686 F.3d 394 (7th Cir. 2012), 11-2747, Sojka v. Bovis Lend Lease, Inc.

Docket Nº:11-2747.
Citation:686 F.3d 394
Opinion Judge:WOOD, Circuit Judge.
Party Name:Christopher SOJKA, Jr., Plaintiff-Appellant, v. BOVIS LEND LEASE, INC., Defendant-Appellee.
Attorney:Michael W. Rathsack (argued), Attorney, Chicago, IL, for Plaintiff-Appellant. Mark Englund Christensen, Katherine Amelotte Jones (argued), Attorneys, Christensen & Ehret, Chicago, IL, for Defendant-Appellee.
Judge Panel:Before BAUER, MANION, and WOOD, Circuit Judges.
Case Date:July 10, 2012
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 394

686 F.3d 394 (7th Cir. 2012)

Christopher SOJKA, Jr., Plaintiff-Appellant,


BOVIS LEND LEASE, INC., Defendant-Appellee.

No. 11-2747.

United States Court of Appeals, Seventh Circuit.

July 10, 2012

Argued Jan. 18, 2012.

Rehearing Denied Aug. 7, 2012.

Michael W. Rathsack (argued), Attorney, Chicago, IL, for Plaintiff-Appellant.

Page 395

Mark Englund Christensen, Katherine Amelotte Jones (argued), Attorneys, Christensen & Ehret, Chicago, IL, for Defendant-Appellee.

Before BAUER, MANION, and WOOD, Circuit Judges.

WOOD, Circuit Judge.

Christopher Sojka, Jr. sustained severe eye injuries while working as a carpenter on the Trump Tower construction project. He sued Trump Tower's construction manager, Bovis Lend Lease, asserting that it had been negligent. Bovis moved for summary judgment on the ground that it did not owe Sojka any duty of care to provide a safe workplace, and (jumping from the general to the particular) that even if it did, it had not breached such a duty because it had no knowledge that Sojka's safety glasses were inadequate to prevent the injury. Sojka failed to address this argument in his response to Bovis's motion for summary judgment. Bovis thus urged the court to grant its motion in light of what it saw as Sojka's concession that there was no dispute of material fact on that point, and that is exactly what the district court did.

In our view, even though the court was correct that Sojka conceded the eyewear point by failing to respond to it, this took too narrow a view of Sojka's case. His response to Bovis's motion for summary judgment— consisting of both a memorandum of law and a corresponding statement of material facts— addressed several other ways in which Bovis's negligence allegedly caused Sojka's injuries. We conclude that because a dispute of material fact remains on those theories, summary judgment for Bovis was inappropriate. We therefore reverse.


In 2008, Sojka was working on the upper floors of the Trump Tower construction project in downtown Chicago. He was trying to repair a steel cable that held safety netting around the upper floors of the project when the wind knocked him back and a piece of metal struck his eye, causing severe injuries. Although Sojka was wearing safety glasses at the time, they apparently did not fit his face properly; instead, they left a small gap at the top of his eyes that allowed debris to penetrate.

Sojka sued Bovis Lend Lease in Illinois state court to recover for his injury. Bovis removed the action to federal court, as the parties are completely diverse (Sojka is domiciled in Illinois; Bovis is incorporated in Florida with its principal place of business in New York) and the amount in controversy exceeds $75,000.

The complaint contained one count of construction negligence, a cause of action recognized in Illinois law. Sojka alleged that Bovis had a duty to provide him with a safe workplace and then listed seven theories about how Bovis had breached this duty (in addition to an eighth catchall allegation that Bovis " was otherwise negligent" ). The first four theories of breach all made a similar allegation: that Bovis knew or should have known that weather conditions at the site were unsafe at the time in question, and it either should not have allowed work to proceed or should have stopped ongoing work. The last three theories set forth general allegations about Bovis's failure to manage the site, failure to supervise work, and failure to provide a safe environment. The complaint made no mention of the eyewear issued to the workers.

The parties proceeded to discovery and Bovis moved for summary judgment. Bovis presented two arguments in support of

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its motion: it did not owe Sojka a duty of care under Illinois law, and even if it did, it did not breach that duty because it had no knowledge that Sojka's protective eyewear was inadequate. In Sojka's memorandum of law in response, he contested Bovis's view of its duties under Illinois law, but he responded only generally to Bovis's argument about breach with respect to the safety glasses. In fact, Sojka stated that " the duty to provide a safe work site for all employees goes well beyond the issue of safety glasses." He argued that Bovis " shared responsibility for the dangerous conditions which led to Sojka's injuries" and thus proximately caused those injuries.

Although Sojka did not elaborate in the memorandum about the other dangerous conditions that caused his injury, he furnished that information in his attached Rule 56.1 statement of facts. The Rule 56.1 statement referred to evidence that wind was constantly a problem at the worksite and was a notable problem on the day of his injury. Bovis's employees had the authority to stop work in unsafe wind conditions and had done so in the past, but they did not do so on the day Sojka was hurt. The 56.1 statement also pointed to evidence that Sojka was a " greenhorn" (a carpenter without much experience) and thus Sojka should have been working with a more experienced " journeyman" to help him respond to the windy conditions and assess safety threats more accurately.

Bovis's reply asserted that Sojka had failed to respond to its argument about breach with respect to the safety glasses, and thus that the district court should find that Sojka had conceded the point. With that possibility conceded, Bovis maintained, it was entitled to summary judgment in its favor. The district court adopted Bovis's suggestion. Although the court found that Bovis owed Sojka a duty under Illinois law, it granted summary judgment based on Sojka's failure to respond to Bovis's argument about the eye protection. The court noted that Bovis's original complaint had included theories of breach unrelated to eyewear, such as the allegation that conditions that day were too windy to permit safe work, but it explained that parties " cannot rest on complaint allegations at summary judgment" without " discuss[ing] any of the alleged acts or omissions" or " link[ing] them to evidence in the record to create a factual dispute for trial."

Sojka filed a motion to reconsider under Rule 59(e), arguing that his response to the motion for summary judgment had linked facts in the record to the allegations in his complaint; in support, he pointed to his Rule 56.1 statement. Sojka further complained that Bovis had unfairly narrowed the case to be solely about eyewear, even though that was not Sojka's theory of breach. In fact, Sojka admitted that he did not respond more directly to the eyewear issue because he conceded that Bovis had no knowledge that Sojka's eyewear was insufficient and thus there was no dispute of fact on that point. But, Sojka argued, that was not the end of the case. To the contrary, he had additional theories of breach, which were supported by deposition evidence set out in his Rule 56.1 statement of facts.

The district court denied Sojka's motion to reconsider. It rejected Sojka's citation to his Rule 56.1 statement because, in the court's view, " merely presenting statements of facts without arguing how they are relevant is insufficient. The court does not craft arguments for the parties." Sojka now appeals both the grant of summary judgment and the denial of his motion to reconsider.

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We review the grant of a motion for summary judgment de novo, construing the facts and drawing all reasonable inferences in favor of the nonmoving party. Moore v. Vital Prods., Inc., 641 F.3d 253, 256 (7th Cir.2011). Summary...

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