Horne v. Home Depot United Statesa., Inc.
| Decision Date | 12 February 2019 |
| Docket Number | No. 17 CV 8080,17 CV 8080 |
| Parties | CALVIN HORNE, Plaintiff, v. HOME DEPOT U.S.A., INC. and ELECTRIC EEL MANUFACTURING COMPANY, INC., Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
In this diversity action, plaintiff Calvin Horne seeks to recover for injuries sustained when he was operating a drain-cleaning machine manufactured by defendant Electric Eel Manufacturing Company, Inc. ("Electric Eel") and rented to Horne by defendant Home Depot U.S.A., Inc. ("Home Depot"). Defendants filed motions for summary judgment under Federal Rule of Civil Procedure 56. Horne moves to bar defendants' mechanical-engineering expert, Dennis Brickman. For the reasons explained below, defendants' motions for summary judgment are granted, and Horne's motion to bar defendants' expert is denied as moot.
On July 21, 2017, Horne observed that his toilet was clogged and that the main sewer drain outside his house was backing up and needed to be cleaned out, so he went to the Home Depot store in Homewood, Illinois, to rent an electric rodder, also known as a drain cleaner. Horne went to the tool-rental department and told a female Home Depot employee that he needed an electric rodder. According to Horne, that employee selected a machine and presented it to him; he "fill[ed] out the paperwork," and the entire rental process took "maybe" ten minutes. (ECF No. 151-3, Dep. of Calvin Horne at 155-56, 187.)2 Horne signed a contract with Home Depot (the "Rental Contract") for the rental of a drain-cleaning machine.3 Under theheading "Rental Equipment," the Rental Contract specified that the equipment had Part Number 0448505995 and the Description "Drain Cleaner 100' x 3/4.'" (Horne Dep., Ex. F1, Rental Contract, at 1.) The second page of the Rental Contract, under the heading "Safety Message," stated: (Id. at 2.)
On May 2, 2017, Electric Eel had assembled, inspected, and shipped to the Homewood Home Depot the electric drain cleaner with the Part Number corresponding to that in the Rental Contract, which was a Model R machine with the Serial Number 16766. That particular machine was manually assembled by an Electric Eel employee named Richard Berry. After assembly, Berry inspected and tested the machine's foot pedal, which controls the motor. When the pedal is pressed down, the motor comes on, and when the pedal is released, the motor stops. Perry confirmed that the foot pedal of the machine operated properly. He also inspected and tested the forward/reverse switch and confirmed that the switch operated properly. On May 7, 2017, after the machine had been rented, operated, and returned by another customer the previous day, the machine was inspected by Home Depot, and it was determined that the foot pedal was "leaking air." Philip Boronda testified at deposition that he repaired the machine on May 10, 2017 by replacing the foot pedal. (Boronda Dep. at 61-62.)
Prior to July 2017, Horne had rented an Electric Eel Model R drain cleaner from Home Depot anywhere from two to four times and each time had used the machine to clean out the same sewer drain outside his house in South Holland, Illinois. Horne says that the drain cleaner he rented on July 21, 2017 appeared to be "different" from those he had rented on prior occasions because it was "raggedy" and "kind of old," had peeling paint and rust and a "dingy yellow" plastic cover over its cable; and did not have a blue frame or warning stickers. (HorneDep. at 74-75, 150-55, 214-15, 222-24.) Nonetheless, Horne did not complain about its condition, and he proceeded with the rental because the Home Depot employee had chosen it and he figured "she knows," and it seemed fine to use. (Id. at 155-56, 171.)
Horne took the drain-cleaning machine to his house and read the operating manual that he had been given with the machine. Then he began operating the machine in an attempt to unclog his outdoor sewer drain pipe. Two of Horne's friends, Perry Bennett and Reginald Tolliver, were present while Horne was operating the cleaner. Horne testified at his deposition that the following occurred. After positioning the machine near the drain, he began manually lowering the machine's cable into the drain until it hit the bottom of the drain hole, which was approximately three to four feet underground (after this point, the drain pipe made a turn). The machine's forward/reverse switch (which the parties sometimes call the "toggle" switch), which controls the direction of the cable's rotation, was in the forward position. Horne then pressed on the machine's foot pedal in order to cause the cable to further spool out of the machine and into the section of drain beyond the turn. Once the cable made the turn, he took his foot off the pedal and began to manually feed the cable further into the drain until the cable hit an obstruction, and then put his foot back on the pedal to get the cable through the obstruction. The cable was about seven to nine feet within the drain at that time. As the cable was spooling out of the machine, Bennett noticed a "bend or kink" in the cable and told Horne to stop trying to insert any more cable into the drain because he thought that the kink might crack the pipe. Horne then saw the kink, so he took his foot off the pedal and his hands off the cable.
Horne wanted to remove the cable from the drain pipe and return the machine to Home Depot, so he moved the toggle switch from forward to reverse. He placed his foot on the pedal, but the cable did not reverse out of the drain, so he took his foot off the pedal and decided tomanually pull the cable out of the drain. Right after he began to do so with both hands and "barely" any force, the cable wrapped itself around his right wrist, and the machine flipped over while also flipping him over onto his back. Tolliver's testimony on these points largely tracks Horne's. Tolliver testified that after Bennett noticed the kink and told Horne to stop, Horne told Tolliver to flip the toggle switch to the reverse position, and he did so. Nothing happened when Horne stepped on the foot pedal, so Horne began to manually remove the cable. "Next thing you know, whomp, . . . the cord wraps around him, flip[s] him, the machine." (ECF No. 168-9, Dep. of Reginald Tolliver at 103.) As for Bennett, he says that he noticed a kink in the cable right after it spooled out of the machine, and told Horne that it did not "look right." Horne stopped operating the machine to look at it, and "maybe five seconds later he was on the ground." (ECF No. 172-8, Dep. of Perry Lavell Bennett at 94-95.) Between the time Bennett pointed out the kink and the time Horne flipped onto the ground, Bennett was distracted and did not see what happened. Paramedics arrived shortly thereafter and brought Horne to Ingalls Hospital for treatment. He was later transferred to Stroger Hospital.4
This action was filed in the Circuit Court of Cook County on August 21, 2017, and it was removed to this court in November 2017. Horne asserted claims against Home Depot and Electric Eel for negligence, strict liability, and breach of express and implied warranties, and later agreed to dismiss with prejudice the strict-liability claim against Home Depot. On May 10,2018, Horne amended the complaint to add a claim for spoliation, alleging that Home Depot agreed to preserve the subject Electric Eel Model R machine but failed to do so. The claim is based on the fact that Home Depot informed Horne in April 2018 that the machine had been stolen.
"The court shall grant summary judgment 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). A factual dispute is "genuine" only if a reasonable jury could find for either party. Nichols v. Mich. City Plant Planning Dep't, 755 F.3d 594, 599 (7th Cir. 2014). The Court must construe the evidence and all inferences that reasonably can be drawn therefrom in the light most favorable to the nonmoving party. Kvapil v. Chippewa Cty., 752 F.3d 708, 712 (7th Cir. 2014). Rule 56 imposes the initial burden on the movant to inform the court why a trial is not necessary. Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013). Where the nonmovant bears the ultimate burden of persuasion on a particular issue, the movant's initial burden may be discharged by pointing out to the court that there is an absence of evidence to support the nonmoving party's case. Id. Upon such a showing, the nonmovant must then "make a showing sufficient to establish the existence of an element essential to that party's case." Id. (internal quotation marks and citation omitted). The nonmovant need not produce evidence in a form that would be admissible at trial, but he must go beyond the pleadings to demonstrate that there is evidence upon which a jury could find in his favor. Id. at 1168-69 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986)).
Home Depot contends that it is entitled to summary judgment because the Rental Contract contains an exculpatory clause that precludes Horne's claims. The Rental Contract states in pertinent part:
TO THE FULLEST EXTENT PERMITTED BY LAW, CUSTOMER INDEMNIFIES, RELEASES, WAIVES AND HOLDS THE HOME DEPOT HARMLESS FROM AND AGAINST ALL CLAIMS, LOSSES, EXPENSES (INCLUDING ATTORNEY'S FEES AND EXPENSES), LIABILITIES AND DAMAGES (INCLUDING PERSONAL INJURY, DEATH, PROPERTY DAMAGE, LOST PROFITS, AND SPECIAL, INCIDENTAL AND CONSEQUENTIAL DAMAGES) IN ANY WAY CONNECTED WITH THE EQUIPMENT, ITS OPERATION OR USE, OR ANY DEFECT OR FAILURE THEREOF OR A BREACH OF THE HOME DEPOT'S OBLIGATIONS HEREIN.
The parties agree that Illinois law...
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