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Puhr v. PQ Corp.

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

January 3, 2018

GARY PUHR, Plaintiff,


          Gary Feinerman Judge.

         Gary 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.


         The 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. 2015).

         On 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 ¶¶ 29-30.

         Puhr 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.

         At some 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; Doc. 40-2.


         The 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).

         Under 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.

         I. PQ Did Not Create the Dangerous Condition.

         As to 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 injured him.

         Puhr 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).

         II. PQ Did Not Have Actual Notice of the ...

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