Rivers v. City of Bloomington Illinois et al

Filing 110

ORDER & OPINION entered by Judge Joe Billy McDade on 4/14/16. IT IS ORDERED that for the foregoing reasons, Defendant Sport Systems Unlimited Corp.'s Motion for Summary Judgment 95 is GRANTED. Plaintiff's Motion For Leave To File Second Amended Complaint 98 is DENIED, Plaintiff's "Motion For Leave To Resubmit Exhibits 2, 3, 4 And 5 In Response To Defendant Sport Systems Unlimited Corp.'s Motion For Summary Judgment' 108 is GRANTED and Defendant SS's "Motion To Strike Certain Exhibits Attached To Plaintiff's Response In Opposition To Defendant Sport Systems Unlimited Corporation's Motion For Summary Judgment 104 is DENIED. SEE FULL WRITTEN ORDER. (FDT, ilcd)

E-FILED

Thursday, 14 April, 2016 02:27:22 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
JUSMON RIVERS,
Plaintiff,
v.
CENTRAL ILLINOIS ARENA
MANAGEMENT, INC., SPORT SYSTEMS
UNLIMITED CORP., and DOVER
ENERGY, INC. d/b/a DE-STA-CO,
Defendants.

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Case No. 14-cv-1146

ORDER & OPINION
This matter is before the Court on Defendant Sport Systems Unlimited
Corp.’s (hereinafter “SS”) Motion for Summary Judgment (Doc. 95) against the
Plaintiff, Jusmon Rivers. The motion has been fully briefed and is ready for
disposition. Also pending before the Court are three ancillary motions, including
Plaintiff’s Motion For Leave To File Second Amended Complaint (Doc. 98),
Defendant SS’s “Motion To Strike Certain Exhibits Attached To Plaintiff’s Response
In Opposition To Defendant Sport Systems Unlimited Corporation’s Motion For
Summary Judgment” (Doc. 104) and finally, Plaintiff’s “Motion For Leave To
Resubmit Exhibits 2, 3, 4 And 5 In Response To Defendant Sport Systems
Unlimited’s Motion For Summary Judgment” (Doc. 108). For the reasons discussed
below, Plaintiff’s Motion For Leave To File Second Amended Complaint (Doc. 98) is
DENIED, Plaintiff’s “Motion For Leave To Resubmit Exhibits 2, 3, 4 And 5 In
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Response To Defendant Sport Systems Unlimited’s Motion For Summary
Judgment” (Doc. 108) is GRANTED and Defendant SS’s “Motion To Strike Certain
Exhibits Attached To Plaintiff’s Response In Opposition To Defendant Sport
Systems Unlimited Corporation’s Motion For Summary Judgment” (Doc. 104) is
DENIED. Finally, Defendant’s Motion for Summary Judgment (Doc. 95) is
GRANTED.
LEGAL STANDARDS
“The court shall grant summary judgment if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). A genuine issue of material fact exists if
“the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
movant may demonstrate the absence of a genuine dispute of material fact by citing
to admissible evidence, or by showing that the nonmovant cannot produce
admissible evidence to support a genuine dispute of material fact. Fed. R. Civ. P.
56(c)(1). Upon such a showing by the movant, the nonmovant may not simply rest
on his or her allegations in the complaint. “The nonmovant may not rest upon mere
allegations in the pleadings or upon conclusory statements in affidavits; it must go
beyond the pleadings and support its contentions with proper documentary
evidence.” Warsco v. Preferred Technical Grp., 258 F.3d 557, 563 (7th Cir. 2001)
(internal quotations and citation omitted); Fed. R. Civ. P. 56(c)(1). Typically, all
inferences drawn from the facts must be construed in favor of the non-movant, but
the court is not required to draw every conceivable inference from the record. Smith
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v. Hope School, 560 F.3d 694, 699 (7th Cir. 2009). At the summary judgment stage,
however, the court may not resolve issues of fact; disputed material facts must be
left for resolution at trial. Anderson, 477 U.S. at 249-50.
FACTS1
On May 17, 2013, Plaintiff was playing professional football in U.S. Cellular
Coliseum (“the Coliseum”), a sports venue owned by the City of Bloomington,
Illinois (“the City”). At some point during the game, Plaintiff jumped over a dasher
board which was struck by a player behind him causing the dasher board to open
and/or come undone. The dasher board collided with Plaintiff causing a serious and
significant anterior cruciate ligament (ACL) and medial collateral ligament (MCL)
injury to his knee. Plaintiff has incurred medical expenses and other damages as a
result of said incident.
Plaintiff filed a four count complaint against four separate defendants: the
City, Central Illinois Arena Management, Inc. (“CIAM”), Johnston Contractors, Inc.
(“Johnston”), and Sport Systems Unlimited Corp. (“Sport Systems”). Count I
charged the City with willful and wanton negligence in owning, operating,
managing, and maintaining the Coliseum. Count II charged CIAM with general
negligence in operating, managing, and maintaining the Coliseum on behalf of the
City. Count III charged Johnston with general negligence in constructing the
Coliseum and installing the dasher boards. Finally, Count IV charged Sport
Systems with strict liability in designing and manufacturing the dasher boards in a
defective manner. (Doc. 64 at 5-6). The City has since been dismissed from this suit.

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The facts come from the various submissions offered by both litigants.
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(Doc. 46). Johnston has also since been dismissed from this action. (See Doc.
86).Sport Systems later filed a third-party complaint against De-Sta-Co, whom
Sport Systems believes is responsible for the manufacture of the purportedly
defective part that led the dasher board gate to fail. (Doc. 65). Plaintiff also
amended his complaint adding De-Sta-Co as a defendant. (Doc. 64).
SS agreed to supply, deliver and install the dasher board system for the
Coliseum. SS entered into an agreement with CIMCO Refrigeration on March 15,
2005, regarding the supply, delivery and installation of the dasher board system. SS
entered into a written contract with a union on November 10, 2005 to provide
carpenters to assist in the installation of the dasher board system. CIAM contracted
with the City of Bloomington to manage, supervise and maintain the Coliseum,
including the dasher board system. CIAM reportedly inspected the dasher board
system after every sporting event. CIAM replaced the original latch that secured
the gate/door to the dasher board system with replacement latches of the same type
and model number twice since 2012. The replacement latch that secured the
gate/door to the dasher board system at the time of Plaintiff’s incident was ordered
by CIAM from SS on April 25, 2012.
De-Sta-Co designed and manufactured the Model No. 341-R latch clamp that
was installed on the gate against which Plaintiff collided. De-Sta-Co was not aware
of any defect, actual or potential problem, safety concerns existing, anticipated or
considered to exist relating to the Model No. 341-R latch clamp. De-Sta-Co was also
not aware that its latch was being utilized as a component part of the SS’s dasher
board system. SS obtained the replacement latch that was installed on the gate
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against which Plaintiff collided from Davco Tooling, Inc., the same company from
which SS had obtained the original latch. Scott Purkey, an employee of the City,
installed the replacement latch that secured the gate/door to the dasher board
system at the time of Plaintiff’s injury. Neither SS nor any of its employees provided
direction to Purkey regarding the installation of the replacement latch not
participated in the installation of the latch.
SS never tested whether the dasher board could withstand the force of
players colliding with it. The dasher board system was also equipped with plunger
pins as an additional measure to ensure the gate was locked and aligned and they
complemented the De-Sta-Co latching mechanism. When the plunger pins are
engaged, the gate will not open. Plaintiff’s expert, Frank Burg, opines that the
gate’s plunger pins were not in place at the time of Plaintiff’s incident.
Procedural Matters
The original complaint in this case was filed on April 16, 2014. (Doc. 1). On
September 9, 2014, a Rule 16 scheduling order was entered that allowed
amendment of pleadings until July 10, 2015. (Doc. 51). The Complaint was amended
on May 13, 2015. (Doc. 64). On June 6, 2015, former party Johnston Contractors,
Inc. moved for summary judgement. (Doc. 72). While that motion was pending,
Plaintiff attempted to file a motion to amend his complaint. (Doc. 83). The instant
motion for summary judgment was filed on February 4, 2016. (Doc. 95). Plaintiff
has again attempted to file another motion to amend his complaint. (Doc. 98).

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DISCUSSION
I.

The Plaintiff Shall Not Be Allowed To Amend The Complaint.
In Plaintiff’s motion to amend the complaint, he cites the standard of Federal

Rule of Civil Procedure 15(a)(2) for the proposition that the Court should freely give
leave to amend whenever justice so requires. However, he does not explain why
justice requires amendment in this instance. He simply states in a single sentence
that evidence adduced during discovery ameliorates any prejudice that could be
suffered by the other litigants should his motion be granted. This is patently
insufficient to warrant granting a motion to amend pleadings at this stage of the
litigation.
A party must satisfy the requirements of Rule 16 when he seeks to amend a
pleading after the deadline set out in the Rule 16 scheduling order has passed.
Alioto v. Town of Lisbon, 651 F.3d 715, 719-20 (7th Cir. 2011). In Alioto, the court
took note that the request to amend the pleadings came several months after the
deadline for amending the pleadings had passed and also after the defendants had
filed a motion to dismiss the complaint. Id. at 720. Here, the Plaintiff has similarly
let several months pass before making this motion to amend and it also comes
subsequent to, and seemingly in response to, SS’s motion for summary judgment.
Alioto candidly explained to the court that he had not realized his complaint was
deficient until the defendants filed their motion to dismiss. Id. Plaintiff offers no
explanation of why amendment of his complaint is necessary, but the Court can
easily deduce that he understands that his strict liability claim will not fare well
under the scrutiny of summary judgment, and so he wishes to include the failure to
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warn claim as a way to avoid summary judgment. This sort of gamesmanship is
clearly disfavored. Alioto, 651 F.3d at 720 (“[Plaintiff’s] explanation does not pass
muster.... [A] party should always ask itself whether the complaint it wants to file
sets out a viable claim.... As the 1983 advisory committee note explains, among the
aims of Rule 16 are to prevent parties from delaying or procrastinating and to keep
the case “moving toward trial.” [T]he proposed amended complaint added at least
one new theory and overhauled another. In light of Alioto’s conduct and the
purposes of Rule 16, the district court committed no abuse of its discretion in
denying leave to amend.).
If a party desires to modify a scheduling order, Rule 16(b)(4) provides that it
may only be done “for good cause shown and with the judge's consent.” “Courts have
a legitimate interest in ensuring that parties abide by scheduling orders to ensure
prompt and orderly litigation.” United States v.1948 South Martin Luther King Dr.,
270 F.3d 1102, 1110 (7th Cir. 2001). Nowhere in his motion does Plaintiff
acknowledge the proper “good cause” standard of Rule 16(b)(4), let alone address its
requirements. Therefore, his request to amend the First Amended Complaint must
be denied.
II.

The Plaintiff Cannot Survive Summary Judgment.
A.

The Illinois Seller’s Exception Does Not Apply.

There seems to be some confusion as to what product is actually at issue in
this lawsuit. SS contends only the latch is claimed to be the allegedly defective
product. Indeed, the First Amended Complaint states “At the time of the incident,
the subject arena’s dasher board’s gate/door was closed and secured by a latch that
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failed.” (Doc. 64 at 3). Plaintiff also answered several interrogatories in a manner
that suggested only the latch was at play in this suit. However, elsewhere in the
Complaint, Plaintiff clearly alleges the
arena dasher board system was in a defective condition at the time of
its first distribution and sale for use. The defective and unreasonably
dangerous conditions existing in the subject arena dasher board
system at the time it left the control of Sport System included, but
were not limited to: design defects, manufacturing defects, defective
locks/latching devices. On and before May 17, 2013, the dasher board
system distributed and sold was in an unreasonably, dangerous
condition in that the dasher board system and its latching system
would fail during upon contact during sporting events.
(Doc 64 at ¶¶29-31).
SS seizes upon Plaintiff’s focus on the latch to argue that the Illinois seller’s
exception shields it from liability. However, the seller’s exception is inapplicable
here.
In Illinois, the general rule is that all entities in the chain of distribution for
an allegedly defective product are subject to strict liability in tort. Hammond v. N.
Am. Asbestos Corp., 454 N.E.2d 210 (Ill. 1983). 735 Ill. Comp. Stat. 5/2-621 provides
a “seller’s exception” to this rule and it requires a court to dismiss a nonmanufacturer defendant from a strict liability product claim, if the defendant
certifies the correct identity of the manufacturer of the defective product and the
plaintiff has filed a complaint against the manufacturer and the manufacturer has
served an answer or the time to do so has run out. Lexington Ins. Co. v. Office Depot,
Inc., 943 F. Supp. 2d 844, 848 (N.D. Ill. 2013) (emphasis added).
The defective product at issue here is not the latch alone. SS did not
manufacture the latch, nor did it sell the latch. SS manufactured the dasher board
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system, which the Court understands the Plaintiff to argue made use of the latch in
an unsafe manner. Plaintiff states “the dasher board’s… gate which incorporated
[the] latch was a defectively designed product which has failed at least on two (2)
occasions…. The defectively designed… gate failed due to a design defect issue in
utilizing the subject model latch as a component part.” (Doc. 100 at 14). If Plaintiff
only alleged the latch was defective then the seller’s exception for nonmanufacturing defendants would be applicable here because SS did not
manufacture the latch, De-Sta-Co did. But SS did manufacture the dasher board
system, and there are sufficient allegations in the Complaint that SS’s use of the
latch within its finished dasher board system is the product at issue in this strict
product liability count. For these reasons, the seller’s exception to strict tort liability
is unavailable to SS as it is not a non-manufacturing defendant. However, it is still
Plaintiff’s burden to plead and prove that by incorporating the latch in its design of
the dasher board system, SS created a defectively designed product.
B.

There is zero evidence the dasher board system was defectively
designed.

SS also claims there is no evidence that the dasher board system was in an
unreasonably dangerous condition when it left SS’s control. Much of the evidence
provided by Plaintiff in its response to the summary judgment motion speaks to
SS’s alleged failure to warn. That claim is not a part of these proceedings as the
Court has not allowed amendment of the First Amended Complaint, so therefore,
such evidence is not relevant. What is relevant is whether or not the Plaintiff has
produced any evidence that the dasher board system was defective when it left the
control of SS. See Mikolajczyk v. Ford Motor Co., 231 Ill. 2d 516, 525 (Ill. 2008) (“a
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plaintiff must plead and prove that the injury complained of resulted from a
condition of the product, that the condition was unreasonably dangerous, and that it
existed at the time the product left the manufacturer’s control. ”). The Court finds
that it has not.
Plaintiff offers two expert opinions in support of his claim. The first report
provides the opinion of Frank Burg that
Sports Systems Unlimited... should have assured that the latch and
stabilizers used on the... gate were safe suitable and proper for Arena
Football activities. The area in the end zone which would have the
greatest exposure from contact with players must be provided with
hardware and material which will withstand the forces of players
attempting to catch footballs in the end zone…. In this case, of this
dasher board, that had broken and defective hardware, did not have
the capability of being latched properly and it was not properly
maintained.
(Doc. 101-1 at 9). Burg’s opinion on what SS “should have” done is nothing more
than an unsupported suggestion. Moreover, it does not address whether the dasher
board was or was not capable of being properly latched when the product left SS’s
control. In the second report, David Ahearn, another expert, opines in relevant part
that
The hook and latch were not aligned properly causing uneven
distribution of loading on the hook tangs…. Uneven loading caused the
one hook tang to receive excess load and resulted in that tang
breaking. The design of the latch and door system did not provide a
self-alignment adjustment to ensure that the U-bolt would engage both
hook tangs evenly. The hook was broken prior to the subject incident....
The fracture surface of the broken hook tang contains rust, while the
fracture surface created by the bending of the remaining hook tang is
not rusted. The two fracture surfaces are in close proximity and
therefore would have been subjected to similar environments. This
close proximity means that the difference in rusting is indicative of the
broken tang fracture surface having been exposed for a longer period of
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time prior to the event, while the fracture surface created by the
bending of the remaining tang occurred during the subject event. Use
of the latch with the hook missing a tang was improper maintenance
that resulted in a weaker latched connection. Use of the latch when it
would not lock shut is improper maintenance. The tab that engages the
toggle lock was bent where the lock could not engage. Impact marks on
the tab indicate that the tab was not bent due to a single event, but
rather multiple events.
(Doc. 100-4 at 11) (emphasis added). This evidence clearly indicates that the latch
had worn down over time and was improperly maintained. Based upon what has
been presented to this Court so far, it was squarely the responsibility of CIAM to
maintain the dasher board system as part of its larger responsibility for the
Coliseum, not SS. Plaintiff makes much of the fact that the dasher board gate and
its latching system were never tested. But that is beside the point. Simply because
the system may not have been tested does not mean that the system was inherently
defective. Plaintiff is responsible for producing evidence that the dasher board gate
was incapable of withstanding the force of players colliding with it when it left SS's
control. He has not done so.
Moreover, taking the assertion—that the misalignment of the latch and hook
was the ultimate cause of Plaintiff’s injury—as true, there is zero discussion by the
experts in their reports or in the parties’ briefs of whether the misalignment existed
at the time SS placed the dasher board into commerce, whether this misalignment
occurred as a result of Scott Purkey replacing the latch, or whether CIAM’s poor
maintenance allowed the misalignment to occur over time and go uncorrected.
One method of proving a product claimed to suffer from a design defect is
unreasonably dangerous is for a plaintiff to present evidence of an alternative
design that would have been more feasible to utilize. Mikolajczyk, 231 Ill. 2d at 52511

26. Ahearn’s report can be fairly read to contend that it was unreasonably
dangerous to produce a dasher board gate without a self-alignment mechanism.
However, there is zero discussion in his report or the parties’ briefs on whether
implementing a self-alignment measure into the design of the latch and door system
was either feasible or more preferable than the plunger pin mechanism that was
installed or for that matter, preferable to human spot-checking before and after use,
which is apparently what CIAM was supposed to be doing. Thus, the Plaintiff has
failed to produce crucial evidence in support of his claim of strict liability.
Another problem with the Plaintiff’s claim of design flaw is that his
undisputed factual assertions actually tend to undermine any contention that the
board was designed in an unreasonable fashion. Plaintiff claims that 1) plunger
pins were an additional measure to ensure the gate was locked and aligned and
they complemented the latching mechanism; 2) when the plunger pins are engaged,
the gate will not open and 3) that the gate’s plunger pins were not in place at the
time of Plaintiff’s incident. There is no evidence that the plunger pins were defective
or were not working when the board left the control of SS. Surely CIAM, as the onthe-spot maintainers of the dasher board system, bore the responsibility of ensuring
the plunger pins were in use. If it is true that properly engaged plunger pins would
have prevent the failure of the hook and latch, then the Court does not believe one
can argue that the board system was designed in a defective or unreasonably
dangerous manner.
It is the plaintiff’s burden to prove each element of his claim and it is his
burden to produce sufficient evidence on summary judgment to convince the court
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that the claim should proceed to a jury. “The nonmovant may not rest upon mere
allegations in the pleadings or upon conclusory statements in affidavits; it must go
beyond the pleadings and support its contentions with proper documentary
evidence.” Warsco, 258 F.3d at 563 (internal quotations and citation omitted); Fed.
R. Civ. P. 56(c)(1). The Plaintiff has failed to carry his burden.
In sum, after taking Plaintiff’s expert’s contentions concerning the cause of
the latch’s failure as true, there is no evidence that the defect identified by Plaintiff
existed in the dasher board gate when it left SS’s control nor has there been any
evidence offered that it was unreasonably dangerous for the board to be produced
without a self-aligning mechanism for the hook and latch. For all these reasons,
summary judgment is appropriate for SS on the strict liability count.
CONCLUSION
IT IS THEREFORE ORDERED that for the foregoing reasons, Defendant
Sport Systems Unlimited Corp.’s Motion for Summary Judgment (Doc. 95) is
GRANTED. Plaintiff’s Motion For Leave To File Second Amended Complaint (Doc.
98) is DENIED, Plaintiff’s “Motion For Leave To Resubmit Exhibits 2, 3, 4 And 5 In
Response To Defendant Sport Systems Unlimited Corp.’s Motion For Summary
Judgment” (Doc. 108) is GRANTED and Defendant SS’s “Motion To Strike Certain
Exhibits Attached To Plaintiff’s Response In Opposition To Defendant Sport
Systems Unlimited Corporation’s Motion For Summary Judgment” (Doc. 104) is
DENIED.

Entered this 14th day of April, 2016.
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s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge

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