Nickolas Seekins v. CHEP USA and CHEP RECYCLED PALLET SOLUTIONS , LLC

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-3270
NICKOLAS S EEKINS ,
Plaintiff-Appellant,
v.
CHEP USA and CHEP R ECYCLED
PALLET S OLUTIONS , LLC,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 19-cv-2224 — Jane Magnus-Stinson, Judge.
____________________
A RGUED S EPTEMBER 23, 2021 — DECIDED D ECEMBER 10, 2021
____________________
Before K ANNE, R OVNER , and WOOD, Circuit Judges.
K ANNE, Circuit Judge. Nickolas Seekins lost his left foot as
a result of an accident that occurred while he was operating a
machine used to lift and transport pallets. Seekins sued CHEP
USA and CHEP Recycled Pallet Solutions, LLC (collectively,
“CHEP”) in Indiana state court, alleging CHEP was liable for
his injuries under a theory of negligence.

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2 No. 20-3270
After CHEP removed the case to federal court, CHEP and
Seekins both moved for summary judgment. Addressing only
the duty element of negligence, the district court granted
summary judgment to CHEP, holding that CHEP did not owe
Seekins a duty of care under Indiana negligence law. We
agree with the district court and therefore affirm.
I. BACKGROUND
The company doing business as Dollar General owns and
operates a distribution center in Marion, Indiana. Dollar Gen-
eral hired both LMS Intellibound, LLC, d/b/a Capstone Logis-
tics (“Capstone”) and CHEP to perform certain tasks within
the distribution center. Dollar General separately contracted
with Capstone and CHEP. Capstone and CHEP did not have
a direct relationship with each other.
Dollar General owned certain power equipment at the dis-
tribution center, including all pallet jacks. A pallet jack is a
machine used to lift and transport pallets. There are different
types of pallet jacks. Depending on the type, a pallet jack is
controlled by an operator in one of two ways: the operator
walks behind or alongside the pallet jack, or the operator rides
the pallet jack by standing on the riding platform. The pallet
jack involved in this case is a rider pallet jack, which the par-
ties refer to as a “stow jack.”
Dollar General labeled its equipment with identifiers to
differentiate the machines. Capstone and CHEP employees
were permitted to use Dollar General’s stow jacks on a first-
come, first-served basis.
Dollar General personnel were responsible for maintain-
ing the stow jacks. Capstone and CHEP employees who had
an issue with a stow jack were to bring the stow jack to the

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No. 20-3270 3
Dollar General maintenance shop within the distribution cen-
ter and fill out a “red tag” that identified the problem with the
equipment. Once a piece of equipment was tagged for mainte-
nance, only Dollar General mechanics or supervisors could
remove the tag.
Capstone and CHEP employees sometimes left untagged
stow jacks in the maintenance shop. When this occurred, Dol-
lar General maintenance personnel would attempt to identify
who last operated the stow jack to determine the issue. If the
last operator of the stow jack could not be discovered, Dollar
General maintenance personnel would attempt to diagnose
the issue by taking the stow jack on a test drive. If a Dollar
General mechanic could not identify any issues with the
equipment during the test drive, the stow jack was placed
back out on the floor. A red tag may or may not be generated
by maintenance personnel.
Capstone employed Seekins to unload trucks at Dollar
General’s Marion distribution center. Capstone trained Seek-
ins on the safe operation of Dollar General’s stow jacks and
required him to perform a twelve-point inspection prior to us-
ing the machines.
On May 16, 2017, Seekins began his shift at the Marion dis-
tribution center. That morning, Seekins was assigned to un-
load a truck in bay 4. He claimed stow jack number 4 (“SJ4”)
to complete his assignment. Prior to using SJ4, Seekins con-
ducted a twelve-point inspection. He did not document any
issues with SJ4 at that time. Seekins drove SJ4 to bay 4. As he
operated SJ4 in bay 4, the stow jack “jumped,” but Seekins did
not report this issue to Dollar General maintenance.

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4 No. 20-3270
Eventually, Seekins arrived at bay 2. A forklift was parked
at the end of the aisle of bay 2, about forty-five feet away from
Seekins as he made a left turn into the aisle. As Seekins ap-
proached the forklift, he attempted to reverse throttle, or
“plug,” to slow SJ4 down, but SJ4 failed to slow down.
Seekins engaged the emergency brake to stop SJ4 and
avoid hitting the parked forklift. Seekins then jumped off SJ4,
and his left foot became crushed between SJ4 and the parked
forklift. Seekins’s injured foot was ultimately amputated as a
result of the accident.
Seekins filed suit in the Marion County Superior Court, al-
leging that CHEP, the other contractor, was liable for his inju-
ries under a theory of negligence. CHEP successfully re-
moved the case to the Southern District of Indiana and even-
tually moved for summary judgment. Seekins moved for par-
tial summary judgment, solely on the duty element of negli-
gence.
The district court granted summary judgment to CHEP,
holding that CHEP did not owe Seekins a duty of care under
Indiana negligence law. Seekins now appeals.
II. A NALYSIS
We review de novo the district court’s order granting sum-
mary judgment. Flexible Steel Lacing Co. v. Conveyor Accessories,
Inc., 955 F.3d 632, 643 (7th Cir. 2020) (citing Ga.-Pac. Consumer
Prods. LP v. Kimberly-Clark Corp., 647 F.3d 723, 727 (7th Cir.
2011)). “Summary judgment is appropriate when ‘there is no
genuine dispute as to any material fact and the movant is en-
titled to judgment as a matter of law.’” Id. (quoting Fed. R.
Civ. P. 56(a)). “Where, as here, both parties filed cross-mo-
tions for summary judgment, all reasonable inferences are

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No. 20-3270 5
drawn in favor of the party against whom the motion was
granted.” Gill v. Scholz, 962 F.3d 360, 363 (7th Cir. 2020) (citing
Tripp v. Scholz, 872 F.3d 857, 862 (7th Cir. 2017)).
“Our duty in this diversity suit is to decide issues of Indi-
ana state law as we predict the Indiana Supreme Court would
decide them today.” Doermer v. Callen, 847 F.3d 522, 527 (7th
Cir. 2017) (citing Frye v. Auto–Owners Ins. Co., 845 F.3d 782,
785–86 (7th Cir. 2017)). Under Indiana law, “to recover on a
negligence theory, a plaintiff must establish: ‘(1) a duty owed
by the defendant to the plaintiff; (2) a breach of that duty; and
(3) injury to the plaintiff resulting from the defendant's
breach.’” Miller v. Rosehill Hotels, LLC, 45 N.E.3d 15, 19 (Ind.
Ct. App. 2015) (quoting Rhodes v. Wright, 805 N.E.2d 382, 385
(Ind. 2004)).
Before the district court, Seekins moved for summary
judgment on the duty element alone, asserting that CHEP
owed him a duty of care under Dutchmen Manufacturing, Inc.
v. Reynolds, 849 N.E.2d 516 (Ind. 2006), and § 388 of the Re-
statement (Second) of Torts. In McGlothlin v. M & U Trucking,
Inc., Indiana first adopted §§ 388 and 392 of the Restatement
(Second) of Torts to be used when determining whether a
supplier of a dangerous chattel has a “duty to inspect, dis-
cover, and warn” the user. 688 N.E.2d 1243, 1245 (Ind. 1997);
see also Foxworthy v. Heartland Co-Op, Inc., 750 N.E.2d 438, 442
(Ind. Ct. App. 2001) (“The [Indiana Supreme Court] further
noted that the factors incorporated in each of these sections
are consistent with our recent jurisprudence regarding the de-
termination of whether a duty exists, i.e., the relationship of
the parties, the reasonable foreseeability of harm to the person
injured, and public policy concerns.” (citing McGlothlin, 688
N.E.2d at 1245)).

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6 No. 20-3270
On appeal, Seekins challenges the district court’s ruling by
reiterating his argument that CHEP owed him a duty of care
under Dutchmen and § 388. Furthermore, Seekins requests we
certify a question to the Indiana Supreme Court to the extent
that we believe the issue of whether CHEP owed Seekins a
duty under Indiana negligence law should best be addressed
by the Indiana Supreme Court.
A. Duty of Care Under § 388
Seekins argues that the district court erred in granting
summary judgment to CHEP because Indiana common law
provides ample authority for finding that CHEP owed Seek-
ins a duty under the facts of this case. Specifically, Seekins re-
lies on Dutchmen, which analyzed a claim under § 388 of the
Restatement (Second) of Torts.
Section 388 addresses liability for injuries caused by dan-
gerous chattels and provides that:
One who supplies directly or through a third person
a chattel for another to use is subject to liability to
those whom the supplier should expect to use the
chattel with the consent of the other or to be endan-
gered by its probable use, for physical harm caused
by the use of the chattel in the manner for which and
by a person for whose use it is supplied, if the sup-
plier
(a) knows or has reason to know that the chattel
is or is likely to be dangerous for the use for which
it is supplied, and
(b) has no reason to believe that those for whose
use the chattel is supplied will realize its dangerous
condition, and

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No. 20-3270 7
(c) fails to exercise reasonable care to inform
them of its dangerous condition or of the facts which
make it likely to be dangerous.
Restatement (Second) of Torts § 388 (Am. L. Inst. 1965).
In Dutchmen, Don Reynolds sued Dutchmen, the prior les-
see of a facility, for negligence after his son was injured when
scaffolding broke loose and struck him while he was working
at the facility. 849 N.E.2d at 518. The scaffolding had been con-
structed and installed by Dutchmen. Id. at 519. Dutchmen
moved for summary judgment. Id. Relevant here, Reynolds
argued that Dutchmen was liable as a supplier of a defective
chattel under § 388. Id.
Seekins contends that “CHEP owed a duty to provide to
any expected user of the chattel any information as to the
‘character and condition of the chattel … which [the supplier]
should recognize as necessary to enable [the user] to realize
the danger of using it.’” Appellant’s Br. at 20 (alterations in
original) (quoting Restatement (Second) Torts § 388 cmt. b
(Am. L. Inst. 1965)). Seekins focuses on a sentence from Dutch-
men to support his contention: “Section 388 sets out a tort doc-
trine that places a loss on the party who caused it.” Dutchmen,
849 N.E.2d at 521-22. Dutchmen, however, has limited applica-
bility here. This is because it was undisputed in Dutchmen that
the prior lessee was a “supplier.” Id. at 521 (“Dutchmen was a
‘supplier’ as that term is used in section 388, and Dutchmen
does not contend otherwise.”).
For Seekins to succeed on his negligence claim under
§ 388—the theory of negligence he advances—he must show
that CHEP was a “supplier” as that term is used in § 388.
See Restatement (Second) of Torts § 388 cmt. d (Am. L. Inst.
1965) (“One supplying a chattel to be used or dealt with by

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8 No. 20-3270
others is subject to liability under the rule stated in this Sec-
tion, not only to those for whose use the chattel is supplied
but also to third persons whom the supplier should expect to
be endangered by its use.”).
A comment to § 388 defines “supplier” as:
any person who for any purpose or in any manner
gives possession of a chattel for another’s use, or
who permits another to use or occupy it while it is
in his own possession or control, without disclosing
his knowledge that the chattel is dangerous for the
use for which it is supplied or for which it is permit-
ted to be used.
Id. § 388 cmt. c. The comment goes on to specify that “[t]hese
rules … apply to sellers, lessors, donors, or lenders … [and]
to all kinds of bailors … [and] to one who undertakes the re-
pair of a chattel … .” Id.
However, Seekins cannot show that CHEP was a “sup-
plier” as that term is used in § 388. That is, there is no evidence
that CHEP sold, leased, donated, or lent SJ4 to Seekins or his
employer. Furthermore, there is no evidence that a bailment
relationship existed between CHEP and Seekins (or his em-
ployer), or that CHEP repaired SJ4. Instead, Dollar General
owned, controlled, and maintained SJ4 for use by Seekins,
other Capstone employees, and CHEP employees on a first-
come, first-served basis at the Marion distribution center. See
Seekins v. Dolgencorp, LLC, No. 1:17-cv-4415-JMS-TAB, 2019
WL 1472379, at *9 (S.D. Ind. Apr. 3, 2019) (“It is undisputed
that Dollar General supplied Mr. Seekins with the SJ4, and,
thus, it is clear that Dollar General was a supplier of chattel
for the purpose of Sections 388 and 392 of the Restatement
(Second) of Torts.”).

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No. 20-3270 9
The district court classified the relationship between Seek-
ins and CHEP as one of occasional co-borrowers. While we
need not adopt the district court’s classification, it is telling
that Seekins failed to identify before the district court any
case—in any jurisdiction—that recognizes a duty between
two co-borrowers of chattel when another entity owns, lends,
and maintains the chattel. On appeal, too, Seekins failed to
identify any such case in his briefs or during oral argument.
Seekins takes issue with the district court’s classification,
arguing that the district court took an “unnecessarily narrow
view” of § 388 “by holding there is no duty owed between
companies that share the same power equipment.” Appel-
lant’s Br. at 20. There exists evidence in the record indicating
that SJ4 had possibly been used by a CHEP employee prior to
Seekins’s operation of SJ4. See R. 116 at 6–8. Based on that ev-
idence, Seekins contends, without support, that CHEP’s al-
leged failure to remove SJ4 from service means that CHEP ef-
fectively supplied it to Seekins.
Seekins’s arguments are unconvincing for two reasons.
First, he mischaracterizes the district court’s holding. See Ap-
pellant’s Br. at 20. Applying Indiana law, the district court
held that CHEP did not owe a duty of care to Seekins because
CHEP was not a “supplier” as that term is used in § 388. Sec-
ond, because this is a diversity case, our obligation is to deter-
mine whether CHEP owed Seekins a duty under Indiana law
as we predict the Indiana Supreme Court would decide today.
See Doermer, 847 F.3d at 527. It is clear under the facts of this
case that CHEP owed no duty to Seekins because CHEP is not
a “supplier” as that term is used in § 388.
Moreover, Seekins has not provided any authority to sup-
port his contention that two companies that share chattel

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10 No. 20-3270
owned, controlled, and maintained by a third company owe
each other a duty of care under § 388, or under any other the-
ory of Indiana negligence law, and we will not create a duty
under Indiana law where none exists. Contra Appellant’s Br.
at 25 (“If we are making law with this case, let us at least make
good law.”).
Seekins has therefore failed to show that CHEP owed him
a duty of care under Indiana negligence law. Thus, the district
court did not err in granting summary judgment to CHEP. See
Pfenning v. Lineman, 947 N.E.2d 392, 398 (Ind. 2011) (“Absent
a duty, there can be no breach, and therefore, no recovery for
the plaintiff in negligence.”) (quoting Vaughn v. Daniels Co. (W.
Va.), Inc., 841 N.E.2d 1133, 1143 (Ind. 2006)).
B. Certification
Seekins requests that we certify to the Indiana Supreme
Court the question whether, under Indiana law, employees of
Company A owe a duty of reasonable care to employees of
Company B when both companies share power equipment
and the equipment experiences a break failure. Appellant’s
Br. at 4–5. We have said that certification is appropriate under
Circuit Rule 52 “when the case concerns a matter of vital pub-
lic concern, where the issue will likely recur in other cases,
where resolution of the question to be certified is outcome de-
terminative of the case, and where the state supreme court has
yet to have an opportunity to illuminate a clear path on the
issue.” State Farm Mut. Auto. Ins. Co. v. Pate, 275 F.3d 666, 672
(7th Cir. 2001) (quoting In re Badger Lines, Inc., 140 F.3d 691,
698–99 (7th Cir. 1998)).
Under these circumstances, we do not believe certification
is warranted. This is a case in which “there is no room for

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No. 20-3270 11
‘serious doubt’ about how [the] state’s highest court would
resolve [the] question … .” Pate, 275 F.3d at 672 (citing Patz v.
St. Paul Fire & Marine Ins. Co., 15 F.3d 699, 705 (7th Cir. 1994)).
Remember, Seekins moved for summary judgment in this
case on the duty element of negligence. In doing so, he
thought the evidence was sufficient to show that CHEP owed
him a duty under § 388. He also argued before the district
court and before us on appeal that Dutchmen was controlling
to show that CHEP owed him that duty. But after our de novo
review of the district court’s order granting summary judg-
ment to CHEP, we have concluded that Seekins has failed to
show that CHEP owed him a duty of care under Indiana neg-
ligence law. We did so because “[w]e are not uncertain about
the content of Indiana law on the issue[,]”and we thus deny
Seekins’s request for certification. Pate, 275 F.3d at 673.
III. CONCLUSION
For the reasons above, the district court did not err in
granting summary judgment to CHEP. We AFFIRM.

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