17 F.3d 199 (7th Cir. 1994), 93-2246, Green v. Whiteco Industries, Inc.

Docket Nº:93-2246.
Citation:17 F.3d 199
Party Name:Willie GREEN, III, Plaintiff-Appellant, v. WHITECO INDUSTRIES, INC. and Joel J. Nygra, Defendants-Appellees.
Case Date:February 18, 1994
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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17 F.3d 199 (7th Cir. 1994)

Willie GREEN, III, Plaintiff-Appellant,


WHITECO INDUSTRIES, INC. and Joel J. Nygra, Defendants-Appellees.

No. 93-2246.

United States Court of Appeals, Seventh Circuit

February 18, 1994

Argued Dec. 7, 1993.

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Miles Trapolin, New Orleans, LA (argued), for plaintiff-appellant.

Thomas A. Carton, James R. Branit (argued), Bullaro, Carton & Stone, Chicago, IL, for defendant-appellee.

Joel J. Nygra, pro se.

Before BAUER, WOOD, Jr., and FLAUM, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

Willie Green, III ("plaintiff") filed a two-count diversity complaint against the defendants, Whiteco Industries, Inc. ("Whiteco") and Joel J. Nygra ("Nygra"). He alleged that he suffered damage to his ear and hearing loss when a sound blast occurred during a concert in which he was performing. Count I of the complaint alleged negligence against Whiteco--the concert promoter and owner of the theater, and Nygra--one of the operators of the sound system. Count II alleged strict products liability against Whiteco only. The magistrate entered summary judgment in favor of Whiteco and Green appealed. 1


Plaintiff is a drummer in the band "The Neville Brothers." On the night of July 7, 1988, this band was performing at the Holiday Star Theater in Merrillville, Indiana. Whiteco owned and operated the theater. Whiteco had contracted with the Neville Brothers to perform at the theater. The contract provided in part that Whiteco would provide a "professional quality sound system ... and engineer/operator." Whiteco provided a sound system, which it had leased from another party, and hired Joel Nygra to operate the sound system for that concert.

Plaintiff alleged in his complaint that during the concert he signalled to the stagehand that he needed to hear more saxophone from his speaker, which was three feet from his head. He next alleged that the stagehand relayed this message to Nygra. Finally he alleged that after the stagehand gave this message to Nygra, the volume of the speaker shot upward causing a sound blast and knocking plaintiff from his stool. Plaintiff

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claimed that this sound blast permanently damaged his ear and caused hearing loss. Count I of the complaint alleged that the sound blast resulted from the negligence of Whiteco and Nygra. Count II alleged that the sound system was in a defective condition unreasonably dangerous and Whiteco should be liable for strict products liability.

Whiteco filed two motions for summary judgment. In the first motion, the court ruled that Whiteco could not be liable for products liability under Indiana law 2 because it did not fit the definition of a "seller." It also held that Whiteco could not be held vicariously liable for any negligent acts of Nygra because, based on the undisputed facts, Nygra was an independent contractor. In the next motion for summary judgment Whiteco argued that it was entitled to judgment because there was no question of fact and there was absolutely no evidence that it breached any duty to provide a safe sound system or sound system monitor. The court granted the motion stating that there was no evidence that a sound blast occurred. In fact the only evidence, the court found, showed that the sound system operated properly the entire evening.

After the court entered summary judgment in favor of Whiteco on the second motion, plaintiff filed a motion to reconsider that ruling and submitted affidavits from band members that a sound blast had occurred (i.e. that the sound system did not operate properly). The court denied the plaintiff's motion holding that he should have produced these affidavits during the pendency of the summary judgment motion. Plaintiff now appeals the grant of summary judgment on all counts.


We examine a grant of summary judgment under a de novo standard of review. PPG Indus. v. Russell, 887 F.2d 820, 823 (7th Cir.1989). On a motion for summary judgment, the moving party has the burden of demonstrating that there are no genuine questions of material fact and that he is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). This burden "may be discharged by 'showing'--that is, pointing out to the district court--that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). 3 Furthermore, the Supreme Court has held that

the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against any party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party would bear the burden of proof at trial.

Id. at 322, 106 S.Ct. at 2552. Keeping these principles in mind we will examine the motions for summary judgment in reverse order below.


In its second motion for summary judgment, Whiteco specifically argued that there was not a shred of evidence that there was a defect with the sound system or that it operated improperly during the concert. Therefore, Whiteco argued, there could be no breach of a duty to provide, inspect and monitor a properly-functioning and safe sound system. In fact, as Whiteco noted to the court, the only evidence on this point was the deposition testimony of defendant Nygra, that showed the sound system operated perfectly; not only was there no sound blast, but there were no problems with the sound system whatsoever. 4

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One of the basic elements of negligence is a breach of a duty. Lucas v. Dorsey Corp., 609 N.E.2d 1191, 1198 (Ind.Ct.App.1993). Plaintiff would bear the burden of proof on this point at trial. Id. Even assuming that Whiteco had a duty to provide, maintain, or monitor a safe and properly-functioning sound system, plaintiff would still have to prove that Whiteco breached that duty by proving, at a minimum, that the system malfunctioned in some way.

According to the rule set forth in Celotex, once Whiteco pointed out to the court that there was no evidence of any problem with the sound system, plaintiff then had the burden of countering this by going "beyond the pleadings" and coming forth with specific facts to demonstrate the existence of a genuine, material,...

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