In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 13-‐‑1505, 13-‐‑1542, 13-‐‑1543 & 13-‐‑1544
JOHN W. JENTZ, et al.,
Plaintiffs-‐‑Appellees,
v.
CONAGRA FOODS, INC., and WEST SIDE SALVAGE, INC.,
Defendants-‐‑Appellants.
____________________
Appeals from the United States District Court
for the Southern District of Illinois.
Nos. 10-‐‑cv-‐‑0474-‐‑MJR-‐‑PMF et al. — Michael J. Reagan, Judge.
____________________
ARGUED OCTOBER 2, 2013 — DECIDED SEPTEMBER 9, 2014
____________________
Before EASTERBROOK, MANION, and ROVNER, Circuit Judg-‐‑
es.
EASTERBROOK, Circuit Judge. A grain bin in Chester, Illi-‐‑
nois, exploded on April 27, 2010, injuring three workers. Af-‐‑
ter a 17-‐‑day trial, a jury awarded almost $180 million in
compensatory and punitive damages against ConAgra
Foods and West Side Salvage. ConAgra, which owned the
facility, part of a flour mill, contends that liability rests on
2 Nos. 13-‐‑1505 et al.
West Side, which it had hired to address problems in bin
C15. For its part, West Side does not contest liability to the
workers but contends that it does not have to reimburse
ConAgra for the cost of repairing the facility. Both ConAgra
and West Side maintain that the damages are excessive. The
injured workers contend that both ConAgra and West Side
must pay the full verdict.
Seventeen days of trial mean that the record is hefty, but
a recap is enough to set up the parties’ contentions. Explo-‐‑
sions are a constant risk in grain storage, which produces not
only a lot of combustible dust and carbon monoxide (which
can oxidize explosively to carbon dioxide) but also, through
the decay of a bin’s contents, heat that can set off a blast. In
March 2010 ConAgra discovered a burning smell in bin C15,
containing wheat pellets. ConAgra got in touch with West
Side, which touts expertise in handling “hot bins.”
ConAgra’s negotiations with West Side and its competitors
(ConAgra wanted a lower price) delayed the start of work;
West Side’s own busy schedule added to the delay. Work
finally began on April 20, 2010, and West Side hired A&J Bin
Cleaning to do some of the tasks. Two of the injured work-‐‑
ers, John Jentz and Robert Schmidt, were employees of A&J;
the third, Justin Becker, was employed by West Side itself.
ConAgra wanted to salvage as much of the grain as pos-‐‑
sible, but as pellets were removed from the top more oxygen
reached wheat composting at the bin’s bottom. West Side
decided to remove some grain via side tunnels. On April 27
West Side detected smoke coming from the bin. Its crew
sprayed water on the pellets and used an air lance to try to
discover the smoke’s source; the effort failed. Mel Flitsch,
West Side’s foreman, told ConAgra to call the fire depart-‐‑
Nos. 13-‐‑1505 et al. 3
ment. Waiting for firefighters to arrive, Flitsch sent Jentz and
Becker into a tunnel, instructing them to remove tools that
might impair firefighters’ access. While they were there, the
explosion occurred. They were severely injured but sur-‐‑
vived. Schmidt, who was in an elevator nearby, also was in-‐‑
jured, but less seriously. In a series of opinions, the district
judge rejected all proposals for judgment as a matter of law
or a new trial. See 2013 U.S. Dist. LEXIS 17231 (S.D. Ill. Feb. 8,
2013) (addressing West Side’s motions related to tort liabil-‐‑
ity); 2013 U.S. Dist. LEXIS 17232 (S.D. Ill. Feb. 8, 2013) (ad-‐‑
dressing ConAgra’s motions related to tort liability); 2013
U.S. Dist. LEXIS 17237 (S.D. Ill. Feb. 8, 2013) (addressing West
Side’s motions related to contract liability); 2012 U.S. Dist.
LEXIS 109344 (S.D. Ill. Aug. 6, 2012) (addressing ConAgra’s
motion related to contribution); 2012 U.S. Dist. LEXIS 93137
(S.D. Ill. July 6, 2012) (resolving a dispute about the measure
of damages for breach of contract).
Normally employees of an independent contractor
(which describes all of the plaintiffs except Amber Becker,
whose claim depends on her role as Justin Becker’s spouse)
cannot obtain damages from the owner of the premises at
which the contractor was working. See Restatement (Third) of
Torts §§ 55–57. Plaintiffs contend that ConAgra nevertheless
is liable for failing to provide West Side with a safe place to
work. ConAgra responds that of course bin C15 was unsafe—
that’s why West Side had been hired! ConAgra relies on the
principle that someone who engages an independent con-‐‑
tractor to redress an unsafe condition is not liable when the
feared event occurs. Illinois (whose law governs in this suit
under the diversity jurisdiction) has adopted this principle,
observing in Community College District 508 v. Coopers &
Lybrand, 208 Ill. 2d 259, 271 (2003), that “in a case involving
4 Nos. 13-‐‑1505 et al.
negligent rendition of a service [by an independent contrac-‐‑
tor], … a factfinder does not consider any plaintiff’s conduct
that created the condition the service was employed to rem-‐‑
edy.” (Quotation from Restatement (Third) of Torts: Appor-‐‑
tionment of Liability §7 comment m.) And that, ConAgra con-‐‑
tends, is that: It hired West Side to deal with a hot bin, and
all liability therefore is on its account. West Side could have
negotiated for an indemnity or insurance for its benefit (and
that of its workers and subcontractors) but did not do so;
West Side and plaintiffs rely only on the law of torts.
Although plaintiffs and West Side weakly contend that it
did not know that C15 was a hot bin, the evidence over-‐‑
whelmingly establishes that it did—indeed, it knew that this
is why it had been hired—and no reasonable jury could have
concluded otherwise. (The jury was not asked to return a
special verdict on that question, which it did not need to re-‐‑
solve under the instructions it received.) West Side may have
failed to alert A&J adequately, but that’s not a reason to im-‐‑
pose liability on ConAgra. Plaintiffs say that ConAgra
should have hired West Side sooner (without shopping for
lower bids) and that this might have reduced the risk; they
also observe that ConAgra did not volunteer all temperature
readings it had taken in bin C15 before the mid-‐‑April en-‐‑
gagement. But no one contends that ConAgra failed to an-‐‑
swer accurately all questions West Side posed. Having hired
a self-‐‑proclaimed expert in hot bins, ConAgra was entitled to
assume that West Side would ask for whatever information
it needed. (Flitsch had dealt with more than 50 hot bins dur-‐‑
ing his career at West Side; he knew the territory.) People
who hire lawyers rely on them to ask for information mate-‐‑
rial to the situation, and no court would hold a client liable
to his lawyer for failing to reveal spontaneously something
Nos. 13-‐‑1505 et al. 5
that the lawyer never asked about; similarly people who hire
specialists in controlling the risks of grain storage are enti-‐‑
tled to rely on them to know what matters and ask for the
material information.
Plaintiffs and West Side equate the doctrine adopted in
Coopers & Lybrand to the “firefighters’ rule” and contend that
it must be limited to firefighters. That’s wrong for two rea-‐‑
sons. First, the firefighters’ rule is a distinct doctrine dealing
with services not charged for. Under it firefighters cannot
recover from homeowners for creating the conditions that
led to the fire (which may claim firefighters’ lives); converse-‐‑
ly, homeowners cannot recover from firefighters who fail to
bring the blaze under control quickly or without damaging
the home. West Side was not a volunteer, nor were its ser-‐‑
vices paid for by taxpayers; it was a standard independent
contractor in a commercial relation with ConAgra, and nor-‐‑
mal rules of contract and tort law apply.
Second, Coopers & Lybrand itself shows that its rule is not
limited to firefighters; the Supreme Court of Illinois dealt in
that suit with a client’s malpractice claim against its ac-‐‑
countants. The accountants argued that the client was com-‐‑
paratively negligent because it created (financial) conditions
that made it easier for accountants to err. The conclusion that
an accountant’s malpractice is not mitigated by the fact that
the client created risky financial or bookkeeping conditions
applies equally to a claim by a grain-‐‑removal specialist (and
its employees) against the owner of the grain-‐‑storage facility.
Coopers & Lybrand is far from the only Illinois case on point.
For example, Keating v. 68th & Paxton L.L.C., 401 Ill. App. 3d
456, 470–72 (2010), holds that a property owner could not be
liable to a contractor for injuries the contractor and its em-‐‑
6 Nos. 13-‐‑1505 et al.
ployees suffered while working on a dangerous porch that
the contractor had been hired to repair. Other states follow
the same approach.
The district court should have granted ConAgra’s motion
under Fed. R. Civ. P. 50 for judgment as a matter of law.
Plaintiffs observe that ConAgra did not “feature” this de-‐‑
fense at trial, but that is not dispositive. It is enough to pre-‐‑
sent a defense; harping on it is not required. The district
court thought that it had been preserved and addressed it on
the merits. 2013 U.S. Dist. LEXIS 17232 at *9–10, *21–25. It was
right to do so, though it reached the wrong resolution, which
we now reverse. (The district judge may have confused the
contractors’ rule with the open-‐‑and-‐‑obvious-‐‑hazard doc-‐‑
trine, denying ConAgra’s motion in substantial part because
of exceptions to that doctrine. They are different, however,
and we do not discuss that doctrine or its exceptions.)
West Side, by contrast, is liable for the errors of its super-‐‑
visor Flitsch, and it does not ask us to set aside the jury’s
verdict in the employees’ favor.
Our conclusion that ConAgra is not liable makes it un-‐‑
necessary to address disputes about its relative share of lia-‐‑
bility compared with West Side. But there remains a contract
claim between the parties. ConAgra signed and tendered to
West Side a contract containing a promise by West Side to
indemnify ConAgra for any damage caused by West Side’s
negligence. The jury concluded that West Side is liable under
this promise; the judge agreed; but West Side argues other-‐‑
wise, observing that it did not return a signed copy of the
contract to ConAgra. It agreed to undertake the job, and set
to work, but did not sign on the dotted line. The district
judge thought this irrelevant, because performance usually
Nos. 13-‐‑1505 et al. 7
is as good as a signature as a way to accept a proposed writ-‐‑
ten contract. We agree with that conclusion as well as the
district judge’s resolution of all disputes about the amount of
damages the jury awarded on this subject. The district judge
covered these issues ably; more words are unnecessary.
We turn to damages in tort. The jury awarded Jentz
$41,585,000 in compensatory damages plus $34,333,333.33 in
punitive damages. It allocated all but $1 million of the puni-‐‑
tive damages to ConAgra; it allocated 54% of the compensa-‐‑
tory damages to ConAgra, 45% to West Side, and 1% to Jentz
himself. The jury awarded Justin Becker $35,390,000 in
compensatory damages (allocated 5% to Becker, 51% to
ConAgra, and 44% to West Side) and his wife Amber Becker
$250,000 in compensatory damages in her own right (all al-‐‑
located to ConAgra). The award against West Side appears
to be incompatible with the workers’ compensation statute,
since West Side was Becker’s employer, but the district court
did not order West Side to pay Becker; instead it used the
allocation to determine indemnification under the contract
between ConAgra and West Side. 2012 U.S. Dist. LEXIS
109344 at *15–22. The jury added $33,333,333.33 in punitive
damages, all against ConAgra. The jury awarded Schmidt
$2,915,000 in compensatory damages (65% to ConAgra and
the rest to West Side) and $33,333,333.34 in punitive damag-‐‑
es, all against ConAgra.
Given our holding that ConAgra is not liable, the only
punitive award that requires consideration is the $1 million
that the jury ordered West Side to pay Jentz. Illinois does not
authorize punitive damages for ordinary negligence; they
depend on willful and wanton conduct, see Kelsay v.
Motorola, Inc., 74 Ill. 2d 172, 186 (1978), which if not inten-‐‑
8 Nos. 13-‐‑1505 et al.
tional wrongdoing entails at least a “gross deviation from
the standard of care”. Shirk v. Kelsey, 246 Ill. App. 3d 1054,
1065 (1993). No one contends that Flitsch sent the workers
into the tunnel wanting harm to come their way; they were
his co-‐‑workers if not his friends. And it is also hard to see a
“gross deviation” from the standard of care. If the tools were
in the way, someone had to move them; why should that
task (and the associated risk) be assigned to the firefighters
rather than to the people who knew the tools best and could
reach them sooner?
Of course, if an explosion was likely to precede the arri-‐‑
val of the firefighters, or if the firefighters on arrival would
have concluded that no one should enter the tunnel, allow-‐‑
ing the fire or explosion to happen unimpeded, then sending
the workers to remove the tools posed a needless risk. This
must have been what the jury concluded. That makes it im-‐‑
portant to know how likely and how imminent an explosion
was, under the conditions Flitsch knew about.
We looked through the briefs for clues but found none.
At oral argument we asked counsel what the record showed
(perhaps through expert testimony) about the probability
that a smoking bin will explode, or break into open fire,
within any given time. We also received post-‐‑argument
supplementary filings on this topic. The answer turns out to
be: Nothing. Without data, or at least a qualitative risk esti-‐‑
mate (and the record contains neither), the jury lacked sup-‐‑
port for a conclusion that Flitsch’s conduct exposed the
workers to a risk so great that his order marked a “gross de-‐‑
viation” from the standard of care.
True, Flitsch asked ConAgra to call the fire department,
which evinced consciousness of risk, but his order to retrieve
Nos. 13-‐‑1505 et al. 9
the tools evinced a belief that the short-‐‑run risk was small
(and Flitsch so testified). For all this record shows, Flitsch
may have been right. The probability of an explosion before
the workers could reach safety may have been only 1 in
10,000. It could have been more, or it could have been less.
We just don’t know.
Even a small risk will come to pass if events are repeated
often enough, but Illinois has not announced a rule under
which punitive damages are proper whenever small or re-‐‑
mote risks occur and cause injury. The verdict appears to be
a consequence of hindsight bias—the human tendency to be-‐‑
lieve that whatever happened was bound to happen, and
that everyone must have known it. If Flitsch believed that an
explosion was imminent, then he is a monster; but of that
there is no evidence. Hindsight bias is not enough to support
a verdict. The award of punitive damages against West Side
must be set aside.
West Side does not contest the amounts of compensatory
damages. (It made such an argument in the district court but
has not repeated it on appeal.) Instead it contends that it is
entitled to a new trial on damages because the district court
permitted the jury to infer that it carried liability insurance,
which it says violated Fed. R. Evid. 411.
Plaintiffs argued, among other things, that ConAgra is li-‐‑
able for its delay in hiring West Side. Part of the trial was
devoted to ConAgra’s negotiations and internal delibera-‐‑
tions before West Side’s engagement. The district court ad-‐‑
mitted in evidence an email from one ConAgra executive to
another stating that a particular bidder could not be used
because it did not carry at least $3 million in liability insur-‐‑
ance. West Side says that this email allowed the jury to infer
10 Nos. 13-‐‑1505 et al.
that it did have that much insurance—though the record
does not contain direct evidence, one way or the other, about
whether West Side was insured and, if so, for how much.
West Side maintains that any possibility of an inference
about insurance is enough to violate Rule 411.
That is not what the rule says. It provides: “Evidence that
a person was or was not insured against liability is not ad-‐‑
missible to prove whether the person acted negligently or
otherwise wrongfully.” The email was not introduced to
prove that West Side acted negligently. It was introduced as
part of an effort (unsuccessful, we have held) to prove that
ConAgra is liable. The jury’s ability to infer that West Side
carried insurance—something that plaintiffs’ counsel never
argued—should have been addressed, if at all, under Rule
403 rather than Rule 411. Yet West Side does not argue that
the district judge abused his discretion in not excluding or
redacting the email under Rule 403 to eliminate a risk of un-‐‑
justified prejudice; indeed, West Side does not mention Rule
403 in this court. What’s more, any error on the district
court’s part was harmless. The verdicts so far exceed $3 mil-‐‑
lion that the jury’s belief that West Side carried that much
insurance cannot have played a material role.
The judgment against ConAgra is reversed. The con-‐‑
tract judgment in favor of ConAgra and against West Side is
affirmed. The award of punitive damages against West Side
is reversed, and the awards of compensatory damages
against West Side are affirmed. We remand to the district
court for the limited purpose of determining how these deci-‐‑
sions affect indemnification or contribution. ConAgra recov-‐‑
ers its costs; plaintiffs and West Side bear their own costs.