Rankins v. Allied Power Products, Inc. et al
MEMORANDUM Opinion and Order: Plaintiff's motion for summary judgment and motion to strike affirmative defenses 150 is granted in part and denied in part. A genuine issue of fact exists as to contributory negligence, assumption of risk, and failure to mitigate. The remaining defenses of sole proximate cause, intervening/superseding cause, and set-off are stricken. Signed by the Honorable Sharon Johnson Coleman on 11/19/2021. Mailed notice. (ym, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
SYSTEMS SOLUTIONS OF
KENTUCKY and ALLIED POWER
PRODUCTS, INC., et al.
Case No. 19-cv-3775
Judge Sharon Johnson Coleman
MEMORANDUM OPINION AND ORDER
This case arises out of an injury plaintiff Rankins suffered while working at a DHL facility at
O’Hare Airport. Plaintiff sued defendants Lummus Corporation (“Lummus”) and Systems
Solutions of Kentucky (“SSK”) for negligence and strict products liability, claiming that SSK
negligently designed the system that injured plaintiff and that Lummus directed SSK. Plaintiff
moves for summary judgment on Lummus and SSK’s affirmative defenses . For the reasons
set forth below, the motion is granted in part and denied in part.
Summary judgment is appropriate “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);
see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L.Ed.2d 265 (1986). A
genuine dispute as to any 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, 106 S.
Ct. 2505, 2510, 91 L.Ed. 2d 202 (1986). When determining whether a genuine issue of material fact
exists, the Court must view the evidence and draw all reasonable inferences in favor of the
nonmoving party. Id. at 255; Hackett v. City of South Bend, 956 F.3d 504, 507 (7th Cir. 2020). After “a
properly supported motion for summary judgment is made, the adverse party ‘must set forth specific
facts showing that there is a genuine issue for trial.’” Anderson, 477 U.S. at 255 (citation omitted).
The Court incorporates the facts as set forth in its order  granting Lummus’ motion for
summary judgment. Since the Court granted defendant Lummus’ motion for summary judgment,
plaintiff’s motion for summary judgment on Lummus’ affirmative defenses is moot. The Court
must still evaluate plaintiff’s motion for summary judgment on and motion to strike defendant
SSK’s (hereafter, “defendant”) affirmative defenses of contributory negligence, assumption of risk,
failure to mitigate, intervening/superseding cause, sole proximate cause, and set-off. 1
First, Illinois does not recognize contributory negligence as an affirmative defense. See Kun
Mook Lee v. Young Rok Lee, 2019 IL App (2d) 180923, 149 N.E.3d 551. It does, however, recognize a
theory of modified comparative negligence. Under this standard, the plaintiff cannot recover
damages if he is more than 50% of the proximate cause of the damage. Id. at ¶31. Defendant’s
arguments assume the prior contributory negligence standard of whether the plaintiff used degree of
care an ordinary person would have used. Still, defendant presents enough evidence to create an
issue of material fact as to plaintiff’s negligence under the modified comparative negligence standard.
Plaintiff fails to cite to the record in support of his own arguments, vaguely referring to “a review of
the facts” and “undisputed” facts without pointing the Court to specific evidence. Fatally, plaintiff
also failed to respond to defendant’s statement of additional facts in which the defendant asserted
that plaintiff deliberately chose an unsafe way to perform his job and knew the danger of a snapping
winch cable. See Defendants’ Statement of Additional Facts, Dkt. 165, at ¶¶64-68. Under L.R.
56.1(a), an opposing party’s additional facts that are adequately supported with citations to the
As discussed on the record, the Court construes plaintiff’s motion for summary judgment on the affirmative
defenses of intervening cause/superseding cause, sole proximate cause, and set-off as, more properly, a
motion to strike.
record will be deemed admitted for the purposes of the summary judgment motion if the moving
party does not respond. See Brown v. Navarro, No. 09 C 3814, 2012 WL 1986586, at *2-3 (N.D. Ill.
June 4, 2012) (Kendall, J.). Because defendant cites to specific testimony in support of its additional
facts and plaintiff did not respond, those facts are deemed admitted for this motion. Plaintiff’s
knowledge of danger posed by a snapping winch cable and deliberate choice to act in an unsafe
manner is enough to create an issue of fact as to whether plaintiff was more than 50% of the
proximate cause of his injury.
Second, plaintiff is not entitled to summary judgment on the assumption of risk affirmative
defense for similar reasons. Illinois courts have traditionally recognized three different categories of
assumption of risk (although here, neither party has distinguished between these categories): (1)
express assumption of risk; (2) primary implied assumption of risk; and (3) secondary implied
assumption of risk. Evans v. Lima Lima Flight Team, Inc., 373 Ill. App. 3d 407, 418, 869 N.E.2d 195,
206 (1st Dist. 2007). Express assumption of risk is when an individual has explicitly agreed to
relieve another from their legal duty. Id. Primary implied assumption of risk occurs when an
individual knew of the risk that caused their injury. Id. Like contributory negligence, secondary
implied assumption of risk occurs when the injured party voluntarily chose to encounter an apparent
danger and has been abrogated pursuant to Illinois’ adoption of comparative fault. Id. Defendant
does not argue that plaintiff expressly assumed the risk. Rather, defendant’s arguments appear to
focus on secondary implied assumption of risk, which Illinois no longer recognizes, and primary
implied assumption of risk. As discussed above, the facts deemed admitted by the Court create an
issue of material fact as to whether plaintiff knew of the risk posed by the snapping cable.
Third, plaintiff is also not entitled to summary judgment on the failure to mitigate
affirmative defense. The Court has been given extremely limited evidence on the extent of
plaintiff’s injuries and information that would be relevant for a failure to mitigate claim. As is par
for the course in this case, both parties have left the Court to sift through the three full binders of
exhibits without much guidance. Regardless, the Court must do what it can with what it is given.
The burden first lies with the movant and shifts to the defendant only after the movant has
presented a properly supported summary judgment motion. Anderson, 477 U.S. at 255. Here,
plaintiff does not meet his burden. Plaintiff again fails to cite to the record or point to any specific
evidence. Plaintiff’s only “factual” statement is to suggest that plaintiff was transported to the
hospital, underwent multiple surgeries, and continued to receive treatment for several months. But
this statement is not supported by the facts; plaintiff’s statement of facts only states that after the
injury, plaintiff’s supervisor called an ambulance and that plaintiff was treated at Lutheran General.
See Defendant’s Response to Plaintiff’s Statement of Facts, Dkt. 165, at ¶¶58-59. Because plaintiff
has failed to meet his initial burden on summary judgment, the Court must deny the motion as it
relates to the failure to mitigate claim.
Fourth, plaintiff argues that intervening/superseding cause and sole proximate cause are not
proper affirmative defenses as they merely attack the sufficiency of plaintiff’s claims. See Korando v.
Uniroyal Goodrich Tire Co., 159 Ill. 2d 335, 344, 637 N.E.2d 1020, 1025 (1994). An affirmative defense
is a defense that “gives color to [plaintiff’s] claim but asserts new matter which defeats an apparent
right in the plaintiff.” Hartmann Realtors v. Biffar, 2014 IL App (5th) 130543, ¶ 25, 13 N.E.3d 350,
359. Korando explicitly stated that claims regarding lack of proximate cause do not assert a new
matter to defeat plaintiff’s claim. Korando, 159 Ill. 2d at 344. As such, defenses based on lack of
proximate cause (i.e. intervening cause and sole proximate cause) are not proper affirmative
defenses. Defendant argues that Korando is distinguishable because it involved defendants that did
not plead a proximate cause affirmative defense and that it stands for the proposition that
defendants do not need to plead lack of proximate cause to raise it as a defense at trial. The Court
agrees that the Korando stands for such a proposition, but it also stands for the proposition that a
lack of proximate cause is not an affirmative defense. These two findings are not incompatible.
Further, defendant does not cite to any cases to support its position that lack of proximate cause is
an affirmative defense. Defendant may be correct that DHL’s conduct was a partial cause of
plaintiff’s injury, but it cannot use an affirmative defense to prove as such. The Court strikes
intervening/superseding cause and sole proximate cause as improper affirmative defenses.
Finally, plaintiff moves to strike the set-off affirmative defense. Defendant’s response is
exceedingly brief and cites no case law. Defendant merely claims that it has a right of recovery
under the Illinois Joint Tortfeasor Act. While defendant may have such a right of recovery, set-off is
not a proper affirmative defense. It does not assert a new matter which defeats plaintiff’s claims.
Defendant may argue set-off more properly at the damages stage.
Plaintiff’s motion for summary judgment and motion to strike affirmative defenses is
granted in part and denied in part. A genuine issue of fact exists as to contributory negligence,
assumption of risk, and failure to mitigate. The remaining defenses of sole proximate cause,
intervening/superseding cause, and set-off are stricken.
IT IS SO ORDERED.
SHARON JOHNSON COLEMAN
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?