By Miriam A. Friedman, J.D.
A tractor-trailer driver who was injured by a forklift owned by his employer could not establish that the company which serviced the equipment owed the employer a duty to recommend installation of a backup alarm on the forklift, the U.S. Court of Appeals for the Seventh Circuit ruled. The court further found that the operative complaint’s "nonconclusory factual allegations" did not establish a plausible inference that the service company substantially assisted the employer in breaching a duty to the driver. Therefore, the appellate court affirmed a federal district court in Illinois’s dismissal of the driver’s negligence and in-concert liability claims against the service company (Hutchison v. Fitzgerald Equipment Co., Inc., December 14, 2018, Flaum, J.).
The truck driver, employed by Borkholder Corporation, arrived at work with an empty tractor-trailer to pick up a load of bundled foam insulation. While loading the trailer, the primary forklift driver and yard foreman reversed the Caterpillar Model No. DP40 forklift he was using and ran over the driver’s left foot. The driver filed suit against a third-party servicing company, Fitzgerald Equipment Company, Inc., alleging that the service company was negligent in failing to warn his employer to install a backup alarm on the forklift and was liable in concert with his employer for failing to install such an alarm. The district court granted both the service company’s motion for summary judgment on the negligence claim and its motion to dismiss the in-concert liability claim, and the driver appealed.
Negligence. The appellate court first addressed the question of "unequal knowledge" and concluded that the driver had not pointed to any evidence of unequal knowledge between the service company and his employer that would give rise to a duty to warn. That is, he did not cite any evidence that the service company knew of risks his employer did not. The court noted that the duty to warn "does not encompass a duty to recommend optional safety features to an owner who already knows about them."
The driver also asserted that the service company was liable under a "voluntary undertaking" theory of liability because it had voluntarily undertaken the responsibility to advise the employer to install a backup alarm on its Caterpillar forklift if other forklifts at the employer’s facility had backup alarms. However, the responses of the service company’s employees to "hypothetical questions" could not establish a "voluntary undertaking," as the driver did not proffer actual evidence that those employees knew that another forklift at the facility had a backup alarm. Even had they known about the alarm on the other forklift, the court concluded, the business practice they testified to could not create any legal duty because "[u]nder the voluntary undertaking theory of liability, the duty of care to be imposed upon a defendant is limited to the extent of its undertaking." Finally, the court found that the driver had not met the statutory burden for demonstrating a "breach" of any possible duty the service company may have had.
In-concert liability. Moving on to the second theory of liability, the appellate court pointed out that the driver’s allegations against the service company were premised upon its inaction. However, the court explained, the Illinois Supreme Court has ruled that "a defendant cannot be held liable under in-concert liability for failing to act; rather, a defendant must ‘affirmatively assist’ in the tortious act." As such, the factual allegations did not support a "plausible inference" that the service company "substantially assisted" the driver’s employer in breaching a duty to the driver.
The case is No. 18-2203.
Attorneys: Edmund James Scanlan (Scanlan Law Group) for Stanley Hutchison. Bruce W. Lyon (LaBarge Campbell & Lyon, LLC) for Fitzgerald Equipment Co., Inc.
Companies: Fitzgerald Equipment Co., Inc.
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