Liss v. TMS Int'l
| Docket Number | 3:19-cv-00810-GCS |
| Decision Date | 07 June 2022 |
| Parties | STEVEN LISS, Plaintiff, v. TMS INTERNATIONAL, LLC, Defendant. TMS INTERNATIONAL, LLC, Third-Party Plaintiff, v. SUPREME TRUCKING & EXCAVATING, LLC, and UNITED SCRAP METAL, INC. Third-Party Defendants. |
| Court | U.S. District Court — Southern District of Illinois |
Plaintiff Stephen Liss filed suit against Defendant TMS International LLC (“TMS”) on July 25, 2019. (Doc. 1). In his complaint, Plaintiff alleges that his employer, Third-Party Defendant Supreme Trucking & Excavating, LLC (“Supreme”) directed him to deliver scrap metal from Third-Party Defendant United Scrap Metal Inc.[1] (“USM”) to TMS. (Doc. 22, p. 2). However, when Plaintiff arrived at TMS, its property was flooded. Id. When crossing the flooded portion of the property, Plaintiff turned his right ankle and fell to the ground, injuring his head. Id. at p. 3.[2] Plaintiff therefore brings one count for common law negligence against TMS due to the unsafe conditions on its property. See generally, id.
On March 10, 2020, TMS filed a third-party complaint against USM and Supreme for contribution, should TMS be found liable for Plaintiff's injuries. (Doc. 45). TMS alleges that Supreme negligently failed to supervise Plaintiff's delivery and failed to train Plaintiff on proper safety gear and appropriate protocol when a delivery facility is closed. Id. at p. 3. Against USM, TMS brings one count for negligently hiring Supreme. Id. at p. 4. TMS brings both claims pursuant to 740 ILL. COMP. STAT. § 100/1, et seq. (the “Joint Contribution Act”). Id. at p. 4, 5. Now before the Court is Supreme's motion for summary judgment against TMS. (Doc. 113). For the reasons delineated below, Defendant Supreme's motion for summary judgment is DENIED.
Prior to his injuries, Supreme employed Plaintiff as a truck driver for approximately eight years. (Doc. 113, p. 2). In this position, Plaintiff regularly transported scrap metal from one facility to another using a truck Supreme owned. Id. On February 7, 2019, Plaintiff picked up a load from a USM facility and drove it to a TMS facility in Granite City, Illinois. Id. Plaintiff had some familiarity with the TMS facility, as he had been to the facility “off and on” throughout his eight-year employment with Supreme. Id. Supreme maintained a policy of requiring truck drivers to wear hard hats whenever outside their vehicles at an unloading facility. (Doc. 113, p. 4).
Typically, when arriving at an unloading site, a driver would bring the truck onto the scale at the destination facility to weigh the scrap metal load. (Doc. 113, p. 2). However, when Plaintiff arrived at the facility on February 7th, heavy rain had flooded portions of the property, including the portion where Plaintiff would usually drive onto the scale. Id. A cone in front of the scale indicated to Plaintiff that he was prohibited from further driving onto the scale per custom in the industry. Id. He therefore exited his truck and walked to TMS's office to see if he could unload his shipment at the facility. Id. at p. 3. Plaintiff did not call Supreme, USM, or TMS for instructions prior to exiting his vehicle. (Doc. 123, p. 5).
Plaintiff kept a hard hat in the cab of his truck. (Doc. 113, p. 2-3). He also admits that he saw a sign at the TMS facility stating that hard hats were required at all times. Id. at p. 2. However, Plaintiff did not wear his hard hat when he exited his vehicle. Id. at p. 3.
Plaintiff approached the TMS office by walking under a catwalk structure, so as to avoid the deepest part of the floodwater. (Doc. 113, p. 3). Water under the catwalk also forced Plaintiff to walk closer to the building and under the diagonal supports of the structure. Id. Plaintiff could have alternatively accessed the office by walking around the building, through the parking lot, to the door on the opposite side. (Doc. 123, p. 6). This path would not have required walking under the catwalk structure. Id. Plaintiff is six feet and three inches tall; the horizontal iron crossbar of the catwalk is approximately five feet higher than the ground. (Doc. 123, p. 6). Plaintiff was therefore forced to “duck” under the crossbar when going to and leaving from TMS's office to his truck. Id.
When Plaintiff entered the office, he asked TMS employees whether he could unload his scrap metal; the employees told him he could not. (Doc. 113, p. 3). Plaintiff then returned to his truck using the same path by which he accessed the office. Id. This time, according to Plaintiff, Plaintiff twisted his foot on uneven ground under the floodwater and severely injured his leg. Id. He also struck his head on the catwalk support bars. (Doc. 123, p. 6).
Summary judgment is proper when the pleadings and affidavits “show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” FED. R. CIV. PROC. 56(c); Oates v. Discovery Zone, 116 F.3d 1161, 1165 (7th Cir. 1997)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). The movant bears the burden of establishing the absence of a genuine issue as to any material fact and entitlement to judgment as a matter of law. See Santaella v. Metro. Life Ins. Co., 123 F.3d 456, 461 (7th Cir. 1997)(citing Celotex, 477 U.S. at 323). This Court must consider the entire record, drawing reasonable inferences and resolving factual disputes in favor of the non-movant. See Regensburger v. China Adoption Consultants, Ltd., 138 F.3d 1201, 1205 (7th Cir. 1998)(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). See also Smith v. Hope School, 560 F.3d 694, 699 (7th Cir. 2009)( that “we are not required to draw every conceivable inference from the record . . . we draw only reasonable inferences”) (internal citations omitted). Summary judgment is also appropriate if a plaintiff cannot make a showing of an essential element of his claim. See Celotex, 477 U.S. at 322. While the Court may not “weigh evidence or engage in fact-finding[, ]” it must determine if a genuine issue remains for trial. Lewis v. City of Chicago, 496 F.3d 645, 651 (7th Cir. 2007).
In response to a motion for summary judgment, the non-movant may not simply rest on the allegations in his pleadings; rather, he must show through specific evidence that an issue of fact remains on matters for which he bears the burden of proof at trial. See Walker v. Shansky, 28 F.3d 666, 670-671 (7th Cir. 1994), aff'd, 51 F.3d 276 (citing Celotex, 477 U.S. at 324). No issue remains for trial “unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party . . . if the evidence is merely colorable, or is not sufficiently probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-250 (citations omitted). Accord Starzenski v. City of Elkhart, 87 F.3d 872, 880 (7th Cir. 1996); Tolle v. Carroll Touch, Inc., 23 F.3d 174, 178 (7th Cir. 1994). In other words, “inferences relying on mere speculation or conjecture will not suffice.” Trade Fin. Partners, LLC v. AAR Corp., 573 F.3d 401, 407 (7th Cir. 2009) (internal citation omitted). See also Anderson, 477 U.S. at 252 (). Instead, the non-moving party must present “definite, competent evidence to rebut the [summary judgment] motion.” EEOC v. Sears, Roebuck & Co., 233 F.3d 432, 437 (7th Cir. 2000) (internal citation omitted).
A Court sitting in diversity jurisdiction applies the substantive law of the state in which it resides. See Maroules v. Jumbo Inc., 452 F.3d 639, 645 (7th Cir. 2006). TMS brings this claim pursuant to the Illinois Joint Contribution Act. (Doc. 45, p. 4). Both parties further agree that the issues in this case are a matter of state law. (Doc. 113, p. 5). When interpreting state law, a federal court must determine how the state's highest court would rule. See Rodas v. Seidlin, 656 F.3d 610, 626 (7th Cir. 2011). If the state's supreme court has not yet addressed the issue, the federal court should “consult and follow the decisions of intermediate appellate courts” to predict how the supreme court would act, unless “there is convincing reason to predict the state's highest court would disagree.” ADT Sec. Servs., Inc. v. Lisle-Woodridge Fire Prot. Dist., 672 F.3d 492, 498 (7th Cir. 2012). Absent any authority from the relevant state courts, the federal court must examine the reasoning of courts in other jurisdictions addressing the same issue. See In re Zimmer, NexGen Knee Implant Products Liability Litigation, 884 F.3d 746, 751 (7th Cir. 2018)(citing Pisciotta v. Old Nat'l Bancorp, 499 F.3d 629, 635 (7th Cir. 2007)).
The Joint Contribution Act “is addressed only to the relative culpability of tortfeasors at fault in fact.” Sperl v. Henry, 124 N.E.3d 936, 943 (Ill. 2018)(quoting American National Bank & Trust Co. v Columbus-Cuneo-Cabrini Medical Center, 609 N.E.2d 285 (Ill. 1992)). In order for a third-party plaintiff to recover from a third-party defendant under the Joint Contribution Act, “some basis for liability to the original plaintiff must exist.” Raab v. Frank, 157 N.E.3d 470, 478 (Ill. 2019)(citing Vroegh v. J & M Forklift, 651 N.E.2d 121, 125 (Ill. 1995)). “Illinois law is clear that . . . [i]f a defendant is not a tortfeasor vis-a-vis the original plaintiff, it cannot be a joint tortfeasor vis-a-vis a codefendant and may not be held liable to that codefendant for contribution.” Rivers v. Central Illinois Arena Management, Inc., 129 F.Supp.3d 643, 654 (C.D. Ill. 2015)(q...
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