United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
MILTON I. SHADUR, Senior District Judge.
Plaintiffs Kerry Smith ("Smith") and his wife Cheryl seek a ruling pursuant to Fed.R.Civ.P. ("Rule") 16 that (1) as a matter of law defendants Casini Warehousing Corporation ("Casini"), Mitsubishi Heavy Industries America, Inc. ("Mitsubishi") and MHI Injection Molding Machinery, Inc. ("MHI") owed a duty of care to Smith and (2) that duty included assisting him in draping a tarp over the section of a plastic injection molding machine ("Machine") that he was to transport. As explained in this opinion, there are genuine disputes of fact material to those issues that Smith seeks to resolve. Hence this Court denies Smith's motion to narrow the issues.
Rule 16 Issue-Narrowing Standard
Resolution of issues as a matter of law, although neither expressly provided for under Rule 16 nor a subject for a motion for partial summary judgment under Rule 56, can be a useful adjunct facilitating the disposition of a case. And if such an undertaking is initiated, it is useful to apply the familiar Rule 56 principles to frame the legal analysis.
Those principles impose on the movant the burden of establishing the absence of any genuine issue of material fact ( Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). For that purpose courts consider the evidentiary record in the light most favorable to nonmovants and draw all reasonable inferences in their favor ( Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002)). Courts "may not make credibility determinations, weigh the evidence, or decide which inferences to draw from the facts" in resolving motions for summary judgment ( Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003)). But a nonmovant must produce more than "a mere scintilla of evidence" to support the position that a genuine issue of material fact exists, and "must come forward with specific facts demonstrating that there is a genuine issue for trial" ( Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008)). Ultimately summary judgment is warranted only if a reasonable jury could not return a verdict for the nonmovant ( Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
On December 16, 2009 Smith arrived at a warehouse operated by Casini in Bensenville, Illinois, to transport the Machine on his truck (S. St. ¶¶ 5, 12). MHI had leased space in the warehouse from Casini to store - and to serve as the shipment point for - injection molding machinery (S. St. Ex. D), and that lease had been assigned to Mitsubishi when it absorbed MHI some months earlier (S. St. ¶ 8). Under that Service and Storage Agreement ("Agreement") Casini was to provide "loading and unloading of machinery" stored at its warehouse (S. St. ¶ 6). Because the Machine had been sold by MHI with the shipping term "FOB BENSENVILLE, IL, " the buyer of the Machine had (through a broker) hired Smith's employer to provide transportation (M. St. ¶¶ 2-5, 9-10).
After Smith arrived at the warehouse Casini's staff lowered the very large Machine - which weighed some 29, 000 pounds (S. St. ¶ 12) and was more than 20 feet long, about 8 feet wide and at least 7 feet high at its tallest point (S. St. ¶ 12; M. R. S. St. ¶ 31) - onto Smith's truck, using an overhead crane (S. St. ¶ 16). After the Machine had been lowered onto the trailer Smith went to work securing it with chains (S. St. ¶ 17). Smith avers that workers then draped a plastic sheet over the Machine utilizing the overhead crane (S. St. Ex. G 54-62), although MHI's parts and warehouse manager (who did not actually see the events unfold) contends that the sheet should already have been in place before loading (S. St. Ex. F 55-56, 60-62). Regardless of how it got there, that plastic sheet - which was apparently slick with some sort of oil (S. St. ¶ 46) and had not been secured to the Machine (S. St. ¶ 24) - was to be covered in turn by a tarp (S. St. ¶ 22). Smith had brought the tarp with him (S. St. ¶ 26).
As with the dimensions of the Machine, the parties dispute the material from which the tarp was constructed and hence its weight, with Smith saying that it was made of canvas and weighed between 200 and 250 pounds (S. St. ¶ 26), his employer responding in an interrogatory that it was of vinyl and weighed about 100 pounds (M. St. Ex. 8 ¶ 13) and Casini proffering evidence that one of the models of vinyl tarp mentioned by Smith's employer weighs just 80 pounds (C. St. ¶ 25). Smith further contends that MHI or Mitsubishi required that the Machine be tarped (S. St. ¶¶ 20, 25), which they in turn deny (M. R. S. St. ¶¶ 20, 25). In support of his contention Smith points to bills of lading issued by MHI in other instances saying that cargo must be tarped (S. St. ¶ 25), while MHI and Mitsubishi counter that MHI did not issue the bill of lading for this particular load and required that cargo be tarped only when it (rather than the buyer, as was the case here) hired the carrier (M. Mem. 11-12; M. R. S. St. ¶ 25).
There is also disagreement over whether warehouse employees customarily aid drivers in tarping loads and whether in particular Casini had used its crane to help two other drivers do so earlier in the day (S. St. ¶¶ 28-29, 35-38; M. St. ¶ 5; M. R. S. St. ¶ 37-38). Smith suggests that Casini was the shipper because it placed the load on the truck (S. St. ¶ 33), while MHI and Mitsubishi respond that the buyer was the shipper, for it arranged and was responsible for transportation (M. St. ¶ 5). Conflict abounds regarding the meaning of the term "loading, " with Smith arguing that it includes applying the protective tarp (S. Mem. 1, 8, 10) - an argument that MHI, Mitsubishi and Casini counter with opinion testimony that the loading process ends at the moment that the cargo is detached from the overhead crane (M. St. ¶ 23; C. St. ¶¶ 15-20).
Smith claims that he asked the crane operator to aid him in draping the tarp over the Machine (S. St. ¶ 27). Unsurprisingly, Casini denies that any such request was made (C. R. S. St. ¶ 27). Rather than calling his employer for assistance (as the employer required its drivers to do if tarping a load would be dangerous) (M. St. ¶ 33; M. R. S. St. ¶ 44), Smith, aided by another driver who happened to be at the warehouse picking up a different load, then climbed atop the Machine to unroll the tarp that Smith had brought with him (S. St. ¶¶ 42-43).
Again the parties offer conflicting evidence as to whether that was the safest way to apply the tarp without assistance from the crane operator: Smith contends there was no safer method and cites the testimony of a coworker that a ladder would not have been helpful (S. St. ¶ 44-45). Casini suggests that Smith could have stood on the trailer rather than on the Machine itself, or used a rope or a ladder (C. R. S. St. ¶ 45; C. St. ¶¶ 22-23; see also M. R. S. St. ¶ 44). MHI and Mitsubishi offer evidence that their employees had never seen a driver stand on his or her load to tarp it (M. St. ¶ 37). In the course of unrolling the tarp while atop the Machine, Smith slipped on the plastic sheet and was injured from a fall to the concrete floor below (S. St. ¶ 47).
Smith's Contentions and Defendants' Responses
Smith's memorandum is unhelpful in disclosing the ground upon which his motion should be granted. One deficiency is its failure to differentiate between MHI and Mitsubishi on one hand and Casini on the other. It should be obvious, however, that any argument suggesting that Casini had ...