Stanley Hutchison v. Fitzgerald Equipment Company, Inc.

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18‐2203
STANLEY H UTCHISON,
Plaintiff‐Appellant,
v.
FITZGERALD EQUIPMENT C OMPANY, I NC.,
Defendant‐Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 15‐cv‐06521 — Marvin E. Aspen, Judge.
____________________
A RGUED D ECEMBER 5, 2018 — D ECIDED D ECEMBER 14, 2018
____________________
Before FLAUM, R OVNER , and SCUDDER , Circuit Judges.
FLAUM, Circuit Judge. A forklift backed over Stanley
Hutchison’s foot while it was loading product onto his
tractor‐trailer. Hutchison’s employer, who owned the forklift,
had contracted with another company to provide
maintenance on the forklift. Hutchison sued that third‐party
servicing company, Fitzgerald Equipment Company, Inc.
(“Fitzgerald”), alleging that Fitzgerald was negligent in failing
to warn his employer to install a backup alarm on the forklift

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2 No. 18‐2203
and was liable in concert with his employer for failing to
install such an alarm. The district court granted Fitzgerald’s
motion for summary judgment on the negligence claim and
granted Fitzgerald’s motion to dismiss the in‐concert liability
claim. We affirm.
I. Background
Plaintiff‐appellant Stanley Hutchison worked as a truck
driver for Borkholder Corporation. On August 19, 2013,
Hutchison arrived at Borkholder’s facility in Metamora, Illi‐
nois with an empty tractor‐trailer to pick up a load of bundled
foam insulation. Another Borkholder employee, Chad
Schierer, was the primary forklift driver and yard foreman at
the Metamora facility and was responsible for loading and
unloading deliveries with a forklift. While Schierer was load‐
ing Hutchison’s trailer, he reversed the forklift and ran over
Hutchison’s left foot with the forklift’s right rear tire. Schierer
did not see Hutchison when he reversed, and Hutchison did
not hear a backup alarm.
At the time of the accident, Schierer was driving a Cater‐
pillar Model No. DP40 forklift that Borkholder owned. Pursu‐
ant to Occupational Safety and Health Administration
(“OSHA”) regulations, Borkholder was responsible for con‐
trolling, maintaining, and inspecting the forklift on a daily ba‐
sis. Defendant‐appellee Fitzgerald is a service and repair com‐
pany that services forklifts. Fitzgerald and Borkholder en‐
tered into an Operational Maintenance Service Agreement
(the “Agreement”), under which Fitzgerald provided preven‐
tative maintenance every ninety days to the forklift involved
in the accident. The Agreement is a single page, applies only
to this specific forklift, and requires Fitzgerald “to perform the

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No. 18‐2203 3
lubrication and operational maintenance inspection as de‐
scribed on the Operational Maintenance Report form.”1
The parties agree that the forklift was not designed, man‐
ufactured, or shipped to its original purchaser with a backup
alarm and that no regulations required the forklift to have a
backup alarm as of August 19, 2013, the date of the accident.
They dispute, however, whether the forklift had a backup
alarm installed when it rolled over Hutchison’s foot. Several
Borkholder employees testified that they could not recall
whether the forklift had a backup alarm that day. Schierer
acknowledged that photographs of the forklift, taken the day
after the accident, showed no backup alarm.
It is also undisputed that Fitzgerald serviced the forklift
several times in 2013 prior to the accident. A Fitzgerald tech‐
nician inspected the forklift on April 5, 2013 and performed
repairs on April 22 and 25, 2013. The technician did not re‐
member whether the forklift had a backup alarm; he did not
note a malfunctioning backup alarm during his inspection, in‐
dicating that either there was no backup alarm installed or the
alarm was operational. Another Fitzgerald technician re‐
paired the forklift in July 2013, and he too did not recall
whether the forklift had a backup alarm. Following the acci‐
dent, Borkholder requested another company, HuppToyotal‐
ift, install a backup alarm on the forklift. On October 1, 2013,
a HuppToyotalift technician installed a backup alarm on the
forklift and affirmed that it did not have a backup alarm at the
time he installed one.
1 Neither party included the Operational Maintenance Report form in
the record before the district court.

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4 No. 18‐2203
On July 27, 2015, Hutchison filed suit against Fitzgerald in
the Northern District of Illinois. On May 18, 2017, Hutchison
filed a first amended complaint alleging two theories of liabil‐
ity—in‐concert liability (Count I) and negligence (Count II).
After the district court granted Fitzgerald’s motion to dismiss
Count I without prejudice and the parties completed briefing
on Fitzgerald’s motion for summary judgment as to Count II,
Hutchison filed a second amended complaint amending
Count I, and Fitzgerald again moved to dismiss. On May 4,
2018, the district court granted Fitzgerald’s motion to dismiss
Hutchison’s in‐concert liability claim and motion for sum‐
mary judgment on Hutchison’s negligence claim. Hutchison
appeals both rulings.
II. Discussion
A. Negligence Claim
We review a grant of summary judgment de novo, “con‐
struing all facts and drawing all reasonable inferences in favor
of the party against whom the motion under consideration
was filed.” Hess v. Bd. of Trs. of S. Ill. Univ., 839 F.3d 668, 673
(7th Cir. 2016). “Summary judgment is appropriate where
there are no genuine issues of material fact and the movant is
entitled to judgment as a matter of law.” Id. (citing Fed R. Civ.
P. 56(a)). The moving party “always bears the initial respon‐
sibility” to identify the portions of the record “which it be‐
lieves demonstrate the absence of a genuine issue of material
fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “When
the moving party has carried its burden …, its opponent must
do more than simply show that there is some metaphysical
doubt as to the material facts.” Matushita Elec. Indus. Co. v.

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No. 18‐2203 5
Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, the non‐
movant must set forth specific facts demonstrating a genuine
issue for trial. Id. at 587.
To prove a defendant’s negligence under Illinois law, a
plaintiff must establish “the existence of a duty of care owed
by the defendant to the plaintiff, a breach of that duty, and an
injury proximately caused by that breach.” Buechel v. United
States, 746 F.3d 753, 763–64 (7th Cir. 2014) (citing Thompson v.
Gordon, 948 N.E.2d 39, 45 (Ill. 2011)). Whether a duty exists is
a question of law. Thompson, 948 N.E.2d at 45. To determine
whether a duty exists, a court must “ask whether a plaintiff
and a defendant stood in such a relationship to one another
that the law imposed upon the defendant an obligation of rea‐
sonable conduct for the benefit of the plaintiff.” Vesely v. Arm‐
slist LLC, 762 F.3d 661, 665 (7th Cir. 2014) (quoting Marshall v.
Burger King Corp., 856 N.E.2d 1048, 1057 (Ill. 2006)). Here,
Hutchison alleges that Fitzgerald had a duty either to discover
and disclose an inoperative backup alarm on the Caterpillar
forklift, or to recommend that Borkholder install a backup
alarm on the forklift because another forklift at the Metamora
facility had a backup alarm.2
1. Duty to Warn
A “duty to warn exists where there is unequal knowledge,
actual or constructive [of a dangerous condition], and the de‐
fendant[,] possessed of such knowledge, knows or should
know that harm might or could occur if no warning is given.”
Happel v. Wal‐Mart Stores, Inc., 766 N.E.2d 1118, 1123 (Ill. 2002)
(alterations in original) (quoting Schellenberg v. Winnetka Park
2 Hutchison’s arguments appear to conflate Fitzgerald’s alleged du‐
ties to Borkholder with duties to Hutchison, as a Borkholder employee.

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6 No. 18‐2203
Dist., 596 N.E.2d 93, 97 (Ill. App. Ct. 1992)). Hutchison argues
Fitzgerald had unequal knowledge of the risks and hazards of
operating a forklift without a backup alarm, and as such, Fitz‐
gerald had a duty to warn Borkholder of those dangers. This
argument fails, however, because Hutchison does not cite any
evidence in the record that Fitzgerald knew of risks that Bork‐
holder did not. Hutchison claims that Borkholder relied on
Fitzgerald to make recommendations as to repairs that should
be performed on the forklift, but the parties dispute whether
the forklift even had a backup alarm, let alone one that was
inoperable and in need of repair.
Indeed, though Hutchison characterizes the existence of a
backup alarm on the forklift as in dispute, he has not pre‐
sented any evidence from which a jury could draw a reason‐
able inference in his favor on this point. It is undisputed that
the forklift was not designed, manufactured, or shipped to its
original owner with a backup alarm. After the accident, an‐
other service company installed a backup alarm and affirmed
that there was no backup alarm on the forklift when that in‐
stallation occurred. And pictures from the day after the acci‐
dent show no backup alarm on the forklift. Although several
witnesses could not recall whether the forklift had a backup
alarm, their “metaphysical doubt” is insufficient to create a
genuine issue of material fact. See Matushita Elec., 475 U.S. at
586. To infer, based on a handful of witnesses unable to recall
whether the forklift had a backup alarm, that the forklift in
fact had such an alarm, is impermissible speculation. 3 See Her‐
zog v. Graphic Packaging Int’l, Inc., 742 F.3d 802, 806 (7th Cir.
3 In reply, Hutchison points to Schierer’s testimony that there were
wires on the back of the forklift and that “he could see no other reason for
wires on the pillar on the driver’s side other than a backup alarm.” The

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No. 18‐2203 7
2014) (“[I]nferences that are supported by only speculation or
conjecture will not defeat a summary judgment motion.”
(quoting Tubergen v. St. Vincent Hosp. & Health Care Ctr., 517
F.3d 470, 473 (7th Cir. 2008))).
As further evidence of unequal knowledge, Hutchison
points to expert testimony suggesting forklift dealers have su‐
perior appreciation of the hazards involved in reversing fork‐
lifts. But another forklift at the Borkholder facility—not ser‐
viced by Fitzgerald—had a backup alarm, indicating Bork‐
holder was well aware of the availability and use of backup
alarms. Moreover, as Hutchison acknowledges, OSHA regu‐
lations did not require backup alarms on forklifts at the time
of the accident and Borkholder, as the owner of the forklift,
was responsible for deciding whether to install a backup
alarm. The duty to warn does not encompass a duty to recom‐
mend optional safety features to an owner who already
knows about them. In sum, Hutchison has not pointed to any
evidence of unequal knowledge between Fitzgerald and Bork‐
holder giving rise to a duty to warn.
2. Voluntary Undertaking
Hutchison also argues that Fitzgerald is liable under a
voluntary undertaking theory of liability. “In Illinois, a party
to a contract may be liable in tort to a third party who
otherwise has no enforceable rights under the contract under
a voluntary undertaking theory of liability.” Jakubowski v.
Alden‐Bennett Constr. Co., 763 N.E.2d 790, 799 (Ill. App. Ct.
2002). Pursuant to the Restatement (Second) of Torts § 324A,
which Illinois has adopted, a party is liable for breach of a
potential purpose of the wires, too, is mere speculation and is insufficient
to create a genuine issue of material fact at summary judgment.

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8 No. 18‐2203
voluntary undertaking if: (a) “a party undertakes to do
something and then fails to exercise reasonable care in a way
that increases a third party’s risk of harm”; (b) a party
“undertakes to perform a duty that a different party was
obligated to perform and then negligently fulfills its duty”; or
(c) “a third party relies to its detriment on the fact that a duty
has been voluntarily undertaken.” LM ex rel. KM v. United
States, 344 F.3d 695, 701 (7th Cir. 2003).
Hutchison contends that Fitzgerald “voluntarily under‐
took [the] responsibility to advise Borkholder to install a
backup alarm on its Caterpillar tractor if other forklifts at
Borkholder’s Metamora facility had backup alarms.” In sup‐
port, he cites the depositions of Patrick Boyer, a forklift tech‐
nician with Fitzgerald, and Travis Cowley, general manager
of Fitzgerald. Cowley testified that he recommends to custom‐
ers purchasing forklifts that they have the same safety options
their existing trucks have. When asked if he recommends that
facilities install backup alarms on their forklifts, Boyer re‐
sponded that he would not recommend installing a backup
alarm unless the other forklifts at that facility had backup
alarms. Hutchison points to these statements as evidence that
Fitzgerald undertook a voluntary duty to advise Borkholder
to install a backup alarm on the Caterpillar forklift because
the other forklift at the Metamora facility had one. We disa‐
gree with this logic. Fitzgerald’s employees’ answers to hypo‐
thetical questions do not establish such a voluntary undertak‐
ing because Hutchison does not point to any evidence that
Cowley or Boyer knew the other forklift at the Metamora fa‐
cility had a backup alarm.

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No. 18‐2203 9
Even if they knew about the alarm on the other forklift, the
business practice Boyer and Crowley testified to does not cre‐
ate any legal duty to Borkholder because “[u]nder the volun‐
tary undertaking theory of liability, the duty of care to be im‐
posed upon a defendant is limited to the extent of its under‐
taking.” Frye v. Medicare‐Glaser Corp., 605 N.E.2d 557, 560–61
(Ill. 1992) (declining to hold that a pharmacist had a duty to
warn a patient of all potential side effects of a drug merely
because she chose to warn about one side effect); see also, e.g.,
LM, 344 F.3d at 701 (“[A] voluntary undertaking is just that—
voluntary—and as such, the scope of the duty that is assumed
is limited to the extent of the undertaking.”); Castro v. Brown’s
Chicken & Pasta, Inc., 732 N.E.2d 37, 42 (Ill. App. Ct. 2000).
Here, Fitzgerald’s undertaking was limited to the scope of the
contract—“to perform the lubrication and operational
maintenance inspection[s]”; Hutchison has not pointed to any
evidence establishing that Fitzgerald undertook any addi‐
tional duty to Borkholder outside the scope of the Agreement.
Even if Hutchison had established a voluntary undertak‐
ing—which he has not—he has not established a breach under
any of the three prongs of § 324A. Under § 324A(a),
Hutchison argues that Fitzgerald negligently performed its
voluntary undertaking because various witnesses thought the
accident “would not have occurred” if the forklift had a
backup alarm. But mere knowledge of a risk does not impose
an affirmative duty. See LM, 344 F.3d at 701. Hutchison has
not shown Fitzgerald increased the risk of harm by failing to
recommend installation of a device that was not required by
law nor requested by the forklift owner and a device that was
already known to Borkholder.

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10 No. 18‐2203
Nor can Hutchison establish, under § 324A(b), that Fitz‐
gerald supplanted Borkholder’s duty to conduct daily inspec‐
tions and maintenance on the Caterpillar forklift. To be liable
under § 324A(b), the defendant “must supplant the duty it
undertakes from the party that originally held the duty, not
merely assist or supplement the service provided by the
other.” Padilla v. Hunter Douglas Window Coverings, Inc., No.
09 CV 1222, 2012 WL 3265002, at *5 (N.D. Ill. Aug. 8, 2012).
Here, there is no evidence in the record that Fitzgerald had
the power, without Borkholder’s authorization, to install the
backup alarm or that Fitzgerald did more than assist or sup‐
plement Borkholder’s daily control and maintenance of the
forklift.
Finally, as to § 324A(c), Hutchison has not put forth evi‐
dence showing that he relied to his detriment on Fitzgerald to
recommend that Borkholder install a backup alarm. In cases
of nonfeasance—“omission to perform a voluntary undertak‐
ing”—as opposed to misfeasance—“negligent performance of
a voluntary undertaking”—Illinois law requires a plaintiff to
show that he relied on the defendant’s actions. Thornton v. M7
Aerospace LP, 796 F.3d 757, 768 (7th Cir. 2015). Here,
Hutchison asserts Fitzgerald was negligent in failing to rec‐
ommend installation of a backup alarm (or, alternatively, in
failing to repair an inoperable backup alarm), and therefore,
his claim is one of nonfeasance. See id. at 762, 768–69 (constru‐
ing plaintiff’s theory as liability for nonfeasance where plain‐
tiff alleged defendant‐manufacturer failed to advise aircraft
owner to install upgraded warning system). His claim fails
because he has not established the required reliance.4
4 Despite Hutchison’s insistence to the contrary, this case is not like
Wakulich v. Mraz, 785 N.E.2d 843 (Ill. 2003). In Wakulich, the defendants

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No. 18‐2203 11
In sum, Hutchison has not established Fitzgerald owed a
duty to recommend installation of a backup alarm on the Cat‐
erpillar forklift. We thus affirm the district court’s grant of
summary judgment to Fitzgerald on the negligence claim.
B. In‐Concert Liability Claim
We review de novo a district court’s grant of a motion to
dismiss for failure to state a claim, accepting all well‐pleaded
facts in the complaint as true and drawing all reasonable in‐
ferences in the plaintiff’s favor. Pierce v. Zoetis, Inc., 818 F.3d
274, 277 (7th Cir. 2016). To survive a motion to dismiss under
Rule 12(b)(6), the plaintiff must allege “enough facts to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausi‐
bility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009).
In‐concert liability is a relationship between tortfeasors in
which one tortfeasor acting in concert with others “is legally
responsible for the actions of the other individuals.” Woods v.
coerced an underage girl into consuming alcohol to the point of uncon‐
sciousness, provided minimal care for her in their home, and prevented
others from calling 911. Id. at 846. The court determined that plaintiff’s
theory was not that defendants failed to act at all (i.e. one of nonfeasance)
but that defendants voluntarily undertook a duty of care for decedent,
which they negligently performed, and affirmatively prevented others
from caring for her. Id. at 856–57. Thus, defendants’ alleged affirmative
misconduct was misfeasance, which does not require proof of reliance by
the injured party. Id. That is not the case here, as Hutchison’s claims are
premised upon Fitzgerald’s failure to act rather than any affirmative mis‐
conduct.

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12 No. 18‐2203
Cole, 693 N.E.2d 333, 337 (Ill. 1998). Illinois has adopted the
Restatement (Second) of Torts § 876 to determine whether in‐
dividuals have acted in concert to commit a tortious act. See
id. at 335–36. Section 876 provides that a tortfeasor is liable for
harm resulting to a third person from the tortious conduct of
another if he (a) “does a tortious act in concert with the other
or pursuant to a common design with him”; (b) “knows that
the other’s conduct constitutes a breach of duty and gives sub‐
stantial assistance or encouragement to the other so to con‐
duct himself”; or (c) “gives substantial assistance to the other
in accomplishing a tortious result and his own conduct, sepa‐
rately considered, constitutes a breach of duty to the third
person.” Restatement (Second) of Torts § 876. To be liable un‐
der § 876, the “defendant’s conduct must be ‘more than be‐
nign,’” and “[t]he defendant must actively participate in the
tortious conduct of another.” Rogers v. Reagan, 823 N.E.2d
1016, 1020 (Ill. App. Ct. 2005) (quoting Sanke v. Bechina, 576
N.E.2d 1212, 1218 (Ill. App. Ct. 1991)).
Hutchison only raises arguments under subsections (b)
and (c) of § 876. He claims that Fitzgerald acted in concert
with Borkholder by “allowing, directing and encouraging
Borkholder and its employees to operate forklifts without a
critical safety device, a backup alarm,” and by “failing to rec‐
ommend the installation and/or repair of the backup alarm on
the Caterpillar forklift, despite other forklifts and trailers at
Borkholder’s Metamora facility having backup alarms.” Be‐
cause liability under subsections (b) and (c) is based on the
defendant’s “substantial assistance” in the tortious conduct, a
plaintiff must demonstrate “that the defendant did not merely
fail to act, but also assisted the third party.” Simmons v.
Homatas, 925 N.E.2d 1089, 1100 (Ill. 2010).

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No. 18‐2203 13
Hutchison cannot succeed on his in‐concert liability claims
because his allegations against Fitzgerald are premised upon
Fitzgerald’s inaction—i.e. Fitzgerald’s failure to install and/or
repair a backup alarm on the Caterpillar forklift. He conclu‐
sorily asserts that Borkholder committed a tort “by operating
a forklift without a critical safety feature, a backup alarm” (ig‐
noring that such an allegedly “critical” feature was not man‐
datory under any regulations) and argues that Fitzgerald sub‐
stantially encouraged Borkholder’s tortious conduct by fail‐
ing to make a recommendation to install an alarm. In Sim‐
mons, however, the Illinois Supreme Court explained that a
defendant cannot be held liable under in‐concert liability for
failing to act; rather, a defendant must “affirmatively assist[]”
in the tortious act. 925 N.E.2d at 1100; see also Kohn v. Laidlaw
Transit, Inc., 808 N.E.2d 564, 575 (Ill. App. Ct. 2004) (“[I]t is not
enough that a defendant assist or encourage another to en‐
gage in a tort; rather, to subject a defendant to liability, the
assistance or encouragement must be substantial, not merely
slight.”); Umble v. Sandy McKie & Sons, Inc., 690 N.E.2d 157,
159 (Ill. App. Ct. 1998) (“We do not equate failing to prevent
certain conduct with actively encouraging that conduct.”);
Sanke, 576 N.E.2d at 1218 (“[S]ection 876 require[s] such af‐
firmative conduct that one’s own actions create a duty.”).
Hutchison has not pleaded any affirmative conduct on the
part of Fitzgerald that would amount to substantial assistance
under § 876(b) or (c).5
5 Nor are there any nonconclusory allegations in the operative com‐
plaint that Fitzgerald knew Borkholder’s conduct constituted a tort. See
Norman v. Brandt, 929 N.E.2d 14, 20 (Ill. App. Ct. 2010) (“[S]ection 876(b)
applies when the person did not commit an act that would be a tort, but
that person gave substantial assistance or encouragement to another party

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14 No. 18‐2203
The nonconclusory factual allegations in the operative
complaint do not establish a plausible inference that Fitzger‐
ald substantially assisted Borkholder in breaching a duty to
Hutchison. 6 As such, we affirm the dismissal of his in‐concert
liability claim.
III. Conclusion
For the foregoing reasons, we A FFIRM the judgment of the
district court.
whose actions constituted a tort and that person knew that the other per‐
son’s conduct constituted a tort.” (citation and internal quotation marks
omitted)).
6 Additionally, for the same reason we affirmed dismissal of the neg‐
ligence claim, Hutchison cannot rely on § 876(c) because he has not estab‐
lished Fitzgerald’s conduct “separately considered, constitutes a breach of
duty.” See Restatement (Second) of Torts § 876 cmt. e (“When one person‐
ally participates in causing a particular result in accordance with an agree‐
ment with another, he is responsible for the result of the united effort if
his act, considered by itself, constitutes a breach of duty and is a substan‐
tial factor in causing the result … .”).

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