United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
Michael J. Reagan United States District Judge.
August 30, 2015, a fire occurred in the duct system above a
wood-burning stove/broiler/grill (“grill”) in the
kitchen of the Firefly Bar & Grill in Effingham,
Illinois. The fire resulted in significant damage to the
restaurant and necessitated replacement of ductwork in the
grill's exhaust system.
Firefly, owned by Niall Campbell, made a claim under an
insurance policy issued by Midwest Family Mutual Insurance
Company. Midwest paid its insured, the Firefly, $100, 472.33
under the policy and then, as subrogee, filed this negligence
action to pursue claims against two companies Midwest alleges
are responsible for the fire - (1) Merz Heating and Air
Conditioning, Inc., who designed and installed the ductwork
over the grill at the Firefly, and (2) Rock Solid Surface
Restoration, Inc., who cleaned and maintained the ductwork
and exhaust system.
Court enjoys subject matter jurisdiction under the federal
diversity statute, 28 U.S.C. 1332. The first amended
complaint (Doc. 12) indicates that Plaintiff Midwest is an
Iowa citizen (incorporated and maintaining its principal
place of business there), both Defendants are Illinois
citizens (incorporated and maintaining a principal place of
business there), and the amount in controversy suffices. The
case is now before the Court on motions for summary judgment
separately filed by Defendants on February 13, 2017 (Docs.
27-28). Midwest responded to both motions on March 21, 2017
(Docs. 35, 36). Merz and Rock Solid filed authorized reply
briefs on April 3, 2017 and April 4, 2017, respectively
(Docs. 39-40). For the reasons stated below, the Court denies
Merz's motion and partially grants/partially denies Rock
Overview of Key Allegations, Evidence, and
to Midwest, in 2005, Merz designed and installed the original
ductwork used to carry exhaust from the wood-fired grill out
of the Firefly. (In its answer, Merz denied that it designed
the original ductwork; see Doc. 16, p. 2.) Following
a fire at the Firefly in January 2011, Merz designed and
installed new ductwork for the grill. This new
ductwork contained several 90-degree angles to vent the
exhaust from the grill. Shortly after the 2011 ductwork was
installed, the owners of the Firefly hired Rock Solid to
periodically clean various portions of the restaurant,
including the ductwork on the grill. Rock Solid last cleaned
the ductwork on July 28, 2015. Approximately one week later
(on August 3, 2015), Rock Solid's owner (Barry Brown)
installed an additional access panel on the ductwork.
August 30, 2015, a fire started in the ductwork above the
grill. The fire caused significant damage to the building,
required the Firefly to cease operations for a period, and
resulted in replacement of the ductwork. This current
ductwork exits directly from the grill through the building
and does not contain any 90-degree angled sections or bends.
Count I of the amended complaint, Midwest alleges that Merz
was negligent in failing to exercise reasonable care in the
design, manufacture, and installation of the ductwork so as
to prevent excessive build-up of flammable materials in the
ductwork and ensure the ductwork would not ignite and expose
the property to damage. More specifically, Midwest alleges
that Merz failed to comply with design and industry standards
and failed to install adequate access panels in the ductwork
to allow it to be properly cleaned.
Count II of the amended complaint, Midwest alleges that Rock
Solid failed to exercise reasonable care in the cleaning and
maintenance of the ductwork at the Firefly. More
specifically, Midwest alleges that Rock Solid negligently
maintained the ductwork and exhaust system, failed to timely
notify the Firefly of any difficulties in cleaning the
ductwork, failed to install adequate access panels in the
ductwork to allow for proper cleaning, improperly installed
an additional access panel in the ductwork, failed to comply
with known industry standards, and failed to adequately
inspect and supervise its employees' work on the system.
summary judgment, Merz contends that the testimony of
Midwest's own expert “eliminates any genuine issue
to be determined” by a trier of fact, as there is no
evidence of proximate cause between the actions of Merz
(i.e., designing/ installing ductwork that had angles or
bends and designing/installing ductwork with insufficient
access points to facilitate cleaning) and the fire that
damaged the Firefly in August 2015. Merz emphasizes that
Midwest's own expert testified that an applicable safety
standard (the “NFPA 96” standard for ventilation
control and fire protection of commercial cooking operations)
requires inspections for grease build-up every 30 days, that
those inspections are the responsibility of the restaurant
owner, and that inspections did not timely occur here in the
lead-up to the subject fire.
motion for summary judgment, Rock Solid asserts that Midwest
has produced no evidence to support the contention that Rock
Solid was negligent in cleaning the ductwork system or that
Rock Solid's installation of an extra access panel in any
way caused or contributed to the loss. Rock Solid maintains
that Midwest cannot meet its burden of proving that its
damages were proximately caused by Rock Solid, because (1)
the undisputed evidence establishes that the insured failed
to have the ductwork cleaned in compliance with NFPA 96, and
(2) Midwest offers only unfounded speculation that the
ductwork was not sufficiently or properly cleaned by Rock
Solid 33 days before the fire. Analysis starts with reference
to the legal standards governing resolution of the pending
Applicable Legal Standards
the undersigned exercises diversity jurisdiction in this
action, state substantive law applies and federal procedural
rules apply. See, e.g., Doermer v. Callen, 847 F.3d
522, 529 (7th Cir. 2017), citing Goesel v.
Boley Int'l (H.K.) Ltd., 806 F.3d 414, 419
(7th Cir. 2015), and Erie Railroad Co. v.
Tompkins, 304 U.S. 64 (1938). See also Great West
Cas. Co. v. Robbins, 833 F.3d 711, 715 (7th
courts deciding state law claims apply the forum state's
choice of law rules to select the applicable state
substantive law, and if no party has raised the choice-of-law
issue, “the federal court may simply apply the forum
state's substantive law.” Selective Ins. Co. of
South Carolina v. Target Corp., 845 F.3d 263, 266
(7th Cir. 2016), quoting McCoy v. Iberdrola
Renewables, Inc., 760 F.3d 674, 684 (7th Cir.
2014). As Rock Solid points out (Doc. 28, p. 5), no one
disputes that Illinois substantive law applies here.
prevail on a negligence claim under Illinois law, the
plaintiff must prove the existence of a duty of care owed by
the defendant to the plaintiff, a breach of that duty by the
defendant, and an injury to plaintiff proximately caused by
the breach. Vesely v. Armslist LLC, 762 F.3d 661,
664 (7th Cir. 2014), citing Buechel v.
U.S., 746 F.3d 753, 763-64 (7th Cir. 2014),
and Thompson v. Gordon, 948 N.E.2d 39, 45 (Ill.
2011). The existence of a duty is a question of law which the
court must decide. Id. The issues of breach and
proximate cause are questions of fact for the jury to decide,
“provided there is a genuine issue of material fact
regarding those issues.” Hollenbeck v. City of
Tuscola, -- N.E.3d --, 2017 WL 977157 ( Ill. App. March
13, 2017), quoting Espinoza v. Elgin, Joliet &
Eastern Ry. Co., 649 N.E.2d 1323, 1326 (Ill. 1995).
Accord Furry v. U.S., 712 F.3d 988, 992
(7th Cir. 2013) (usually breach and proximate
cause are factual matters for the jury, but when “there
is no material issue regarding the matter or only one
conclusion is clearly evident, ” breach and proximate
cause “become questions of law.”).
Rule of Civil Procedure 56 governs motions for summary
judgment. Summary judgment is appropriate where the
admissible evidence shows that there is no genuine dispute as
to any material fact, and the movant is entitled to judgment
as a matter of law. Taylor-Novotny v. Health Alliance
Medical Plans, Inc., 772 F.3d 478, 488 (7th
Cir. 2014). Accord Archdiocese of Milwaukee v. Doe,
743 F.3d 1101, 1105 (7thCir. 2014),
citing Fed. R. Civ. P. 56. A "material
fact" is a fact that affects the outcome of the lawsuit,
i.e., it is outcome-determinative under the applicable
substantive law. Taylor-Novotny, 772 F.3d at 488;
Hanover Ins. Co. v. Northern Bldg. Co., 751 F.3d
788, 791 (7th Cir.), cert. denied, 135
S.Ct. 280 (2014).
genuine issue of material fact remains (and summary judgment
should be denied), “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Miller v. Gonzalez, 761 F.3d 822, 827
(7th Cir. 2014), quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). However, if the
factual record taken as a whole could not lead a
reasonable jury to find for the non-moving party, there is
nothing for the jury to do, and summary judgment is properly
granted. Bunn v. Khoury Enterpr., Inc., 753 F.3d
676, 682 (7th Cir. 2014), citing Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
assessing whether a genuine issue of material fact exists,
this Court views the record in the light most favorable to
the non-moving party. Bunn, 753 F.3d at 682. See
also 520 South Michigan Ave. Associates, Ltd. v. Unite Here
Local 1, 760 F.3d 708, 718 (7th Cir. 2014).
The undersigned examines the competent evidence of record
“in the light reasonably most favorable to the
non-moving party, ” giving the non-movant the benefit
of reasonable, favorable inferences and resolving conflicts
in the evidence in the non-movant's favor. Spaine v.
Community Contacts, Inc., 756 F.3d 542, 544
(7th Cir. 2014).
Analysis of Merz's Motion for Summary Judgment
succeed on a negligence claim under Illinois law, a plaintiff
must prove that the defendant owed a duty to the plaintiff,
that the defendant breached that duty, and that the breach
was the proximate cause of the plaintiff's injuries.
Furry, 712 F.3d at 992, citing First Springfield
Bank & Trust v. Galman, 720 N.E.2d 1068, 1071 (Ill.
1999). In this case, Merz takes issue only with the element
of proximate cause - the connection between Merz's
actions and the August 2015 fire that damaged the Firefly.
establish proximate cause, the plaintiff bears the burden of
affirmatively showing that the defendant's alleged
negligence caused the injury or damage for which the
plaintiff seeks to recover. Berke v. Manilow, 63
N.E.3d 194, 204 ( Ill. App. 2016). Illinois law defines
proximate cause as “a cause that, in the ordinary
course of events produced the plaintiff's injury, ”
but it “need not be the only or last cause; rather, the
combination of multiple causes may result in the
injury.” Atchley v. University of Chicago Medical
Center, 64 N.E.3d 781, 794 ( Ill. App. 2016).
cause is comprised of two distinct requirements --
“cause in fact” and “legal cause.”
Id.; Jones v. Live Nation Entertainment, Inc., 63
N.E.3d 959, 973-94 ( Ill. App. 2016). In Illinois negligence
actions, causation requires proof of both cause in
fact and legal cause. Thacker v. UNR Industries,
Inc., 603 N.E.2d 449, 455 (Ill. 1992).
in fact exists if a there is a reasonable certainty that
the defendant's acts caused the injury (i.e., if
“the defendant's conduct was a material and
substantial factor in bringing about the claimant's
injury”). Atchley, 64 N.E.3d at 794,
citing Abrams v. City of Chicago, 811 N.E.2d 670 (Ill.
2004). Conduct constitutes a “material and substantial
factor” if the injury would not have occurred absent
the defendant's conduct. Id. Stated another way,
courts often use two tests when assessing cause in fact - the
substantial-factor test and the traditional but-for test.
Union Planters Bank, N.A. v. Thompson Coburn LLP,
935 N.E.2d 998, 1021 ( Ill. App. 2010).
contrast, legal cause looks to whether the
injury/damage is one that a reasonable person would consider
to be a likely consequence of his conduct or, instead,
whether the injury/damage is so highly extraordinary that
imposing liability is not justified (although a person need
not be able to foresee the precise way the injury would occur
or the extent of the injury). Id., citing Young
v. Bryco Arms,821 N.E.2d 1078 (Ill. 2004), and
Hooper v. County of Cook,851 N.E.2d 663 ( Ill. App.
2006). Legal cause presents a policy question and exists if
the defendant's conduct is closely enough ...