Passarella v. Nfi Interactive Logistics, LLC
| Decision Date | 09 July 2015 |
| Docket Number | Case No. 12 C 4147 |
| Court | U.S. District Court — Northern District of Illinois |
| Parties | JOSEPH PASSARELLA, Plaintiff, v. NFI INTERACTIVE LOGISTICS, LLC, and NDC SYSTEMS, L.P., Defendants. |
MEMORANDUM OPINION AND ORDER
Plaintiff Joseph Passarella ("Passarella") has sued Defendants NFI Interactive Logistics, LLC and NDC Systems, L.P. for damages arising from an incident when he was struck by a tractor and trailer operated by an employee of NFI Interactive Logistics, LLC in the parking area of a truck delivery terminal in Bolingbrook, Illinois controlled by NDC Systems, L.P. Passarella alleges that a result of this incident, he sustained severe orthopedic injuries requiring three surgeries and a lengthy rehabilitation. The parties have consented to the jurisdiction of the United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c). Defendants have moved for summary judgment. For the reasons stated below, the summary judgment motion is granted as to Passarella's premises liability claim (Count I) and denied as to his negligent operation of a motor vehicle claim (Count II).
The following facts are undisputed unless otherwise noted. On March 17, 2010, the date of the occurrence, Passarella worked for Fleetwash, Inc. ("Fleetwash"). Passarella was a driver/account manager for Fleetwash. (Doc.100 at ¶ 9). In that capacity, Passarella washed truck fleets for companies. Id. As the driver, Passarella was in charge of the crew that was washing tractors and trailers at the time of the occurrence. Id. Passarella drove a straight truck with a rolling door on the back which was equipped with water tanks, soap tanks, and brighteners along with power washers. Id. at ¶ 10. To do his job, Passarella would attach 100 foot long hoses with powerwashing guns at the end to the tanks to use to clean the tractors and trailers. Id. at ¶ 11. The noise at the back of the Fleetwash truck with the generator for the water tanks running would be slightly louder than a normal diesel engine running. Id. at ¶ 12.
Passarella had been to the NFI facility in Bolingbrook where the incident occurred on more than one occasion and fewer than five times prior to the date of the occurrence. Id. at ¶ 13. At the NFI facility, the spotter operator, as well as other drivers, would move trailers within the facility, and specifically, in the outside parking area west of the building. Id. at ¶ 53. On each prior occasion when Passarella had been at the Bolingbrook facility, he observed the spotter operator using the white spotter truck to hook up to trailers and back them into various dock doors, hook up to trailers at the dock doors, and pull them away to the far west side of the premises. Id. at ¶ 14. At his deposition, Passarella testified that he knew there could be other trucks as well as the spotter tractor moving trailers throughout the yard:
At the time of the occurrence, Herbert Estrada was employed by Defendant NFI Interactive Logistics, LLC as a spotter operator and was the driver of the spotter truck involved in the incident with Passarella. (Doc. 100 at ¶ 35). In addition to Estrada, there were other drivers for other companies that would drop trailers off at the facility and operate their vehicles on the premises. Id. at ¶ 39. The spotter truck involved in the incident was a brand new vehicle equipped with flashing lights and a very loud beeping alarm that could be heard three to four blocks away. Id. at ¶¶ 36, 37, 54. Estrada estimated that the distance from the north edge to the south edge of the warehouse is 2 to 3 blocks or 400 feet. Estrada Dep. at 65:20-66:7. The alarm and lights were automatically activated when the spotter truck was put in reverse. (Doc. 100 at ¶¶ 37, 54). The back-up alarm was rated 107 decibels and the alarm would activate whenever the spotter truck's reverse gear was engaged. Id. at ¶¶ 21, 69. As the spotter truck was brand new, everything on the vehicle, including the back-up alarm, was working properly at the time of the occurrence. Id. at ¶ 38. The trailer involved in the incident was a regular fifty-three foot trailer. Id. at ¶ 64.
On the day of the occurrence, there were three people, including Passarella, on the Fleetwash crew washing trailers. Id at ¶ 17. There was also only one Fleetwash truck on the premises and only one spotter truck being operated. Id. at ¶¶ 15, 16. On the day of the occurrence and prior to the incident, Passarella saw the white spotter truck being operated on the premises. Id. at ¶ 18. Passarella had been at the Bolingbrook facility for more than two hours before the incident occurred. Id. at ¶ 20.
Passarella was washing the trailers and operating a rinse gun along the west side of the parking lot by the fence west of the building at the time of the incident. Id. at ¶ 24. Passarella says that he was approximately forty-five to fifty feet from the Fleetwash truck which was parked perpendicular to the trailers along the west fence and the backs of the trailers were facing north at the time of the incident. Id. at ¶ 25. At the time of the occurrence, there were two or three emptyparking spaces north of the area where Passarella was washing a group of four trailers. Id. at ¶ 26.
Estrada backed up the spotter tractor and trailer at one to two miles per hour prior to and at the time of the occurrence. Id. at ¶¶ 49, 62, 73. Immediately before the impact, the spotter tractor was hooked to a trailer which was moving to the west and was being backed into an open parking space along the west side of the premisses. Id. at ¶ 58. Passarella was hit by the fifty-three foot trailer attached to the spotter truck while it was being backed into a parking space approximately twenty (20) feet north of the northernmost of the four trailers that Passarella had been washing before the occurrence. Id. at ¶ 27. Passarella testified that at the time of the impact, he was pulling a hose and walking northbound but facing westbound, looking in the opposite direction from which the spotter and trailer were coming. Id. at ¶ 28. The rear end of the trailer made contact with Passarella as he was walking northbound and facing westbound. Id. at ¶ 29.
Passarella never saw the spotter truck or the trailer backing up and approaching him. Id. at ¶ 30. Passarella never heard the spotter truck and trailer approaching him before the impact. Id. at ¶ 32. Passarella admitted that the spotter truck had a back-up alarm that sounded when it moved in reverse, but testified that he did not have a recollection of hearing the spotter alarm sounding as the truck was coming towards him. Passarella Dep. at 152:9-12. When asked if there is a reason that he believes he did not hear the back-up alarm as the spotter and trailer were approaching him, Passarella testified: "[t]he longer you hear something on a regular basis, the less attention it becomes to you." Id. at 151:24-152:8. Passarella also testified that he did not need to be warned to watch out for moving trailers or to listen for back-up alarms at the NFI yard. Id. at 157:17-21.
On the day of the occurrence, another Fleetwash employee, Daniel Wehrli, was washing tractors and trailers with Passarella at the NFI Bolingbrook facility. (Doc. 100 at ¶ 50). The only people in the parking area west of the building at the time of the occurrence were Estrada and the three Fleetwash employees washing the trailers. Id. at ¶ 61. Wehrli had washed tractors andtrailers at the NFI Bolingbrook facility where the incident occurred on at least five prior occasions. Id. at ¶ 51. When at the Bolingbrook facility, Wehrli had seen tractors operating in the yard and hooking up and moving trailers. Id. at ¶ 52. He had also seen a white spotter tractor moving trailers around at the facility. Id. Prior to the incident, and throughout the day while Passarella and Wehrli were washing trailers, Wehrli had seen the spotter truck being operated the majority of the day. Id. at ¶ 56. On the day of the occurrence and before the incident, Passarella and Wehrli had already washed fifteen to twenty trailers. Id.
Just before the incident, Wehrli was between two trailers washing them. Id. at ¶ 57. When he came out between those vehicles, he looked to the north. Id. Wehrli testified that when he came out from between the vehicles, he did not hear the spotter's back-up alarm because the motors on the Fleetwash truck were very loud. Wehrli Dep. at 49:8-13. Wehrli estimated that he was two trailers or 20 feet away from the motors on the back of the Fleetwash truck at the time of impact. Id. at 49:14-17. Wehrli also testified that there were times during the day of the occurrence when he was in the yard but further away from the back of the Fleetwash truck, and he heard the alarm sounding on the spotter as it was backing up. Id. at 49:18-23.
There were open parking spaces to the south of the area where the trailer was to be parked, but Wehrli could not remember the exact number of open spaces. (Doc. 100 at ¶ 59). Wehrli testified that there were no more than four empty spaces. Wehrli Dep. at 57:22-58:12. Fifteen seconds prior to the impact, Wehrli saw Passarella walking northbound while facing in a northwesterly direction. (Doc. 100 at ¶¶ 60, 65). Wehrli and Passarella were about fifty feet apart...
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