McGregor v. United States, Case No. 13 C 7223

THOMAS McGREGOR and THERESA McGregor, Plaintiffs, v. UNITED STATES OF AMERICA, Defendant.

Case No. 13 C 7223

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

March 17, 2016

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Court Judge:

On February 10, 2014, Plaintiffs Thomas and Theresa McGregor brought a three-count First Amended Complaint against Defendant United States of America under the Federal Tort Claims Act ("FTCA"), alleging negligence (Count I), business invitee premises liability (Count II), and loss of consortium (Count III). See 28 U.S.C. §§ 1346, 2671, et seq. Before the Court is Defendant's motion for summary judgment brought pursuant to Federal Rule of Civil Procedure 56(a) and Northern District of Illinois Local Rule 56.1. For the following reasons, the Court grants Defendant's motion and dismisses this lawsuit in its entirety.

BACKGROUND

I. Northern District of Illinois Local Rule 56.1

Local Rule 56.1 "is designed, in part, to aid the district court, 'which does not have the advantage of the parties' familiarity with the record and often cannot afford to spend the time combing the record to locate the relevant information,' in determining whether a trial is necessary." Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir. 2011) (citation omitted). Local Rule 56.1(a) requires the moving party to provide "a statement of material facts as to which the moving party contends there is no genuine issue and that entitle the moving party to a judgment as a matter of law." Petty v. City of Chicago, 754 F.3d 416, 420 (7th Cir. 2014). "The non-moving party must file a response to the moving party's statement, and, in the case of any disagreement, cite 'specific references to the affidavits, parts of the record, and other supporting materials relied upon.'" Id. (citation omitted); see also L.R. 56.1(b)(3)(A). Local Rule 56.1(b)(3)(C) "requires specifically that a litigant seeking to oppose a motion for summary judgment file a response that contains a separate 'statement ... of any additional facts that require the denial of summary judgment.'" Sojka v. Bovis Lend Lease, Inc., 686 F.3d 394, 398 (7th Cir. 2012) (citation omitted).

The purpose of Local Rule 56.1 statements and responses is to identify the relevant admissible evidence supporting the material facts, not to make factual or legal arguments. See Zimmerman v. Doran, 807 F.3d 178, 180 (7th Cir. 2015); see also Cady v. Sheahan, 467 F.3d 1057, 1060 (7th Cir. 2006) ("statement of material facts did [ ] not comply with Rule 56.1 as it failed to adequately cite the record and was filled with irrelevant information, legal arguments, and conjecture"). "When a responding party's statement fails to dispute the facts set forth in the moving party's statement in the manner dictated by the rule, those facts are deemed admitted for purposes of the motion." Curtis v. Costco Wholesale Corp., 807 F.3d 215, 218 (7th Cir. 2015) (quoting Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009)). The Seventh Circuit "has consistently upheld district judges' discretion to require strict compliance with Local Rule 56.1." Flint v. City of Belvidere, 791 F.3d 764, 767 (7th Cir. 2015). Moreover, it is well-settled that courts cannot consider inadmissable hearsay at summary judgment. See Pyles v. Fahim, 771F.3d 403, 412 (7th Cir. 2014).¹

II. Relevant Facts

Hoovestol, Inc., a company contracted to haul mail for the United States Postal Service ("USPS"), employed Plaintiff Thomas McGregor as a part-time truck driver. (R. 58, Def.'s Rule 56.1 Stmt. Facts ¶ 1.) According to McGregor, on February 13, 2012, he fell while exiting the back of a Hoovestol semi-trailer parked at the loading dock area of the USPS's distribution center on Roosevelt Road in Forest Park, Illinois. (Id. ¶ 2.) Specifically, McGregor backed his trailer into loading dock number 134 before the loading dock plate - which is the mechanism that closes the gap between the end of the dock and the trailer - was set. (Id. ¶ 8; R. 60, Pl.'s Rule 56.1 Stmt. Add'l Facts ¶ 1.) When McGregor exited the back of the trailer, he maintains that he tripped and fell over the dock plate as it was being raised and set between the loading dock and the back of the trailer. (Def.'s Stmt. Facts ¶ 9, Pl.'s Stmt. Facts ¶¶ 19, 21.) A postal employee, Edna Henderson, was the dock clerk who operated the dock plate at issue on February 13, 2012. (Pl.'s Stmt. Facts ¶ 8.) As a result of tripping over the dock plate, McGregor fell forward onto the ground and landed on his left shoulder. (Pl.'s Stmt. Facts ¶ 23.) At that time, McGregor did not notice that the dock plate was in the process of being raised and set between the loading dock and the back of the trailer, but later noticed that the dock plate was protruding about eight inches above the dock floor. (Def.'s Stmt. Facts ¶ 10.) Although the parties dispute where McGregor was standing before he fell, he testified at his deposition that he did not know where he was looking when he turned to walk off the trailer. (R. 58, Def.'s Ex. 1, McGregorDep., at 45-46.)

Prior to the February 2012 incident, McGregor had picked up and delivered mail to the Forest Park facility on an almost daily basis for over two years, and he was familiar with the location and layout of the facility. (Id. ¶¶ 3, 4.) In addition, McGregor had often seen and was familiar with the operation of the dock plate machinery at the Forest Park distribution center and had operated the dock plate machinery himself during a number of his trips to that facility. (Id. ¶ 4.)

McGregor filed an administrative tort claim with the Postal Service that was denied on April 16, 2013. (Id. ¶ 13.) On October 8, 2013, McGregor filed the present lawsuit alleging negligence and business invitee premises liability, and on February 10, 2014, McGregor filed a First Amended Complaint adding his wife as a Plaintiff and the attendant loss of consortium claim. (Id. ¶ 14.) In his First Amended Complaint, when alleging his negligence claim, McGregor asserts that the United States committed one or more of the following acts and/or omissions:

• Installed the mechanized steel panel without proper safeguards to prevent the panel from rising unexpectedly;

• Failed to adequately supervise the operation of the mechanized steel panel and surrounding loading dock premises to insure that proper safety precautions were followed;

• Failed to warn the plaintiff of the unsafe condition;

• Raised the mechanized steel panel without providing adequate warning to other individuals then and there present; or

• Failed to install a light or buzzer that would announce the shifting of the mechanized steel plate to individuals then and there present.

(Id. ¶ 15.) In regard to his business invitee premises liability claim, McGregor alleges that theUnited States committed one or more of the following acts and/or omissions:

• Failed to properly operate the mechanized steel panel in the loading dock area;

• Failed to adequately supervise the operation of the mechanized steel panel and surrounding loading dock premises to insure that proper safety precautions were followed;

• Maintained a public area that presented an unreasonable danger to the health and safety of the plaintiff;

• Failed to warn the plaintiff of the unsafe condition;

• Failed to provide sufficient personnel to assist delivery drivers invited to the premises; or

• Allowed the installation of a mechanized steel panel without proper safeguards so that the panel does not rise unexpectedly.

(Id. ¶ 16.)

SUMMARY JUDGMENT STANDARD

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). 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). In determining summary judgment motions, "facts must be viewed in the light most favorable to the nonmoving party only if there is a 'genuine' dispute as to those facts." Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). The party seeking summary judgment has the burden of establishing that there is no genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L.Ed.2d 265 (1986). After "a properly supported motion for summary judgment is made, the adverse party 'must set forth specific facts showing that there is a genuineissue for trial.'" Anderson, 477 U.S. at 255 (quotation omitted). "To survive summary judgment, the non-moving party must show evidence sufficient to establish every element that is essential to its claim and for which it will bear the burden of proof at trial." Life Plans, Inc. v. Security Life of Denver Ins. Co., 800 F.3d 343, 349 (7th Cir. 2015).

ANALYSIS

I. The FTCA and Exceptions

In its motion for summary judgment, Defendant first argues that McGregor's claims fail under two exceptions to the FTCA - the discretionary function exception and the contractor exception. To clarify, the FTCA "gives federal district courts exclusive jurisdiction over claims against the United States for 'injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission' of a federal employee 'acting within the scope of his office or employment.'" Millbrook v. United States, ___ U.S. ___, 133 S. Ct. 1441, 1442, 185 L.Ed.2d 531 (2013) (quoting 28 U.S.C. § 1346(b)(1)). "This broad waiver of sovereign immunity is subject to a number of exceptions set forth in § 2680[,]" id., including the discretionary function exception pursuant to § 2680(a). See Keller v. United States, 771 F.3d 1021, 1023 (7th Cir. 2014). Moreover, 28 U.S.C. § 2671 provides the basis for the independent contractor exception. See Alinksy v. United States, 415 F.3d...