Muzzarelli v. United Parcel Service Inc
Filing
39
ORDER & OPINION entered by Judge Joe Billy McDade on 6/27/2017 denying 34 Motion for Summary Judgment. (JRK, ilcd)
E-FILED
Tuesday, 27 June, 2017 04:09:31 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
JILL MUZZARELLI,
Plaintiff,
v.
UNITED PARCEL SERVICE INC.,
Defendant.
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Case No. 1:15-cv-01169-JBM-JEH
ORDER & OPINION
This matter is before the Court on Defendant United Parcel Service’s (“UPS”)
Motion for Summary Judgment. (Doc. 34). Plaintiff has filed a Response (Doc. 36) and
Defendant has filed a Reply. (Doc. 37). Therefore, the matter is fully briefed. For the
reasons stated below, Defendant’s Motion is denied.
I. BACKGROUND1
Plaintiff’s claim arises from a fall she endured when she tripped over a package
delivered by UPS. Around 6pm on January 11, 2013, Plaintiff returned to her
boyfriend’s home, where she had resided for approximately twelve years. Plaintiff
entered the house through a side door. When she left, she exited out the front door.
The front door consisted of an inner main door and a screen door. After opening the
screen door all the way, she exited and tripped over a large package that was sitting
These background facts are drawn from the parties’ respective statements of
material facts, and are undisputed unless otherwise indicated. Facts that are
immaterial to the disposition of the Motion for Summary Judgment are excluded.
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unconcealed on the porch in front of the door. The package had been delivered for
Plaintiff’s boyfriend earlier in the day by UPS.
On January 8, 2015, Plaintiff filed a negligence lawsuit against UPS in the
Circuit Court of the Thirteenth Judicial Circuit of Illinois, which is in Bureau County,
Princeton, Illinois. On April 6, 2015, Defendant was served with a summons and copy
of the Complaint. On April 24, 2015, Defendant removed the case to this Court on the
basis of diversity jurisdiction. Plaintiff is a resident of Princeton, Illinois. 2 Defendant
is a Delaware corporation with its principal place of business in Georgia. The amount
in controversy exceeds $75,000. On November 11, 2016, Defendant filed its Motion
for Summary Judgement. (Doc. 34). On December 13, 2016, Plaintiff filed her
Response. (Doc. 36).3 On December 22, 2016, Defendant filed its Reply to Plaintiff’s
Response. (Doc. 37). Therefore, the matter is fully briefed and the Court finds that
oral arguments are unnecessary.4
The Court notes that this case should have been brought in the Rock Island Division
pursuant to Local Rule 40.1(C), as Princeton is in Bureau County, which is in the
Court’s Rock Island Division. Had the Notice of Removal complied with Local Rule
40.1(F), the proper division would have been identified sooner. Since this case has
been pending for two years now, the Court finds it would not be in the interests of
judicial economy or justice to transfer the case at this point. Counsel, however, are
admonished to follow the local rules.
2
The Court notes that Plaintiff failed to comply with Local Rules 7.1(B)(4)(a) and
7.1(D)(5), which requires a response to be double-spaced. Plaintiff’s response uses 1.5
spacing. However, Plaintiff’s reply appears to comply with the type volume limitation,
because it appears to be 5,636 words. Local Rule 7.1(B)(4)(b)(1). The Court
admonishes Plaintiff to consult the Local Rules and ensure compliance before
submitting material to the Court.
3
In its Motion to Dismiss, Defendant states “Oral Argument Requested Pursuant to
L.R. 7.1”. However, Defendant failed to comply with Local Rule 7.1(A)(2), which
requires parties to state why an oral argument is sought. The Court again
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2
II. LEGAL STANDARDS
Summary judgment shall be granted where “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). In ruling on a motion for summary judgment,
the Court must view the evidence in the light most favorable to the non-moving party.
SMS Demag Aktiengesellschaft v. Material Scis. Corp., 565 F.3d 365, 368 (7th Cir.
2009). All inferences drawn from the facts must be construed in favor of the nonmovant. Moore v. Vital Prods., Inc., 641 F.3d 253, 256 (7th Cir. 2011). However, the
Court is “not required to draw every conceivable inference from the record”; the Court
draws only reasonable inferences. Smith v. Hope Sch., 560 F.3d 694, 699 (7th Cir.
2009) (quotations omitted).
To survive summary judgment, the “nonmovant must show through specific
evidence that a triable issue of fact remains on issues on which he bears the burden
of proof at trial.” Warsco v. Preferred Tech. Grp., 258 F.3d 557, 563 (7th Cir. 2001)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). If the evidence on record
could not lead a reasonable jury to find for the non-movant, then no genuine issue of
material fact exists and the movant is entitled to judgment as a matter of law. See
McClendon v. Ind. Sugars, 108 F.3d 789, 796 (7th Cir. 1997). At the summary
judgment stage, the court may not resolve issues of fact; disputed material facts must
be left for resolution at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50
(1986).
admonishes Defendant to also consult the Local Rules and ensure compliance before
submitting material to the Court.
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III.
DISCUSSION
Defendant brings forth three arguments in its motion for summary judgment.
First, Defendant argues that the Carmack Amendment preempts Plaintiff’s claim.
Second, Defendant argues that the Federal Aviation Administration Authorization
Act of 1994 (“FAAAA”) preempts Plaintiff’s claim. Lastly, Defendant argues that the
open and obvious doctrine precludes recovery under state tort law.
The Court finds that neither the Carmack Amendment nor the FAAAA
preempts Plaintiff’s claim. Lastly, the Court finds that the open and obvious doctrine
is inapplicable because Plaintiff’s Complaint does not plead a premise liability claim.
Therefore, Defendant’s motion for summary judgement is denied.
A. THE CARMACK AMENDMENT DOES NOT APPLY
Defendant argues that Plaintiff’s claim is preempted by the Carmack
Amendment. However, Plaintiff’s claim is not preempted because it arises out of a
separate and distinct ground from the loss of, or the damage to, the goods that were
shipped.
The Carmack Amendment was enacted in 1906 “to establish uniform federal
guidelines designed in part to remove the uncertainty surrounding a carrier’s liability
when damage occurs to a shipper’s interstate shipment.” Glass v. Crimmins Transfer
Co., 299 F. Supp. 2d 878, 884 (C.D. Ill. 2004) (quotations omitted). The pertinent
portion of the Carmack Amendment reads:
“A carrier providing transportation or service . . . shall issue a receipt or
bill of lading for property it receives for transportation under this part.
That carrier and any other carrier that delivers the property and is
providing transportation or service . . . are liable to the person entitled
to recover under the receipt or bill of lading. The liability imposed under
this paragraph is for the actual loss or injury to the property caused by
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(A) the receiving carrier, (B) the delivering carrier, or (C) another carrier
over whose line or route the property is transported in the United States.
Failure to issue a receipt or bill of lading does not affect the liability of
a carrier.”
49 U.S.C. § 14706(a)(1) (2012).5 The Carmack Amendment creates a comprehensive
remedial scheme for a shipper to recover the loss of cargo that is lost or damaged by
a carrier; however, that loss is limited to actual losses or less, if the shipper and
carrier negotiated a lower cap on potential losses for lower shipping rates. Glass, 299
F. Supp. 2d at 884. Preemption is evidenced where Congress has legislated so
comprehensively that it has left no room for supplementary state legislation. Since
the enactment of the Carmack Amendment, the United States Supreme Court and
the United States Courts of Appeals have addressed whether Congress sought to
preempt state and common law through the Carmack Amendment and the extent of
such preemption.
In 1913, the United States Supreme Court held that the Carmack Amendment
preempted state and common law remedies. Adams Express Co. v. Croninger, 226
U.S. 491, 505-06 (1913). The Court found that “almost every detail of the subject is
covered as completely that there can be no rational doubt that Congress intended to
take possession of the subject and supersede all state regulation with reference to it.”
Id. at 504. Adams Express and its progeny establish that “state statutes and common
law are preempted by the Carmack Amendment if they ‘in any way enlarge the
responsibility of the carrier’ for losses or if they ‘at all affect the ground of recovery or
The Carmack Amendment was originally codified at 49 U.S.C. § 11707(a)(1) (1994).
However, the Interstate Commerce Commission Termination Act of 1995, Pub. L. No.
104-88, 109 Stat. 803, amended the Act and recodified it at 49 U.S.C. § 14706(a)(1).
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the measure of recovery.’” Glass, 299 F. Supp. 2d at 885 (citing Charleston & W. C.
Ry. Co. v. Varnville Furniture Co., 237 U.S. 597, 604 (1915)).
However, the United States Court of Appeals for the Seventh Circuit has found
that the Carmack Amendment does not shelter a carrier from all liability. In Gordon
v. United Van Lines, the Seventh Circuit found an exception to preemption for “state
law claims that allege liability on a ground that is separate and distinct from the loss
of, or the damage to, the goods that were shipped in interstate commerce.” 130 F.3d
282, 289 (7th Cir. 1997) (emphasis added). In Gordon, instead of moving an eightyyear-old grandmother’s possessions, the moving company discarded them and then
lied to the grandmother about the status of her possessions. Id. at 283-285. The
moving company sought preemption for the grandmother’s claim of intentional
infliction of emotional distress against them. Id. at 289. The Seventh Circuit allowed
the intentional infliction of emotional distress because the claim relied on a separate
and distinct ground “from the loss of, or the damage to, the goods that were shipped.”
Id. at 289. Therefore, while many state and common law claims are preempted by the
Carmack Amendment, it is clear that it does not preempt all claims simply because
they arise during the shipment of goods; rather the Court must examine the facts and
claims at hand to determine whether the claims arise from a separate and distinct
ground from the loss of or damage to the shipped goods.
This Court finds that under Gordon, Plaintiff’s claim is not preempted by the
Carmack Amendment because it arises from a “separate and distinct [ground] from
the loss of, or the damage to, the goods that were shipped.” Id. Plaintiff does not allege
damage to the goods that were shipped; in fact, Plaintiff does not allege that the
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package was damaged at all. Rather Plaintiff alleges that Defendant was negligent
in the placement of the package on the porch which caused personal injuries to the
Plaintiff. Therefore, Plaintiff’s claim arises from a separate and distinct ground from
the loss of, or damage to, the goods that were shipped.
Defendant argues that the Court is bound to follow Glass, which is a 2004 case
from the Central District of Illinois. 299 F. Supp. 2d at 878. In Glass, a moving
company was contracted to move and store a family’s personal property. Id. at 883.
During the storage of the property it was damaged by mildew. Id. The mildewdamaged property caused health injuries to the family. Id. The family brought a
variety of claims against the movers, including negligence which resulted in the
injury of two of the family members. Id. Magistrate Judge Gorman found that the
claims were preempted by the Carmack Amendment because the “physical injuries
arose directly from the carrier’s mis-handling of the property.” Id. at 887.
Defendant argues that this case is similar; therefore, Plaintiff’s claim should
be similarly preempted. However, the Court finds Glass to be distinguishable and
therefore less persuasive. In Glass, damage from the storage of the family’s property
caused the mildew and the mildew caused the family’s injury. Therefore, the family’s
personal injury claims were directly connected to the damage of their property.
However, Plaintiff’s injury arose because of the alleged negligent placement of the
box, not because goods were damaged during shipment.
The Court finds Plaintiff’s claim is more analogous to that in McGinn v. JB
Hunt Transp., Inc., No. 10-CV-610-JPS, 2012 U.S. Dist. LEXIS 5362, at * 4-11 (E.D.
Wis. Jan. 17, 2012). In McGinn, gas grills were shipped to a store in a trailer. Id. at
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*4. After opening the trailer, employees found a hole in the trailer’s roof and wet
boxes. Id. While unloading the trailer, some of the boxes fell on an employee, striking
him in the neck. Id. at *5. The defendant argued that the employee’s claims of
common law negligence were preempted by the Carmack Amendment. Id. at *1.
The McGinn Court rejected Defendant’s preemption argument explaining:
“Here, based on the Seventh Circuit’s holding in Gordon, the court finds
that the plaintiffs’ claims are not preempted by the Carmack
Amendment because they allege a separate, independently actionable
harm from the loss of or damage to the goods. In the case at hand, the
harm is infliction of bodily injury, not property loss or damage.
Supporting this finding, is the fact that the plaintiffs’ potential measure
of damages is not at all correlative to the loss or damage to the goods.
Indeed, it is not even clear that the goods involved in the accident were,
in fact, damaged. The bottom line is that [plaintiff] is not seeking a
remedy for damaged or lost goods. He is seeking a remedy for the bodily
injuries sustained due to [one defendant]’s negligent loading of the goods
and [another defendant]’s failure to maintain and inspect the trailer on
which the good were transported.
To be clear, the plaintiffs’ claims certainly have some association with
the transfer of goods. Indeed, [plaintiff] would not have been injured but
for his unloading of goods that were shipped in interstate commerce.
Yet, the relevant inquiry is not whether there is some association
between the claim and the transport but, rather, whether the state law
claim is really a claim for damages to the shipper’s goods in disguise . .
..
Moreover, the purpose of the Carmack Amendment was to ‘establish
uniform federal guidelines designed in part to remove the uncertainty
surrounding a carrier’s liability when damage occurs to a shipper’s
interstate shipment.’ Hughes v. United Van Lines, Inc., 829 F.2d 1407,
1415 (7th Cir. 1987). Thus, to expand Carmack Amendment preemption
to cases in which a plaintiff seeks to hold a carrier liable, not for damage
or loss of the goods, but rather for personal injuries allegedly caused by
the carrier’s negligence in the transport of those goods, would seem to be
at odds with both the plain language of the statute and the purpose
behind its enactment.”
Id. at *8-11 (emphasis added). The Court finds that the McGinn court’s reasoning is
equally applicable to the facts at hand. Plaintiff is not alleging damage to the goods;
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nor is she seeking damages for the goods dressed up as a state law claim. Rather,
Plaintiff is seeking remedies for personal injuries allegedly caused by the carrier’s
negligence in delivering the goods. The Court finds that Plaintiff’s claim falls within
Gordon’s exception to the Carmack Amendment because it arises from a separate,
independent ground, not from the damage to the goods. Therefore, the Carmack
Amendment does not preempt Plaintiff’s claim.
B. FEDERAL AVIATION ADMINISTRATION AUTHORIZATION ACT
(“FAAAA”) DOES NOT APPLY
OF
1994
The Court finds that, despite Defendant’s contentions, Plaintiff claim is not
preempted by the FAAAA. The FAAAA states that: “a State . . . may not enact or
enforce a law, regulation, or other provision having the force and effect of law related
to a price, route, or service of any motor carrier.” 49 U.S.C. § 14501(c)(1) (2012). The
clause borrows language from the Airline Deregulation Act of 1978 (“ADA”), Rowe v.
N.H. Motor Transp. Ass’n, 552 U.S. 364, 368 (2008), and the United States Supreme
Court has found that the identical ADA and FAAAA statutes should be construed and
interpreted consistently with each other. Id. at 370; S.C. Johnson & Son, Inc. v.
Transp. Corp. of Am., Inc., 697 F.3d 544, 548 (7th Cir. 2012). Preemption applies not
only to state statutes, but also to state common law claims, which are considered to
be another “provision having the force and effect of law.” Am. Airlines v. Wolens, 513
U.S. 219, 233 n.8 (1995).
Therefore, whether a claim is preempted depends on whether the claim is
“related to” a price, route, or service of UPS. The United States Supreme Court has
explained that “relating to” does not require a direct connection to a price, route, or
service, but arises if the claim has a significant effect on rates, routes, or services.
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Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384 (1992). The Seventh Circuit
has explained that “related to” is shown by either “expressly referring to them or by
having a significant economic effect upon them.” Id. (citing Travel All Over the World,
Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423 (7th Cir. 1996)). However, claims that
might indirectly affect fares, routes, and services are not preempted because they are
“too tenuous, remote, or peripheral in manner.” S.C. Johnson, 697 F.3d at 550 (citing
Morales, 504 U.S. at 390). Therefore, the Court must decide two issues: whether
Plaintiff’s claim “relates to” Defendant’s rates, routes, or services and whether
Plaintiff’s claim is “too tenuous, remote, or peripheral” to have a significant effect.
See, e.g., Concovich v. Air Evac EMS Inc., No. 15-cv-0294-MJR-DGW, 2016 U.S. Dist.
LEXIS 28826, at *4-5 (S.D. Ill. Mar. 4, 2016) (“so the question is whether the ‘claim[]
at issue’ in this case ‘either expressly refer[s]’ to an airline’s prices, routes, or services
or would have a ‘significant economic effect’ on them—and even if it does, whether the
claim is so tenuously linked to prices, routes, or services that it falls on the nonpreemption side of the line.”) (emphasis added). The Court finds that the placement
of the package is part of Defendant’s services6; therefore, the Court must determine
The Court finds that the placement of the package falls within Defendant’s services.
The United States Court of Appeals for the Seventh Circuit has adopted the following
definition of “services”:
“‘Services’ generally represents a bargained-for or anticipated provision
of labor from one party to another. . . . This leads to a concern with the
contractual arrangement between the airline and the user of the service.
Elements of the air carrier service bargain include items such as
ticketing, boarding procedures, provision of food and drink, and baggage
handling, in addition to the transportation itself.”
Travel All Over the World, 73 F.3d at 1433 (citing Hodges v. Delta Airlines, Inc., 44
F.3d 334, 336 (5th Cir. 1995) (en banc). The Court doubts that the Seventh Circuit
intended for this broad definition to preempt personal injury claims arising from
negligent actions by an employee simply because the employee works in the airline
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whether Plaintiff’s claim is too tenuously, remotely, or peripherally related to the
Defendant’s services to be preempted.
The Court finds that Plaintiff’s personal injury claim is not preempted by the
FAAAA for several reasons. First, Plaintiff’s personal injury claim is “too tenuously
related” to be preempted. Second, courts have repeatedly found against preemption
in cases where plaintiffs invoke traditional tort law and sue for personal injuries.
Third, the United States Supreme Court does not interpret the ADA to preempt
personal injury suits; therefore, the FAAAA should, likewise, not preempt personal
injury suits. Fourth, the FAAAA fails to provide a federal remedy for personal injury
suits, therefore it is unlikely that Congress intended to preempt them. Lastly, the
FAAAA does not clearly manifest a purpose of Congress to preempted state personal
injury claims.
or shipping fields. The Court’s opinion is supported by Hodges, from which the
definition of “services” is borrowed. In Hodges, a passenger was injured when a case
containing several bottles of rum was dislodged from an overhead compartment and
fell on the passenger, injuring her arm and wrist. 44 F.3d at 335. The court was asked
to determine whether the plaintiff’s claim for negligent operation of the aircraft was
preempted by the ADA. Id. The United States Court of Appeals for the Fifth Circuit
defined “services”, as seen above, and found that plaintiff’s negligence claim was not
preempted. Id. at 336-37. The Hodges court held that “federal preemption of state
laws, even certain common law actions ‘related to services’ of an air carrier, does not
displace state tort actions for personal physical injuries or property damage caused
by the operation and maintenance of aircraft.” Id. at 337. Similarly, the Court finds
it unlikely that the Seventh Circuit intended for the definition of services to be
interpreted so broadly as to preempt all personal injury negligence claims by delivery
services.
However, this broad definition of services is binding upon this Court until
declared otherwise by the Seventh Circuit or the United States Supreme Court.
Therefore, the Court finds that the placement of the package during the delivery is
part of UPS’s services. Contra Centuori v. UPS, No. C16-0654JLR, 2017 U.S. Dist.
LEXIS 48191, at *14-16 (W.D. Wash. Mar. 30, 2017) (finding that under the Ninth
Circuit’s narrower definition of “services” that UPS’s placement of packages was akin
to an amenity and not a service).
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First, the Court finds that Plaintiff’s personal injury claim is too tenuously
related to Defendant’s routes, rates, and services to be preempted by the FAAAA.
Whether a box is placed in front of a door or alongside a door is too tenuously and
peripherally related to Defendant’s services to be preempted. Defendant argues that
enforcing Plaintiff’s claim would use negligence law “to alter the manner in which a
motor carrier delivers a package.” (Doc. 34 at 10). However, placing a package in front
of the door versus not in front of the door would not significantly impact Defendant’s
rates, routes, or services. Rowe, 552 U.S. at 375 (requiring a significant impact on
rates, routes, or services for preemption); see also Centuori v. UPS, No. C16-0654JLR,
2017 U.S. Dist. LEXIS 48191, at *15-16 (“Any impact those theories have on UPS’s
services would therefore be collateral and tenuous.”). Unlike cases where plaintiffs
have sought to force the delivery service to implement new procedures within the
process, Plaintiff does not seek to alter or implement a new delivery process; rather
Plaintiff’s only alleges the negligent performance of Defendant’s current procedures,
which require packages not to be left in dangerous places. Compare Kuehne v. UPS,
868 N.E.2d 870, 876 (Ind. Ct. App. 2007) (“However, once a package is delivered, we
cannot say that subsequent occurrences stemming from the alleged negligence of an
employee amount to a ‘service’ of UPS to the extent that federal preemption should
apply in all causes of action that a plaintiff might institute against the company”)
and Centuori v. UPS, No. C16-0654JLR, 2017 U.S. Dist. LEXIS 48191, at *15 (W.D.
Wash. Mar. 30, 2017) (finding no preemption because the plaintiff’s theories do not
require a particular delivery procedure but rather “these theories of negligence assert
that UPS was negligent for failing to follow its normal practices”) with Rowe, 552 U.S.
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at 364 (finding that a Maine law requiring a recipient-verification service for the
delivery of cigarettes was preempted because it dictates particular delivery
procedures, including requiring a signature) and Rockwell v. United Parcel Serv.,
Inc., No: 99-CV-57, 1999 U.S. Dist. LEXIS 22036, at *2-4 (D. Vt. 1999) (finding
preemption because the plaintiff sought to require bomb-detecting technology in
UPS’s delivery system, which would alter the delivery process). The impact of
Plaintiff’s negligence claim is too tenuous and peripheral to affect the Defendant’s
routes, rates, and services and, therefore, it is not preempted.
Second, courts have repeatedly found against preemption when the issue of
preemption arises in cases where the plaintiffs invoke traditional elements of tort law
and sue for personal injuries. See Dudley v. Business Express, 882 F. Supp. 199, 206
(D.N.H. 1994) (citing Margolis v. United Airlines, Inc., 811 F. Supp. 318, 322 (E.D.
Mich. 1993) (citing cases)).
Third, the United States Supreme Court does not interpret the ADA
preemption clause to extend to personal injury suits. See Wolens, 513 U.S. at 231 n.
7. Although these cases involved the ADA’s preemption clause, because the FAAAA’s
preemption clause is identical, the Court finds them persuasive support for finding
that the FAAAA would similarly not preempt personal injury suits.
Fourth, the Court finds it unlikely that Congress intended to preempt state
personal injury claims, because it failed to provide any federal remedy for those hurt
by such conduct. See, e.g., Hodges, 44 F.3d at 338 (citing Silkwood v. Kerr-Mcgee
Corp., 464 U.S. 238, 251 (1984)); see also Travel All Over the World, 73 F.3d at 1430
13
(“The Congressional intent to preempt state law should be the ultimate touchstone
in our preemption analysis.”).
Lastly, the United States Supreme Court has repeatedly cautioned federal
courts that state police powers should not be displaced by federal law unless that was
the “clear and manifest purpose of Congress.” California v. ARC Am. Corp., 490 U.S.
93, 102 (1989) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).
The FAAAA does not manifest a clear purpose to preempt state personal injury
claims. Rather, the “purpose of the FAAAA was to address loss or damage to
property.” Kuehne, 868 N.E.2d at 876; see also S.C. Johnson, 697 F.3d at 544
(explaining that the “broad applicability of the preemption statutes should be
understood in light of their deregulatory purpose”); Nationwide Freight Sys. v.
Baudino, No. 12-C-2486, 2013 U.S. Dist. LEXIS 135449, at *21 (N.D. Ill. Sept. 23,
2013) (“This court must also consider the deregulatory purpose of the FAAAA, and
[whether] the statutes at issue have ‘a significant impact on carrier rates, routes, or
services.’”) (quoting Rowe, 552 U.S. at 375).
Defendant argues that the Seventh Circuit recently established a bright-line
rule that “[law]s that affect the way a carrier interacts with its customers fall
squarely within the scope of FAAAA preemption” in Costello v. BeavEx, Inc. 810 F.3d
1045, 1054 (7th Cir. 2016). However, the Court finds that Defendant is reading
Costello too broadly. In Costello, the Seventh Circuit analyzed whether an Illinois law
establishing a test for when an individual must be classified as an employee was
preempted by the FAAAA. Id. at 1050. The Seventh Circuit said
“Our opinion in S.C. Johnson and the decisions of our sister circuits
confirm that there is a relevant distinction for purposes of FAAAA
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preemption between generally applicable state laws that affect the
carrier’s relationship with its customers and those that affect the
carrier’s relationship with its workforce. Laws that affect the way a
carrier interacts with its customers fall squarely within the scope of
FAAAA preemption. Laws that merely govern a carrier’s relationship
with its workforce, however, are often too tenuously connected to the
carrier’s relationship with its consumers to warrant preemption.”
Id. at 1054. Therefore, within the context of the Costello, it becomes evident that the
Seventh Circuit was drawing a distinction pertaining to labor law. However, the
Court does not find that this creates a broad bright-line rule that provides that any
law which affects the way a carrier interacts with a customer is automatically
preempted, as Defendant implies. Under Defendant’s bright-line rule, a breach of
contract claim would be preempted because it affects the way a carrier interacts with
a consumer. However, breach of contracts cases have repeatedly been found not to be
preempted by the Supreme Court and the Seventh Circuit. See, e.g., Wolens, 513 U.S.
at 226; Travel All Over the World, 73 F.3d at 1432; S.C. Johnson, 697 F.3d at 552-53
(citing United Airlines, Inc. v. Mesa Airlines, Inc., 219 F.3d 605 (7th Cir. 2000).
Furthermore, the Seventh Circuit has already explained that ADA and FAAAA
preemption analysis does not allow for the creation of broad, bright-line rules. See,
e.g., Travel All Over the World, 73 F.3d at 1433. In Travel All Over the World, the
Seventh Circuit found that “Morales does not permit us to develop broad rules
concerning whether certain types of common-law claims are preempted by the ADA.
Instead, we must examine the underlying facts of each case to determine whether the
particular claims at issue ‘relate to’ airline rates, routes or services.” Id. Costello did
not overturn Travel All Over the World; therefore, the Court is unpersuaded by
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Defendant’s argument to interpret Costello as a broad bright-line rule governing
which types of common law claims are preempted.
C. OPEN AND OBVIOUS DOCTRINE7
Defendant’s final argument is that the package was an open and obvious
danger and, therefore, Defendant is not liable for any physical harm caused by it.
However, an open and obvious danger is a defense to premise liability, which is
inapplicable because Plaintiff’s Complaint appears to assert an ordinary negligence
claim.
Defendant argues that Illinois has adopted the Restatement (Second) of Torts
with respect to premise liability and it should be able to assert an open and obvious
danger as a defense. Under § 383 of the Restatement (Second) of Torts:
“One who does an act or carries on an activity upon land on behalf of the
possessor is subject to the same liability, and enjoys the same freedom
from liability, for physical harm caused thereby to others upon and
outside of the land as though he were the possessor of the land.”
Restatement (Second) of Torts § 383 (Am. Law Inst. 1965); Randich v. Pirtano Constr.
Co., 804 N.E.2d 581, 589 (Ill. App. Ct. 2004). Illinois has also adopted the “open and
obvious danger” defense from the Restatement, which states that:
“A possessor of land is not liable to his invitees for physical harm caused
to them by any activity or condition on the land whose danger is known
or obvious to them, unless the possessor should anticipate the harm
despite such knowledge or obviousness.”
Because this Court is a federal court sitting in diversity, the Court is obligated to
apply the law of the state in which it sits—Illinois. Autocephalous Greek-Orthodox
Church v. Goldberg & Feldman Fine Arts, Inc., 917, F.2d 278, 286 (7th Cir. 1990)
(citing Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)). There the Court applies Illinois
law when addressing Defendant’s state law argument.
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Restatement (Second) of Torts § 343A (Am. Law Inst. 1965); Bruns v. City of
Centralia, 2014 IL 116998, ¶ 16. Therefore, Defendant argues that the Court should
find that the box was an open and obvious danger, for which a possessor would not
be liable if it caused an invitee physical harm. Therefore, Defendant argues that
because it was performing an act for the possessor8 (i.e. delivering the package), it
should be entitled to enjoy the same freedom from liability as the possessor would be
entitled.
However, Defendant’s argument relies on Plaintiff’s claim being a premise
liability claim, which the Court does not read it to be. Based upon the face of Plaintiff’s
Complaint, she appears to be asserting an ordinary negligence claim. (Doc. 1-1 at 4).
Plaintiff’s Complaint alleges:
“At all times the Defendant had a duty to place boxes and deliveries in
a manner so as not to create a dangerous condition on Plaintiff’s
premises.
Defendant, by and through one of its agents/employees, in violation of
that duty, committed one or more of the following acts or omissions:
A. Placed a box directly in front of Plaintiff’s doorway;
B. Failed to leave the box in a location that would not create a
dangerous condition;
The Court notes that Plaintiff’s boyfriend is the possessor of the property. The
Restatement (Second) of Torts defines a “possessor” as “a person who is in occupation
of the land with intent to control it.” Restatement (Second) of Torts § 328E (Am. Law
Inst. 1965). Plaintiff argues that the open and obvious doctrine cannot apply because
it is only applicable to invitees on a possessor’s land and Plaintiff argues that she is
not an invitee because she lives there. (Doc. 36 at 11). However, living in another’s
house does not make one a possessor. Comment h of § 330 of the Restatement (Second)
of Torts states that “[t]he members of the possessor’s household” are licensees.
Therefore, as a member of her boyfriend’s household, Plaintiff would typically be
considered a licensee on his premise; however, Illinois has eliminated the distinction
between invitees and licensees. See Illinois Premises Liability Act, 740 Ill. Comp.
Stat. § 130/1 et seq. (1996). Therefore, Plaintiff is not a possessor of the property
simply because she lives there with her boyfriend.
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C. Failed to properly train its employees as to the manner in which
to leave deliveries;
D. Failed to properly supervise its employees;
E. Failed to warn Plaintiff of the existence of said dangerous
condition;
F. Was otherwise negligent in the delivering [of] said box to
Plaintiff’s residence.
As direct and proximate result of one or more of the foregoing negligent
acts and/or omissions, the Plaintiff was greatly and seriously injured in
both body and mind . . .”
(Doc. 1-1 at 4) (emphasis added). Therefore, Plaintiff’s complaint appears to allege
that Defendant was negligent through its actions. Premise liability is “a landowner’s
or landholder’s tort liability for conditions or activities on the premise.” Black’s Law
Dictionary (10th ed. 2014). However, on the face of Plaintiff’s complaint, she does not
assert that UPS was negligent in its maintenance of a dangerous condition on its
property. Rather, Plaintiff asserts that Defendant caused a dangerous condition,
which is an ordinary negligence claim; Plaintiff does not assert that Defendant
maintained a dangerous condition, which is a premise liability claim. Reed v. WalMart Stores, 700 N.E.2d 212, 215 (Ill. App. Ct. 1998) (“The plaintiffs’ complaint seems
to allege both an ordinary negligence cause of action (Wal-Mart caused the dangerous
condition) and a premises liability cause of action (Wal-Mart maintained a dangerous
condition).”). Therefore, Plaintiff’s claim is a claim of ordinary negligence.
For Defendant to assert that § 383 applies, Defendant must be facing a premise
liability claim. However, Plaintiff’s claim does not allege that Defendant negligently
maintained its premise. For a duty to arise under Illinois’s Premise Liability Act, “the
defendant must possess and control the real property on which the injury occurred.”
Kotecki v. Walsh Constr. Co., 776 N.E.2d 774, 779 (Ill. App. Ct. 2002) (citing Godee v.
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Ill. Youth Soccer Ass’n, 764 N.E.2d 591 (Ill. 2002)). However, Defendant did not
possess or control the real property nor does Plaintiff allege that.
Furthermore, the Court finds that Defendant cannot use § 383 to assert a
possessor’s defenses because Defendant’s limited actions would not be enough to
consider Defendant a possessor under § 383.9 This is because Illinois courts have
declined to use § 383 to assert a premise liability claim against a party who was acting
for the possessor but who only had limited control of the property. See Grzelak v.
Classic Midwest, Inc., 2013 IL App (1st) 122701-U, ¶ 20-23 (finding no liability
because plaintiff did not show that defendant “had ultimate control or intended to
have ultimate control over the land at issue”); O’Connell v. Turner Constr. Co., 949
N.E.2d 1105, 1110 (Ill. App. 2011) (finding that “one who controls the land on behalf
of another is not the possessor and that limited control of the land does not equate
possession.”). Although Defendant delivered the package for the possessor (Plaintiff’s
boyfriend), there is no indication, nor does Plaintiff ever assert, that Defendant
“possessed” or “controlled” the real property at any point in time, including the time
of the incident, which was after Defendant had made the delivery and left the
property. Therefore, it becomes apparent that Plaintiff is asserting ordinary
negligence claim, not premise liability claim, against Defendant.
Rather than being considered a possessor, Illinois Courts are more like to find that
Defendant was a business invitee, who was providing a service for the possessor’s
benefit. See, e.g., McGinley v. HOB Chi., Inc., 2016 IL App (1st) 152167-U, ¶ 13
(“Plaintiff entered HOB’s premises as a business invitee providing a delivery service
for HOB’s benefit.”); Mooney v. Graham Hosp. Ass’n, 513 N.E.2d 633, 635 (Ill. App.
1987) (“when plaintiff’s status is related to defendant’s alleged negligence in a way
not common to any other business invitee, e.g., a delivery man”).
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However, the open and obvious defense has not been recognized as a defense
to claims of ordinary negligence in Illinois. See Camp v. TNT Logistics Corp., 553 F.3d
502, 511 (7th Cir. 2009) (“We are not aware of any Illinois court that has applied the
open and obvious doctrine outside of premises or product liability arenas . . .”); Smith
v. MHI Injection Molding Mach., Inc., No. 10-C-8276, 2014 U.S. Dist. LEXIS 54498,
at *5 n.7 (N.D. Ill. Apr. 18, 2014) (“Moreover, those cases dealt with the open and
obvious hazard doctrine, and no Illinois court has extended that doctrine to cover
ordinary negligence claims.”). Therefore, Defendant’s argument that the danger was
open and obvious is inapplicable to Plaintiff’s Complaint, which raises an ordinary
negligence claim on its face.
IV. CONCLUSION
For the aforementioned reasons, the Court finds that neither the Carmack
Amendment nor the FAAAA preempt Plaintiff’s claim. Additionally, the Court finds
that the open and obvious doctrine is inapplicable because Plaintiff asserts an
ordinary negligence claim. Therefore, Defendant’s Motion for Summary Judgment
(Doc. 34) is denied.
Entered this _27th_ day of June, 2017.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge
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