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Hutchison v. Fitzgerald Equipment Co., Inc.

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

May 4, 2018

STANLEY HUTCHISON, Plaintiff,
v.
FITZGERALD EQUIPMENT CO., INC., Defendant. FITZGERALD EQUIPMENT CO., INC., Third Party Plaintiff,
v.
BORKHOLDER CORPORATION, Third Party Defendant.

          MEMORANDUM OPINION AND ORDER

          MARVIN E. ASPEN UNITED STATES DISTRICT JUDGE.

         Plaintiff Stanley Hutchison filed a two-count complaint against Defendant Fitzgerald Equipment Co., Inc. (“Defendant” or “Fitzgerald”), seeking to recover for injuries stemming from a forklift accident. (2d Am. Compl. (Dkt. No. 85).) Presently before us is Defendant's motion for summary judgment on Plaintiff's negligence claim pursuant to Federal Rule of Civil Procedure 56. (Dkt. No. 68.) Also before us is Defendant's motion to dismiss Plaintiff's in concert liability claim pursuant to Rule 12(b)(6). (Dkt. No. 86.) For the reasons stated below, Defendant's motions are granted.

         FACTUAL BACKGROUND

         Plaintiff worked as a truck driver for Borkholder Corporation (“Borkholder”) for almost 30 years. (Def's L.R. 56.1(a) Statement of Material Facts (“SOF”) (Dkt. No. 70) ¶ 1.)[1] On August 19, 2013, Plaintiff arrived at Borkholder's Metamora, Illinois facility with an empty tractor-trailer to pick up a load of bundled foam insulation. (2d Am. Compl. ¶ 6.) At the time, Chad Schierer was the primary forklift driver and yard foreman at the Metamora facility and was responsible for loading and unloading deliveries with a forklift. (Id. ¶ 7.) As Schierer was working to move the foam insulation onto the trailer, he reversed the forklift and ran over Plaintiff's left foot with the right rear tire of the forklift. (Id. ¶ 8; SOF ¶¶ 13-14.) Schierer did not see Plaintiff standing to his right side and only recalled looking over his left shoulder before he turned the wheel of the forklift and reversed. (SOF ¶¶ 15-16.) Plaintiff did not hear a backup signal from the forklift. (Id. ¶ 18.)

         The forklift involved in the accident was a Caterpillar Model No. DP40 owned by Borkholder. (Id. ¶ 5.) Borkholder was responsible for controlling, maintaining, and inspecting the forklift on a daily basis pursuant to regulations promulgated by the Occupational Safety and Health Administration (“OSHA”). (Id. ¶ 20 (citing 29 CFR 1910.178).) Defendant Fitzgerald is a service and repair company that services all makes of industrial trucks, including forklifts. (Id. ¶ 3.) With respect to the Caterpillar forklift involved in the accident, Defendant entered into an Operational Maintenance Agreement (“Maintenance Agreement”) with Borkholder on March 15, 2004 to provide preventative maintenance. (Id. ¶ 26.) The agreement solely covers the forklift and states that Defendant agreed to “perform the lubrication and operational maintenance inspection as described on the Operational Maintenance Report Form applying to this agreement and [Borkholder] agree[s] to pay for the same, effective from 3/04 and approximately every 90 days thereafter.” (Id. ¶ 27; Maint. Agreement (Dkt. No. 71-5).) Defendant could only perform repairs upon the forklift per Borkholder's request and authorization. (Id. ¶ 29.) Defendant contends that pursuant to the Maintenance Agreement, it was only obligated to perform lubrication and oil changes on the forklift.[2] (Id. ¶ 30.)

         The forklift was not designed, manufactured, or shipped to its original purchaser with a backup alarm, and the parties stipulate that no regulations required the forklift to be equipped with a backup alarm on August 19, 2013. (Id. ¶¶ 19, 35-36.) However, the parties dispute whether the forklift had a backup alarm installed on it at the time of the accident. (Id. ¶ 21; Pl.'s SOF ¶ 21.) None of Borkholder's employees could recall whether the forklift had a backup alarm on the date of the accident.[3] (See SOF ¶ 21.) The forklift was serviced several times in 2013 prior to the accident. It is undisputed that on April 5, 2013, Patrick Boyer, one of Defendant's technicians, inspected the Caterpillar forklift pursuant to the Maintenance Agreement. (Id. ¶ 31.) Boyer later performed repair work on the forklift on April 22, 2013 and on April 25, 2013 in accordance with Borkholder's authorization. (Id.) Boyer did not remember whether the forklift had a backup alarm at the time, but he “did not note a malfunctioning backup alarm during his preventative maintenance on his checklist” during his April inspections. (Id. ¶ 32.) Likewise, on July 16, 2013, Defendant's technician Bryan Burden replaced the starter on the forklift at Borkholder's request; he did not remember whether the forklift had a backup alarm. (Id. ¶ 33.) After the accident, Borkholder requested and authorized HuppToyotalift to install a backup alarm on the forklift. (Id. ¶¶ 23-24.) On October 1, 2013, Todd Mull, a HuppToyotalift technician, mounted and wired a new backup alarm and affirmed the forklift did not previously have a backup alarm. (Id. ¶¶ 24-25.)

         ANALYSIS

         I. NEGLIGENCE CLAIM (COUNT II)

         Defendant seeks summary judgment on Plaintiff's negligence claim (Count II), arguing Plaintiff cannot establish as a matter of law that Defendant owed Plaintiff a duty. (Mem. in Support of Mot. for Summ. J. (“Mem.”) (Dkt. No. 69) at 6.) Plaintiff argues Defendant breached a duty (1) to “properly identify and repair” an inoperable backup alarm on the Caterpillar forklift, or, alternatively, (2) to “recommend[] or encourage[] Borkholder to install a backup alarm on the forklift if it did not have one at the time of the accident. (Resp. at 4-5.)

         A. Legal Standard

         Summary judgment is appropriate where “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); Hanover Ins. Co. v. N. Bldg. Co., 751 F.3d 788, 791 (7th Cir. 2014). The movant bears the initial burden of “informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553 (1986) (internal quotations omitted). To survive summary judgment, the nonmoving party must make a sufficient showing of evidence for each essential element of its case on which it bears the burden of proof at trial. Kampmier v. Emeritus Corp., 472 F.3d 930, 936-937 (7th Cir. 2007) (citing Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552); Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 489-90 (7th Cir. 2007) (“A party who bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial.”) (citation omitted). A genuine issue for trial exists when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986); see also Blythe Holdings, Inc. v. DeAngelis, 750 F.3d 653, 656 (7th Cir. 2014) (“Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” (citations omitted)). We view the record in the light most favorable to the non-moving party, and draw all reasonable inferences in that party's favor. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513; Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009).

         B. Duty of Care

         To establish a claim for negligence under Illinois law, “a plaintiff must prove the existence of a duty of care owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by that breach.” Buechel v. United States, 746 F.3d 753, 763-64 (7th Cir. 2014); Thompson v. Gordon, 241 Ill.2d 428, 437, 948 N.E.2d 39, 44 (Ill. 2011). Whether or not a duty exists is a question of law. Bell v. Hutsell, 2011 IL 110724, ¶ 11, 955 N.E.2d 1099, 1104 (Ill. 2011); St. Paul Mercury Ins. v. Aargus Sec. Sys., Inc., 2013 IL App (1st) 120784, ¶ 58, 2 N.E.3d 458, 478 (1st. Dist. 2013). To determine whether a duty exists, we must “ask whether a plaintiff and a defendant stood in such a relationship to one another that the law imposed upon the defendant an obligation of reasonable conduct for the benefit of the plaintiff.” Vesely v. Armslist LLC, 762 F.3d 661, 665 (7th Cir. 2014); Simpkins v. CSX Transp., Inc., 2012 IL 110662, ¶ 18, 965 N.E.2d 1092, 1097 (Ill. 2012).

         Plaintiff concedes that Defendant owed no duty to physically “repair or install a backup alarm” on the forklift. (Resp. at 7, 9.) Rather, Plaintiff argues that pursuant to the Maintenance Agreement, Defendant should have: (1) discovered and reported to Borkholder an inoperative alarm, or (2) recommended that Borkholder install a backup alarm if the forklift had none. (Id.) Plaintiff insists Defendant owed a duty to make such recommendations to Borkholder if other forklifts and vehicles at the Metamora facility had backup alarms. (Id.)

         1. Duty to Report Inoperative Backup Alarm

         As to the first theory, Plaintiff relies on the testimony of Defendant's service manager, Doug Keach, and three of Defendant's technicians, Patrick Boyer, Bryan Burden, and Harold Hamilton. (Resp. at 8.) Plaintiff argues their testimony establishes that if a forklift they inspected had an inoperable backup alarm, it was their practice to bring it to Borkholder's attention. (Id.) However, Plaintiff failed to present any evidence indicating the forklift was equipped with a backup alarm on the date of the accident. The forklift was not designed, manufactured, or shipped to its original purchaser in 1992 with a backup alarm. (SOF ¶ 19.) Plaintiff concedes that Borkholder asked another company to mount and wire a backup alarm on the forklift on October 1, 2013, and that the technician performing the installation confirmed that “the forklift did not have any backup alarm before [he] wired and installed the new backup alarm.” (Id. ¶¶ 23-25; see also Mull Decl. (Dkt. No. 71-15) ¶ 5.) Schierer confirmed that photographs taken of the forklift the day after the accident showed no backup alarm. (Schierer Dep. at 78-81.) While Plaintiff, Schierer, and other Borkholder witnesses testified they were not sure or could not recall whether the forklift had a backup alarm on the day of the accident, the witness' inability to recall cannot alone support an inference that a backup alarm existed. (See, e.g., id. at 20-22, 26-27, 78; Pl.'s Dep. (Dkt. No. 71-7) at 54-55, 57; Nenne Dep. at 12, 27-28, 68; Myers Dep. at 11, 18.) To conclude as much would require speculation, and “inferences ...


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