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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowA pallet company did not owe a duty of care to a man whose foot was crushed and amputated after he was injured while operating a machine used to lift and transport pallets, the 7th Circuit Court of Appeals has affirmed.
In May 2017, Nickolas Seekins was seriously injured while riding an operator-driven pallet jack, known as SJ4, at a Dollar General distribution center in Marion. Seekins, who was hired by Capstone Logistics and had conducted a 12-point inspection beforehand, experienced the machine “jump” after getting on but didn’t report the issue.
But when he turned a corner and headed down an aisle with a parked forklift at one end, Seekins’ pallet jack failed to stop, so he leaped from the machine before the collision. In the process, Seekins’ left foot was crushed between the forklift and the pallet jack, which was later amputated.
Seekins sued CHEP USA and CHEP Recycled Pallet Solutions — hired by Dollar General to perform certain tasks within the distribution center — alleging they were liable for his injuries under the negligence theory. But the U.S. District Court for the Southern District of Indiana granted summary judgment to CHEP, holding that it did not owe Seekins a duty of care under Indiana negligence law.
The 7th Circuit Court of Appeals affirmed in Nickolas Seekins v. CHEP USA and CHEP Recycled Pallet Solutions, LLC, 20-3270, concluding Seekins could not now show that CHEP was a “supplier” as that term is used in Section 388 of the Restatement (Second) of Torts.
“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 employer), 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,” Circuit Judge Michael Kanne wrote.
Noting the district court classified the relationship between Seekins and CHEP as one of occasional co-borrowers, the 7th Circuit found that Seekins failed to identify any case that recognizes a duty between two co-borrowers of chattel when another entity owns, lends and maintains the chattel.
The 7th Circuit also found Seekins’ arguments unconvincing for two reasons.
First, it said he mischaracterized the district court’s holding. Second, it found that because his is a diversity case, the 7th Circuit’s obligation is to determine whether CHEP owed Seekins a duty under Indiana law as it predicts the Indiana Supreme Court would decide.
“Moreover, Seekins has not provided any authority to support his contention that two companies that share chattel owned, controlled, and maintained by a third company owe each other a duty of care under § 388, or under any other theory of Indiana negligence law, and we will not create a duty under Indiana law where none exists,” Kanne wrote. “… 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.”
On a final note, the 7th Circuit did not find certification to the Indiana Supreme Court to be warranted on Seekins’ question of 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.
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