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Gammons v. Crown Castle USA, Inc.

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

January 24, 2017

TODD GAMMONS, Plaintiff,
v.
CROWN CASTLE USA, INC., a Pennsylvania corporation, and VERIZON SOURCING, LLC, a Delaware limited liability company, Defendants.

          MEMORANDUM OPINION AND ORDER

          Andrea R. Wood United States District Judge

         Plaintiff Todd Gammons suffered injuries as a result of falling from a cellular tower allegedly owned by Defendant Crown Castle USA, Inc. (“Crown Castle”) and leased by Defendant Verizon Sourcing, LLC (“Verizon”). In this lawsuit, Gammons advances various theories of negligence-construction negligence, premises liability, and ordinary negligence- against Crown Castle and Verizon. Before the Court are both Defendants' motions to dismiss Gammons's five-count amended complaint pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(f). For the reasons stated below, the motions are denied.

         BACKGROUND

         This is Gammons's second attempt to plead negligence claims against Defendants. Gammons originally filed this lawsuit in the Circuit Court of Cook County, Illinois. The case was then removed to this Court pursuant to 28 U.S.C. § 1441(a) on the basis of diversity jurisdiction.[1] (See Defs.' Not. of Removal, Dkt. No. 1.) Crown Castle and Verizon each filed a motion to dismiss the original complaint for failure to state a claim. (Dkt. Nos. 15, 21.) The Court granted both motions and dismissed the complaint without prejudice, allowing Gammons another opportunity to attempt to state a claim. In its Memorandum Opinion and Order, the Court provided a detailed explanation of the original complaint's pleading deficiencies along with clear guidance as to what Gammons must allege to state a claim for negligence under Illinois law. (See Mem. Op. & Order, Dkt. No. 62.) Gammons now has filed an amended complaint in which he alleges as follows.[2]

         On February 13, 2014, Gammons, an employee of P & D Antenna Service, Inc. (“P & D Antenna”), climbed a cellular tower located at 929 North Christiana Avenue in Chicago, Illinois “to perform elevated work, including services and/or maintenance.” (Am. Compl. ¶¶ 1, 5 of Count I, Dkt. No. 68.) Gammons claims that as a result of Crown Castle's and Verizon's negligence, he fell from the tower. (Id. ¶¶ 11-12 of Count I, ¶¶ 12, 15 of Count III.) Specifically, Gammons attributes his fall to Crown Castle's and Verizon's failure to provide, or their removal of, “safety cables, safety connections and/or climbing pegs.” (Id. ¶ 11 of Count I, ¶ 12 of Count III.) Gammons alleges that due to “the lack of fall[-]protection systems available, ” he was unable to secure his harness to the cell tower. (Id. ¶ 13 of Count I.) As a result, he fell and sustained severe and permanent injuries. (Id.)

         Like his original complaint, Gammons's amended complaint asserts claims for premises liability and ordinary negligence against Crown Castle (Counts I and II, respectively) and claims for construction negligence, premises liability, and ordinary negligence against Verizon (Counts III, IV, and V, respectively). In their motions to dismiss, Crown Castle and Verizon argue that Gammons has failed to remedy the deficiencies identified by the Court in dismissing his first complaint. They further argue that certain of Gammons's claims are duplicative and should be stricken as redundant.

         DISCUSSION

         In its exercise of diversity jurisdiction, the Court applies the substantive law of Illinois to determine the elements that Gammons must prove to establish his claims. See Sabratek Liquidating LLC v. KPMG LLP, No. 01 C 9582, 2002 WL 774185, at *2 (N.D. Ill. Apr. 26, 2002) (citing Charter Oak Fire Ins. Co. v. Hedeen, 280 F.3d 730, 735 (7th Cir. 2002)). To determine the sufficiency of Gammons's amended complaint, however, the Court looks to federal pleading standards. See id.

         Federal Rule of Civil Procedure 8(a) requires a complaint to contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). To survive a Rule 12(b)(6) motion to dismiss, the short and plain statement must meet two threshold requirements. First, the complaint's factual allegations must be sufficient to give the defendant fair notice of the claim and the grounds upon which it rests. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Second, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).

         While a complaint need not contain detailed factual allegations, there “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Id. (quoting Twombly, 550 U.S. at 557). Moreover, the Court is not bound to accept as true legal conclusions couched as factual allegations. See Id. (citing Twombly, 550 U.S. at 555). Rather, “[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.” Adams v. City of Indianapolis, 742 F.3d 720, 728 (7th Cir. 2014) (quoting Iqbal, 556 U.S. at 678).

         I. Gammons's Claims against Crown Castle

         A plaintiff bringing a negligence claim under Illinois law must establish that the defendant owed him a duty of care, that the defendant breached that duty, and that the plaintiff was injured as a proximate result of the breach. Winters v. Fru-Con Inc., 498 F.3d 734, 746 (7th Cir. 2007). “Unless a duty is owed, there is no negligence.” LaFever v. Kemlite Co., a Div. of Dyrotech Indus., Inc., 706 N.E.2d 441, 446 (Ill. 1998) (quoting Am. Nat'l Bank & Tr. Co. v. Nat'l Advert. Co., 594 N.E.2d 313, 318 (Ill. 1992)). In assessing whether a duty exists, courts generally consider the following factors: reasonable foreseeability and likelihood of the injury, the magnitude of the burden on the defendant in guarding against the injury, and the consequences of placing that burden on the defendant. See id.

         When a plaintiff alleges he was injured by a condition on the defendant's property while on the property as an invitee, Illinois courts decide the foreseeability prong of the duty test by reference to § 343 of the Restatement (Second) of Torts. See Id. at 447. Pursuant to § 343, a possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if he: (a) knows or by the exercise of reasonable care would discover the condition and should realize that it involves an unreasonable risk of harm; (b) should expect that invitees will not discover or realize the danger, or will fail to protect themselves against it; and (c) fails to exercise reasonable care to protect them against the danger. Restatement (Second) of Torts § 343 (1965). It is a prerequisite to premises liability that the defendant be a possessor of the land at issue-a person who is in occupation of the land with intent to control it. Madden v. Paschen, 916 N.E.2d 1203, 1214 (Ill.App.Ct. 2009) (citing Restatement (Second) of Torts §§ 343, 328E (1965)).

         This Court identified a number of deficiencies in Gammons's original premises liability claim against Crown Castle. First, aside from the naked assertion that Crown Castle “owned, possessed, operated, [et cetera]” the cell tower, Gammons pleaded no facts to show that Crown Castle was a “possessor” as defined above. The amended complaint still does not explain in clear terms Crown Castle's (or Verizon's) interest in, occupation of, or control over the cell tower and surrounding premises. Gammons again uses the same “owned, possessed, operated, [et cetera]” language as contained in the original complaint. (See, e.g., Am. Compl. ¶ 1 of Count I, ¶ 1 of Count IV, Dkt. No. 68.) Elsewhere in the amended complaint, however, Gammons alleges that the tower is owned by Crown Castle and leased by Verizon. (Id. ¶ 1.) He further alleges that Crown Castle is the owner and controller of the premises and cell tower while Verizon is the owner and controller of certain portions of the tower. (Id. ¶ 4 of Count I, ¶ 4 of Count IV.) Although not a model of clarity, these allegations allow the reasonable inference that both Crown Castle and Verizon meet the definition of “possessor” for purposes of premises liability.[3]

         In addition, Gammons's original complaint did not contain any facts, as opposed to legal conclusions, to show that Crown Castle knew or should have known of the allegedly dangerous condition of the cell tower, should have realized that that condition posed an unreasonable risk of harm, or should have expected that invitees such as Gammons would not realize the danger or would fail to protect themselves against it. (See Mem. Op. & Order at 5, Dkt. No. 62.) In an effort to overcome those deficiencies, Gammons has included the following allegations in his amended complaint:

Crown Castle contracted with P & D Antenna to perform elevated work on the cell tower and thus knew or should have known that individuals would be performing said work. (See Am. Compl. ¶¶ 4, 6 of Count I, Dkt. No. 68.)
Crown Castle knew or should have known that individuals performing said work would be required to climb the tower and would be unprotected from a fall and exposed to a dangerous condition if they were required to do so without the use of safety cables, safety connections, or climbing pegs. (See Id. ¶¶ 6-7 of Count I.)
Crown Castle knew or should have known that omitting or removing such safety equipment would make the tower difficult and dangerous to climb and could cause injury to individuals performing said ...

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