintiffs would choose to encounter it. So, even if the danger were open and obvious, the deliberate encounter exception applies.

For its seventh ground, West Side asserts that Plaintiffs assumed the risk of an explosion. As stated above, Plaintiffs did not believe there was a risk of explosion, did not understand the dangers of working in the bin and were not warned of the dangers. Even when Jentz was told to re-enter the tunnel after the evacuation order and after the fire department was called, he did not appreciate the danger because nobody expressed any concern to him about anything being wrong. Schmidt, who had no special instructions or warnings, believed this was a normal job.

“Traditionally, courts have classified the doctrine of assumption of the risk into three categories: (1) express assumption of the risk; (2) primary implied assumption of the risk; and (3) secondary implied assumption of the risk.” Evans v. Lima Lima Flight Team, Inc., 869 N.E.2d 195, 206 (Ill.App.Ct. 2007) (citing Hanke v. Wacker, 576 N.E.2d 1113 (Ill. 1991)). West Side does not specify upon which doctrine it relies, but none of the three applies. There is no evidence that Plaintiffs expressly assumed the risk, i.e., that they explicitly agreed, in advance, to relieve West Side of a legal duty owed to them. See id. (citing Duffy v. Midlothian Country Club, 481 N.E.2d 1037 (Ill. 1985)). As to primary implied assumption of the risk, Plaintiffs' and West Side's conduct does not show that Plaintiffs implicitly consented to encounter a known risk, such that West Side would be excused from its legal duty. See Id . (citing Russo v. Range, Inc., 395 N.E.2d 10 (1979)). And, lastly, “secondary implied assumption of the risk occurs where the defendant's negligence created a danger that was apparent to the injured party, who nevertheless voluntarily chose to encounter it.” Id., (citing Duffy, 481 N.E.2d 1037). Because the Court has found, supra, that the deliberate encounter exception applies to Plaintiffs' conduct, West Side 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 West Side. See Kleiber, 942 N.E.2d at 648.

Plaintiffs did not assume the risk that the bin would explode and that they would suffer severe burns on this job. West Side has not established that Plaintiffs assumed “any and all risk” that was associated with their work.

West Side's 10th through 13th grounds as to Jentz, which mirror its 8th through 11th grounds as to Schmidt are again single sentence assertions without reference to the record or to case law, in violation of Rule 50(a)(2).[2] West Side contends that no evidence was offered or received which raises a jury issue on the allegations of Jentz's Fifth Amended Complaint and Schmidt's Second Amended Complaint; that the evidence at trial failed to establish that West Side breached any duty to Plaintiffs; that the evidence at trial failed to establish any facts under which Plaintiffs are entitled to relief against West Side under any allegations contained in the amended complaints; and evidence at trial failed to establish a submissible case against West.

As Judge Rovner of the Seventh Circuit stated epigrammatically, “We need not linger too long” on the matter before this Court. See United States v. Stephenson, 557 F.3d 449, 454 (7th Cir. 2009). Essentially, West Side attempts to draw a line under its previous arguments and write Q.E.D., as if it has already demonstrated that no evidence supports any liability on its part. Contrary to West Side's bare assertions, as shown above, ample evidence supports the jury's verdicts in favor of Plaintiffs and against West Side on compensatory damages. The evidence shows that West Side's 10th through 13th grounds as to Jentz and 8th through 11th grounds as to Schmidt are meritless.

For the foregoing reasons, West Side's motion for judgment as a matter of law against Plaintiffs Jentz and Schmidt as to ...

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