United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
R. Wood United States District Judge
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.
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. (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.
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.)
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.
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.
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).
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).
Gammons's Claims against Crown Castle
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.
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
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
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.
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 ...