Kerry Smith et al v. MHI Injection Molding Machinery, Inc. et al

Filing 265

MEMORANDUM Opinion and Order Signed by the Honorable Milton I. Shadur on 2/20/2014. Mailed notice by judge's staff. (srb,)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KERRY SMITH and CHERYL SMITH,

)
)
Plaintiffs,
)
)
v.
)
)
MHI INJECTION MOLDING
)
MACHINERY, INC., et al.,
)
)
Defendants.
)
_______________________________________)
)
MITSUBISHI HEAVY INDUSTRIES
)
AMERICA, INC., et al.,
)
)
Third-Party Plaintiffs,
)
)
v.
)
)
TRANSNAV TECHNOLOGIES, INC.
)
and SYCAMORE SPECIALIZED
)
CARRIERS, INC.,
)
)
Third-Party Defendants.
)

Case No. 10 C 8276

MEMORANDUM OPINION AND ORDER
Third-party defendant Sycamore Specialized Carriers, Inc. ("Sycamore") seeks summary
judgment under Fed. R. Civ. P. ("Rule") 56 on the contribution claims against it filed by
third-party plaintiffs Casini Warehousing Corporation ("Casini"), Mitsubishi Heavy Industries
America, Inc. ("Mitsubishi") and MHI Injection Molding Machinery, Inc. ("MHI"). Sycamore's
motion is based solely on its argument that it had no duty to plaintiff Kerry Smith ("Smith") to
prevent the injuries he sustained (S. Mem. 2, 3 n.2). 1
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1
Abbreviations "S." for "Sycamore," "C." for "Casini" and "M." for Mitsubishi and
MHI collectively are used throughout this opinion. Mitsubishi's and MHI's First Amended
(continued)

As this memorandum opinion and order explains, by ordering Smith to load and tarp such
massive equipment as the nearly 15-ton machine at issue in this case, Sycamore undoubtedly
undertook a duty to provide reasonable training and equipment to enable Smith to carry out that
duty safely. Although that reason -- and others outlined below -- require the rejection of
Sycamore's motion as a matter of law, it should be understood that such denial does not
necessarily spell success for its adversaries' claims for contribution.
Summary Judgment Standard
All parties agree that the substantive law governing the case is that of Illinois. But
because summary judgment standards are procedural in nature, this Court follows federal
procedure even in diversity cases. Casini's references to the Illinois state summary judgment
standards (see C. Mem. 6-7) are of course wholly inapposite and will be ignored.
Every Rule 56 movant bears the burden of establishing the absence of any genuine issue
of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). For that purpose courts
consider the evidentiary record in the light most favorable to nonmovants and draw all
reasonable inferences in their favor (Lesch v. Crown Cork & Seal Co., 282 F. 3d 467, 471 (7th
Cir. 2002)). Courts "may not make credibility determinations, weigh the evidence, or decide
which inferences to draw from the facts" in resolving motions for summary judgment (Payne v.
_________________________
(footnote continued)
Third-Party Complaint is cited "M. Am. Compl. ¶ --," and Casini's Third-Party Complaint is
cited "C. Compl. ¶ --." Sycamore's Answer to Casini's Third-Party Complaint is cited "S. Ans.
C. Compl. ¶ --." All parties' exhibits are cited "Ex.," and their memoranda are cited "Mem."
Sycamore's memorandum in reply is cited "R. Mem." This opinion cites Sycamore's
LR 56.1(a)(3) statement as "S. St. ¶ --," Casini's corresponding statement of additional facts as
"C. St. ¶ --" and Mitsubishi's and MHI's statement of additional facts as "M. St. ¶ --." All
responses to statements of fact take the form "x R. y St. ¶ --," with "x" denoting the author of the
response and "y" denoting the party to whose statement "x" has responded.
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Pauley, 337 F. 3d 767, 770 (7th Cir. 2003)).
But a nonmovant must produce more than "a mere scintilla of evidence" to support the
position that a genuine issue of material fact exists and "must come forward with specific facts
demonstrating that there is a genuine issue for trial" (Wheeler v. Lawson, 539 F. 3d 629, 634 (7th
Cir. 2008)). Ultimately summary judgment is warranted only if a reasonable jury could not
return a verdict for the nonmovant (Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
Factual Background
Smith's claims against Casini, Mitsubishi and MHI arose from his fall that occurred on
December 16, 2009 in a warehouse that Casini operated in Bensenville, Illinois (M. Am. Compl.
¶¶ 1-3). Smith was a truck driver employed by Sycamore and was at the warehouse to transport
an injection molding machine ("Machine") (S. St. ¶ 37).
Both the weight and size of the Machine made its loading for transport a major task -- it
weighed some 14-1/2 tons and was 20 feet long, more than 8 feet wide and more than 7 feet tall
(M. R. S. St. ¶ 36). It had to be lowered via crane onto the trailer of the truck owned and
operated by Sycamore (S. St. ¶ 39). According to the bill of lading, before transport the Machine
also had to be covered with a tarp (S. St. Ex. D). Smith contends that he asked the crane operator
to employ the crane facility to assist in draping the 250-pound tarp over the Machine and that his
request was denied (S. St. ¶ 45). 2 In turn, Casini's crane operator (now the company's president)
denies that Smith ever asked for such use of the crane (M. R. S. St. ¶ 45).
In any event, Sycamore had not called ahead to ask whether Smith would be able to use

_________________________
2
Casini offers opinion testimony suggesting that the tarp weighed merely (!) 80 pounds
(C. Supp. R. ¶ 3). In any case that dispute is not material to the issue of Sycamore's duty.
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the crane to tarp the load after the crane operator had loaded it onto the trailer (M. St. ¶ 13). 3
Nor did Smith call Sycamore for assistance or to explain the situation (S. St. ¶ 48). Instead
Smith climbed atop the Machine and began to unroll the tarp (S. St. ¶¶ 50, 51). In the course of
doing so, Smith fell from the slick Machine and sustained injuries (S. St. ¶¶ 56–57).
Smith had worked for Sycamore as a truck driver since 2003 (S. St. ¶ 10). He had been
trained in tarping loads by senior drivers both at Sycamore and at the trucking company for
which he had worked previously (S. St. ¶¶ 16–17). He had regularly transported heavy
equipment similar to the Machine in the past (S. St. ¶¶ 11–13). Although Smith said at his
deposition that he had never fallen off of a trailer before this incident (C. Mem. ¶ II.A.2), Casini
has offered evidence that he had fallen off a trailer in 2004 (C. Mem. ¶ II.A.3).
Sycamore specifically prohibited drivers from tempting fate by standing on their loads
(S. St. ¶ 20), and drivers faced disciplinary measures if they violated that policy (S. St. ¶ 22).
Instead loads were to be tarped with the aid of a crane, forklift or manlift (S. St. ¶ 25). If drivers
had difficulty tarping a load or felt that it was dangerous to do so, they were instructed to call
Sycamore for assistance (S. St. ¶ 23). Sycamore did not provide Smith with fall arrest
equipment, a ladder, sliding or rolling tarps or a trailer with soft or curtain sides (C. Mem.
¶ II.A.6).
With Smith's Fourth Amended Complaint having named Casini, Mitsubishi and MHI as
defendants, each of them brought a claim for contribution against Sycamore under the Illinois

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3
In light of the Sycamore training of its drivers described in the next paragraph of the
text, nothing supports the notion that Sycamore was delinquent in not having anticipated that
question.
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Joint Tortfeasors Contribution Act (740 ILCS 100/1 to 100/5). 4 They allege that Sycamore owes
them contribution (in the event of an adverse judgment against them) because any injury suffered
by Smith was at least in part proximately caused by Sycamore's having breached a duty "to
ensure that Kerry Smith had the knowledge, experience, equipment and assistance to secure and
cover the machine for transportation by means which would not result in injury to Kerry Smith"
(M. Am. Compl. ¶ 29).
Sycamore's Duty of Reasonable Care
All the parties look to Illinois substantive law in this diversity-based action, and this
opinion will do likewise. On that score Act § 2(a) specifies that Casini, Mitsubishi and MHI
may prevail in their claims for contribution against Sycamore only if Sycamore is liable to Smith
for his injury.
While the parties dispute a number of facts, the issues to which those disputed facts
pertain are breach and proximate cause rather than duty. Because Sycamore explicitly restricts
its motion to the question of duty, the existence of disputed facts on such other issues does not
suffice to resolve this motion.
To find the existence of a duty, this opinion must first determine whether Sycamore, by
its act or omission, contributed to a risk of harm to Smith (see Simpkins v. CSX Transp., Inc.,
2012 IL 110662 ¶ 21, 965 N.E.2d 1092, 1098 (Ill. 2012)). If that preliminary inquiry gets a
"yes" answer, this Court must look to the four policy considerations that Simpkins, 2012 IL
110662 ¶ 21, 965 N.E.2d at 1098 directs Illinois courts to use in determining whether a duty ran
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4
Citations to that statute will take the form "Act § --," omitting the prefatory "740 ILCS
100/."

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from a defendant to a plaintiff:
(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. 5
Threshold Question
Sycamore argues that the preliminary question whether its act or omission contributed to
a risk of harm to Smith should be answered in the negative. On that score Sycamore claims it
owed Smith no duty because it did not itself create the situation in which there was a foreseeable
risk of injury (S. R. Mem. 2). As Sycamore would have it, the hazard arose and Smith's injury
was sustained because he was denied assistance in tarping his load at the warehouse -- and not
because he followed Sycamore's training or used the equipment it provided or was improperly
supervised.
All of that means, Sycamore contends, that the duties of training, equipping and
supervision that Casini, Mitsubishi and MHI would impose on it are irrelevant. And that being
so, Sycamore concludes that the inquiry need not extend to an examination of the four policy
factors.
That however misses the full thrust of the necessary inquiry; which hinges on what
Sycamore did or did not do that arguably affected the risk of harm to Smith. In that respect its
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5
[Footnote by this Court] Sycamore might also have owed an affirmative duty to Smith
if there were a legally recognized "special relationship" between them that automatically gave
rise to such a duty (Simpkins, 2012 IL 110662 ¶ 20, 965 N.E.2d at 1097-98). But Illinois does
not recognize the employer-employee relationship as one of those special relationships
(MacDonald v. Hinton, 361 Ill. App. 3d 378, 382, 836 N.E.2d 893, 898 (1st Dist. 2005)). Any
duty owed by Sycamore must therefore have come into being via Sycamore's act or omission and
the just-quoted four-factor policy analysis. Casini appears to misunderstand this point, arguing
that Sycamore should not have an exemption from its duty (C. Mem. 8, 9-11) -- an argument that
would come into play only if Sycamore did in fact have one of the legally defined "special
relationships" with Smith. Because that is not the case, Casini's argument is irrelevant.
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having sent him to pick up the Machine at all is not of course to be counted -- it is simply a "but
for" factor that cannot serve the function of legal causation. As for the earlier-described things
that Sycamore did or did not do that may have borne on the risk that eventuated in Smith's
injury:
1.

It provided him with training in tarping loads, supplementing his training
at an earlier job. Although the predicate for doing so is really thin, 6 out of
an abundance of caution this Court will assume for purposes of this
motion that a factual issue is posed as to whether Sycamore's training
should have been more extensive.

2.

It has expressly prohibited its drivers (including Smith) from standing on
their loads, with discipline facing them if they violated that prohibition.
Smith's having done just that in spite of that prohibition surely does not
attach potential liability to Sycamore.

3.

It has directed its drivers (again including Smith) to call it for assistance in
case of (a) difficulty in tarping or (b) a sense of danger in doing so. Smith
did not follow that directive, and once again to ascribe fault to Sycamore

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6
Casini's Mem. 2 refers to Smith's deposition testimony in which he said (Smith
Dep. 26:20 to 26:22):
Well, the training period at Sycamore is kind of short and there's a lot of work to
do so you just go out and you get it done.
But that is really cherry-picking, because Smith then went on to describe the meaningful
specifics of the training, including on-the-job training. Moreover, Sycamore can scarcely be held
to have violated reasonable care principles when it has taken into account the prior training and
experience a newly-hired driver has brought with him to the job -- especially when it has
imposed the strict and express restrictions described in the next two paragraphs of the text.
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would impermissibly convert it into a guarantor of Smith's compliance
with the proper training that Sycamore had provided.
4.

That leaves only defendants' complaint as to Sycamore's not having
supplied Smith with fall arrest equipment, a ladder, sliding or rolling tarps
or a trailer with soft or curtain sides. And in those respects the record does
not suffice to determine the fact-intensive question whether the
nonprovision of such items or any of them amounts to an absence of due
care on Sycamore's part. Indeed, it must be noted that to the extent that
the provision of any such items could be called for to lessen or avoid the
risk of injury if Smith violated Sycamore's above-stated prohibition and
directives, MHI and Mitsubishi Mem. 6 has expressly conceded (emphasis
added):
Sycamore's argument that it had no reason to anticipate that
Plaintiff would ignore his training and violate company
policy is reasonable.

So for present purposes Sycamore's effort to cut off at the pass any examination of the
Simpkins-provided four factor analysis will be rejected -- but that rejection does not constitute a
finding either way as to the last-mentioned possible shortfall on Sycamore's part.
That then provides the backdrop against which the application of the four factor Simpkins
test must be evaluated. This opinion turns to that task.
As for the first factor, the foreseeability of the injury, if Sycamore is found to have fallen
short in either or both of the first and fourth just-discussed responsibilities or possible
responsibilities -- as this Court must assume arguendo to have been possible for the reasons
already stated -- there is no question that injury to Smith could foreseeably have been the
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consequence. And as for the second factor, the likelihood of such injury, that is really a given
once the foreseeability element has been established.
To turn to the third factor, the magnitude of the burden of guarding against the injury, it
would surely not be oppressive if Sycamore were required to provide some additional training to
cure its hypothesized first potential deficiency. That is also true of Sycamore's fourth alleged
shortcoming, because any obligation on its part that might remain after putting aside safety
precautions that would be called for only on the dubious premise that Sycamore had some
obligation to assume that Smith might ignore his training and climb atop the Machine -especially in light of the heightened training requirement -- would not appear to present an
excessive burden. With those determinations having been made that neither the first nor fourth
of Sycamore's hypothesized responsibilities discussed above would post any great burden under
Simpkins' third factor, it follows that the consequences of imposing such a burden under the
fourth factor are slight.
In sum, with any factual inferences having been drawn in favor of the contribution
claimants (although it bears repeating once again that it appears to require a real stretch to
characterize some of those as "reasonable," as Rule 56 requires), the existence of disputed facts
compels the denial of Sycamore's motion. Hence resolution of the question of contribution must
await the trial of the case.
Conclusion
As might well have been (and perhaps should have been) anticipated when the current
motion by Sycamore was first launched, summary judgment on the contribution claims filed
against it here has proved a singularly inapt vehicle for narrowing the issues in this action. As
stated more than once during the course of this opinion, Sycamore's motion has not only failed to
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establish its right to a judgment as a matter of law on the contribution claims but, on the other
side of the coin, has also failed to limn a path for the contribution claimants' success on those
claims. For the present, however, the only required action by this Court is the denial of
Sycamore's motion, and it so orders.

__________________________________________
Milton I. Shadur
Senior United States District Judge
Date: February 20, 2014

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