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Poulter v. Cottrell, Inc.

United States District Court, N.D. Illinois, Eastern Division

June 24, 2014

JOHN POULTER, Plaintiff,
COTTRELL, INC., Defendant

Page 954

For John Poulter, Plaintiff: Michael A Shammas, Milo W. Lundblad, Brustin & Lundblad, Ltd., Chicago, IL.

For Cottrell, Inc., Defendant: Daniel J. Carpenter, LEAD ATTORNEY, Amy J. Lorenz Moser, PRO HAC VICE, Armstrong Teasdale LLP, St. Louis, MO; Scott R. Sinson, Bullaro & Carton, P.C., Chicago, IL.

Page 955


John J. Tharp, Jr., United States District Judge.

Plaintiff John Poulter, while working for Cassens Transport Company (" CTC" ), was injured when he slipped and fell from the second tier of an auto hauling rig manufactured by defendant Cottrell Inc. He sued Cottrell for strict product liability, negligence, breach of implied warranty, and willful and wanton conduct. He contends that Cottrell is liable for his injuries because his rig did not contain various safety and fall-protection features, including appropriate handholds for him to grab or guardrails to prevent a fall. Cottrell moves for summary judgment on all of Poulter's claims. For the reasons that follow, the motion is denied.


The factual summary is taken from the parties' Local Rule 56.1 statements and responses. Only facts that the Court deems material, undisputed (unless otherwise noted), and supported by admissible evidence, are included. The Court previously addressed Cottrell's motion to strike the testimony of Poulter's expert witness, David Kassekert, partially granting it and restricting the subject matter as to which Kassekert can testify. Order, Dkt. # 96 (June 24, 2014). This opinion relies on Kassekert's testimony only to the extent allowed by that ruling.

Poulter has worked as a car hauler since 1978. Cottrell manufactures car hauling rigs, including the rig from which Poulter fell on January 31, 2011. At the time, Poulter was working for CTC, the owner of the rig. The rig was Cottrell's Model C-10SS, which was first manufactured in 2006. CTC purchased this rig, Unit # 76419, from Cottrell in 2006. An invoice

Page 956

for the purchase is in evidence. The rig in question contained a so-called " Canadian guardrail" (or Canadian " hand rail" or " U-bar" ), which, as the name suggests, is a safety feature required by the Canadian government of any rig operating in that country, as of 1994. CTC required Cottrell to include this feature on Unit #76419 and, indeed, on all of the rigs it purchased.

Poulter, who is based in Indiana, was picking up a load in Louisville, Kentucky, when the accident occurred. It was a rainy day. Before he fell, Poulter was loading a pickup truck onto the upper deck of the rig, something he had done " a million times" before with just one previous fall, in 1996. Poulter fell from the upper deck of the rig--specifically, from the " head ramp," which is the part of the rig built around the tractor or cab. Poulter fell from the area above the ladder that is built into the frame of the head ramp. He had loaded the truck and was attempting access the ladder and descend from the rig's upper deck when he slipped. Poulter was wearing non-skid shoes; nevertheless, his left foot slipped, and he does not know why. The Canadian handrail, which is affixed near the front of the headramp, was not within his reach when he fell near the ladder, a few feet away. For stability, Poulter tried to grab onto the pickup truck he had loaded, but the door of that truck flew open. Poulter had nothing else to grab onto. He fell to the ground.

Brian Howes, Vice President of Engineering for Cottrell, was in charge of the design team for the Model C-10SS. The team created the production drawings used to build the rig; those drawings are in evidence and have been sealed because they contain proprietary business information. Howes was responsible for all final design decisions for the Model C-10SS. He testified that the original design did not contain additional fall protection features out of concern that they would make the rigs too wide to comply with (U.S.) federal regulations. He also testified that he " [did] not know" who designed " the Canadian grab bar." Pl. Ex. B at 16:7-8. When asked if " anyone at Cassens [had] and input into the design of the C-10," Mr. Howes answered, " Other than they wanted a strap tie-down rig, I can't recall them having any input." Id. at 22:13-16. Howes further testified that Cottrell " did not design the [Canadian] grab bar. It had already been in use." Id. at 23:8-11.

Poulter's retained expert, David Kassekert, a mechanical engineer, opined based on his review of photographs of Cottrell rigs, including Poulter's (Unit 76419) and another Cottrell rig (Unit 76407) that featured different fall protection elements, that fall protection features could be added to the rig without affecting its functionality or increasing its width beyond regulated limits. According to Kassekert, a cable guard rail, grab bars, a ladder that vertically extends above the standing surface, and a vertical handrail or grab bar are feasible modifications to Cottrell's design. According to his report, they were made of readily available materials and could be affixed to the rig with welds or bolts.

There is no dispute that Cottrell can and does include certain of these fall-protection features on some of its rigs. In 2008--and therefore, after CTC's purchase of Poulter's rig in 2006--Cottrell began installing grab bars, guard rails, and cat walks on all of its newly manufactured auto hauling rigs, and in 2009, it initiated a retro-fit program to add grab ...

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