United States District Court, S.D. Illinois
MEMORANDUM & ORDER
PHIL GILBERT DISTRICT JUDGE.
matter comes before the Court on two motions. The first is a
motion for summary judgment filed by third-party defendant
Safety International, LLC on the third-party complaint in
this case. (Doc. 234.) The second is Safety International,
LLC's motion to exclude the opinions of two of the
third-party plaintiffs' expert witnesses. (Doc. 239.) The
Court held oral arguments on both motions on January 4, 2018.
At the conclusion of the hearing, the Court granted in part
and denied in part the motion to exclude and explained its
full rationale for doing so on the record. The Court took the
motion for summary judgment under advisement. Now, for the
following reasons, the Court DENIES the
motion for summary judgment.
in 2013, plaintiff Thomas Roberts was driving his truck on
I-70 westbound in Madison County, Illinois. When Roberts
entered a construction zone-one he had been aware of for
several weeks because of his regular travel through the
area-the lanes merged from two to one. (Thomas Roberts Dep.,
Doc. 241-1, pp. 56-57.) Roberts did not see a sign indicating
that a flagger was ahead, but he spotted a flagger anyways at
a distance of around 100 yards. The flagger was holding a
sign that said “SLOW”, so Roberts slowed down
from 45 MPH to some unspecified slower speed. (Id.
at 66-67.) When Roberts was about 50 yards from the flagger,
the flagger abruptly flipped the sign around to
“STOP”-even though there were no trucks entering
or leaving the site, no vehicles in the open lane on the
other side of the flagger, and the flagger did not appear to
be communicating with anyone. The flagger also failed to
raise his other hand to indicate the stop, as required by
law. Regardless, Roberts slammed on the brakes and came to a
quick stop merely 12 yards from the flagger. (Id. at
Alexandre Solomakha had been driving a freightliner behind
Roberts for about two miles before the stop. The distance
between the two vehicles was around one-and-a-half
freightliners. (Alexandre Solomakha Dep., Doc. 241-2, p.
113.) Solomakha also never saw a “flagger ahead”
sign, but he did see the flagger haphazardly playing with the
sign by flipping it back and forth. (Id. at 117.)
When Solomakha noticed that Roberts started to slow down,
Solomakha slowed down too. But when Roberts slammed on his
brakes, Solomakha was not able to stop his freightliner in
time. Though the freightliner had slowed dramatically and was
almost completely stopped at the time of the impact, it still
rear-ended Roberts. (Id. at 122-23, 129.)
the crash, Roberts sued Solomakha in this Court for
negligence stemming from the crash. Roberts also sued several
more defendants, including Alexandria Transportation-which is
owned by Solomakha-and Alex Express, LLC: the company that
Solomakha was delivering freight for at the time of the
accident. Roberts's wife Diane joined in the suit on a
loss of consortium theory.
Alexandria Transportation, and Alex Express then brought a
third party-complaint against several third-party defendants
for their role in failing to maintain the safety of the
construction site, on the theory that if Solomakha/Alexandria
Transportation/Alex Express are liable to plaintiff Roberts
in negligence for the crash, then the third-party defendants
are also liable as joint tortfeasors because they failed
their duty to keep the construction site safe for the general
public to drive through. One of those third-party defendants
is Safety International, LLC (“Safety”). The
general contractor for the site, Edwards-Kamadulski, LLC
(“Edwards”), retained Safety via an oral
agreement to be responsible for, well, safety issues at the
oral agreement is what complicates this case. Safety claims
that their responsibilities under the oral agreement are
clear: Safety was only responsible for employee safety
compliance and training at the worksite. They were to
effectuate this responsibility by developing a compliance
plan to be implemented by Edwards and their subcontractors,
as well as providing a small amount of Occupational Health
and Safety Administration (OSHA) training with the
supervisors and project foremen at the site. Safety is a
small shop-made up of only two people-and Safety argues that
they never provide services to anyone other than this routine
Alexandria Transportation, and Alex Express vehemently
disagree with Safety's interpretation of the oral
contract. They argue that Safety had a duty to the general
public-not just employees at the site-to exercise reasonable
care in the operation, maintenance, management, and
inspection of the site. Under this interpretation,
Safety's duty extends to training the flaggers
responsible for directing public traffic through the
construction zone. Since Safety has admitted that they did
not provide any traffic control services to Edwards, and the
flagger was an employee of Edwards (Kevin Edwards Dep., Doc.
241-5, p. 61), the third-party plaintiffs believe that Safety
categorically failed to carry out their contractual duties
and should be liable as a joint tortfeasor.
judgment must be granted “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes
Wheels Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir.
2000). The Court must construe the evidence in the light most
favorable to the nonmoving party and draw all reasonable
inferences in favor of that party. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986);
Chelios v. Heavener, 520 F.3d 678, 685 (7th Cir.
2008); Spath, 211 F.3d at 396.
initial summary judgment burden of production is on the
moving party to show the Court that there is no reason to
have a trial. Celotex, 477 U.S. at 323;
Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir.
2013). If the moving party bears the burden of persuasion on
an issue at trial, it must “lay out the elements of the
claim, cite the facts which it believes satisfies these
elements, and demonstrate why the record is so one-sided as
to rule out the prospect of a finding in favor of the
non-movant on the claim.” Hotel 71 Mezz Lender LLC
v. National Ret. Fund, 778 F.3d 593, 601 (7th Cir.
2015); accord Felix v. Wisconsin Dep't of
Transp., 828 F.3d 560, 570 (7th Cir. 2016). Where the
moving party fails to meet that strict burden, the Court
cannot enter summary judgment for that party even if the
opposing party fails to present relevant evidence in
response. Cooper v. Lane, 969 F.2d 368, 371 (7th
responding to a motion for summary judgment, the nonmoving
party may not simply rest upon the allegations contained in
the pleadings, but must present specific facts to show that a
genuine issue of material fact exists. Celotex, 477
U.S. at 322-26; Anderson, 477 U.S. at 256-57;
Modrowski, 712 F.3d at 1168. A genuine issue of
material fact is not demonstrated by the mere existence of
“some alleged factual dispute between the parties,
” Anderson, 477 U.S. at 247, or by “some
metaphysical doubt as to the material facts”.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). Rather, a genuine ...