Horne v. Elec. Eel Mfg. Co., 19-2082

• Decision Date: 10 February 2021
• Docket Number: No. 19-2082,19-2082
• Citation: 987 F.3d 704
• Parties: Calvin HORNE, Plaintiff-Appellant, v. ELECTRIC EEL MANUFACTURING COMPANY, INC., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

987 F.3d 704

Calvin HORNE, Plaintiff-Appellant,

v.ELECTRIC EEL MANUFACTURING COMPANY, INC., et al., Defendants-Appellees.

No. 19-2082

United States Court of Appeals, Seventh Circuit.

Argued January 23, 2020

Decided February 10, 2021

Elizabeth M. Bartolucci, Attorney, Bartolucci Law, LLC, Chicago, IL, James L. Bizzieri, Attorney, Bizzieri Law Offices, LLC, Chicago, IL, for Plaintiff-Appellant.

Michael J. Meyer, Daniel S. Nathan, David E. Schroeder, Attorneys, Tribler Orpett & Meyer, P.C., Chicago, IL, for Defendants-Appellees.

Before Rovner, Hamilton, and Scudder, Circuit Judges.

Rovner, Circuit Judge.

Calvin Horne was injured while using a drain rodding machine made by Electric Eel Manufacturing Company, Inc. ("Electric Eel"), and rented to him by Home Depot USA, Inc. ("Home Depot"). He brought claims against the defendants for negligence, breach of warranty, and strict product liability, among other things. The district court granted summary judgment in favor of the defendants. We affirm in part, and vacate and remand in part.

I.

In reviewing this grant of a motion for summary judgment, we examine the record in the light most favorable to the nonmovant, Horne, and construe all reasonable inferences from the evidence in his favor. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Yahnke v. Kane County, Ill. , 823 F.3d 1066, 1070 (7th Cir. 2016). The review of the record was complicated in the district court when the parties failed to fully comply with Local Rule 56.1.¹ In his response to the defendants’ Local Rule 56.1(a)(3) statement of material facts, Horne failed to support his denials of certain of the defendants’ facts with specific references to the record. The district court therefore deemed Horne "to have admitted all properly supported material facts in the defendants’ statement." Horne v. Home Depot USA, Inc. , 2019 WL 556709, *1 n.1 (N.D. Ill. Feb. 12, 2019) (hereafter " Horne I ").² The court "also disregarded several immaterial facts contained in the parties’ Local Rule 56.1 statements, as well as statements and/or responses that are not supported by the evidence cited." Id . As is apparent from the district court's recitation of the material facts, the court did credit certain statements that Horne properly supported in his own statement of material facts. R. 172. None of the parties contested the court's decision to deem certain facts admitted and to disregard other asserted facts as immaterial or unsupported. We have therefore largely adopted the district court's version of the facts for summary judgment purposes.

On July 21, 2017, Horne noticed that the main sewer drain for his house was clogged. He decided to rent an electric drain rodder from Home Depot so that he could attempt to clear the drain. Horne went to the tool rental department at the Home Depot in Homewood, Illinois, and told an employee that he needed an electric rodder. The employee selected a machine and presented it to Horne, who then signed a three-page rental contract. The entire rental process lasted approximately ten minutes.

The contract identified the rented device as "Drain Cleaner 100’ x 3/4"," with Part Number 0448505995. The equipment corresponding to that part number was an Electric Eel Model R, which had been shipped to the Homewood store on May 2, 2017. That particular machine had been assembled manually by Electric Eel employee Richard Berry. Berry tested the machine before it was shipped to the Homewood Home Depot, ensuring that the foot pedal that acted as an on/off switch was working properly, and that the forward/reverse toggle switch also worked. When the machine is working properly, the operator presses down on the foot pedal to start the motor on the drain rodder, causing the cable (and the cage in which the one hundred foot cable is coiled) to rotate. When the pedal is released, the motor stops. On May 7, 2017, one day after a customer returned the machine and just five days after the device had been delivered to the store, a Home Depot employee determined that the foot pedal was defective. The pedal was "leaking air" and the Home Depot employee repaired the machine by replacing the foot pedal on May 10.

Prior to the event at issue here, Horne had rented electric drain rodders from Home Depot a handful of times over a period of many years to clear the same drain at his home. The rodder he rented on July 21, 2017, appeared different from those he rented in the past. This machine was "raggedy" and "kind of old." It had peeling

paint, was rusty, and had a "dingy yellow" plastic cover over the machine's cage and cable. Horne did not complain about the condition of the machine at the time of the rental because the Home Depot employee had selected it and it seemed fine to use.

Horne took the machine home and read the operating manual that Home Depot provided. Two friends, Perry Bennett and Reginald Tolliver, were with Horne as he set up the rodder and began to use it. After positioning the rodder near an outdoor access port to the drain, Horne manually lowered the device's cable until it reached the bottom of the access pipe, approximately three to four feet underground. At that depth, this vertical section of pipe connected to a horizontal pipe that extended in two directions, toward the house and toward the street. With the forward/reverse toggle switch in the forward position, Horne pressed down on the foot pedal in order to cause the cable to rotate and extend into the section of horizontal pipe leading toward the street. After the cable made the turn, Horne lifted his foot from the pedal so that he could manually extend the cable into the drain until it reached an obstruction. He then put his foot back on the pedal in order to advance the cable through the obstruction. The cable was extended approximately seven to nine feet into the drain at that point. As the cage and cable rotated, Bennett saw a bend or kink in the cable as it emerged from the cage of the machine. He alerted Horne, who then also saw the kink in the part of the cable that was unspooling from the cage of the machine. He took his foot off the pedal and removed his hands from the cable.

The kinked part of the cable had not yet reached the drain when Horne stopped the device. Bennett advised him to not put the bent cable down the pipe, fearing it could crack the pipe. In order to remove the cable from the drain, Horne placed the toggle switch into the reverse position and then pressed down on the foot pedal. But the powered reverse did not work, and nothing happened when Horne pressed down on the pedal. Horne then decided to remove the cable by hand so that he could return the malfunctioning machine to Home Depot and exchange it for another. As Tolliver watched, Horne tugged the cable with both hands, applying an amount of force that he described as "barely none." The cable immediately wrapped around his right forearm and hand, and he was flipped over and thrown to the ground. The machine also flipped over. Tolliver confirmed Horne's account of the cable wrapping around Horne's arm and flipping both Horne and the machine to the ground. A distracted Bennett did not see how Horne was thrown to the ground but saw Horne on the ground seconds after advising him of the kink in the cable. Horne's right hand was badly injured by the cable and, after the wound became gangrenous, most of his right index finger had to be amputated.

Horne sued Home Depot and Electric Eel in state court, bringing claims of negligence and breach of warranty against both defendants. He also brought a claim against Electric Eel for strict liability for producing a defective and dangerous product. Horne later added a claim against Home Depot for spoliation when the company lost the machine at issue months after Horne's lawyer asked the company to preserve it as evidence in Horne's civil action. The defendants removed the case to federal court and eventually moved for summary judgment.

In granting judgment in favor of Home Depot on the negligence and warranty claims, the court relied entirely on a broadly drafted exculpatory clause in the rental contract. The court concluded that the spoliation claim was "derivative" of Horne's other claims and failed because Horne could not demonstrate that the loss of the evidence was the proximate cause of his inability to prove his substantive claims. For the strict liability claim brought against Electric Eel, the court found that Horne failed to produce expert or other evidence of a design or manufacturing defect in the machine that he used. The warranty claim failed for lack of contractual privity between Horne and Electric Eel. The court rejected the negligence claim against Electric Eel because Horne failed to raise a material issue of fact regarding the condition of the machine when it left the manufacturer's control.

After the court granted judgment in favor of the defendants, Horne filed a Rule 59 motion contending that the court misapplied the parties’ burden of proof in summary judgment proceedings, misconstrued Illinois law, and improperly ignored material questions of fact that precluded summary judgment. The court denied the motion, concluding that Horne could have raised the issues earlier and also that he was simply recasting earlier arguments. Horne appeals.

II.

On appeal, Horne asserts that the district court erred in granting judgment in favor of Home Depot on the basis of the exculpatory provision. That provision is unenforceable, he contends, because Home Depot materially breached the contract by providing him with a drain cleaner that was not in good working condition, contrary to an express promise in the agreement. He argues that the district court improperly placed the burden on him to disprove Home Depot's affirmative defense. In any case, Horne points out, the evidence regarding the condition of the machine was in conflict, and that alone should have precluded summary judgment. Horne...