Patel v. Home Depot USA, Inc.

MIKE PATEL, Plaintiff, v. HOME DEPOT USA, INC., Defendant.

No. 19 C 1200

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

November 30, 2020

Judge Virginia M. Kendall

MEMORANDUM OPINION & ORDER

Plaintiff Mike Patel filed suit against Defendant Home Depot U.S.A., Inc. for injuries he suffered arising out of an accident on Home Depot premises in Oak Lawn, Illinois. Home Depot filed a Motion for Summary Judgment [Dkt. 54] arguing there is no issue of material fact because Home Depot did not owe a duty to Patel, that Patel voluntarily assumed the risk of injury, and the hazard was "open and obvious" under Illinois law. Because there is a genuine dispute of material fact as to where Plaintiff was standing when the accident occurred, Home Depot's Motion for Summary Judgment is denied.

BACKGROUND

Mike Patel lives in Canada and is a Canadian citizen. (Dkt. 55 ¶ 1). Home Depot U.S.A., Inc. is a corporation created under the laws of the State of Delaware with a principle place of business in Georgia. (Id. ¶ 2). The accident at question occurred at the Oak Lawn, Illinois, Home Depot store on May 27, 2018. (Id. ¶ 3). Patel worked as an owner-operator for Midwest Transit on the day of the accident. (Id. ¶ 5). Patel intended to deliver four racks of plants to the Oak Lawn, Illinois, Home Depot, make more deliveries throughout the Midwest, and return to Ontario. (Id. ¶ 6).

After loading the plants, Patel left Delhi, Ontario at 5:00 p.m. on Saturday, May 26, 2018, and arrived in Oak Lawn, Illinois, on Sunday, May 27, 2018, at approximately 5:00 a.m. (Id. ¶ 9). The loading dock where deliveries are normally offloaded was unavailable, although it is disputed whether the dock is always closed on weekends or because it was already in use when Patel arrived. (Id. ¶¶ 18-20). Patel offloaded his cargo at the garden center instead of the loading docks. (Id. ¶ 17). The incident occurred at approximately 6:30 a.m. (Id. ¶ 23). There were only two Home Depot employees in the garden center at the time of the accident, Russ McWatters and Milton Baker, who attempted to off-load the accident racks from the back of the truck in the outdoor garden area and take them into the garden center on forklifts. (Id. ¶ 24). The racks each weighed around 650 pounds, according to R. Kevin Smith, Patel's liability expert. (Id. ¶ 11). Patel was not carrying anything when the incident occurred, and the surface was dry and clear of debris and obstacles. (Id. ¶¶ 25-26). Patel entered the trailer, removed the load bar in the trailer designed to keep the racks from moving during transit, cut the plastic around the racks, and exited the trailer. (Id. ¶ 27). Patel's trailer was not equipped with a liftgate and therefore the only possible and permissible way to unload the truck was by using a forklift. (Id. ¶¶ 28-29). The racks were unloaded with one rack on each fork, the danger of which, according to Smith, "should have been obvious to Mr. McWatters that trying to handle two racks, with only one lift truck fork inserted under each rack at the narrow side, with the forks coming up short of supporting the rack frames, was an unsafe method." (Id. ¶ 31; Dkt. 57 ¶ 31). Patel told McWatters twice that the racks could not be offloaded with one rack on each fork. (Id. ¶ 32). A disputed question of fact is where Patel was standing prior to the racks falling and where he was standing when the rack fell on him. (Id. ¶ 38, Dkt. 57 ¶ 38). The remaining facts as to where Patel was directed to stand, when the racks began to fall, and whether Patel ran towards the racks as they began to fall, are heavily disputed inthe record. Patel was behind the trailer even with the door and four to five feet from the forklift "when everything fell on [him]," i.e. both racks fell on him. (Dkt. 55 ¶¶ 44-45). Patel was then transported to the hospital where he was diagnosed with a right ankle fracture and placed in a cast. (Id. ¶ 46). Patel told the doctor that he would be fine driving from Oak Lawn, Illinois, to Canada, and then returned to Home Depot to pick up his truck, leaving at approximately 2:00 a.m., driving straight home to Ontario. (Id. ¶¶ 47 - 48).

LEGAL STANDARD

Summary judgment is proper when "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, e.g., Reed v. Columbia St. Mary's Hosp., 915 F.3d 473, 485 (7th Cir. 2019). The parties genuinely dispute a material fact when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Daugherty v. Page, 906 F.3d 606, 609-10 (7th Cir. 2018) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (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, 477 U.S. at 248. The Court "consider[s] all of the evidence in the record in the light most favorable to the non-moving party." Skiba v. Ill. Cent. R.R. Co., 884 F.3d 708, 717 (7th Cir. 2018) (citation omitted). The Court gives the non-moving party "the benefit of reasonable inferences from the evidence, but not speculative inferences in his favor." White v. City of Chi., 829 F.3d 837, 841 (7th Cir. 2016) (internal citations omitted). "The controlling question is whether a reasonable trier of fact could find in favor of the non-moving party on the evidence submitted in support of and opposition to the motion for summary judgment." Id.

DISCUSSION

Home Depot has moved for summary judgment, arguing that Patel voluntarily assumed the risk, that the condition was open and obvious, and therefore Home Depot did not owe Patel a duty. A genuine issue of material fact exists only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Pugh v. City of Attica, Indiana, 259 F.3d 619 (7th Cir. 2001). The non-moving party must produce "more than a scintilla of evidence to support his position." Id. Patel has met this burden and therefore summary judgment is inappropriate.

I. Assumption of the Risk

Home Depot first argues that summary judgment is appropriate as Patel assumed the risk. "Traditionally, courts have classified the doctrine of assumption of the risk into three categories: (1) express assumption of the risk; (2) primary implied assumption of the risk; and (3) secondary implied assumption of the risk." Country Mut. Ins. Co. v. Sunbeam Products, Inc., 500 F.Supp.2d 986, 990 (N.D. Ill. 2007) (Kendall, J.) (quoting Evans v. Lima Lima Flight Team, Inc., 869 N.E.2d 195, 206 (Ill. 2007). Express assumption of the risk is found where an individual has explicitly agreed, in advance, to relieve another of a legal duty owed to him or her. Id. (citing Duffy v. Midlothian Country Club, 481 N.E.2d 1037, 1041 (Ill. 1985)). Primary implied assumption of the risk is found where the conduct of the parties indicates that an individual has implicitly consented to encounter an inherent and known risk, thereby excusing another from a legal duty which would otherwise exist, whereas secondary assumption of the risk occurs where the defendant's negligence created a danger that was apparent to the injured party, who nevertheless voluntarily chose to encounter. Id. However, "as secondary implied assumption of the risk functions in a similar manner as contributory negligence, the introduction of comparative fault abolished this doctrineand it no longer operates as a complete bar in negligence actions." Id. (quoting Evans, 869 N.E.2d at 206).

Home Depot does not specify under which branch of the assumption of the risk they are proceeding, but the cases Home Depot cites suggests that they are arguing under the secondary implied assumption. Home Depot posits that, like in Hastings v. Exline, 760 N.E.2d 993 (Ill. App. Ct. 2001) and Kun Mook Lee v. Young Rok Lee, 149 N.E. 3d 551 (Ill. App. Ct. 2019), Patel saw the danger and nonetheless proceeded. The facts do not bear this out at this juncture. It is undisputed that Patel told McWatters twice that unloading a rack on each fork was too dangerous. But it is disputed in the Baker and McWatters depositions that Patel was told to stand eight feet away, that he ran toward the racks, and that he placed himself where the racks could fall on him. (See Dkt. 57 ¶ 38). Home Depot seeks to blame Patel, saying that if he had stayed in his cab, he would not have been injured. But Patel's deposition testimony indicates McWatters asked Patel to watch while he unloaded the racks, and to let him know when the racks had cleared the trailer. (Id.). The facts do not show that, while Patel was aware of the risk, he saw the danger and proceeded nonetheless. The facts heavily dispute both whether Patel was aware of the danger and whether he proceeded, either to stand in the danger zone or to run towards the falling racks, despite the danger. A reasonable juror could find in favor of either Home Depot or Patel based on the competing evidence and thus summary judgment is inappropriate here.

II. Home Depot's Duty and the Open and Obvious Exception

Home Depot next argues that it did not owe Patel a duty, and that in any event, the condition of the risk was open and obvious so as to obviate any duty owed. The parties do not dispute the law at issue here. In order to prevail on his negligence claim, Plaintiff must demonstrate: (1) a duty was owed to the Plaintiff; (2) Defendant breached that duty; and (3) that Plaintiff's injurywas proximately caused by the breach. Dunn v. Menard, Inc., 880 F.3d 899, 906 (7th Cir. 2018) (citing Wilfong v. L.J. Dodd Constr., 930 N.E.2d 511, 519 (2010)). The four factors courts typically consider in determining whether a duty exists are: (1) the reasonable foreseeability of injury; (2) the likelihood of injury; (3) the magnitude of the burden of guarding against injury; and (4) the consequences of placing that burden on the defendant. Id.

Home Depot...