Swearingen v. Momentive Specialty Chemicals, Inc.
662 F.3d 969
7th Cir.2011Background
- Swearingen, a tanker-truck driver, delivered chemicals to Momentive in Carpentersville, Illinois on March 29, 2010.
- Momentive asked Swearingen to open the dome lid on top of the truck; no one instructed him how to open it.
- Swearingen climbed the ladder, saw very low red piping of Momentive's fire-suppress system, and knew he was not wearing fall protection.
- He proceeded to open the lid from the truck top, did not seek assistance, and hit the piping, causing him to fall.
- Transport trained Swearingen to maintain three points of contact, but he could not do so while standing atop the truck lid.
- The district court granted Momentive summary judgment, finding no duty due to the open-and-obvious hazard and no applicable deliberate-encounter exception.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the deliberate-encounter exception applies | Swearingen argues Momentive anticipated deliberate encounter and should have warned or provided fall protection. | Momentive contends no reason to expect deliberate encounter and no duty arising from open and obvious hazard. | Deliberate-encounter exception does not apply. |
| Whether Momentive owed a duty regarding the open-and-obvious hazard | Swearingen contends duty exists due to deliberate-encounter potential and safety training. | Momentive argues no duty because hazard was open and obvious and no foreseeability of deliberate exposure. | Momentive did not owe a duty to Swearingen. |
| Whether any disputed facts preclude summary judgment on duty | Swearingen asserts disputes about standing, liability factors, and cause create material facts. | Momentive asserts such disputes do not affect the governing duty analysis. | No material facts preclude summary judgment; duty determined as a matter of law. |
Key Cases Cited
- Sollami v. Eaton, 201 Ill.2d 1 (2002) (open-and-obvious doctrine reflected with four-factor duty inquiry)
- LaFever v. Kemlite Co., 185 Ill.2d 380 (1998) (deliberate-encounter exception applied with duty analysis)
- Bucheleres v. Chicago Park Dist., 171 Ill.2d 435 (1996) (open-and-obvious condition generally not a duty unless foreseeable risk)
- Thompson v. Gordon, 241 Ill.2d 428 (2011) (Illinois duties; duty vs. breach vs. causation framework clarified)
- Bell v. Hutsell, 353 Ill.Dec. 288, 955 N.E.2d 1099 (Ill.2011) (duty must exist for recovery; open-and-obvious considerations shaped by four-factor test)