United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
DANIEL G. MARTIN, Magistrate Judge.
Plaintiff Joseph Passarella ("Passarella") has sued Defendants NFI Interactive Logistics, LLC and NDC Systems, L.P. for damages arising from an incident when he was struck by a tractor and trailer operated by an employee of NFI Interactive Logistics, LLC in the parking area of a truck delivery terminal in Bolingbrook, Illinois controlled by NDC Systems, L.P. Passarella alleges that a result of this incident, he sustained severe orthopedic injuries requiring three surgeries and a lengthy rehabilitation. The parties have consented to the jurisdiction of the United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c). Defendants have moved for summary judgment. For the reasons stated below, the summary judgment motion is granted as to Passarella's premises liability claim (Count I) and denied as to his negligent operation of a motor vehicle claim (Count II).
The following facts are undisputed unless otherwise noted. On March 17, 2010, the date of the occurrence, Passarella worked for Fleetwash, Inc. ("Fleetwash"). Passarella was a driver/account manager for Fleetwash. (Doc.100 at ¶ 9). In that capacity, Passarella washed truck fleets for companies. Id . As the driver, Passarella was in charge of the crew that was washing tractors and trailers at the time of the occurrence. Id . Passarella drove a straight truck with a rolling door on the back which was equipped with water tanks, soap tanks, and brighteners along with power washers. Id. at ¶ 10. To do his job, Passarella would attach 100 foot long hoses with power washing guns at the end to the tanks to use to clean the tractors and trailers. Id. at ¶ 11. The noise at the back of the Fleetwash truck with the generator for the water tanks running would be slightly louder than a normal diesel engine running. Id. at ¶ 12.
Passarella had been to the NFI facility in Bolingbrook where the incident occurred on more than one occasion and fewer than five times prior to the date of the occurrence. Id. at ¶ 13. At the NFI facility, the spotter operator, as well as other drivers, would move trailers within the facility, and specifically, in the outside parking area west of the building. Id. at ¶ 53. On each prior occasion when Passarella had been at the Bolingbrook facility, he observed the spotter operator using the white spotter truck to hook up to trailers and back them into various dock doors, hook up to trailers at the dock doors, and pull them away to the far west side of the premises. Id. at ¶ 14. At his deposition, Passarella testified that he knew there could be other trucks as well as the spotter tractor moving trailers throughout the yard:
Q. And you knew that there were many trailers and the spotter was there moving trailers throughout the yard, correct?
Q. And you would agree that even though no one at Fleetwash told you to watch out for moving trailers, that it would be in your best interest to watch out for them, correct?
A. I would agree.
Q. That's common sense?
A. Yes, sir.
Q. Okay. And also based on your observation of the yard at NFI, you didn't need someone to tell you to watch out for trailers or listen for back-up alarms, correct?
A. That's correct.
Q. The back-up alarms would also be common sense if you heard one to get out ...