Polansky v. Kelly
| Decision Date | 20 July 2011 |
| Docket Number | Case No. 10-cv-680-DRH |
| Parties | JORDAN POLANSKY, Plaintiff, v. MICHAEL KELLY, an individual, and SPORTS CAR CLUB OF AMERICA, INCORPORATED, a Connecticut Corporation, Defendants. |
| Court | U.S. District Court — Southern District of Illinois |
Before the Court are several motions titled motions to dismiss affirmative defenses filed by plaintiff Jordan Polansky. In actuality, plaintiff has filed motions to strike affirmative defenses raised by defendants Sports Car Club of America, Inc. (Sports Car Club) and Michael Kelly. For the reasons that follow, the Court denies the motions (Docs. 18, 19, 32, 33, 61, & 62
I. Background
Polansky originally filed this personal injury case arising out of an accident that occurred during a racing event in Madison County circuit court against Kelly and Sports Car Club. On September 3, 2010, Sports Car Club removed the case to this Court based upon diversity of citizenship. Polansky's complaint alleges two counts: a claim of negligence against Kelly and a claim ofwanton and willful conduct against Sports Car Club.
On October 20, 2010, Sports Car Club filed an answer, asserted affirmative defenses, and filed a counterclaim against plaintiff for breach of contract (Doc. 13). Polansky responded by filing an answer and affirmative defenses to the counterclaim (Doc. 23), an answer to Sports Car Club's affirmative defenses (Doc. 20),1 and motions to dismiss Sports Car Club's first affirmative defense (comparative fault) (Doc. 18) and fifth affirmative defense (sole proximate cause) (Doc. 19). Sports Car Club filed a response to Polansky's motion to dismiss its first and fifth affirmative defenses (Doc. 25) and an answer to Polansky's affirmative defenses (Doc. 26).2
Following this, Polansky filed a motion for leave to amend its count against Sports Car Club (Doc. 50). The Court granted that motion (Doc. 53) and Polansky filed an amended complaint against Sports Car Club (Doc. 54). Sports Car Club then filed an answer and affirmative defenses to the amended complaint (Doc. 57). Polansky then filed his answer to Sports Car Club's affirmative defenses to the amended complaint (Doc. 63)3 and motions to dismiss Sports CarClub's first (Doc. 61) (comparative fault) and fifth affirmative defenses (Doc. 62) (sole proximate cause). Sports Car Club filed a response to Polansky's motion to dismiss its first and fifth affirmative defenses (Doc. 65).
On November 22, 2010, Kelly filed an answer asserting affirmative defenses and a counterclaim for breach of contract against Polansky (Doc. 28). Polansky filed an answer and affirmative defenses to Kelly's counterclaim (Doc. 35), an answer to Kelly's affirmative defenses (Doc. 34),4 and motions to dismiss Kelly's fifth affirmative defense (Doc. 32) (sole proximate cause) and sixth affirmative defense (apportionment) (Doc. 33). Kelly filed a response to Polansky's motion to dismiss his sixth affirmative defense (Doc. 40) (apportionment).
II. Analysis
The Court begins by noting that while Polansky has titled his motions as motions to dismiss affirmative defenses, they are in fact motions to strike. Federal Rule of Civil Procedure Rule 12(f) provides that "[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." FED. R. CIV. P. 12(f). Defenses are pleadings and are therefore subject to all pleading requirements of the Federal Rules of Civil Procedure. Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1294 (7th Cir. 1989).
Motions to strike are generally disfavored when they serve only to delay. Id. "Affirmative defenses will be stricken only when they are insufficient on the faceof the pleadings." Id. "Ordinarily, defenses will not be struck if they are sufficient as a matter of law or if they present questions of law or fact." Id. "In a diversity case, the legal and factual sufficiency of an affirmative defense is examined with reference to state law." Williams v. Jader Fuel Co., 944 F.2d 1388, 1400 (7th Cir. 1991). A district court's decision to strike is reviewed under an abuse of discretion standard of review and will not be disturbed unless a decision is unreasonable and arbitrary. Delta Consulting Group, Inc. v. R. Randle Constr., Inc., 554 F.3d 1133, 1141 (7th Cir. 2009). The Court considers Polansky's motions to strike affirmative defenses raised by Sports Car Club first, followed by Polansky's motions to strike affirmative defenses raised by Kelly.
A. Polansky's Motions to Strike Sports Car Club's Affirmative Defense The Court begins by noting that Polansky's motion to strike Sports Car Club's first and fifth affirmative defenses (Docs. 18 & 19) filed before Polansky filed his amended complaint are denied as moot. Polansky raised those same arguments in his subsequent motions to strike filed after Sports Car Club filed its affirmative defenses in response to his amended complaint. In those motions to strike (Docs. 61 & 62), Polansky argues that Sports Car Club's first and fifth affirmative defenses of comparative fault and sole proximate cause are the same and that "Illinois case law has held that the alleged negligence of a [p]laintiff is not a defense to the [d]efendant's willful and wanton acts of misconduct." In support, Polansky cites to Mattyasovsky v. West Town Bus Co., 21 Ill. App. 3d 50 (Ill. App. Ct. 1974) and Scott v. Instant Parking, Inc., 100 Ill. App. 2d 293, 299-300 (Ill. App. Ct. 1968). Sports Car Clubresponds by contending that Illinois law permits the affirmative defense of comparative negligence in cases involving a defendant's alleged willful and wanton conduct and refers the Court to the Illinois Supreme Court case, Poole v. City of Rolling Meadows, 167 Ill. 2d 41, 48-49 (1995).
"Under Illinois law, a plaintiff pleading willful and wanton misconduct must establish the same basic elements of a negligence claim, which are the existence of a duty, breach of that duty, and an injury proximately resulting from the breach." Doe v. McLean Cnty. Unit Dist. No. 5 Bd. of Dirs., 593 F.3d 507, 514 (7th Cir. 2010) (citing Krywin v. Chi. Transit Auth., 909 N.E.2d 887, 890 (Ill. App. Ct. 2009)); see also Ziarko v. Soo Line R.R., 641 N.E.2d 402, 406 (Ill. 1994) (). "A willful and wanton claim has the additional requirement that the breach be not merely negligent, but with 'conscious disregard for the welfare of the plaintiff.'" Doe, 593 F.3d at 514 (quoting Ortega-Piron ex rel. Doe v. Chi. Bd. of Educ., 820 N.E.2d 418, 423 (Ill. 2004)).
In Burke v. 12 Rothschild's Liquor Mart, Inc., 593 N.E.2d 522 (Ill. 1992), the Illinois Supreme Court held "[b]ecause of the qualitative difference between simple negligence and willful and wanton conduct, and because willful and wanton conduct carries a degree of opprobrium not found in merely negligence behavior, we hold that a plaintiff's negligence cannot be compared with a defendant's willful and wanton conduct." Id. at 532. In Ziarko v. Soo Line Railroad, 641 N.E.3d 402 (Ill. 1994), however, a plurality of the Illinois Supreme Court reviewed Burke and limitedits application and analysis to those cases in which the willful and wanton misconduct was intentional rather than reckless. Poole, 656 N.E.2d at 771. The Illinois Supreme Court in Poole clarified that its decision in Ziarko was applicable to contribution as well as noncontribution cases. Id. at 771.
Here, Sports Car Club asserts that its first and fifth affirmative defenses that Polansky was under a duty to exercise reasonable care for his own safety and that Polansky's injuries were a direct and proximate result of Polansky's breach of his duty when committed on of the following negligent acts or omissions: 1) negligently and carelessly positioned himself in the course of his participation in the event at the time and place alleged; 2) negligently and carelessly failed to keep a proper lookout for his own safety; 3) negligently and carelessly positioned himself in an area of the event which was not authorized by the defendant; 4) failed to avoid an open and obvious condition; and 5) was otherwise careless and negligent. Sports Car Club maintains that as a direct and proximate result of one or more of those acts or omissions, Polansky caused the alleged injuries complained of in his complaint.
Sports Car Clubs affirmative defenses are not insufficient on the face of the pleadings, are not insufficient as a matter of law, and present questions of law or fact. In his amended complaint, Polansky alleged that Sports Car Club engaged in a course of action which showed an utter indifference to and a conscience and reckless disregard. Sports Car Club plead as an affirmative defense that Polansky was generally negligent or careless and that as a result Polansky was either comparatively at fault or was the sole proximate cause. Thus, because Polansky hasnot plead and has not proven that Sports Car Club's alleged willful and wanton misconduct was intentional, rather than reckless, the Court cannot strike Sports Car Club's affirmative defenses because questions of law and fact exist as to whether Sports Car Club's conduct was wanton and willful and if it was, whether that conduct was intentional or reckless. See Poole, 656 N.E.2d at 772 (...
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