Burns v. The Sherwin-Williams Co.

1

JASON BURNS, Plaintiff, v. THE SHERWIN-WILLIAMS COMPANY, Defendant.

No. 19-cv-5258

United States District Court, N.D. Illinois, Eastern Division

September 18, 2022

MEMORANDUM OPINION AND ORDER

Steven C. Seeger United States District Judge

Wooden pallets are unsung heroes of the economy. They are modern workhorses for the distribution of just about every consumer product. They facilitate the efficient movement of heavy goods between manufacturers, distributors, and retailers. Good luck trying to buy a consumer product that did not, at some point, hitch a ride on a pallet.

But sometimes pallets can get in the way and pose a danger to the workforce. They aren't tall, but they're wide, and they take up space. Worse yet, they are low to the ground sitting right about ankle level. They're at the perfect height to trip someone. And for Plaintiff Jason Burns that's precisely what happened.

Burns delivered a tractor trailer full of paint-related supplies to a Sherwin-Williams store. He pulled up to the back of the store, and began to unload. He used a walkie - a hand-operated electric forklift - to move the pallets. At first, things went smoothly.

But then he took a tumble. He walked backwards out of the garage while using the walkie, down a short ramp. As he backed up he moved toward a dumpster, and he spotted a few oversized empty pallets. He tried to stop the walkie, but it was too late. The walkie had momentum and, like anything heavy, it can't stop on a dime. His foot became lodged between the walkie and the pallets, and then he fell.

Burns filed suit against Sherwin-Williams for his injuries. The complaint offers a number of theories why, in his view, Sherwin-Williams acted negligently. Burns claims that the company failed to exercise ordinary care by leaving pallets in a work area, and by providing an unsafe walkie that was unsuitable for the job. He offered expert testimony to support his claims.

After discovery, Sherwin-Williams moved for summary judgment, and moved to exclude the expert from testifying. For the reasons stated below, the Court grants both motions.

Background

Jason Burns worked as a truck driver with Cardinal Logistics, a transportation management company. See Pl.'s Resp. to Def.'s Statement of Facts, at ¶ 2 (Dckt No. 104). In 2018, Burns delivered palletized products (i.e., products laying on pallets) to a Sherwin-Williams store in the Chicagoland suburbs. Id. at ¶¶ 1-2.

He drove his tractor trailer to the rear of the store, and backed up near the garage door. Id. at ¶ 3. He then parked the truck and walked to the back entrance. Id. at ¶ 4.

A dumpster sat outside the rear of the store, close to where Burns was working. Id. at ¶ 5. A few discarded, oversized pallets lay on the asphalt next to the dumpster. Id. The pallets came from a previous delivery. See Def.'s Resp. to Pl.'s Statement of Facts, at ¶ 19 (Dckt. No. 107).

Burns greeted a Sherwin-Williams employee, Ramiro Bahena, before opening the rear doors of his trailer. See Pl.'s Resp. to Def.'s Statement of Facts, at ¶ 8 (Dckt. No. 104). Bahena was the only Sherwin-Williams employee working that day. See Def.'s Resp. to Pl.'s Statement of Facts, at ¶ 9 (Dckt. No. 107).

Unloading the truck was a two-person job, using two pieces of equipment: a pallet jack, and a “walkie” forklift. At first, maybe you can't envision what they look like, based on the names alone. Or, maybe you know what they are, but you didn't know what they were called. If you've ever been in a supermarket or a big-box store, you've seen them.

A pallet jack (also called a pallet truck, or a hand truck) is a simple-looking piece of machinery. It basically consists of a set of forks, like the forks of a forklift. A vertical handle stands on one end, with a circular-shaped handle on top. A worker can simply pull the handle down, and then scoot along with a pallet. It is basically a stripped-down forklift, without an engine. It's the kind of thing that a worker might use to lug a pallet of gelato at the grocery store.

A walkie forklift is, as the name suggests, a forklift that an operator walks behind. Instead of sitting down and driving the machine, the operator of a walkie stands and holds a handlebar with the controls. From there, the worker can direct the machine forward or backward, left or right.

A walkie forklift is similar to a pallet jack, but it has more heft. Like a pallet jack, it has a set of forks for moving pallets. And like a pallet jack, it has a handle on one end. But a walkie forklift is larger than a pallet jack. It isn't as big as a full-blown forklift. But it is a meatier-looking piece of equipment than a pallet jack.

An operator controls a walkie by using the thumb drive. It is the directional throttle control, and it is located on the handlebars of the walkie. Id. at ¶ 19. The direction of the thumb drive determines the direction of the walkie. Id. Flipping the switch forward makes the walkie go forward, and flipping the switch backward makes the walkie go backward. Id.

When a walkie is moving in one direction, an operator can place the thumb drive in the opposite direction to slow down the machine. See Def.'s Resp. to Pl.'s Statement of Facts, at ¶ 9 (Dckt. No. 107). For example, if the walkie is moving backward, and the operator moves the thumb drive forward, the walkie will slow to a stop and then start moving forward. See Pl.'s Resp. to Def.'s Statement of Facts, at ¶ 19 (Dckt. No. 104); Def.'s Resp. to Pl.'s Statement of Facts, at ¶ 9 n.1 (Dckt. No. 107).

This procedure is called “plugging.” Plugging is a method for stopping the walkie in non-emergency situations. See Pl.'s Resp. to Def.'s Statement of Facts, at ¶ 20 (Dckt. No. 104).

Plugging doesn't stop a machine right away. See Def.'s Resp. to Pl.'s Statement of Facts, at ¶ 9 (Dckt. No. 107). It slows the machine down until it can move in the opposite direction (i.e., the direction of the thumb drive). See Pl.'s Resp. to Def.'s Statement of Facts, at ¶ 19 (Dckt. No. 104).

Back to the story. Burns and Bahena needed to unload the truck of paint-supply goods. Burns climbed inside the trailer and used a pallet jack to move pallets to the end of the trailer. See Pl.'s Resp. to Def.'s Statement of Facts, at ¶ 8 (Dckt. No. 104).

At that point, Burns passed the baton (and the pallets). Bahena used a “walkie” forklift to carry the pallets out of the trailer, and took them inside the store through the garage. Id. Burns and Bahena repeated this process a few times. Id.

At some point, Bahena had to go inside the store to answer a phone call. Id. at ¶ 9. But the job wasn't complete. The two men agreed that Burns would finish unloading while Bahena took the call. See Def.'s Resp. to Pl.'s Statement of Facts, at ¶ 1 (Dckt. No. 107).^[1] Burns climbed down from the trailer and began operating the walkie. See Pl.'s Resp. to Def.'s Statement of Facts, at ¶ 9 (Dckt. No. 104); Def.'s Resp. to Pl.'s Statement of Facts, at ¶¶ 4-6 (Dckt. No. 107). That task fell within his job description. His duties as a truck driver included operating a forklift whenever a store employee was busy or occupied. See Pl.'s Statement of Facts, at ¶ 10 (Dckt. No. 104).

In fact, Burns had experience with this particular walkie. Burns had used this specific walkie forklift - at this specific Sherwin-Williams store - somewhere between 8 to 18 times in the past. See Def.'s Resp. to Pl.'s Statement of Facts, at ¶ 10 (Dckt. No. 107).^[2]

Burns got his hands on the walkie, took it to the truck, and used it to unload the last pallet off the trailer. See Pl.'s Resp. to Def.'s Statement of Facts, at ¶ 10 (Dckt. No. 104). He lowered the final pallet, resting it next to the dumpster and the discarded oversized pallets. Id. Burns was “generally aware of what was around.” Id. at ¶ 11.

At that point, he decided to get the empty pallets from inside the garage. Id. at ¶ 12. To get there, he had to go up a small ramp. Id. at ¶ 13. It wasn't the world's largest ramp. It was akin to a mini driveway, a few feet long, with a slight slope. By the look of things, it wasn't that long, and wasn't that high, and wasn't that steep.^[3] But it wasn't flat, either. It went downhill, which can pose a challenge when moving things.

To get a sense of the scene, the parties included some photos. The picture below depicts the back of the garage, the ramp, and the dumpster. You can see a man - not Burns - operating a walkie. This first photo does not include the oversized pallets on the day of the accident. It simply shows the location of accident. Notice the walkie, the ramp, and the locations of the pallet and the dumpster:

(Image Omitted)

See Exhibit 10 Photo (Dckt. No. 104-2, at 37 of 38).

Burns drove the walkie up the ramp, entered the garage, and used the walkie to pick up the empty pallets. Id. He then exited the garage. He backed up, so he walked backwards down the ramp. Id. That is, he faced the garage, moved in reverse, and headed down the ramp. Id.

Burns did not go in a straight line toward the truck. He began reversing toward the dumpster. Id. at ¶ 14. He planned to do a two-point turn.^[4] In other words, he planned to back up to the dumpster, stop, and then move the walkie forward to his trailer to offload the empty pallets. Id. at ¶ 15.

All the while, Burns knew about the oversized pallets resting on the asphalt by the dumpster. He “was aware of the discarded pallets as he approached the dumpster.” Id. at ¶ 16.

As he backed up, Burns made a “guestimation of how far away that pallet was,” meaning the discarded, oversized pallets by the dumpster. See Pl.'s Resp. to Def.'s Statement of Facts, at ¶ 17 (Dckt. No. 104). As he got closer to the pallets, he slowed the walkie down by pushing the thumb drive...