Swearingen v. Momentive Specialty Chemicals, Inc.

• Decision Date: 07 December 2011
• Docket Number: No. 11–2088.,11–2088.
• Citation: 662 F.3d 969
• Parties: Paul T. SWEARINGEN, Plaintiff–Appellant, v. MOMENTIVE SPECIALTY CHEMICALS, INC., Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

662 F.3d 969

Paul T. SWEARINGEN, Plaintiff–Appellant,

v.MOMENTIVE SPECIALTY CHEMICALS, INC., Defendant–Appellee.

No. 11–2088.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 19, 2011.Decided Dec. 7, 2011.

Mark W. Damisch (argued), Attorney, Damisch & Damisch, Ltd., Chicago, IL, for Plaintiff–Appellant.

Kara L. McCall (argued), Attorney, Sidley Austin LLP, Chicago, IL, for Defendant–Appellee.

Before FLAUM and MANION, Circuit Judges, and MAGNUS–STINSON, District Judge.^*MAGNUS–STINSON, District Judge.

Plaintiff-appellant Paul T. Swearingen fell from the top of his employer's truck while he was attempting to unload chemicals at a facility owed by Defendant-appellee Momentive Specialty Chemicals, Inc.¹ This case requires us to apply Illinois law to determine whether the deliberate-encounter exception of the open-and-obvious doctrine applies to Mr. Swearingen's negligence claim against Momentive. The district court found the deliberate-encounter exception inapplicable and granted summary judgment in favor of Momentive because Momentive did not owe Mr. Swearingen a duty regarding the open and obvious hazard at issue. We affirm.

I. Background

During the relevant time, Mr. Swearingen was a tanker-truck driver for Transport Service Company. On March 29, 2010, Mr. Swearingen delivered a tank of chemicals to Momentive's facility in Carpentersville, Illinois. After Mr. Swearingen parked the truck in an unloading bay, Momentive personnel asked him to open the dome lid on top of the truck. Mr. Swearingen testified in his deposition that no one from Momentive told him how to open the dome lid.

Mr. Swearingen climbed the ladder attached to the truck. When he got to the top of the ladder, he saw bright red piping a few feet above the truck that was part of Momentive's fire extinguishing system. He testified that he noticed that the piping was extremely low but concluded that he had “been in these kind of situations before” and knew he was “going to have to do it in the end anyway,” so he climbed on top of the truck. Mr. Swearingen was aware that he was not wearing a fall-protection harness and wished that he had one. No one from Momentive was present to supervise or assist him, and he did not seek any assistance. While trying to open the dome lid from the top of the truck, Mr. Swearingen began to stand up, hit his head on the piping, and fell to the floor.

There is no dispute that Mr. Swearingen was aware of the low-piping hazard when he climbed onto the truck. There is also no dispute that Mr. Swearingen's employer, Transport, trained him to open the dome lid by maintaining three points of contact with the truck at all times, which he failed to do at the time he fell.

On July 19, 2010, Mr. Swearingen filed a complaint in the United States District Court for the Northern District of Illinois, alleging that Momentive breached the duty it owed to warn him of the risk associated with the low-piping hazard and otherwise provide him with a fall-protection harness. Mr. Swearingen further contends that as a direct and proximate cause of the alleged breach, he fell from the top of the truck and sustained serious permanent injuries.

On March 8, 2011, Momentive filed a motion for summary judgment on Mr. Swearingen's claim, arguing that Momentive did not owe Mr. Swearingen a duty because he recognized the open and obvious nature of the hazard presented by the piping above the truck. Mr. Swearingen argued in response, among other things, that the deliberate-encounter exception to the open-and-obvious doctrine applied. Therefore, Mr. Swearingen contended that Momentive should have reasonably foreseen that he would deliberately encounter the hazard presented by the low piping, warned him accordingly, and provided him with a fall-protection harness.

On June 2, 2011, the district court granted summary judgment in favor of Momentive on Mr. Swearingen's claim. The district court concluded that the issue of duty was a matter of law to be decided by the court. Specifically, the district court found that Momentive did not owe Mr. Swearingen a duty of care at the time of the accident because the hazard Mr. Swearingen encountered was open and obvious and the deliberate-encounter exception did not apply. ² The district court concluded that there was no evidence that Momentive had reason to expect that Mr. Swearingen would climb on top of his truck despite the piping system directly overhead. The district court also found that Mr. Swearingen had not raised any issues of material fact regarding duty and that without a duty, there could be no liability. Mr. Swearingen appeals.

II. Discussion

Mr. Swearingen raises two issues on appeal: (1) whether the deliberate-encounter exception to the open-and-obvious doctrine applies; and (2) whether alleged issues of material fact prevent summary judgment on the issue regarding Momentive's duty to Mr. Swearingen.

We review the district court's grant of summary judgment de novo, construing all facts and inferences in the light most favorable to the non-movant, Mr. Swearingen, in determining whether a genuine issue of material fact exists that would preclude summary judgment. Bus. Sys. Eng'g, Inc. v. Int'l Bus. Machs. Corp., 547 F.3d 882, 886 (7th Cir.2008).

A. Applicable Illinois Law Regarding the Open–and–Obvious Doctrine

The parties agree that we apply Illinois law in this diversity action. When addressing a question of state law while sitting in diversity, “our task is to ascertain the substantive content of state law as it either has been determined by the highest court of the state or as it would be by that court if the present case were before it now.” Thomas v. H & R Block Eastern Enters., 630 F.3d 659, 663 (7th Cir.2011).

To establish a claim for negligence under Illinois law, a plaintiff must prove 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. Thompson v. Gordon, 241 Ill.2d 428, 349 Ill.Dec. 936, 948 N.E.2d 39, 45 (2011). Whether a duty is owed presents a question of law, while breach of duty and proximate cause present questions of fact. Id. Duty and liability are distinct concepts that must be separately considered. LaFever v. Kemlite Co., 185 Ill.2d 380, 235 Ill.Dec. 886, 706 N.E.2d 441, 450 (1998). Where there is no duty owed, there can be no liability. Id.; see also Bell v. Hutsell, 353 Ill.Dec. 288, 955 N.E.2d 1099, 1104 (Ill.2011) (“Unless a duty is owed, there can be no recovery in tort for negligence.”).

“The touchstone of the duty analysis is to ask whether the plaintiff and defendant stood in such a relationship to one another that the law imposes on the defendant an obligation of reasonable conduct for the benefit of the plaintiff.” Vancura v. Katris, 238 Ill.2d 352, 345 Ill.Dec. 485, 939 N.E.2d 328, 347 (2010). This inquiry involves four factors: (1) the reasonable foreseeability of the injury; (2) the likelihood of the injury; (3) the magnitude of the burden of guarding against the injury; and (4) the consequences of placing the burden on the defendant. Id.

The parties agree that Mr. Swearingen was a business invitee on Momentive's property. As a general rule, a landowner owes a business invitee “the duty of exercising ordinary and reasonable care to see that the premises are reasonably safe for use.” Marshall v. Burger King Corp., 222 Ill.2d 422, 305 Ill.Dec. 897, 856 N.E.2d 1048, 1063 (2006).

Momentive argues that the general rule does not apply in this case because the danger at issue was open and obvious. Under the open-and-obvious doctrine, a landowner is not liable for physical harm caused to invitees by any condition on the land whose danger is known or obvious to them, unless the landowner should anticipate the harm despite such knowledge or obviousness. Sollami v. Eaton, 201 Ill.2d 1, 265 Ill.Dec. 177, 772 N.E.2d 215, 223 (2002) (citing Restatement (Second) of Torts § 343A (1965)); see also Bucheleres v. Chicago Park Dist., 171 Ill.2d 435, 216 Ill.Dec. 568, 665 N.E.2d 826, 831 (1996) (reaffirming the “long-standing principles which recognize that owners and occupiers of land generally owe no legal duty to take precautions or warn against risks from ‘open or obvious' conditions present on the land”).³

Mr. Swearingen argues that the deliberate-encounter exception to the open-and-obvious doctrine applies, which would revive the duty Momentive owed to him. Under that exception, even if an invitee harms himself on an open and obvious hazard, the landowner may still be liable if it “had reason to expect” that the invitee would deliberately encounter the hazard because the advantages of doing so outweigh the apparent risk to a reasonable person. LaFever, 235 Ill.Dec. 886, 706 N.E.2d at 448, 450. The deliberate-encounter exception has most often been applied in cases involving economic compulsion. Sollami, 265 Ill.Dec. 177, 772 N.E.2d at 224 (citing LaFever, 235 Ill.Dec. 886, 706 N.E.2d 441 (holding that defendant could have reasonably foreseen that plaintiff would deliberately walk on slippery edge trim in the course of performing his job duties); Ralls v. Village of Glendale Heights, 233 Ill.App.3d 147, 174 Ill.Dec. 140, 598 N.E.2d 337 (1992) (holding it reasonably foreseeable that construction workers would use the shortest path to door of building on work site, even though the path was snow-covered and slippery)).

Regardless of whether the general rule, the open-and-obvious doctrine, or the deliberate-encounter exception applies, the Illinois Supreme Court has applied the four-factor duty inquiry to the reasonable foreseeability of the injury, the likelihood of the injury, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant. Cf. Sollami, 265 Ill.Dec. 177, 772 N.E.2d at 224–25 (concluding that the deliberate-encounter exception did not apply but still conducting the four-factor duty inquiry)...