Hutchison v. Fitzgerald Equip. Co.
910 F.3d 1016
7th Cir.2018Background
- Hutchison, a truck driver for Borkholder, had his foot run over by a Borkholder-owned Caterpillar forklift while it was being reversed during loading; no backup alarm was heard.
- Borkholder owned and was responsible for daily control/inspection of the forklift; Fitzgerald had a contract to perform preventative maintenance/operational inspections every 90 days on that specific forklift.
- The forklift was not manufactured with a backup alarm and OSHA did not require one at the time; photographs after the accident and a later technician’s installation indicate no backup alarm was present.
- Fitzgerald technicians had serviced the forklift multiple times in 2013 but did not record or recall a backup alarm or its malfunction.
- Hutchison sued Fitzgerald asserting (1) negligence (failure to warn/recommend or repair a backup alarm) and (2) in-concert liability with Borkholder; the district court dismissed the in-concert claim and granted summary judgment on negligence.
- The Seventh Circuit affirmed, finding no duty owed by Fitzgerald to Hutchison (no unequal knowledge, no voluntary undertaking establishing duty or reliance) and that in-concert liability requires affirmative substantial assistance, not mere inaction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Duty to warn (negligence) | Fitzgerald knew more about forklifts and should have warned Borkholder to install/repair a backup alarm | Fitzgerald had no unequal knowledge, no evidence it knew Borkholder lacked awareness; alarms were optional and owner-controlled | No duty to warn; summary judgment for Fitzgerald affirmed |
| Voluntary undertaking (negligence) | Fitzgerald voluntarily undertook to advise customers about safety options and therefore had a duty to recommend an alarm | Any representations were limited to contractual maintenance; no evidence Fitzgerald assumed broader advisory duties or supplanted owner’s obligations | No voluntary undertaking established; even if one existed, plaintiff failed to show breach or required reliance |
| In-concert liability (Restatement § 876(b),(c)) | Fitzgerald substantially assisted or encouraged Borkholder’s tort by failing to recommend or repair an alarm | In-concert liability requires affirmative, substantial assistance or encouragement, not mere omission | Dismissal affirmed: allegations describe inaction, not the affirmative conduct § 876 requires |
Key Cases Cited
- Hess v. Bd. of Trs. of S. Ill. Univ., 839 F.3d 668 (7th Cir. 2016) (standard for reviewing summary judgment in this circuit)
- Celotex Corp. v. Catrett, 477 U.S. 317 (Sup. Ct.) (movant’s initial burden on summary judgment)
- Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (Sup. Ct.) (nonmovant cannot rely on mere metaphysical doubt to defeat summary judgment)
- Buechel v. United States, 746 F.3d 753 (7th Cir. 2014) (elements of negligence under Illinois law)
- Happel v. Wal-Mart Stores, Inc., 199 Ill.2d 179 (Ill. 2002) (duty-to-warn requires unequal knowledge)
- Simmons v. Homatas, 236 Ill.2d 459 (Ill. 2010) (in-concert liability requires substantial affirmative assistance, not mere failure to act)
- Wakulich v. Mraz, 203 Ill.2d 223 (Ill. 2003) (distinguishing misfeasance with voluntary undertaking from nonfeasance)