Webb et al v. R.V. Wagner, Inc.
Filing
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ORDER denying 17 Motion for Summary Judgment. For the reasons explained in the attached Memorandum & Order, Defendant's motion for summary judgment (Doc. 17) is DENIED. Plaintiffs' response deadline for motions in limine is tomorrow, December 4, 2013. Signed by Judge Michael J. Reagan on 12/3/2013. (jls)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CRYSTAL WEBB & GARY WEBB,
Plaintiffs,
vs.
R.V. WAGNER, INC.,
Defendant.
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Case No. 12–cv–0994–MJR–DGW
MEMORANDUM & ORDER
REAGAN, District Judge:
BACKGROUND
The Poplar Street Bridge (“the bridge”) spans the Mississippi River between St. Louis,
Missouri, and East St. Louis, Illinois. Built in 1967, it has an orthotropic steel deck, which consists
of flat, thin steel plates stiffened by longitudinal ribs and transverse beams. 1 The decking surface
atop the steel plates has been replaced four times since 1967, most recently in 2006. 2 The Missouri
Department of Transportation has described the 2006 surface as “exhibiting a lot of delaminations
and [costing] a lot of time and expense to keep patched in the last few years.” 3 The 2006 surface
was patched in 2011.
Defendant R.V. Wagner, Inc. (“Wagner”), a construction contractor, performed repairs on
the deck surface that year. According to the instant complaint, Plaintiffs Crystal and Gary Webb
were riding a motorcycle over the bridge on April 5, 2011, and struck a hole in the paved surface of
See U.S. Dep’t of Transp., Fed. Hwy. Admin., Manual for Design, Construction, and Maintenance of Orthotropic Steel Deck
Bridges 4, 13 (2012), available at http://www.fhwa.dot.gov/bridge/pubs/if12027/if12027.pdf.
2 Commuters often complain about the seemingly constant construction on the Poplar Street, perhaps for good reason.
California’s San Mateo-Hayward Bridge—another orthotropic steel deck bridge—was built the same year as the Poplar
Street, still has its original deck surface. See id. at 13.
3 Missouri Dep’t of Transp., Request for Information—Poplar Street Bridge Resurfacing 2 (2012), available at
http://modot.org/bidding/documents/Poplar-Street-Bridge-RFI-FINAL.pdf.
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the bridge decking. Plaintiffs sued Wagner in Illinois state court on July 20, 2012, alleging Wagner’s
negligent failure to erect barricades, warning signs, or similar devices caused them serious injuries.
Wagner removed the case to this Court in September 2012.
The case comes before on Wagner’s motion for summary judgment, in which it asserts it did
not begin work on the bridge until after Plaintiffs’ motorcycle collision and cannot, therefore, be
liable for Plaintiffs’ injuries. Plaintiffs filed a response, and the motion ripened with Wagner’s
October 25 reply. For the reasons explained below, the Court DENIES the motion (Doc. 17).
LEGAL STANDARDS
1. Summary Judgment Standard
The parties do not dispute that the federal summary judgment standard applies in this
diversity case, or that Illinois law will control the substantive issues. See Nationwide Ins. Co. v.
Cent. Laborers’ Pension Fund , 704 F.3d 522, 525 (7th Cir. 2013); Reid by Reid v. Norfolk &
W. Ry. , 157 F.3d 1106, 1110 n.2 (7th Cir. 1998). Summary judgment—which is governed by
Federal Rule of Procedure 56—is proper only if the admissible evidence considered as a whole
shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law. Dynegy Mktg. & Trade v. Multiut Corp. , 648 F.3d 506, 517 (7th Cir. 2011)
(citing FED. R. CIV. P. 56). The party seeking summary judgment bears the initial burden of
demonstrating—based on the pleadings, affidavits and/or information obtained via discovery—the
lack of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
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 v. Liberty Lobby,
Inc ., 477 U.S. 242, 250 (1986). See also Serednyj v. Beverly Healthcare, LLC , 656 F.3d 540,
547 (7th Cir. 2011) (“When a summary judgment motion is submitted and supported by
evidence . . . the nonmoving party may not rest on mere allegations or denials in its
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pleadings”). A mere scintilla of evidence supporting the non-movant's position is insufficient to
overcome summary judgment; a non-movant will prevail only when it presents definite, competent
evidence to rebut the motion. Estate of Escobedo v. Martin , 702 F.3d 388, 403 (7th Cir. 2012);
Parent v. Home Depot U.S.A., Inc. , 694 F.3d 919, 922 (7th Cir. 2012). Summary judgment is
only appropriate if, on the evidence provided, no reasonable juror could return a verdict in favor of
the non-movant. Carlisle v. Deere & Co. , 576 F.3d 649, 653 (7th Cir. 2009).
The Court’s role on summary judgment is not to evaluate the weight of the evidence, to
judge witness credibility, or to determine the truth of the matter, but rather to determine whether a
genuine issue of triable fact exists. Nat’l Athletic Sportswear, Inc. v. Westfield Ins. Co. , 528
F.3d 508, 512 (7th Cir. 2008). The Court considers the facts in a light most favorable to the nonmovant—here, Plaintiffs. Srail v. Vill. of Lisle , 588 F.3d 940, 948 (7th Cir. 2009).
2. Substantive Illinois Law
Prevailing in an Illinois negligence action requires a plaintiff to establish (1) that the
defendant owed a duty of care; (2) that the defendant breached that duty; and (3) that the breach
proximately caused the plaintiff’s injury. Binz v. Brandt Constr. Co. , 301 F.3d 529, 532 (7th Cir.
2003) (applying Illinois law).
When a contractor creates a danger, it also takes on a duty to give warnings of that danger.
Mora v. State of Ill. , 369 N.E.2d 868, 871–72 (Ill. 1977) (collecting cases). A contractor who
creates an uneven surface, an excavation, or break in pavement must adequately warn of the
condition. Id. at 872. While the existence of a duty is generally a question of law, a dispute of
material fact affecting the existence of an undertaking of a duty renders summary judgment
improper. Bourgonje v. Machev, 841 N.E.2d 96, 106 (Ill. Appt. Ct. 2005); Protective Ins. Co.
v. Coleman , 494 N.E.2d 1241, 1245 (Ill. App. Ct. 1986).
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Further, in Illinois, whether a
defendant’s act or omission represents a breach of duty—and whether that action or omission
proximately caused the plaintiff’s injury—are generally issues of fact to be decided by a jury.
ANALYSIS
Relying on the deposition of its president, Defendant argues it did not begin working on the
bridge decking until April 8, 2011—three days after Plaintiffs’ collision. When presented with
statements to the contrary, Defendant argues those statements constitute inadmissible hearsay, and
are therefore insufficient to forestall summary judgment.
Defendant is generally correct that Plaintiff may not rely on inadmissible hearsay from an
affidavit or deposition to oppose a summary judgment motion.
Bombard v. Fort Wayne
Newspapers , 92 F.3d 560, 562 (7th Cir. 1996). Accord Haywood v. Lucent Techs., Inc. , 323
F.3d 524, 533 (7th Cir. 2003). Hearsay is a statement—other than one made by the declarant while
testifying at a trial or hearing—offered in evidence to prove the truth of the matter asserted. FED.
R. EVID. 801(c); Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009). And much of the
evidence Plaintiffs bring to bear is hearsay, including deposition testimony from a bridge worker
who heard from a friend that Wagner workers had started repairs before April 5, 2011, statements
from friends and a paramedic about the presence of cut-out holes in the decking, and a signed letter
from a laborer claiming to have worked for Wagner on the bridge before April 5, 2011. 4
But Plaintiffs produce enough admissible evidence that a genuine issue of material fact exists
here. Plaintiff Gary Webb, the motorcycle driver, depones that on prior bridge crossings within a
month of the accident, he saw construction activity on the deck surface. (Doc. 17-2, 13–15) He did
not see any hole after the accident (he was down the road with a shattered pelvis and dislocated
While the Seventh Circuit has not weighed in on whether an unsworn declaration, under the new version of Federal
Rule 56, can be used in opposition to summary judgment, district courts continue to require that unsworn declarations at
least comply with 28 U.S.C. § 1746 (i.e., be subscribed “under penalty of perjury”) to enter the summary judgment
calculus. Jajeh v. Cnty. of Cook , 678 F.3d 560, 567–68 n.4 (7th Cir. 2012). The letter submitted by Greg
Touchette—who claims to have worked for Wagner removing road work on the bridge before April 5, 2011—contains
no such subscription.
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shoulder), but his description of the accident raises a reasonable inference that some gap in the deck
surface cause the accident:
…the whole front end was shuddering. Then, when the back tire hit
the end of the cut-out, it made the whole bike come up. I literally
remember riding my front tire. First, I didn’t realize the whole rear
end of my bike was coming up. I just thought my wife was pushing
on me. Then I realized that the whole bike was being inverted.
(Doc. 17-2, 19). Whether Gary Webb drove over a cut-out left by workers or a pothole awaiting
repairs is unclear, but such a factual determination is impermissible at the summary judgment stage.
See Marqui v. Rock River Cos. , No. 01 C 50179, 2003 U.S. Dist. LEXIS 43, at *5–6 (N.D. Ill.
Jan. 3, 2003) (summary judgment improper when defendant had paved a road and there was
evidence plaintiff’s motorcycle hit an uneven spot, even though plaintiff—who testified that
he hit something in the road—could not tell “for sure” why he fell).
Plaintiffs also point to the deposition of Gary Gotto, a union laborer who worked for
Wagner on the 2011 bridge project. Though Gotto did not start working on the bridge until midApril—after the Webbs’ collision—he describes an early April incident in which he “carded”
workers who were present on the bridge:
We call it scabbing, because they don’t hire our laborers. They hire
their own laborers. And since the bridge is 50/50, you have got to
have half of our people [presumably union workers] and half of their
people, so they were out there tearing the bridge up two to three
weeks prior to me even being there. I had went across the bridge and
felt thump, thump, thump … And so I looked over and I seen lights,
so I stopped and carded them and found out it was Wagner.
(Doc. 25, 12). Those workers “were roto milling. Running the machine to tear up the [epoxy] to get
it started.” (Doc. 25, 13). Plaintiffs’ other evidence may be rife with hearsay and other inadmissible
evidence, but those parts of Gotto’s deposition are made on personal knowledge and would be
admissible.
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Based on Gotto’s testimony, a reasonable jury could infer Wagner was working on the
Poplar Street Bridge before April 5, 2011. See Bourgonje v. Machev, 841 N.E.2d 96, 106 (Ill.
Appt. Ct. 2005) (summary judgment improper when material facts relating to defendant’s
duty exist). And based on Plaintiff’s testimony, a reasonable jury could infer his motorcycle struck
an unmarked cut-out left by construction workers—in other words, that Wagner’s breach of duty
proximately caused the Webbs’ injuries.
Defendant’s Motion for Summary Judgment (Doc. 17) is accordingly DENIED.
CONCLUSION
For the foregoing reasons, Defendant’s summary judgment motion (Doc. 17) is DENIED.
The case remains set for a Final Pretrial Conference on Friday, December 6, 2013 at 10:00
a.m. The parties may submit the Final Pretrial Order at Friday’s conference (though they should
also submit it to the Court’s proposed documents inbox that morning).
The Court notes that Plaintiffs’ responses to Defendant’s motions in limine are, by standing
order, due fourteen calendar days before trial—yesterday. See Judge Michael J. Reagan Case
Management Procedures , http://www.ilsd.uscourts.gov/documents/Reagan.pdf. Because
of the recent two-day challenge to the Court’s jurisdiction, however (see Doc. 30), the Court will
allow an extra two days—until December 4, 2013—for Plaintiffs to submit their responses.
IT IS SO ORDERED.
s/ Michael J. Reagan
MICHAEL J. REAGAN
United States District Judge
DATE: December 3, 2013
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