United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois  60604

Argued August 6, 2008

Decided August 27, 2008

Before

FRANK H. EASTERBROOK, Chief Judge

MICHAEL S. KANNE, Circuit Judge

DIANE P. WOOD, Circuit Judge

No. 08‐1495

ATLANTIC MUTUAL INSURANCE

COMPANY, as subrogee of TENSOR

GROUP, INC.,

Plaintiff‐Appellant,

v.

JARDIS INDUSTRIES, INC.,

Defendant‐Appellee.

Appeal from the United States District

Court for the Northern District

of Illinois, Eastern Division

No. 06 C 6300

Ronald A. Guzmán,

Judge.

O R D E R

Atlantic Mutual Insurance Company, as subrogee of Tensor Group, is seeking to

recoverfor damages that employees of Jardis Industries,Inc., caused to a newly purchased

machine when they negligently loaded another machine into the truck that was carrying

Tensor’s machine. The district court dismissed Atlantic’s claim against Jardis forfailure to

state a claim, see FED. R. CIV. P. 12(b)(6), on the theory that Jardis had no duty to put the

second machine into the truck and thus it could not be liable to Tensor. On appeal, Atlantic

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 08‐1495 Page 2

stresses the fact that its case did not rest on any supposed contractual duty. Instead,

Atlantic’s theory is that once Jardis voluntarily undertook to load the truck, it assumed a

noncontractualduty to act with ordinary care.We agree withAtlantic thatthedistrict court

read the complainttoo narrowly, and we therefore vacate the district court’s judgment and

remand for further proceedings.

Tensormanufactures equipmentusedby newspapers andcommercialprinters.Inearly

2002, it purchased a printing press from Jardis, which has facilities in Itasca and

Woodridge, Illinois. Tensor hired Solace Transfer Co., a commercial carrier, to transport

its machine from Jardis’s plant to Tensor’s client (Press Enterprise, Inc.) in Bloomsburg,

Pennsylvania. The contract for carriage specified that it was to be “F.O.B. Itasca, Il.” Solace

picked up the press in Woodridge, Illinois, but the truck then proceeded to Itasca, where

a second printing press that Tensor had purchased from Jardis was waiting for pickup and

was to be delivered in Pennsylvania along with the first one. Jardis employees loaded the

second press onto the truck behind the first one, and the truck drove on to Pennsylvania.

Upon arrival in Pennsylvania, Tensor discovered that the first press had been damaged

in transit from shifting or movement of the second machine. It turns out that, in order to

load this type of machine properly, it is necessary not only to place it into the truck, but

also to secure the box by nailing the wooden pallet on which the machine was packed to

the floor of the trailer. The first press had been secured in this way, but the press that Jardis

had loaded in Itasca had not – hence the banging around and damage to the first press.

Tensor promptly reported the damage and submitted a claim to Atlantic, its insurer. The

customer, Press Enterprise, refused to accept the damaged press, and thus a replacement

valued at $54,324.44 had to be ordered. In addition, there was damage to the truck

requiring the eventual replacement of three panels. Atlantic paid Tensor $23,793 in

settlement of its insurance claim, in exchange for subrogation rights.

Atlantic then sued both Solace and Jardis, raising a claim under the Carmack

Amendment, 49U.S.C. § 14706, against Solace, andcommon‐law negligence claims against

both Solace and Jardis under the court’s supplemental jurisdiction, 28 U.S.C. § 1367.  The

district court entered a default judgment against Solace, which had failed to appear, and

it then turned to Jardis’s motion to dismiss under Rule 12(b)(6). In granting that motion,

the district court reasoned that Atlantic had failed to state claim against Jardis because,

under the Illinois Uniform Commercial Code, 810 ILCS § 5/2‐319(1)(a), an F.O.B. “point of

shipment” contract does not obligate the shipper to load the goods. This contract was

“F.O.B. Itasca,” and so Jardis had no duty to load the second press. From that, it jumped

to the conclusion that Atlantic could not recover for negligence even if Jardis’s employees

had caused the damage to the first press.
No. 08‐1495 Page 3

It was at that last step in the analysis that the district court went astray. Atlantic’s

complaint setforth the critical events ofthe underlying occurrence on which its case rested:

Jardis’s loading of the machine into the truck on a particular date, for a particular

shipment, and the resulting damage to the other cargo on the truck (the first machine). The

plaintiff has no obligation, in the complaint, to set forth the various legal theories under

which it hopes to recover. See,e.g., McDonald v. Household Intern.,Inc., 425 F.3d 424, 427 (7th

Cir. 2005) (“This court has repeatedly held that pleaders in a notice system do not have any

obligation to plead legal theories.”) (citing cases). Nothing in Bell Atlantic Corp. v. Twombly,

127 S.Ct. 1955 (2007), changes that. See, e.g., Windy City Metal Fabricators & Supply, Inc. v.

CIT Technology Financing Servs., Inc., No. 07‐1567, 2008 WL 2941171, at *2 (7th Cir. Aug. 1,

2008).

Here, although the district court was correct about the fact that Jardis had no duty to

load the machine under the terms of an “F.O.B. place of shipment” contract, that does not

exhaust the legal theories available to Atlantic. As Atlantic has argued, there is another

theory under which it would be entitled to recover, assuming that it could prove the

necessary facts. Illinois courts follow the “Good Samaritan” rules outlined in the

Restatement (Second) of Torts, § 324A, which provides as follows:

Liability to Third Person for Negligent Performance of Undertaking.

One whoundertakes, gratuitously orfor consideration,to render services to another

which he should recognize as necessary for the protection of a third person or his

things, is subject to liability to the third person for physical harm resulting from his

failure to exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk of such harm, or

(b) he has undertaken to perform a duty owed by the other to the third person,

or

(c) the harm is suffered because ofreliance of the other orthe third person upon

the undertaking.”

See Redmon v. Stone, 667 N.E.2d 526, 528 (Ill. App. Ct. 1996); Triolo v. Frisella, 121 N.E.2d 49,

52 (Ill. App. Ct. 1954). See also Gaines v. Ill. Cent. R.R. Co., 23 F.3d 1170, 1172 (7th Cir. 1994);

Cincinnati Ins. Co. v. City of Taylorville, 818 F.2d 1345, 1348 (7th Cir. 1987).

Here, according to Atlantic’s allegations (which we acceptforthis purpose only),Jardis

gratuitously undertook to load the second printing press into Solace’s truck. Jardis should

have recognized that the press had to be secured so that it would not damage the other
No. 08‐1495 Page 4

contents of the trailer. Even though Jardis had no contractual duty to load the press, once

it decided to do so, it was required to exercise reasonable care.

Because Atlantic’s complaint, so understood, stated a claim upon which relief can be

granted, we VACATE the district court’s judgment and REMAND for further proceedings

consistent with this order.