United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Puhr brought this negligence suit against PQ Corporation in
the Circuit Court of Will County, Illinois, alleging injuries
from a chemical spill on PQ's premises. Doc. 1-1. PQ
removed the suit under the diversity jurisdiction. Doc. 1.
After the parties engaged in discovery, PQ moved for summary
judgment. Doc. 34. The motion is granted.
following facts are stated as favorably to Puhr as permitted
by the record and Local Rule 56.1. See Woods v. City of
Berwyn, 803 F.3d 865, 867 (7th Cir. 2015). In
considering PQ's motion, the court must assume the truth
of those facts, but does not vouch for them. See Arroyo
v. Volvo Grp. N. Am., LLC, 805 F.3d 278, 281 (7th Cir.
December 31, 2013, while working as a driver for Univar USA,
Puhr attempted to deliver sodium hydroxide-a caustic chemical
that can cause severe skin burns-to a PQ facility in Joliet,
Illinois. Doc. 34-1 at ¶¶ 1, 5, 17, 29; Doc. 39 at
¶¶ 1, 5, 17, 29. After arriving at the facility,
Puhr called the PQ office to gain entry and proceeded through
the gate. Doc. 34-1 at ¶¶ 23, 30; Doc. 39 at
¶¶ 23, 30; Doc. 39-1 at ¶ 22. Puhr backed his
truck into the area designated for unloading caustic
substances, which sloped downward. Doc. 34-1 at ¶ 29;
Doc. 39 at ¶ 29. Because he noticed “snow and so
forth” at the bottom of the slope, Puhr parked the
truck higher up the slope than he ordinarily did. Doc. 34-1
at ¶ 29; Doc. 39 at ¶ 29; Doc. 39-1 at ¶¶
donned his Univar-provided personal protective equipment
(“PPE”), which did not include protective rubber
boots. Doc. 34-1 at ¶¶ 23, 30; Doc. 39 at
¶¶ 23, 30; Doc. 39-1 at ¶ 35; Doc. 40-2. After
a PQ employee reviewed his paperwork and tested a sample of
the sodium hydroxide, Puhr connected his truck to PQ's
intake valve with a hose. Doc. 34-1 at ¶¶ 23, 30;
Doc. 39 at ¶¶ 23, 30; Doc. 39-1 at ¶¶
23-25. Having observed that the air necessary to push the
sodium hydroxide through the line was not flowing, Puhr
restarted the air compressor on his truck, opened and closed
several valves, and, with area temperatures ranging from ten
degrees Fahrenheit to as low as negative one, attempted to
heat the line with a handheld propane torch. Doc. 34-1 at
¶¶ 28, 30-31; Doc. 39 at ¶¶ 28, 30-31.
Puhr's efforts to heat the line resulted in a slight
crack to one of the valves, causing a small amount of sodium
hydroxide to leak out. Doc. 34-1 at ¶ 32; Doc. 39 at
¶ 32. Puhr ultimately determined that he could not
troubleshoot the airflow problem himself, and called
Univar's dispatcher for help. Doc. 34-1 at ¶ 34;
Doc. 39 at ¶ 34. The dispatcher advised Puhr to return
to Univar without completing the delivery. Doc. 34-1 at
¶ 36; Doc. 39 at ¶ 36.
point during his troubleshooting the line, while near the
back of the truck, Puhr noticed that he was standing in
several inches of liquid or “slush.” Doc. 39-1 at
¶ 31. By the time Puhr called the Univar dispatcher, he
felt burning in his left foot. Doc. 34-1 at ¶ 35; Doc.
39 at ¶ 35. The sensation worsened as Puhr disconnected
and stored his equipment. Doc. 34-1 at ¶ 37; Doc. 39 at
¶ 37. Puhr ultimately suffered chemical burns on the
tops of his feet attributable to walking through caustic
liquid without protective rubber boots. Doc. 34-1 at ¶
40; Doc. 39 at ¶ 40; Doc. 39-1 at ¶¶ 35-36;
parties agree that Illinois law governs this suit. See
Piotrowski v. Menard, Inc., 842 F.3d 1035, 1038 (7th
Cir. 2016). Under Illinois law, a “plaintiff …
who alleges that the defendant was negligent must show a duty
owed by the defendant, a breach of that duty, and injury that
was proximately caused by the breach.” Ibid.
As Puhr acknowledged at the summary judgment hearing, Doc.
51, his sole theory of liability is that PQ owed him a duty
of reasonable care as an invitee onto its premises, and that
it breached that duty by failing to discover and clean up the
spilled caustic liquid that caused his burns. Doc. 37 at 1-3.
Puhr accordingly has forfeited any other theory of
negligence, including that PQ breached a duty due to any
retention of control of his work. See Nichols v. Mich.
City Plant Planning Dep't, 755 F.3d 594, 600 (7th
Cir. 2014) (“The non-moving party waives any arguments
that were not raised in its response to the moving
party's motion for summary judgment.”); Keck
Garrett & Assocs., Inc. v. Nextel Commc'ns,
Inc., 517 F.3d 476, 487 (7th Cir. 2008) (“Nextel
specifically requested summary judgment on the quantum meruit
claim. Keck Garrett, however, did not defend that claim in
its reply to Nextel's motion for summary judgment. By
failing to present its argument to the district court, Keck
Garrett abandoned its claim.”); Witte v. Wis.
Dep't of Corr., 434 F.3d 1031, 1038 (7th Cir. 2006)
(“By failing to raise [an argument] in his brief
opposing summary judgment, [the plaintiff] lost the
opportunity to urge it in both the district court and this
court.”), overruled on other grounds by Hill v.
Tangherlini, 724 F.3d 965, 967 n.1 (7th Cir. 2013).
Illinois law, PQ, as a property owner, owed invitees like
Puhr “a duty to maintain the premises in a reasonably
safe condition.” Parker v. Four Seasons Hotels,
Ltd., 845 F.3d 807, 811 (7th Cir. 2017); see also
Newsom-Bogan v. Wendy's Old Fashioned Hamburgers of N.Y.,
Inc., 953 N.E.2d 427, 431 ( Ill. App. 2011) (same).
“When a business's invitee is injured by … a
foreign substance, the business can be liable if the invitee
establishes that: (1) the substance was placed there by the
negligence of the business; (2) the business had actual
notice of the substance; or (3) the business had constructive
notice of the substance.” Piotrowski, 842 F.3d
at 1038. Because the record evidence would not permit a
reasonable juror to find PQ liable under any of these three
theories, PQ is entitled to summary judgment.
PQ Did Not Create the Dangerous Condition.
the first theory of liability, “[t]o prove that the
defendant business, as opposed to a third person, created the
dangerous condition, ” the plaintiff must “(1)
show that the foreign substance was related to the
defendant's business and (2) ‘offer some further
evidence … from which it could be inferred that it was
more likely that defendant or his servants, rather than a
customer, dropped the substance on the premises …
.'” Zuppardi v. Wal-Mart Stores, Inc., 770
F.3d 644, 649-50 (7th Cir. 2014) (quoting Donoho v.
O'Connell's, Inc., 148 N.E.2d 434, 439 (Ill.
1958)). Puhr's attempt to establish liability under this
theory founders on the second requirement, as the summary
judgment record would not permit a reasonable juror to find
that it was more likely than not that PQ-as opposed to, say,
either Puhr himself or a recent delivery from a
non-party-created the accumulation of caustic liquid that
contends that Tom Skala-the PQ employee who, on the day in
question, was responsible for processing Puhr's
paperwork, testing the sodium hydroxide sample, and unlocking
PQ's intake valve, Doc. 39-1 at ¶ 25-“was
never actually informed … of PQ company policy to
remove all standing water and material in the unloading
area.” Doc. 37 at 11. Consequently, Puhr contends that
Skala's “omissions are what created and
allowed the dangerous conditions to exist that Puhr was
exposed to.” Id. at 12. (emphasis added). But
the fact that a PQ employee failed to clean up the spill in
violation of PQ's policies does not make it more probable
than not that a PQ employee was responsible for causing the
spill in the first place. See Piotrowski, 842 F.3d
at 1039 (holding that because the plaintiff did not
“see the rocks [that injured her] fall, and neither she
nor anyone else to whom she points knew how the rocks at
issue ended up where they did, ” she could only
speculate that an employee of the defendant “could have
caused the rocks to spill”); Zuppardi, 770
F.3d at 650 (“Zuppardi does not come close to setting
forth sufficient evidence, either direct or circumstantial,
to create an inference that Wal-Mart caused the spill. She
did not see the water prior to the fall nor did she know how
the water accumulated.”); Culli v. Marathon
Petroleum Co., 862 F.2d 119, 123 (7th Cir. 1988) (noting
that summary judgment is appropriate where “[t]here was
no evidence that the defendants placed the substance
on their property”) (emphasis added).
PQ Did Not Have Actual Notice of the ...