In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2088
P AUL T. S WEARINGEN ,
Plaintiff-Appellant,
v.
M OMENTIVE S PECIALTY C HEMICALS, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 10-cv-4470—Amy J. St. Eve, Judge.
A RGUED O CTOBER 19, 2011—D ECIDED D ECEMBER 7, 2011
Before F LAUM and M ANION, Circuit Judges, and M AGNUS-
S TINSON, District Judge.
M AGNUS-STINSON, District Judge. Plaintiff-appellant
Paul T. Swearingen fell from the top of his employer’s
The Honorable Jane E. Magnus-Stinson, District Judge for
the United States District Court for the Southern District of
Indiana, is sitting by designation.
2 No. 11-2088
truck while he was attempting to unload chemicals at
a facility owed by Defendant-appellee Momentive Spe-
cialty Chemicals, Inc.1 This case requires us to apply
Illinois law to determine whether the deliberate-
encounter exception of the open-and-obvious doctrine
applies to Mr. Swearingen’s negligence claim against
Momentive. The district court found the deliberate-en-
counter exception inapplicable and granted summary
judgment in favor of Momentive because Momentive
did not owe Mr. Swearingen a duty regarding the open
and obvious hazard at issue. We affirm.
I. B ACKGROUND
During the relevant time, Mr. Swearingen was a tanker-
truck driver for Transport Service Company. On March 29,
2010, Mr. Swearingen delivered a tank of chemicals to
Momentive’s facility in Carpentersville, Illinois. After
Mr. Swearingen parked the truck in an unloading bay,
Momentive personnel asked him to open the dome lid
on top of the truck. Mr. Swearingen testified in his deposi-
tion that no one from Momentive told him how to open
the dome lid.
Mr. Swearingen climbed the ladder attached to the
truck. When he got to the top of the ladder, he saw bright
1
Mr. Swearingen initially filed suit against Hexion Specialty
Chemicals, Inc. During the pendency of the underlying action,
Hexion changed its corporate name to Momentive and the
docket was updated accordingly. We will refer to the Defendant-
appellee exclusively as Momentive.
No. 11-2088 3
red piping a few feet above the truck that was part of
Momentive’s fire extinguishing system. He testified that
he noticed that the piping was extremely low but con-
cluded that he had “been in these kind of situations
before” and knew he was “going to have to do it in
the end anyway,” so he climbed on top of the
truck. Mr. Swearingen was aware that he was not
wearing a fall-protection harness and wished that he
had one. No one from Momentive was present to
supervise or assist him, and he did not seek any assis-
tance. While trying to open the dome lid from the
top of the truck, Mr. Swearingen began to stand up, hit
his head on the piping, and fell to the floor.
There is no dispute that Mr. Swearingen was aware of
the low-piping hazard when he climbed onto the truck.
There is also no dispute that Mr. Swearingen’s employer,
Transport, trained him to open the dome lid by main-
taining three points of contact with the truck at all
times, which he failed to do at the time he fell.
On July 19, 2010, Mr. Swearingen filed a complaint in
the United States District Court for the Northern District
of Illinois, alleging that Momentive breached the duty it
owed to warn him of the risk associated with the low-
piping hazard and otherwise provide him with a fall-
protection harness. Mr. Swearingen further contends
that as a direct and proximate cause of the alleged
breach, he fell from the top of the truck and sustained
serious permanent injuries.
On March 8, 2011, Momentive filed a motion for sum-
mary judgment on Mr. Swearingen’s claim, arguing that
4 No. 11-2088
Momentive did not owe Mr. Swearingen a duty because
he recognized the open and obvious nature of the hazard
presented by the piping above the truck. Mr. Swearingen
argued in response, among other things, that the
deliberate-encounter exception to the open-and-obvious
doctrine applied. Therefore, Mr. Swearingen contended
that Momentive should have reasonably foreseen that
he would deliberately encounter the hazard presented
by the low piping, warned him accordingly, and provided
him with a fall-protection harness.
On June 2, 2011, the district court granted summary
judgment in favor of Momentive on Mr. Swearingen’s
claim. The district court concluded that the issue of
duty was a matter of law to be decided by the court.
Specifically, the district court found that Momentive
did not owe Mr. Swearingen a duty of care at the time
of the accident because the hazard Mr. Swearingen en-
countered was open and obvious and the deliberate-
encounter exception did not apply.2 The district court
concluded that there was no evidence that Momentive
had reason to expect that Mr. Swearingen would
climb on top of his truck despite the piping system
directly overhead. The district court also found that
Mr. Swearingen had not raised any issues of material
fact regarding duty and that without a duty, there could
be no liability. Mr. Swearingen appeals.
2
The district court also found that the distraction exception to
the open-and-obvious doctrine did not apply. Mr. Swearingen
does not challenge that finding on appeal, and we will not
discuss that exception further.
No. 11-2088 5
II. D ISCUSSION
Mr. Swearingen raises two issues on appeal: (1) whether
the deliberate-encounter exception to the open-and-
obvious doctrine applies; and (2) whether alleged issues
of material fact prevent summary judgment on the
issue regarding Momentive’s duty to Mr. Swearingen.
We review the district court’s grant of summary judg-
ment de novo, construing all facts and inferences in the
light most favorable to the non-movant, Mr. Swearingen,
in determining whether a genuine issue of material fact
exists that would preclude summary judgment. Bus. Sys.
Eng’g, Inc. v. Int’l Bus. Machs. Corp., 547 F.3d 882, 886 (7th
Cir. 2008).
A. Applicable Illinois Law Regarding the Open-and-
Obvious Doctrine
The parties agree that we apply Illinois law in this
diversity action. When addressing a question of state
law while sitting in diversity, “our task is to ascertain
the substantive content of state law as it either has
been determined by the highest court of the state or as
it would be by that court if the present case were before
it now.” Thomas v. H&R Block Eastern Enters., 630 F.3d
659, 663 (7th Cir. 2011).
To establish a claim for negligence under Illinois law, a
plaintiff must prove 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.
Thompson v. Gordon, 948 N.E.2d 39, 45 (Ill. 2011). Whether
6 No. 11-2088
a duty is owed presents a question of law, while breach
of duty and proximate cause present questions of fact.
Id. Duty and liability are distinct concepts that must be
separately considered. LaFever v. Kemlite Co., 706 N.E.2d
441, 450 (Ill. 1998). Where there is no duty owed, there
can be no liability. Id.; see also Bell v. Hutsell, 955
N.E.2d 1099, 1104 (Ill. 2011) (“Unless a duty is owed,
there can be no recovery in tort for negligence.”).
“The touchstone of the duty analysis is to ask whether
the plaintiff and defendant stood in such a relationship
to one another that the law imposes on the defendant
an obligation of reasonable conduct for the benefit of the
plaintiff.” Vancura v. Katris, 939 N.E.2d 328, 347 (Ill. 2010).
This inquiry involves four factors: (1) the reasonable
foreseeability of the injury; (2) the likelihood of the
injury; (3) the magnitude of the burden of guarding
against the injury; and (4) the consequences of placing
the burden on the defendant. Id.
The parties agree that Mr. Swearingen was a business
invitee on Momentive’s property. As a general rule,
a landowner owes a business invitee “the duty of exer-
cising ordinary and reasonable care to see that the
premises are reasonably safe for use.” Marshall v. Burger
King Corp., 856 N.E.2d 1048, 1063 (Ill. 2006).
Momentive argues that the general rule does not
apply in this case because the danger at issue was open
and obvious. Under the open-and-obvious doctrine, a
landowner is not liable for physical harm caused to
invitees by any condition on the land whose danger
is known or obvious to them, unless the landowner
No. 11-2088 7
should anticipate the harm despite such knowledge or
obviousness. Sollami v. Eaton, 772 N.E.2d 215, 223 (Ill.
2002) (citing Restatement (Second) of Torts § 343A (1965));
see also Bucheleres v. Chicago Park Dist., 665 N.E.2d 826,
831 (Ill. 1996) (reaffirming the “long-standing principles
which recognize that owners and occupiers of land gen-
erally owe no legal duty to take precautions or warn
against risks from ‘open or obvious’ conditions present
on the land”).3
Mr. Swearingen argues that the deliberate-encounter
exception to the open-and-obvious doctrine applies,
which would revive the duty Momentive owed to him.
Under that exception, even if an invitee harms himself
on an open and obvious hazard, the landowner may still
be liable if it “had reason to expect” that the invitee
3
We recognize that there has been dissension among the
members of the Illinois Supreme Court regarding the role a
jury should play, if any, in determining whether a condition
is open and obvious and if a landowner’s warning is sufficient.
See Sollami, 772 N.E.2d at 225 (Harrison, J., dissenting) (“[T]he
issue is not for [the majority] to resolve. Whether a condition
presents an open and obvious danger is a question of fact for
the trier of fact.”), id. at 228 (Kilbride, J., dissenting) (“I believe
the questions of whether a duty to warn on the part of the
property owner exists, as well as the adequacy of any warnings
given, are also issues that should be determined by a jury.”). The
majority of the court, and therefore controlling precedent,
holds otherwise. But because Mr. Swearingen admits he saw
the piping hazard, recognized the tight quarters, and was
aware that he was not wearing fall protection, the open and
obvious nature of the hazard in this case is undisputed.
8 No. 11-2088
would deliberately encounter the hazard because the
advantages of doing so outweigh the apparent risk to a
reasonable person. LaFever, 706 N.E.2d at 448, 450. The
deliberate-encounter exception has most often been
applied in cases involving economic compulsion. Sollami,
772 N.E.2d at 224 (citing LaFever, 706 N.E.2d 441 (holding
that defendant could have reasonably foreseen that
plaintiff would deliberately walk on slippery edge trim
in the course of performing his job duties); Ralls v. Village
of Glendale Heights, 598 N.E.2d 337 (Ill. App. Ct. 1992)
(holding it reasonably foreseeable that construction
workers would use the shortest path to door of building
on work site, even though the path was snow-covered
and slippery)).
Regardless of whether the general rule, the open-and-
obvious doctrine, or the deliberate-encounter excep-
tion applies, the Illinois Supreme Court has applied the
four-factor duty inquiry to the reasonable foreseeability
of the injury, the likelihood of the injury, the magnitude
of the burden of guarding against the injury, and the
consequences of placing the burden on the defendant.
Cf. Sollami, 772 N.E.2d at 224-25 (concluding that the
deliberate-encounter exception did not apply but still
conducting the four-factor duty inquiry); with LaFever,
706 N.E.2d at 450-51 (concluding that the deliberate-
encounter exception did apply but still conducting the
four-factor duty inquiry).4
4
After briefing was complete, Mr. Swearingen submitted a
notice of additional authority, generally directing us to the
(continued...)
No. 11-2088 9
B. Whether Momentive Owed a Duty to Mr.
Swearingen Regarding the Open and Obvious
Hazard on Its Property
Mr. Swearingen does not—and cannot—dispute that
the piping hazard was open and obvious. He saw it
when he arrived at the top of the ladder, knew that he
was not wearing fall protection, and recognized that
there would not be much room for him on top of
the truck. On appeal, Mr. Swearingen argues that the
deliberate-encounter exception applies and that the
district court erred by granting Momentive’s motion for
summary judgment. Specifically, Mr. Swearingen argues
that Momentive should have known that he would
climb on top of the truck and potentially encounter the
(...continued)
duty analysis from the Illinois Appellate Court’s decision in
Choate v. Indiana Harbor Belt Railroad Co., 954 N.E.2d 760 (Ill.
App. Ct. 2011). Mr. Swearingen does not cite a specific holding
from Choate or argue that the case contradicts LaFever or
Sollami, which are Illinois Supreme Court precedent reflecting
that court’s position on the substantive law applicable herein.
Because our task in this diversity case is to predict how the
Illinois Supreme Court would address the issues at bar, we
will rely on LaFever and Sollami instead of Mr. Swearingen’s
supplemental authority. In any event, Choate is distinguish-
able because it focuses on the duty a landowner owes to
young children who trespass on the landowner’s property.
Mr. Swearingen, who was fifty-five years old at the time of the
incident, was undisputedly a business invitee on Momentive’s
property.
10 No. 11-2088
hazard because he felt economically compelled to open
the dome lid to fulfill his job responsibilities.
As detailed above, the deliberate-encounter exception
applies if the landowner “had reason to expect” that
the invitee would deliberately encounter the open and
obvious hazard because the advantages of doing so
outweigh the apparent risk to a reasonable person.
LaFever, 706 N.E.2d at 448, 450.
The district court correctly noted that Mr. Swearingen
provides no evidence that Momentive had reason to
expect that he would climb on top of his truck to open the
dome lid, placing himself in a position to potentially
encounter the piping hazard. It is undisputed that
Mr. Swearingen’s employer trained him how to
open the dome lid and instructed him to maintain
three points of contact with the truck at all times.
Mr. Swearingen’s supervisor testified that to maintain
three points of contact, drivers “lean over while they’re
still on the ladder and reach over and undo the dome
lid.” His supervisor also testified that if he knew
Mr. Swearingen climbed on top of the truck, he would
have retrained him. Momentive’s safety manager
testified that Momentive expects all drivers to maintain
three points of contact with the ladder while opening
the dome lid.
Mr. Swearingen admits that he chose to climb on top
of the truck to open the dome lid and that Momentive
did not tell him to do so. Mr. Swearingen also admits
that it was impossible for him to maintain three points
of contact while trying to open the lid from atop the
No. 11-2088 11
truck, which violated his training. (Appellant’s Br. at 33.)
Although Mr. Swearingen contends that he had to climb
on top of the truck to open the dome lid because it
was secured too tightly for him to open it from the
ladder, his counsel conceded at oral argument that there
is no evidence in the record that Momentive had any
reason to foresee that the dome lid may have been
secured too tightly for Mr. Swearingen to open it from
the ladder. Likewise, there is no evidence in the record
that Momentive was aware that Mr. Swearingen or
any other drivers ever attempted to open dome lids
by positioning themselves on top of their trucks.
In summary, there is nothing in the record supporting
Mr. Swearingen’s assertion that Momentive had reason
to expect that he would ignore his training and climb on
top of his truck to attempt to open the dome lid, which
placed him in a position to encounter the open and
obvious hazard. While Mr. Swearingen argues that he
is “not required to prove [his] case at the summary judg-
ment stage,” he is required to present evidence to create
an issue of material fact, which he has not done.5 See
5
Mr. Swearingen’s reliance on Momentive’s post-accident
investigation report concluding that the height of the sprinkler
system could have contributed to the accident is not pertinent
to the duty analysis. That evidence shows Momentive’s knowl-
edge after the accident, not before, and goes to the issue of
causation, not duty. Likewise, Mr. Swearingen’s expert’s report
opining on unidentified industry standards and the “cause” of
the accident does not create an issue of material fact relevant
(continued...)
12 No. 11-2088
Caisse Nationale de Credit Agricole v. CBI Indus., 90 F.3d
1264, 1270 (7th Cir. 1996) (“A party seeking to defeat a
motion for summary judgment is required to wheel out
all its artillery to defeat it.”) Therefore, the deliberate-
encounter exception to the open-and-obvious doctrine
does not apply to the facts of this case.
This conclusion is further supported by the additional
four-factor test the Illinois Supreme Court has pre-
scribed.6 Mr. Swearingen’s injury was not reasonably
foreseeable or likely because he ignored his training by
climbing on top of the truck and failing to maintain
three points of contact. No evidence was introduced
establishing that Momentive had prior knowledge of
any invitee or employee climbing on top of a tanker to
open a dome lid.
The burden of guarding against the injury and the
consequences of placing that burden on Momentive
appear substantial. Despite Mr. Swearingen’s argument
to the contrary, it is not as straightforward as Momentive
simply having fall protection available for non-employee
(...continued)
to the analysis herein. (Appellant’s Br. at 19.) Whether a duty
is owed presents a question of law for the court, Thompson,
948 N.E.2d at 45, and duty and liability are distinct concepts
that must be separately considered, LaFever, 706 N.E.2d at 450.
6
While the district court did not explicitly apply the four-factor
test after concluding that the open-and-obvious doctrine
applied, its analysis implicitly addressed the factors at issue
and reached the same result we reach herein.
No. 11-2088 13
truckers who unload chemicals at its facilities. Momen-
tive would also have to train these non-employees to
use the harness, supervise them during use, and ensure
that it provided a harness that was compatible with
the truck the non-employee was driving. These signifi-
cant burdens weigh against imposing a legal duty on
Momentive. Additionally, it would be more efficient for
business invitees like Mr. Swearingen to follow their
training. Placing the burden on Momentive to provide
fall protection for all non-employees is unjustified.
For these reasons, we conclude that Momentive did
not owe Mr. Swearingen a legal duty to provide him
with a fall-protection harness to protect him from the
open and obvious hazard on its property.
C. Mr. Swearingen’s Proffered Issues of Material Fact
Mr. Swearingen proffers three factual disputes that he
contends create issues of material fact sufficient to pre-
clude summary judgment. First, Mr. Swearingen denies
Momentive’s allegation that he was “standing” on top
of the truck. Mr. Swearingen points to his stature and
argues that it would not be possible for him to stand
upright on the truck. Second, Mr. Swearingen em-
phasizes that Momentive’s safety director testified that
Momentive’s failure to provide fall protection was a
contributing factor to Mr. Swearingen’s accident. Third,
Mr. Swearingen argues that it was impossible for him
to maintain three points of contact with the truck as he
was trained to do because the dome lid was secured too
tightly for him to remove it from the ladder.
14 No. 11-2088
As the district court held, even if a genuine dispute
exists as to any of these facts, none of these disputes are
material because they do not affect the duty analysis.
Whether Mr. Swearingen was crouching or standing
upright on top of the truck is immaterial because, for
purposes of the duty analysis, the parties agree that
Mr. Swearingen was positioned on top of the truck and
the salient question is whether Momentive had reason
to expect that he would be up there.
Likewise, whether Momentive’s failure to provide fall
protection actually contributed to the fall goes to the
causation element, not to duty. Finally, even if it were
impossible for Mr. Swearingen to maintain three points
of contact with the truck to open the tight dome lid,
his counsel conceded at oral argument that there is no
evidence in the record that Momentive had reason to
foresee that the dome lid would be too tight or that
Mr. Swearingen would ignore his training and position
himself on top of the truck to attempt to loosen it.
As Mr. Swearingen admits at the end of his brief, his
proffered factual disputes go to issues regarding “contrib-
utory negligence” and “how the incident occurred.”
(Appellant’s Br. at 34.) Because we have already deter-
mined that Momentive did not owe Mr. Swearingen a
duty to take precautions regarding the open and obvious
danger at issue on its premises, there can be no recovery.
See, e.g., Bell, 955 N.E.2d at 1104 (“Unless a duty is
owed, there can be no recovery in tort for negligence.”).
Therefore, we conclude that Momentive is entitled to
summary judgment on Mr. Swearingen’s claim and
affirm the judgment of the district court.
No. 11-2088 15
III. C ONCLUSION
For the foregoing reasons, we A FFIRM the district
court’s grant of summary judgment in favor of Momentive.
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