United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER 
Schenkier, Magistrate Judge
Arthur Adamson ("Plaintiff or "Adamson") filed
a two-count First Amended Complaint (the
"Complaint") asserting a negligence claim against
defendant Canam Steel Corporation ("Canam") (Count
I) and against defendant Mercer Transportation Co., Inc.
("Mercer") (Count II) (doc. #15: First Am. Compl.).
Mercer answered and filed affirmative defenses (doc. #16:
Mercer Answer and Aff. Def. to First Am. Compl.). Canam has
moved to dismiss with prejudice Count I of Adamson's
Complaint for failure to state a claim under Federal Rule of
Civil Procedure 12(b)(6) (doc. # 17: Canam Mot. to
Dismiss; doc. # 18: Canam Memo. at 2 and n. 1). The motion to
dismiss has now been fully briefed. For the reasons that
follow, we deny Canam's motion.
ruling on a Rule 12(b)(6) motion to dismiss, we accept as
true all we 11-pleaded factual allegations and draw all
reasonable inferences in favor of the plaintiff. White v.
Keely, 814 F.3d 883, 887-88 (7th Cir. 2016), We
summarize the relevant, well-pleaded facts below.
alleges that Canam, the owner and operator of a steel
manufacturing plant in Peru, Illinois, entered into a
contract with co-defendant Mercer, for Mercer to deliver a
load of steel to a Canam customer via a flatbed truck (Compl.
¶¶ 6-7). Mercer hired Adamson, an independent
contractor, to drive the flatbed truck (Id.
¶8). On October 23, 2015, Mercer directed and instructed
Adamson to drive to Canam's plant to pick up a load of
sheet metal and galvanized tin to be delivered to a customer
in Missouri (Id. ¶ 9).
loaded the sheet metal and galvanized tin onto the flatbed
truck (Id. ¶ 10). Canam and Mercer required
that the truck be tarped, and they directed Adamson to cover
the loaded flatbed truck with a tarp (Id.
¶¶ 13-14). This requirement was reflected in the
Bill of Lading, attached to the Complaint as Exhibit A
(Id. ¶13). Under "Directions, " the
Bill of Lading states "TARP LOAD" (Compl. Ex.
conditions at the Canam plant at the time of the loading were
"hazardous, " with high winds and rain (Compl.
¶ 15). Due to these conditions, Adamson asked to place
the tarp over the load while the vehicle was located in
Canam's indoor loading dock (Id. ¶ 16).
Canam denied the request (Id.). Adamson also asked
Canam for permission to use an available forklift to place
the tarp over the load, but was denied the use of a forklift
or other mechanical assistance in covering the flatbed truck
with tarp (Id. ¶¶ 18, 25).
was not permitted to stage the flatbed truck in the loading
bay until the rain and high winds stopped (Id.
¶ 17). He was ordered to tarp the truck outside in the
wind and rain (Id. ¶ 16). "At the
direction of Canam, " Adamson moved his truck outdoors
and "following orders of Canam and Mercer, Adamson
climbed on top of the truck to place the tarp manually"
over the load in the hazardous weather (Id.
¶¶ 26, 28). While placing the tarp, "the wind
caught the tarp and blew Adamson off the top of the truck and
onto the ground" (Id. ¶ 29). He landed on
his arm and head and incurred "serious and painful
permanent injuries, including a fracture of the radius, a
cervical fracture at ¶ 1-2, a fracture of the frontal
bone, a facial bone fracture, and other traumatic
injuries" (Id. ¶ 29). As a result of these
injuries, Adamson has been forced to undergo multiple
surgeries, therapy and other medical treatment, and has
"suffered permanent disability" (Id.
alleges that based on the wind, rain and failure to provide a
forklift, it was reasonably foreseeable that he could fall
and be injured when tarping the load outside while exposed to
the hazardous weather elements (Id. ¶¶
22-23). He contends that Canam "knew, or should have
known, " that when Canam and Mercer "ordered the
cargo be covered by tarp without proper equipment in
hazardous weather or a safe place to tarp, Adamson would be
forced to manually cover the cargo with the tarp outdoors in
the wind and rain" (Id. ¶ 27). Adamson
further alleges that Canam owed Adamson a duty of reasonable
care to provide a safe area and mechanical assistance to tarp
the load (Id. ¶ 34). Canam moves to dismiss the
negligence claim against it on the ground that Adamson fails
to allege a sufficient factual predicate to establish the
existence of a legal duty on the part of Canam (Canam Mot. to
Dismiss, at 1).
purpose of a motion to dismiss is to test the sufficiency of
the complaint, not to decide the merits.'"
Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th
Cir, 1990) (citation omitted). "In reviewing
the sufficiency of a complaint, we must accept all well pled
facts as true and draw all permissible inferences in favor of
the plaintiff, " Agnew v. Nat'l Collegiate
Athletic Ass'n, 683 F.3d 328, 334 (7th Cir. 2012);
see also, Marquez v. Weinstein, Pinson & Riley,
P.S., 836 F.3d 808, 810 (7th Cir. 2016) (reviewing
de novo grant of Rule 12(b)(6) motion to dismiss,
"accepting as true all well-pleaded factual allegations
and drawing all reasonable inferences in favor of the
determine if plaintiffs' allegations are sufficient to
state a claim, we must determine if they both give the
defendants notice of the claims to which they must respond
and make the asserted claims "plausible on [their] face
" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);
see also Agnew, 683 F.3d at 334 ("The Federal
Rules of Civil Procedure require only that a complaint
provide the defendant with 'fair notice of what the ...
claim is and the grounds upon which it rests'").
"'A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.'" Arnett v. Webster,
658 F.3d 742, 752 (7th Cir. 2011) (quoting Iqbal,
556 U.S. at 678). The "complaint must contain
'enough fact to raise a reasonable expectation that
discovery will reveal evidence' to support [his]
claim." Pierce v. Zoetis, Inc., 818 F.3d 274,
280 (7th Cir. 2016) (quoting Atlantic Corp. v.
Twombly, 550 U.S. 544, 556 (2007)).
a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations, a plaintiffs
obligation to provide the grounds of his entitlement to
relief requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do." Bell v. City of Country Club
Hills,841 F.3d 713 (7th Cir. 2016) (quoting
Twombly, 550 U.S. at 555 (citations and internal
alterations omitted)). "Nevertheless, even with the
heightened pleading requirements of Iqbal and
Twombly, the pleading requirements to ...