Hutchison v. Fitzgerald Equip. Co.

• Decision Date: 14 December 2018
• Docket Number: No. 18-2203,18-2203
• Citation: 910 F.3d 1016
• Parties: Stanley HUTCHISON, Plaintiff-Appellant, v. FITZGERALD EQUIPMENT COMPANY, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

910 F.3d 1016

Stanley HUTCHISON, Plaintiff-Appellant,

v.FITZGERALD EQUIPMENT COMPANY, INC., Defendant-Appellee.

No. 18-2203

United States Court of Appeals, Seventh Circuit.

Argued December 5, 2018

Decided December 14, 2018

Edmund James Scanlan, Attorney, SCANLAN LAW GROUP, Chicago, IL, for Plaintiff-Appellant.

Bruce W. Lyon, Attorney, LABARGE, CAMPBELL & LYON, Chicago, IL, for Defendant-Appellee.

Before Flaum, Rovner, and Scudder, Circuit Judges.

FLAUM, Circuit Judge.

A forklift backed over Stanley Hutchison’s foot while it was loading product onto his tractor-trailer. Hutchison’s employer, who owned the forklift, had contracted with another company to provide maintenance on the forklift. Hutchison sued that third-party servicing company, Fitzgerald Equipment Company, Inc. ("Fitzgerald"), alleging that Fitzgerald was negligent in failing to warn his employer to install a backup alarm on the forklift and was liable in concert with his employer for failing to install such an alarm. The district court granted Fitzgerald’s motion for summary judgment on the negligence claim and granted Fitzgerald’s motion to dismiss the in-concert liability claim. We affirm.

I. Background

Plaintiff-appellant Stanley Hutchison worked as a truck driver for Borkholder Corporation. On August 19, 2013, Hutchison arrived at Borkholder’s facility in Metamora, Illinois with an empty tractor-trailer to pick up a load of bundled foam insulation. Another Borkholder employee, 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. While Schierer was loading Hutchison’s trailer, he reversed the forklift and ran over Hutchison’s left foot with the forklift’s right rear tire. Schierer did not see Hutchison when he reversed, and Hutchison did not hear a backup alarm.

At the time of the accident, Schierer was driving a Caterpillar Model No. DP40 forklift that Borkholder owned. Pursuant to Occupational Safety and Health Administration ("OSHA") regulations, Borkholder was responsible for controlling, maintaining, and inspecting the forklift on a daily basis. Defendant-appellee Fitzgerald is a service and repair company that services forklifts. Fitzgerald and Borkholder entered into an Operational Maintenance Service Agreement (the "Agreement"), under which Fitzgerald provided preventative maintenance every ninety days to the forklift involved in the accident. The Agreement is a single page, applies only to this specific forklift, and requires Fitzgerald "to perform the lubrication and operational maintenance inspection as described on the Operational Maintenance Report form."¹

The parties agree that the forklift was not designed, manufactured, or shipped to its original purchaser with a backup alarm and that no regulations required the forklift to have a backup alarm as of August 19, 2013, the date of the accident. They dispute, however, whether the forklift had a backup alarm installed when it rolled over Hutchison’s foot. Several Borkholder employees testified that they could not recall whether the forklift had a backup alarm that day. Schierer acknowledged that photographs of the forklift, taken the day after the accident, showed no backup alarm.

It is also undisputed that Fitzgerald serviced the forklift several times in 2013 prior to the accident. A Fitzgerald technician inspected the forklift on April 5, 2013 and performed repairs on April 22 and 25, 2013. The technician did not remember whether the forklift had a backup alarm; he did not note a malfunctioning backup alarm during his inspection, indicating that either there was no backup alarm installed or the alarm was operational. Another Fitzgerald technician repaired the forklift in July 2013, and he too did not recall whether the forklift had a backup alarm. Following the accident, Borkholder requested another company, HuppToyotalift, install a backup alarm on the forklift. On October 1, 2013, a HuppToyotalift technician installed a backup alarm on the forklift and affirmed that it did not have a backup alarm at the time he installed one.

On July 27, 2015, Hutchison filed suit against Fitzgerald in the Northern District of Illinois. On May 18, 2017, Hutchison filed a first amended complaint alleging two theories of liability—in-concert liability (Count I) and negligence (Count II). After the district court granted Fitzgerald’s motion to dismiss Count I without prejudice and the parties completed briefing on Fitzgerald’s motion for summary judgment as to Count II, Hutchison filed a second amended complaint amending Count I, and Fitzgerald again moved to dismiss. On May 4, 2018, the district court granted Fitzgerald’s motion to dismiss Hutchison’s in-concert liability claim and motion for summary judgment on Hutchison’s negligence claim. Hutchison appeals both rulings.

II. Discussion

A. Negligence Claim

We review a grant of summary judgment de novo, "construing all facts and drawing all reasonable inferences in favor of the party against whom the motion under consideration was filed." Hess v. Bd. of Trs. of S. Ill. Univ. , 839 F.3d 668, 673 (7th Cir. 2016). "Summary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law." Id. (citing Fed R. Civ. P. 56(a) ). The moving party "always bears the initial responsibility" to identify the portions of the record "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, 91 L.Ed.2d 265 (1986). "When the moving party has carried its burden ..., its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v.Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Instead, the non-movant must set forth specific facts demonstrating a genuine issue for trial. Id. at 587, 106 S.Ct. 1348.

To prove a defendant’s negligence under Illinois law, a plaintiff must establish "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) (citing Thompson v. Gordon , 241 Ill.2d 428, 349 Ill.Dec. 936, 948 N.E.2d 39, 45 (2011) ). Whether a duty exists is a question of law. Thompson , 349 Ill.Dec. 936, 948 N.E.2d at 45. To determine whether a duty exists, a court 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) (quoting Marshall v. Burger King Corp. , 222 Ill.2d 422, 305 Ill.Dec. 897, 856 N.E.2d 1048, 1057 (2006) ). Here, Hutchison alleges that Fitzgerald had a duty either to discover and disclose an inoperative backup alarm on the Caterpillar forklift, or to recommend that Borkholder install a backup alarm on the forklift because another forklift at the Metamora facility had a backup alarm.²

1. Duty to Warn

A "duty to warn exists where there is unequal knowledge, actual or constructive [of a dangerous condition], and the defendant[,] possessed of such knowledge, knows or should know that harm might or could occur if no warning is given." Happel v. Wal-Mart Stores, Inc. , 199 Ill.2d 179, 262 Ill.Dec. 815, 766 N.E.2d 1118, 1123 (Ill. 2002) (alterations in original) (quoting Schellenberg v. Winnetka ParkDist. , 231 Ill.App.3d 46, 172 Ill.Dec. 814, 596 N.E.2d 93, 97 (1992) ). Hutchison argues Fitzgerald had unequal knowledge of the risks and hazards of operating a forklift without a backup alarm, and as such, Fitzgerald had a duty to warn Borkholder of those dangers. This argument fails, however, because Hutchison does not cite any evidence in the record that Fitzgerald knew of risks that Borkholder did not. Hutchison claims that Borkholder relied on Fitzgerald to make recommendations as to repairs that should be performed on the forklift, but the parties dispute whether the forklift even had a backup alarm, let alone one that was inoperable and in need of repair.

Indeed, though Hutchison characterizes the existence of a backup alarm on the forklift as in dispute, he has not presented any evidence from which a jury could draw a reasonable inference in his favor on this point. It is undisputed that the forklift was not designed, manufactured, or shipped to its original owner with a backup alarm. After the accident, another service company installed a backup alarm and affirmed that there was no backup alarm on the forklift when that installation occurred. And pictures from the day after the accident show no backup alarm on the forklift. Although several witnesses could not recall whether the forklift had a backup alarm, their "metaphysical doubt" is insufficient to create a genuine issue of material fact. See Matsushita Elec. , 475 U.S. at 586, 106 S.Ct. 1348. To infer, based on a handful of witnesses unable to recall whether the forklift had a backup alarm, that the forklift in fact had such an alarm, is impermissible speculation.³ See Herzog v. Graphic Packaging Int’l, Inc. , 742 F.3d 802, 806 (7th Cir. 2014) ("[I]nferences that are supported by only speculation or conjecture will not defeat a summary judgment motion." (quoting Tubergen v. St. Vincent Hosp. & Health Care Ctr. , 517 F.3d 470, 473 (7th Cir. 2008) ) ).

As further evidence of unequal knowledge, Hutchison points to expert testimony suggesting forklift dealers have superior appreciation of the hazards involved in reversing forklifts. But another forklift at the Borkholder facility—not serviced by Fitzgerald—had a backup alarm, indicating Borkholder was well aware of the availability and use of backup alarms. Moreover, as Hutchison acknowledges, OSHA regulations did not require backup alarms on forklifts at the...