### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 18

‐ 2203

S TANLEY H UTCHISON

, Plaintiff

‐ Appellant

,

v.

F ITZGERALD E QUIPMENT C OMPANY

, I NC

., Defendant

‐ Appellee

.

____________________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 15

‐ cv

‐ 06521

— Marvin E. Aspen

, Judge

.

____________________

A RGUED D ECEMBER 5, 2018

— D ECIDED D ECEMBER 14, 2018

____________________

Before F LAUM

, R OVNER

, and S CUDDER

, Circuit Judges

.

F LAUM

, Circuit Judge

. A forklift backed over Stanley

Hutchison’s foot while it was loading product onto his

tractor

‐ trailer. Hutchison’s employer, who owned the forklift,

had contracted with another company to provide

maintenance on the forklift. Hutchison sued that third

‐ party

servicing company, Fi tz gerald Equipment Company, Inc.

(“Fi tz gerald”), alleging that Fi tz gerald was negligent in failing

to warn his employer to install a backup alarm on the forklift2 No. 18

‐ 2203

and was liable in concert with his employer for failing to

install such an alarm. The district court granted Fi tz gerald’s

motion for summary judgment on the negligence claim and

granted Fi tz gerald’s motion to dismiss the in

‐ concert liability

claim. We a ffi rm.

I. Background

Plaintiff

‐ appellant Stanley Hutchison worked as a truck

driver for Borkholder Corporation. On August 19, 2013,

Hutchison arrived at Borkholder’s facility in Metamora, Illi

‐

nois with an empty tractor

‐ trailer to pick up a load of bundled

foam insulation. Another Borkholder employee, Chad

Schierer, was the primary forklift driver and yard foreman at

the Metamora facility and was responsible for loading and

unloading deliveries with a forklift. While Schierer was load

‐ ing Hutchison’s trailer, he reversed the forklift and ran over

Hutchison’s left foot with the forklift’s right rear tire. Schierer

did not see Hutchison when he reversed, and Hutchison did

not hear a backup alarm.

At the time of the accident, Schierer was driving a Cater

‐ pillar Model No. DP40 forklift that Borkholder owned. Pursu

‐

ant to Occupational Safety and Health Administration

(“OSHA”) regulations, Borkholder was responsible for con

‐ trolling, maintaining, and inspecting the forklift on a daily ba

‐

sis. Defendant

‐ appellee Fi tz gerald is a service and repair com

‐

pany that services forklifts. Fi tz gerald and Borkholder en

‐

tered into an Operational Maintenance Service Agreement

(the “Agreement”), under which Fi tz gerald provided preven

‐

tative maintenance every ninety days to the forklift involved

in the accident. The Agreement is a single page, applies only

to this speci fi c forklift, and requires Fi tz gerald “to perform theNo. 18

‐ 2203 3

lubrication and operational maintenance inspection as de

‐

scribed on the Operational Maintenance Report form.” 1

The parties agree that the forklift was not designed, man

‐

ufactured, or shipped to its original purchaser with a backup

alarm and that no regulations required the forklift to have a

backup alarm as of August 19, 2013, the date of the accident.

They dispute, however, whether the forklift had a backup

alarm installed when it rolled over Hutchison’s foot. Several

Borkholder employees testi fi ed that they could not recall

whether the forklift had a backup alarm that day. Schierer

acknowledged that photographs of the forklift, taken the day

after the accident, showed no backup alarm.

It is also undisputed that Fi tz gerald serviced the forklift

several times in 2013 prior to the accident. A Fi tz gerald tech

‐

nician inspected the forklift on April 5, 2013 and performed

repairs on April 22 and 25, 2013. The technician did not re

‐

member whether the forklift had a backup alarm; he did not

note a malfunctioning backup alarm during his inspection, in

‐ dicating that either there was no backup alarm installed or the

alarm was operational. Another Fi tz gerald technician re

‐ paired the forklift in July 2013, and he too did not recall

whether the forklift had a backup alarm. Following the acci

‐

dent, Borkholder requested another company, HuppToyotal

‐

ift, install a backup alarm on the forklift. On October 1, 2013,

a HuppToyotalift technician installed a backup alarm on the

forklift and a ffi rmed that it did not have a backup alarm at the

time he installed one.

1 Neither party included the Operational Maintenance Report form in

the record before the district court.4 No. 18

‐ 2203

On July 27, 2015, Hutchison fi led suit against Fi tz gerald in

the Northern District of Illinois. On May 18, 2017, Hutchison

fi led a fi rst amended complaint alleging two theories of liabil

‐ ity—in

‐ concert liability (Count I) and negligence (Count II).

After the district court granted Fi tz gerald’s motion to dismiss

Count I without prejudice and the parties completed brie fi ng

on Fi tz gerald’s motion for summary judgment as to Count II,

Hutchison fi led a second amended complaint amending

Count I, and Fi tz gerald again moved to dismiss. On May 4,

2018, the district court granted Fi tz gerald’s motion to dismiss

Hutchison’s in

‐ concert liability claim and motion for sum

‐

mary judgment on Hutchison’s negligence claim. Hutchison

appeals both rulings.

II. Discussion

A. Negligence Claim

We review a grant of summary judgment de novo, “con

‐ struing all facts and drawing all reasonable inferences in favor

of the party against whom the motion under consideration

was fi led.” Hess v. Bd. of Trs. of S. Ill. Univ.

, 839 F.3d 668, 673

(7th Cir. 2016). “Summary judgment is appropriate where

there are no genuine issues of material fact and the movant is

entitled to judgment as a ma tt er of law.” Id. (citing Fed R. Civ.

P. 56(a)). The moving party “always bears the initial respon

‐ sibility” to identify the portions of the record “which it be

‐

lieves demonstrate the absence of a genuine issue of material

fact.” Celotex Corp. v. Catre tt

, 477 U.S. 317, 323 (1986). “When

the moving party has carried its burden

..., its opponent must

do more than simply show that there is some metaphysical

doubt as to the material facts.” Matushita Elec. Indus. Co. v.No. 18

‐ 2203 5

Zenith Radio Corp.

, 475 U.S. 574, 586 (1986). Instead, the non

‐

movant must set forth speci fi c facts demonstrating a genuine

issue for trial. Id. at 587.

To prove a defendant’s negligence under Illinois law, a

plainti ff must establish “the existence of a duty of care owed

by the defendant to the plainti ff

, a breach of that duty, and an

injury proximately caused by that breach.” Buechel v. United

States

, 746 F.3d 753, 763–64 (7th Cir. 2014) (citing Thompson v.

Gordon

, 948 N.E.2d 39, 45 (Ill. 2011)). Whether a duty exists is

a question of law. Thompson

, 948 N.E.2d at 45. To determine

whether a duty exists, a court must “ask whether a plainti ff

and a defendant stood in such a relationship to one another

that the law imposed upon the defendant an obligation of rea

‐

sonable conduct for the bene fi t of the plainti ff .” Vesely v. Arm

‐

slist LLC

, 762 F.3d 661, 665 (7th Cir. 2014) (quoting Marshall v.

Burger King Corp.

, 856 N.E.2d 1048, 1057 (Ill. 2006)). Here,

Hutchison alleges that Fi tz gerald had a duty either to discover

and disclose an inoperative backup alarm on the Caterpillar

forklift, or to recommend that Borkholder install a backup

alarm on the forklift because another forklift at the Metamora

facility had a backup alarm. 2

1. Duty to Warn

A “duty to warn exists where there is unequal knowledge,

actual or constructive [of a dangerous condition], and the de

‐ fendant[,] possessed of such knowledge, knows or should

know that harm might or could occur if no warning is given.”

Happel v. Wal

‐ Mart Stores, Inc.

, 766 N.E.2d 1118, 1123 (Ill. 2002)

(alterations in original) (quoting Schellenberg v. Winnetka Park

2 Hutchison’s arguments appear to conflate Fitzgerald’s alleged du

‐

ties to Borkholder with duties to Hutchison, as a Borkholder employee.6 No. 18

‐ 2203

Dist.

, 596 N.E.2d 93, 97 (Ill. App. Ct. 1992)). Hutchison argues

Fi tz gerald had unequal knowledge of the risks and hazards of

operating a forklift without a backup alarm, and as such, Fi tz‐

gerald had a duty to warn Borkholder of those dangers. This

argument fails, however, because Hutchison does not cite any

evidence in the record that Fi tz gerald knew of risks that Bork

‐

holder did not. Hutchison claims that Borkholder relied on

Fi tz gerald to make recommendations as to repairs that should

be performed on the forklift, but the parties dispute whether

the forklift even had a backup alarm, let alone one that was

inoperable and in need of repair.

Indeed, though Hutchison characterizes the existence of a

backup alarm on the forklift as in dispute, he has not pre

‐

sented any evidence from which a jury could draw a reason

‐

able inference in his favor on this point. It is undisputed that

the forklift was not designed, manufactured, or shipped to its

original owner with a backup alarm. After the accident, an

‐

other service company installed a backup alarm and a ffi rmed

that there was no backup alarm on the forklift when that in

‐

stallation occurred. And pictures from the day after the acci

‐

dent show no backup alarm on the forklift. Although several

witnesses could not recall whether the forklift had a backup

alarm, their “metaphysical doubt” is insu ffi cient to create a

genuine issue of material fact. See Matushita Elec.

, 475 U.S. at

586. To infer, based on a handful of witnesses unable to recall

whether the forklift had a backup alarm, that the forklift in

fact had such an alarm, is impermissible speculation. 3 See Her

‐

zog v. Graphic Packaging Int’l, Inc.

, 742 F.3d 802, 806 (7th Cir.

3 In reply, Hutchison points to Schierer’s testimony that there were

wires on the back of the forklift and that “he could see no other reason for

wires on the pillar on the driver’s side other than a backup alarm.” TheNo. 18

‐ 2203 7

2014) (“[I]nferences that are supported by only speculation or

conjecture will not defeat a summary judgment motion.”

(quoting Tubergen v. St. Vincent Hosp. & Health Care Ctr.

, 517

F.3d 470, 473 (7th Cir. 2008))).

As further evidence of unequal knowledge, Hutchison

points to expert testimony suggesting forklift dealers have su

‐ perior appreciation of the hazards involved in reversing fork

‐

lifts. But another forklift at the Borkholder facility—not ser

‐

viced by Fi tz gerald—had a backup alarm, indicating Bork

‐

holder was well aware of the availability and use of backup

alarms. Moreover, as Hutchison acknowledges, OSHA regu

‐

lations did not require backup alarms on forklifts at the time

of the accident and Borkholder, as the owner of the forklift,

was responsible for deciding whether to install a backup

alarm. The duty to warn does not encompass a duty to recom

‐

mend optional safety features to an owner who already

knows about them. In sum, Hutchison has not pointed to any

evidence of unequal knowledge between Fi tz gerald and Bork

‐

holder giving rise to a duty to warn.

2. Voluntary Undertaking

Hutchison also argues that Fi tz gerald is liable under a

voluntary undertaking theory of liability. “In Illinois, a party

to a contract may be liable in tort to a third party who

otherwise has no enforceable rights under the contract under

a voluntary undertaking theory of liability.” Jakubowski v.

Alden

‐ Benne tt Constr. Co.

, 763 N.E.2d 790, 799 (Ill. App. Ct.

2002). Pursuant to the Restatement (Second) of Torts § 324A,

which Illinois has adopted, a party is liable for breach of a

potential purpose of the wires, too, is mere speculation and is insufficient

to create a genuine issue of material fact at summary judgment.8 No. 18

‐ 2203

voluntary undertaking if: (a) “a party undertakes to do

something and then fails to exercise reasonable care in a way

that increases a third party’s risk of harm”; (b) a party

“undertakes to perform a duty that a di ff erent party was

obligated to perform and then negligently ful fi lls its duty”; or

(c) “a third party relies to its detriment on the fact that a duty

has been voluntarily undertaken.” LM ex rel. KM v. United

States

, 344 F.3d 695, 701 (7th Cir. 2003).

Hutchison contends that Fi tz gerald “voluntarily under

‐

took [the] responsibility to advise Borkholder to install a

backup alarm on its Caterpillar tractor if other forklifts at

Borkholder’s Metamora facility had backup alarms.” In sup

‐

port, he cites the depositions of Patrick Boyer, a forklift tech

‐

nician with Fi tz gerald, and Travis Cowley, general manager

of Fi tz gerald. Cowley testi fi ed that he recommends to custom

‐

ers purchasing forklifts that they have the same safety options

their existing trucks have. When asked if he recommends that

facilities install backup alarms on their forklifts, Boyer re

‐ sponded that he would not recommend installing a backup

alarm unless the other forklifts at that facility had backup

alarms. Hutchison points to these statements as evidence that

Fi tz gerald undertook a voluntary duty to advise Borkholder

to install a backup alarm on the Caterpillar forklift because

the other forklift at the Metamora facility had one. We disa

‐

gree with this logic. Fi tz gerald’s employees’ answers to hypo

‐

thetical questions do not establish such a voluntary undertak

‐ ing because Hutchison does not point to any evidence that

Cowley or Boyer knew the other forklift at the Metamora fa

‐ cility had a backup alarm.No. 18

‐ 2203 9

Even if they knew about the alarm on the other forklift, the

business practice Boyer and Crowley testi fi ed to does not cre

‐

ate any legal duty to Borkholder because “[u]nder the volun

‐

tary undertaking theory of liability, the duty of care to be im

‐ posed upon a defendant is limited to the extent of its under

‐ taking.” Frye v. Medicare

‐ Glaser Corp.

, 605 N.E.2d 557, 560–61

(Ill. 1992) (declining to hold that a pharmacist had a duty to

warn a patient of all potential side e ff ects of a drug merely

because she chose to warn about one side e ff ect); see also, e.g.

,

LM

, 344 F.3d at 701 (“[A] voluntary undertaking is just that—

voluntary—and as such, the scope of the duty that is assumed

is limited to the extent of the undertaking.”); Castro v. Brown’s

Chicken & Pasta, Inc.

, 732 N.E.2d 37, 42 (Ill. App. Ct. 2000).

Here, Fi tz gerald’s undertaking was limited to the scope of the

contract—“to perform the lubrication and operational

maintenance inspection[s]”; Hutchison has not pointed to any

evidence establishing that Fi tz gerald undertook any addi

‐

tional duty to Borkholder outside the scope of the Agreement.

Even if Hutchison had established a voluntary undertak

‐ ing—which he has not—he has not established a breach under

any of the three prongs of § 324A. Under § 324A(a),

Hutchison argues that Fi tz gerald negligently performed its

voluntary undertaking because various witnesses thought the

accident “would not have occurred” if the forklift had a

backup alarm. But mere knowledge of a risk does not impose

an a ffi rmative duty. See LM

, 344 F.3d at 701. Hutchison has

not shown Fi tz gerald increased the risk of harm by failing to

recommend installation of a device that was not required by

law nor requested by the forklift owner and a device that was

already known to Borkholder.10 No. 18

‐ 2203

Nor can Hutchison establish, under § 324A(b), that Fi tz‐

gerald supplanted Borkholder’s duty to conduct daily inspec

‐

tions and maintenance on the Caterpillar forklift. To be liable

under § 324A(b), the defendant “must supplant the duty it

undertakes from the party that originally held the duty, not

merely assist or supplement the service provided by the

other.” Padilla v. Hunter Douglas Window Coverings, Inc.

, No.

09 CV 1222, 2012 WL 3265002, at *5 (N.D. Ill. Aug. 8, 2012).

Here, there is no evidence in the record that Fi tz gerald had

the power, without Borkholder’s authorization, to install the

backup alarm or that Fi tz gerald did more than assist or sup

‐ plement Borkholder’s daily control and maintenance of the

forklift.

Finally, as to § 324A(c), Hutchison has not put forth evi

‐

dence showing that he relied to his detriment on Fi tz gerald to

recommend that Borkholder install a backup alarm. In cases

of nonfeasance—“omission to perform a voluntary undertak

‐ ing”—as opposed to misfeasance—“negligent performance of

a voluntary undertaking”—Illinois law requires a plainti ff to

show that he relied on the defendant’s actions

. Thornton v. M7

Aerospace LP

, 796 F.3d 757, 768 (7th Cir. 2015). Here,

Hutchison asserts Fi tz gerald was negligent in failing to rec

‐

ommend installation of a backup alarm (or, alternatively, in

failing to repair an inoperable backup alarm), and therefore,

his claim is one of nonfeasance. See id. at 762, 768–69 (constru

‐ ing plainti ff ’s theory as liability for nonfeasance where plain

‐

ti ff alleged defendant

‐ manufacturer failed to advise aircraft

owner to install upgraded warning system). His claim fails

because he has not established the required reliance. 4

4 Despite Hutchison’s insistence to the contrary, this case is not like

Wakulich v. Mraz

, 785 N.E.2d 843 (Ill. 2003). In Wakulich

, the defendantsNo. 18

‐ 2203 11

In sum, Hutchison has not established Fi tz gerald owed a

duty to recommend installation of a backup alarm on the Cat

‐ erpillar forklift. We thus a ffi rm the district court’s grant of

summary judgment to Fi tz gerald on the negligence claim.

B. In

‐ Concert Liability Claim

We review de novo a district court’s grant of a motion to

dismiss for failure to state a claim, accepting all well

‐ pleaded

facts in the complaint as true and drawing all reasonable in

‐

ferences in the plainti ff ’s favor. Pierce v. Zoetis, Inc.

, 818 F.3d

274, 277 (7th Cir. 2016). To survive a motion to dismiss under

Rule 12(b)(6), the plainti ff must allege “enough facts to state a

claim to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly

, 550 U.S. 544, 570 (2007). “A claim has facial plausi

‐ bility when the plainti ff pleads factual content that allows the

court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Ashcroft v. Iqbal

, 556 U.S.

662, 678 (2009).

In

‐ concert liability is a relationship between tortfeasors in

which one tortfeasor acting in concert with others “is legally

responsible for the actions of the other individuals.” Woods v.

coerced an underage girl into consuming alcohol to the point of uncon

‐

sciousness, provided minimal care for her in their home, and prevented

others from calling 911. Id. at 846. The court determined that plaintiff’s

theory was not that defendants failed to act at all ( i.e. one of nonfeasance)

but that defendants voluntarily undertook a duty of care for decedent,

which they negligently performed, and affirmatively prevented others

from caring for her. Id. at 856–57. Thus, defendants’ alleged affirmative

misconduct was misfeasance, which does not require proof of reliance by

the injured party. Id. That is not the case here, as Hutchison’s claims are

premised upon Fitzgerald’s failure to act rather than any affirmative mis

‐

conduct.12 No. 18

‐ 2203

Cole

, 693 N.E.2d 333, 337 (Ill. 1998). Illinois has adopted the

Restatement (Second) of Torts § 876 to determine whether in

‐

dividuals have acted in concert to commit a tortious act. See

id. at 335–36. Section 876 provides that a tortfeasor is liable for

harm resulting to a third person from the tortious conduct of

another if he (a) “does a tortious act in concert with the other

or pursuant to a common design with him”; (b) “knows that

the other’s conduct constitutes a breach of duty and gives sub

‐

stantial assistance or encouragement to the other so to con

‐

duct himself”; or (c) “gives substantial assistance to the other

in accomplishing a tortious result and his own conduct, sepa

‐ rately considered, constitutes a breach of duty to the third

person.” Restatement (Second) of Torts § 876. To be liable un

‐

der § 876, the “defendant’s conduct must be ‘more than be

‐ nign,’” and “[t]he defendant must actively participate in the

tortious conduct of another.” Rogers v. Reagan

, 823 N.E.2d

1016, 1020 (Ill. App. Ct. 2005) (quoting Sanke v. Bechina

, 576

N.E.2d 1212, 1218 (Ill. App. Ct. 1991)).

Hutchison only raises arguments under subsections (b)

and (c) of § 876. He claims that Fi tz gerald acted in concert

with Borkholder by “allowing, directing and encouraging

Borkholder and its employees to operate forklifts without a

critical safety device, a backup alarm,” and by “failing to rec

‐

ommend the installation and/or repair of the backup alarm on

the Caterpillar forklift, despite other forklifts and trailers at

Borkholder’s Metamora facility having backup alarms.” Be

‐

cause liability under subsections (b) and (c) is based on the

defendant’s “substantial assistance” in the tortious conduct, a

plainti ff must demonstrate “that the defendant did not merely

fail to act, but also assisted the third party.” Simmons v.

Homatas

, 925 N.E.2d 1089, 1100 (Ill. 2010).No. 18

‐ 2203 13

Hutchison cannot succeed on his in

‐ concert liability claims

because his allegations against Fi tz gerald are premised upon

Fi tz gerald’s inaction— i.e. Fi tz gerald’s failure to install and/or

repair a backup alarm on the Caterpillar forklift. He conclu

‐ sorily asserts that Borkholder commi tt ed a tort “by operating

a forklift without a critical safety feature, a backup alarm” (ig

‐ noring that such an allegedly “critical” feature was not man

‐ datory under any regulations) and argues that Fi tz gerald sub

‐ stantially encouraged Borkholder’s tortious conduct by fail

‐ ing to make a recommendation to install an alarm. In Sim

‐

mons

, however, the Illinois Supreme Court explained that a

defendant cannot be held liable under in

‐ concert liability for

failing to act; rather, a defendant must “a ffi rmatively assist[]”

in the tortious act. 925 N.E.2d at 1100; see also Kohn v. Laidlaw

Transit, Inc.

, 808 N.E.2d 564, 575 (Ill. App. Ct. 2004) (“[I]t is not

enough that a defendant assist or encourage another to en

‐

gage in a tort; rather, to subject a defendant to liability, the

assistance or encouragement must be substantial, not merely

slight.”); Umble v. Sandy McKie & Sons, Inc.

, 690 N.E.2d 157,

159 (Ill. App. Ct. 1998) (“We do not equate failing to prevent

certain conduct with actively encouraging that conduct.”);

Sanke

, 576 N.E.2d at 1218 (“[S]ection 876 require[s] such af

‐

fi rmative conduct that one’s own actions create a duty.”).

Hutchison has not pleaded any a ffi rmative conduct on the

part of Fi tz gerald that would amount to substantial assistance

under § 876(b) or (c). 5

5 Nor are there any nonconclusory allegations in the operative com

‐ plaint that Fitzgerald knew Borkholder’s conduct constituted a tort. See

Norman v. Brandt

, 929 N.E.2d 14, 20 (Ill. App. Ct. 2010) (“[S]ection 876(b)

applies when the person did not commit an act that would be a tort, but

that person gave substantial assistance or encouragement to another party14 No. 18

‐ 2203

The nonconclusory factual allegations in the operative

complaint do not establish a plausible inference that Fi tz ger

‐

ald substantially assisted Borkholder in breaching a duty to

Hutchison. 6 As such, we a ffi rm the dismissal of his in

‐ concert

liability claim.

III. Conclusion

For the foregoing reasons, we A FFIRM the judgment of the

district court.

whose actions constituted a tort and that person knew that the other per

‐

son’s conduct constituted a tort.” (citation and internal quotation marks

omitted)).

6 Additionally, for the same reason we affirmed dismissal of the neg

‐ ligence claim, Hutchison cannot rely on § 876(c) because he has not estab

‐

lished Fitzgerald’s conduct “separately considered, constitutes a breach of

duty.” See Restatement (Second) of Torts § 876 cmt. e (“When one person

‐ ally participates in causing a particular result in accordance with an agree

‐

ment with another, he is responsible for the result of the united effort if

his act, considered by itself, constitutes a breach of duty and is a substan

‐

tial factor in causing the result

... .”).