In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐3243
KYLE CARSON,
Plaintiff‐Appellant,
v.
ALL ERECTION & CRANE RENTAL CORPORATION,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:12‐cv‐1637‐WTL‐DML — William T. Lawrence, Judge.
____________________
ARGUED MAY 22, 2015 — DECIDED FEBRUARY 3, 2016
____________________
Before EASTERBROOK, WILLIAMS, and HAMILTON, Circuit
Judges.
HAMILTON, Circuit Judge. Plaintiff Kyle Carson was se‐
verely injured at work when he fell underneath the tread of a
crane that his employer, White Construction, leased from de‐
fendant ALL Erection & Crane Rental Corporation (ALL).
Carson sued ALL for negligence in Indiana state court, and
ALL removed the case to federal court based on diversity
jurisdiction under 28 U.S.C. § 1332. Carson contends that
2 No. 14‐3243
ALL had a duty to conduct a reasonable inspection of the
crane upon delivering it to White Construction, that ALL
breached this duty by failing to conduct such an inspection,
and that this breach was the proximate cause of his injury.
The district court granted summary judgment for defendant
ALL, finding that no reasonable jury could return a verdict
for plaintiff Carson because there is no evidence in the rec‐
ord that ALL’s alleged breach was the proximate cause of
Carson’s injury. We affirm.
I. Facts and Procedural Background
Our account of the facts sets forth facts that are either
undisputed or, if disputed, are stated so as to give Carson as
the non‐moving party the benefit of conflicts in and reason‐
able inferences from the evidence. See, e.g., Carman v. Tinkes,
762 F.3d 565, 566 (7th Cir. 2014). In July 2012, ALL leased a
crane to White Construction, specifically a Manitowoc 2250
Crawler Crane. In the summer of that same year, Carson was
working for White Construction at a wind farm in Indiana
where his employer had a contract to build wind turbines.
Carson worked primarily as a crane oiler, providing general
maintenance on the crane and serving as the “eyes and ears”
of Joe Dowell, the crane operator with whom he was paired.
Carson was injured on September 20, 2012. On that day,
Carson and Dowell were told to move the crane to a wind
turbine platform several miles from where the crane started
the day. During the long move the crane approached a road
with overhead power lines. Carson knew that the crane had
arrived at the road long before the power lines were to be
lowered so that the crane could cross the road. He signaled
for Dowell to stop the crane at the base of some wood mat‐
ting placed to help the crane cross the road.
No. 14‐3243 3
Dowell stopped the crane. But it then began moving for‐
ward again, and it moved onto the wood matting where
Carson was standing. As the crane pushed one end of the
matting down, the other end of the matting where Carson
was standing began to rise into the air. Carson slid down the
ramp the crane was creating and into its path. The crane’s
treads crushed his right foot, which had to be amputated.
Dowell testified that he took the crane out of its “travel
detent,” meaning that the crane should not have moved on
its own. He said he did not know of anything that would
have re‐engaged the controls for forward movement. After
the accident, the crane was inspected and then repaired by
Craig Scholl, hired by White Construction, and by Michael
Krueger, a crane mechanic employed by ALL. Scholl and
Krueger concluded that the crane had moved forward be‐
cause a malfunction in the controls for forward motion
caused the throttles to re‐engage without action by Dowell
himself. The critical point for our purposes is that the prob‐
lem was an intermittent one that was difficult to replicate
(and thus even to detect).
To explain, in most crane operations, the operator pushes
the crane’s two joysticks forward to move forward and
backward to move in reverse. Much like an accelerator on an
ordinary automobile, which will return to idle when the
driver takes his foot off the pedal, the throttles return to neu‐
tral if the operator lets go of them. For relatively long
movements, however, this crane also had a feature compara‐
ble to cruise control on an automobile. The operator could
engage a “detent” (a feature that would hold the throttles in
place without continued pressure, but which could be re‐
leased easily by the operator). The detent allowed the opera‐
4 No. 14‐3243
tor to keep the crane moving without applying continuous
pressure to the throttles. Scholl attributed the unexpected
movement of the crane to a failure of the solid‐state electrical
circuitry for this cruise‐control mechanism.
Carson sued ALL for negligence under Indiana law. To
prevail in a negligence action, “the plaintiff must prove a: (1)
duty owed to plaintiff by defendant; (2) breach of the duty
by allowing conduct to fall below the applicable standard of
care; and (3) compensable injury that was proximately
caused by defendant’s breach of duty.” Hassan v. Begley, 836
N.E.2d 303, 307 (Ind. App. 2005) (citation omitted). The dis‐
trict court held that defendant ALL did owe a duty to plain‐
tiff to perform a proper inspection of the crane upon deliv‐
ery. The court also found that because defendant did not
specifically inspect the travel detent upon delivery, there was
a genuine issue of material fact as to whether defendant
breached that duty. The district court granted summary
judgment for defendant ALL, however, because it found that
plaintiff Carson offered no evidence of proximate cause.
Carson has appealed.
II. Analysis
We review de novo the district court’s grant of summary
judgment. E.g., Castro v. DeVry University, Inc., 786 F.3d 559,
563 (7th Cir. 2015). Summary judgment should be granted
only when there are no genuine disputes of material fact and
the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a). We examine the record in the light most
favorable to the non‐moving party and draw all reasonable
inferences in his favor. Thornton v. M7 Aerospace LP, 796 F.3d
757, 769 (7th Cir. 2015); Castro, 786 F.3d at 563–64.
No. 14‐3243 5
Before digging into tort law as applied to ALL, which
leased the crane to Carson’s employer, it is worth remember‐
ing what is not before us. Carson asserts no claim against his
employer or fellow employees because Indiana’s workers’
compensation law barred such claims. Carson also asserts no
claim against the crane manufacturer for a design or manu‐
facturing defect. Our focus is thus on Indiana tort law appli‐
cable to a supplier of equipment or other chattel.
Indiana law “imposes a duty on the supplier of a chattel
to conduct a proper inspection which would disclose the ex‐
istence of a defect.” Dutchmen Mfg., Inc. v. Reynolds, 849
N.E.2d 516, 522 (Ind. 2006). ALL argues that the undisputed
evidence shows that a proper inspection would not have re‐
vealed any defect in the travel detent. Indiana law is also
clear that “inquiry into the reasonable discoverability of a
defect may be proper in evaluating whether a supplier has
breached the duty of reasonable care but not in determining
whether such duty exists.” McGlothlin v. M & U Trucking,
Inc., 688 N.E.2d 1243, 1245 (Ind. 1997). This appeal thus turns
on two questions. First, could a reasonable jury find that
ALL breached its duty of reasonable care by failing to in‐
spect the travel detent? Second, if ALL did breach its duty,
could a reasonable jury find that the breach was a proximate
cause of Carson’s injury? We address these questions in turn.
A. Breach of Duty
ALL argues that there was simply no way to discover a
defect in the solid‐state electrical circuitry of the travel de‐
tent (the component of the travel detent that failed) because
that circuitry cannot be inspected. For support, ALL cites
deposition testimony from Scholl to this effect. It also cites
deposition testimony from Krueger, who said that he is not
6 No. 14‐3243
aware of a recommendation, from the manufacturer or any‐
one else, that this component be inspected as part of preven‐
tive maintenance on the crane. ALL argues, in sum, that the
defect here was not reasonably discoverable, so that a proper
inspection of the crane upon delivery need not have includ‐
ed a pointless inspection of the travel detent.
Carson’s best answer to this argument is highlighted by
an exchange at oral argument. Plaintiff’s counsel was asked
whether an inspection would have shown the defect. Coun‐
sel answered that the defect “certainly was found after the
accident.” He went on to explain that since the defect was
discovered after the accident, it stands to reason that such a
defect could have been found if ALL had looked for it before
the accident.
That may be right in theory, but it is not consistent with
the evidence in this record. Scholl testified that in his post‐
accident inspection, he spent an hour moving the crane, at‐
tempting to simulate working conditions to see if the crane
would malfunction by having the travel detent engage on its
own. In the first hour of trying, he had not been able to repli‐
cate the malfunction. After an hour, though, he returned the
joysticks to neutral and found that the travel detent had set
on its own. He then continued to manipulate the crane con‐
trols, trying to recreate that malfunction of the travel detent.
He eventually found that the travel detent malfunctioned
intermittently.
To the extent the district court found that defendant ALL
had a duty to inspect the travel detent operation before de‐
livery, we do not disagree, at least for purposes of summary
judgment. But the scope of that duty is another matter. It
would not be reasonable to infer that what Scholl did for ac‐
No. 14‐3243 7
cident reconstruction purposes should be a required part of
a proper, routine inspection whenever a crane is delivered to
a lessee. Scholl spent more than an hour, not inspecting the
crane but actually operating it with the deliberate goal of
recreating one suspected malfunction, and the crane worked
as intended. Thus, while we assume ALL had a duty to in‐
spect the travel detent before delivery and that a jury could
find a breach of that duty, we do not think a jury could rea‐
sonably find that ALL breached the duty by failing to engage
in the sort of prolonged efforts Scholl needed to replicate the
intermittent failure after the accident.
B. Proximate Cause
Accordingly, we agree with the district court that even if
defendant ALL breached its duty by failing to inspect the
travel detent mechanism at all before delivery, Carson failed
to offer evidence that would allow a reasonable jury to find
that ALL’s alleged breach was a proximate cause of his inju‐
ry. White Construction had the crane for roughly three
months before it malfunctioned. Dowell testified at his dep‐
osition that the travel detent “worked every time” he used it
up until the day of the accident. If defendant ALL had in‐
spected the travel detent mechanism upon delivery of the
crane, what would an inspection have found?
Carson argues that Dowell’s testimony provided no in‐
formation about how often the travel detent was used before
the day of the accident, but indicated only that the travel de‐
tent worked every time it was used—however many times
that might have been. Carson freely admits, indeed is ada‐
mant, that the record contains “no evidence of how often the
cruise control function was used” before the accident. He
8 No. 14‐3243
contends this admission should defeat summary judgment,
but we think the opposite is correct.
Assuming there was a breach of duty, how often the trav‐
el detent was used before the day of the accident is a critical
fact. On plaintiff’s theory of breach, a reasonable inspection
when the crane was delivered would have included engag‐
ing the travel detent and observing its performance, as
Scholl did in his post‐accident examination. But if the travel
detent was used—engaged and observed—100 times be‐
tween delivery and accident and did not malfunction, it
would not be reasonable to infer that testing the travel de‐
tent upon delivery would have revealed a defect. If the travel
detent was used only once before the day of the accident, on
the other hand, the inference that Carson would ask a jury to
draw would become stronger.
But the critical fact on which a jury would base that in‐
ference—how often the travel detent was used before the
day of the accident—is something the jury would have no
way to determine based on the record evidence. Nothing in
the record speaks to that question, as Carson freely admits.
Carson is entitled to have all reasonable inferences drawn in
his favor, of course, for he was the non‐moving party on this
issue at summary judgment. On this record, however, any
inferences about how often the travel detent was used before
the day of the accident would be “inferences relying on mere
speculation or conjecture,” and Carson is not entitled to
those. See Trade Finance Partners, LLC v. AAR Corp., 573 F.3d
401, 407 (7th Cir. 2009).
In this respect, this case is similar to several others where
critical evidence of causation was lacking. In one such case,
Foster v. New York Central System, 402 F.2d 312, 313 (7th Cir.
No. 14‐3243 9
1968), for example, the plaintiff was thrown from his motor‐
cycle. The accident caused him retrograde amnesia; he could
remember nothing about it. There were no eyewitnesses to
the accident. The only evidence of causation the plaintiff of‐
fered was that a railroad track near where he and his motor‐
cycle were found was improperly graded. Plaintiff sued the
owner of the railroad track.
We affirmed the grant of summary judgment for the
owner of the track because the record evidence of causation
could lead to “several equally speculative conclusions.” Id.
Foster was a diversity case decided under Indiana law, and
we quoted the still‐relevant words of a then‐recent Indiana
state court decision: “It is well settled that a decision or find‐
ing must be based upon the proven facts and cannot be
based upon mere guess, conjecture, surmise, possibility or
speculation.” Id., quoting Halkias v. Gary National Bank, 234
N.E.2d 652, 655 (Ind. App. 1968); see also Buckner v. Samʹs
Club, Inc., 75 F.3d 290, 294 (7th Cir. 1996) (affirming sum‐
mary judgment for defendant under Indiana law; plaintiff
slipped on an unknown object, and without evidence of cau‐
sation could not establish a prima facie case of negligence);
Harris v. Owens‐Corning Fiberglas Corp., 102 F.3d 1429, 1433
(7th Cir. 1996) (“When, at best, the possibilities are evenly
balanced, the court should enter judgment for the defendant
on the ground that causation cannot be proved.”).
Under Indiana substantive law, the defendant in a negli‐
gence action is entitled to judgment as a matter of law when
“there is a total absence of evidence or reasonable inferences
on at least one essential element of the plaintiff’s case.” Pal‐
ace Bar, Inc. v. Fearnot, 381 N.E.2d 858, 861 (Ind. 1978). Proxi‐
mate cause is an essential element of a negligence action, and
10 No. 14‐3243
Carson has no evidence permitting a reasonable inference in
his favor as to that element. ALL was entitled to summary
judgment under Federal Rule of Civil Procedure 56(a).
Carson’s counsel told us in oral argument that “Indiana is
not a summary judgment state.” Whatever differences there
might be between federal and Indiana summary judgment
standards in theory or in practice, they do not matter here.
“Federal courts may grant summary judgment under Rule
56 on concluding that no reasonable jury could return a ver‐
dict for the party opposing the motion, even if the state
would require the judge to submit an identical case to the
jury.” McEwen v. Delta Air Lines, Inc., 919 F.2d 58, 60 (7th Cir.
1990).
The district court’s judgment is AFFIRMED.