In the

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 22-2825 

JASON BURNS, 

Plaintiff-Appellant, 

v.

SHERWIN-WILLIAMS CO., 

Defendant-Appellee. 

____________________ 

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division. 

No. 1:19-cv-5258 — Steven C. Seeger, Judge. 

____________________ 

ARGUED APRIL 19, 2023 — DECIDED AUGUST 15, 2023

____________________ 

Before HAMILTON, BRENNAN, and KIRSCH, Circuit Judges. 

KIRSCH, Circuit Judge. Jason Burns, a truck driver, injured 

himself while delivering products to a Sherwin-Williams 

paint supply store. Burns and a store employee used the company’s walkie—a hand-operated electric forklift—to move

pallets holding the products from Burns’s truck, up a small 

ramp, and into the store’s warehouse. When they finished unloading, Burns backed the walkie down the ramp in reverse 

to return the now-empty pallets to his truck. He moved in the 
2 No. 22-2825 

direction of a dumpster and other pallets that were laying on 

the ground beside it. But as he approached the pallets and 

dumpster, Burns miscalculated how long it would take to 

stop the walkie. He failed to stop it as he approached the pallets, trapping his foot and breaking his ankle. 

Burns sued Sherwin-Williams, alleging that the company 

failed to exercise ordinary care by leaving the empty pallets 

in the work area and providing an unsafe walkie. SherwinWilliams moved for summary judgment, arguing that it owed 

no duty to Burns under Illinois law and that Burns had failed 

to produce evidence suggesting that the walkie was unsafe.

Sherwin-Williams also moved to exclude one of Burns’s experts, arguing that the expert’s opinions were unreliable and 

unhelpful. The district court granted both motions, and Burns 

now appeals. We affirm.

I 

Jason Burns worked as a truck driver for a transportation 

management company. As part of his job, he delivered products to various Sherwin-Williams stores and helped with the 

unloading process. In May 2018, Burns made a delivery to the 

Sherwin-Williams store in Bolingbrook, Illinois. Burns drove 

to the back of the store and backed up in front of the garage. 

A ramp with a slight slope of about four degrees led from the 

parking area up to the garage door. A large dumpster was 
No. 22-2825 3

located several feet to the right of the ramp. The photograph 

below shows their relative locations. 

The scene looked a little different on the day of the accident, 

however. Unlike in the photograph above, in which there is

just one pallet beside the dumpster, there were multiple pallets stacked alongside the dumpster when Burns made his delivery. These pallets were about three to four feet from the 

slope’s edge, as shown in the next photograph (which we’ve 

rotated for an easier view). 
4 No. 22-2825 

When Burns arrived at the store, the only Sherwin-Williams employee on site, Ramiro Bahena, came out to help unload the products from the pallets. Burns climbed inside the 

trailer and moved the pallets to the edge of the truck. Bahena 

then used a walkie forklift—which is depicted in the photograph above—to lift the pallets out of the truck and move 

them up the small ramp into the warehouse. 

A walkie differs from a prototypical forklift. It has the recognizable set of forks for moving freight but is much smaller

than a standard forklift, and its operator walks behind it rather than in or on it (hence, “walkie”). The operator controls 

the walkie’s direction with a thumb switch. Walkies can stop 

one of two ways. The first is by triggering the emergency 
No. 22-2825 5

brake, designed to bring the machine to an immediate stop. 

Alternatively, the operator can push the thumb switch in the 

opposite direction, which will slow the walkie to a stop before 

beginning to move in the new direction. This method is 

known as “plugging.” 

Burns and Bahena repeated this process of unloading pallets a few times. At one point, Bahena went inside the store to 

answer a phone call. Burns began manning the walkie himself, as he had done during prior deliveries to this store. After 

unloading the last pallet from the truck, Burns went to retrieve the empty pallets from inside the warehouse. He drove 

the walkie up the ramp, entered the garage, and lifted the 

empty pallets. Burns then backed the walkie down the ramp. 

Since he was moving in a forks-trailing direction, Burns 

needed to rotate the walkie 180 degrees to align the load of 

empty pallets with his truck. He planned to do a three-point 

turn by backing towards the dumpster. Things did not go as 

planned.

As Burns backed up, he looked all around to try to avoid

hitting anything. But Burns miscalculated how long it would 

take to stop the walkie as he approached the pallets. He first 

tried to come to a gradual stop by plugging the walkie forward. When he noticed the walkie wasn’t stopping fast 

enough, he pulled the emergency brake. By then it was too 

late: Burns wedged his right foot between the machine and 

the discarded pallets, causing him to fall backwards and 

break his right ankle. 

Burns sued Sherwin-Williams in state court, alleging that 

the company failed to exercise ordinary care by leaving the 

empty pallets in the work area and that it provided an unsafe 

walkie. Sherwin-Williams removed the case to federal court
6 No. 22-2825 

based on diversity jurisdiction. After the close of discovery, 

Sherwin-Williams moved to exclude one of Burns’s experts, 

Christopher Ferrone, who offered multiple opinions about the 

safety of the worksite and the machine. Sherwin-Williams argued that Ferrone’s opinions—most of which were based on 

a series of tests he performed on the walkie—were unreliable 

and unhelpful under Federal Rule of Evidence 702. SherwinWilliams also moved for summary judgment, arguing (1) that 

it owed no duty to Burns because the pallets were an open 

and obvious condition that he could have avoided himself, 

and (2) that Burns failed to produce evidence suggesting that 

the walkie was unsafe. The district court resolved both motions in Sherwin-Williams’s favor, and Burns now appeals.

We address each motion in turn. 

II

We start with the question of whether the district court 

erred when it granted summary judgment to Sherwin-Williams. We review this decision de novo. Ross v. First Fin. Corp. 

Servs., Inc., 60 F.4th 1046, 1049 (7th Cir. 2023). Summary judgment is appropriate when “there is no genuine dispute as to 

any material fact” and the moving party “is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In applying this 

standard, we draw all reasonable inferences in the light most 

favorable to Burns, the nonmoving party. See McCarty v. 

Menard, Inc., 927 F.3d 468, 471 (7th Cir. 2019). Burns’s claims 

are governed by Illinois law, so “our role is to decide questions of state law as we predict the Illinois Supreme Court 

would decide them.” Sutula-Johnson v. Off. Depot, Inc., 893 

F.3d 967, 971 (7th Cir. 2018).

Burns argues that Sherwin-Williams was careless when it 

placed the discarded pallets by the dumpster, just a few feet 
No. 22-2825 7

from the ramp, and that the pallets posed a hazard to workers such as himself. Burns has not specifically framed this argument as either a negligence or a premises liability claim, 

keeping the door open to both possibilities. But under either 

theory, Sherwin-Williams cannot be held liable unless it owed 

Burns a duty of care to protect him from the discarded pallets.

McCarty, 927 F.3d at 471; Bruns v. City of Centralia, 21 N.E.3d 

684, 688−89 (Ill. 2014). Whether a duty exists is a question of 

law for the court to decide. Bruns, 21 N.E.3d at 689. And because we conclude that Sherwin-Williams did not owe a duty

to Burns, our analysis ends there. 

To determine whether a defendant owed the plaintiff a 

duty of care, Illinois law considers 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 that burden on 

the defendant.” Id. at 689. If a hazard would be considered an

open and obvious danger to a reasonable person, this affects 

how we view the first two factors (foreseeability and likelihood of injury). McCarty, 927 F.3d at 471. The open and obvious doctrine is an objective inquiry that considers whether a 

reasonable person with the plaintiff’s knowledge of the situation would appreciate the risk and know to avoid the hazard. 

Id. If so, we consider the risk of harm slight and expect that 

person to avoid the hazard on their own. As long as the facts 

are undisputed, it is a question of law whether the open and 

obvious doctrine applies. Bruns, 21 N.E.3d at 690.

Burns concedes that the discarded pallets were an open 

and obvious condition but argues that the doctrine’s deliberate encounter exception applies. This exception applies 

“where the possessor of land has reason to expect that the 
8 No. 22-2825 

invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk.” 

Dunn v. Menard, 880 F.3d 899, 908 (7th Cir. 2018) (cleaned up)

(quoting Sollami v. Eaton, 772 N.E.2d 215, 223 (Ill. 2002)).

Courts most commonly apply the deliberate encounter exception in circumstances involving some economic compulsion, 

such as when a worker “‘is forced to choose between facing 

danger and neglecting his duties’ to an employer.” Dunn, 880 

F.3d at 908-09 (quoting Atchley v. Univ. of Chi. Med. Ctr., 64 

N.E.3d 781, 791 (Ill. App. Ct. 2016)); see also Kleiber v. Freeport 

Farm & Fleet, Inc., 942 N.E.2d 640, 648 (Ill. App. Ct. 2010) 

(“The deliberate-encounter exception recognizes that individuals will make deliberate choices to encounter hazards when 

faced with employment concerns and that those encounters 

are reasonably foreseeable by possessors of property.”). The 

focus is on “what the landowner anticipates or should anticipate the entrant will do.” Kleiber, 942 N.E.2d at 648. 

Burns argues that the district court erred in concluding 

that the deliberate encounter exception did not apply and that 

the foreseeability and likelihood of injury were slight. The district court framed its analysis in terms of whether Burns was 

obligated to unload the truck in the manner that he did, by 

backing the walkie towards the discarded pallets and dumpster. The court concluded that, because Burns could have 

done the job without encountering the danger by reversing 

away from the pallets, the deliberate encounter exception did 

not apply. 

On appeal, Burns contends that the district court misapplied Illinois law by focusing on the reasonableness of his actions rather than Sherwin-Williams’s. He emphasizes that 
No. 22-2825 9

Illinois law adjudges foreseeability from the perspective of 

what the landowner may reasonably expect the invitee would 

do in the face of the hazard, rather than from the plaintiff’s 

perspective. See LaFever v. Kemlite Co., 706 N.E.2d 441, 448 (Ill. 

1998). But an analysis of what a landowner may reasonably 

expect necessarily requires us to also consider the reasonableness of the plaintiff’s actions. Hastings v. Exline, 760 N.E.2d 

993, 997 (Ill. App. Ct. 2001) (clarifying that while we look to 

what the landowner could have reasonably anticipated, 

“analysis under the deliberate encounter doctrine must involve at least some focus on the actions and motivations of the 

entrant.”); Restatement (Second) of Torts § 343A cmt. f (1965)

(allowing recovery when the landowner “has treason to expect that the invitee will proceed to encounter the known or 

obvious danger because to a reasonable man in his position

the advantages of doing so would outweigh the apparent 

risk”) (relied upon in LaFever, 706 N.E.2d at 448). For instance, 

if a plaintiff’s chosen course of action was completely unreasonable, we cannot say that the defendant should have reasonably foreseen the risk of harm. Here, the question is 

whether Sherwin-Williams should have reasonably foreseen

that Burns would back up in the direction of the pallets because there was some advantage to doing so that outweighed

the obvious risk. See Dunn, 880 F.3d at 908. 

Burns focuses much of his argument on Ralls v. Village of 

Glendale Heights, 598 N.E.2d 337 (Ill. App. Ct. 1992). There, 

construction workers repeatedly used an ice-covered incline 

on a jobsite to access a particular area, even though a safer 

route existed. Id. at 341. When a foreman slipped and fell, he 

sued and successfully invoked the deliberate encounter exception. Id. at 341, 345. The court reasoned that since the other 

path was inconvenient, requiring workers to walk around the 
10 No. 22-2825 

entire perimeter of the site, “it was reasonably foreseeable that 

workers would use the shortest path.” Id. at 344. Burns’s situation is different. Unlike the workers in Ralls, Burns gained no 

advantage by backing the walkie towards the discarded pallets. He could have just as easily backed up in the opposite 

direction and completely avoided any danger posed by the 

pallets. Both paths were of equal (short) length, and required 

the same amount of time and effort, yet Burns chose the more

dangerous one. We cannot say that this is a choice SherwinWilliams should have reasonably foreseen. Accordingly, the 

deliberate encounter exception does not apply and the first 

two factors (foreseeability and likelihood of injury) weigh 

against finding a duty.

The open and obvious exception is not a per se bar to finding a duty, see id., so we must turn to the third and fourth 

factors: the magnitude of the burden of guarding against the 

injury and the consequences of placing that duty on the defendant. Burns argues that requiring Sherwin-Williams to 

place the pallets elsewhere would impose only a minimal burden that is naturally placed on them. Maybe, but even so, this 

is not enough to outweigh a finding that the foreseeability and 

likelihood of harm were slight because of the open and obvious nature of the pallets. See Caselberry v. Home Depot U.S.A., 

Inc., 2019 WL 10894136, at *3 (N.D. Ill. 2019) (“Possessors of 

land almost never owe a duty to their invitees to protect 

against open and obvious dangers because the foreseeability 

and likelihood of injury are so low.”). The pallets needed to 

be disposed of and had to go somewhere, the natural place 

being by the dumpster. We find no reason to micromanage 

their exact placement. To do so would impose an unreasonable consequence on landowners unsupported by Illinois law. 

Accordingly, Sherwin-Williams did not owe Burns a duty of 
No. 22-2825 11

care, so his claims related to the discarded pallets must fail.

This leaves only Burns’s claims related to the safety of the 

walkie.

III

We next consider whether the district court erred in excluding Christopher Ferrone’s expert testimony. Burns relied 

on Ferrone to support his theory that the walkie was unsafe

and unsuitable for the job. Though his expert report offered a 

list of twelve “opinions/conclusions,” they can essentially be 

condensed into two. Ferrone opined (1) that the walkie failed 

to stop fast enough and (2) that the proximity of the discarded 

pallets to the ramp rendered the worksite unsafe. The district 

court found that Ferrone was qualified as an expert but that 

his opinions failed to satisfy the requirements of Federal Rule 

of Evidence 702. We agree. 

Rule 702 provides that a qualified expert witness may offer 

an opinion only if: (a) the expert’s scientific, technical, or other 

specialized knowledge will help the trier of fact to understand 

the evidence or to determine a fact in issue; (b) the testimony 

is based on sufficient facts or data; (c) the testimony is the 

product of reliable principles and methods; and (d) the expert 

has reliably applied the principles and methods to the facts of 

the case. Anderson v. Raymond Corp., 61 F.4th 505, 508 (7th Cir. 

2023). When analyzing whether an expert’s reasoning or 

methodology is scientifically valid, some factors we consider 

are: “(1) whether the particular scientific theory can be (and 

has been) tested; (2) whether the theory has been subjected to 

peer review and publication; (3) the known or potential rate 

of error; (4) the existence and maintenance of standards controlling the technique’s operation; and (5) whether the 
12 No. 22-2825 

technique has achieved general acceptance in the relevant scientific or expert community.” Id. at 509 (cleaned up). 

When reviewing a district court’s exclusion of expert testimony, we first assess whether the court adhered to Rule 702 

in coming to its decision. Id. If it applied the proper standard, 

we review the court’s decision with deference and will not 

disturb its findings “unless they are manifestly erroneous—

that is, only if they amount to an abuse of discretion.” Id. But 

when we conclude that the court did not adhere to Rule 702, 

we review de novo. Id. Here, we conclude that the district 

court properly applied Rule 702, so we review for abuse of 

discretion.

Ferrone’s opinion regarding the safety of the walkie was 

based on a series of tests. In each test, Ferrone’s assistant 

drove an unloaded walkie before either braking or plugging. 

Ferrone then estimated both the time and distance it took the 

walkie to stop. Ferrone believed that most tests revealed no 

problems, with the machine stopping quickly. But Ferrone 

was troubled by the results of Test 12, which was designed to

mimic the accident. This test consisted of four runs on the site 

of the accident, outside the garage and on the ramp. Ferrone’s 

assistant backed the walkie down the ramp and initiated a 

stop by plugging (as Burns did on the day of the accident). 

Ferrone did not take any measurements for two of the runs, 

believing that the machine stopped in an appropriately quick 

manner. But for the other two runs, Ferrone estimated that it 

took longer (approximately 60 to 64 inches) for the machine 

to come to a stop. In his opinion, this extended distance indicated a defect. 

The district court correctly concluded that Ferrone’s first 

opinion—that the walkie did not stop fast enough and was
No. 22-2825 13

therefore unsuitable for use—was unreliable under Rule 702. 

It is neither “based on sufficient facts or data” nor “the product of reliable principles and methods.” Fed. R. Evid. 702. A 

key problem with Ferrone’s opinion is that there is no industry standard for how long it should take for a walkie to stop 

while plugging. Ferrone and both parties agree that the only 

standard provided in the machine’s equipment manual is that 

a fully loaded walkie moving at full speed should stop within

approximately 68 inches after braking. The manual says nothing about how long it should take to stop when not fully 

loaded or by plugging rather than braking. Ferrone testified

that since the equipment manual states the machine will stop 

within 68 inches when fully loaded, it should take less time 

when not fully loaded. He also insisted that 60 to 64 inches is 

too long. But there is nothing Ferrone can point to in support

of this conclusion. And when asked in his deposition what he 

believed a safe stopping distance would be, he testified, “I haven’t really considered it since you asked this question. I don’t 

know.” The issue is not just that Ferrone fails to support some 

arbitrary line that he has drawn, but that Ferrone cannot even 

say where to draw it. He simply claims that wherever that line 

may be, 60 to 64 inches is on the wrong side.

Given all of this uncertainty, the district court did not 

abuse its discretion in excluding Ferrone’s opinion regarding

the safety of the machine as unreliable under Rule 702. The 

opinion cannot be tested and is not subject to peer review, we 

cannot determine an error rate for the tests, and the assertion 

that 60 to 64 inches is too far is not generally accepted in the 

industry. Anderson, 61 F.4th at 509 (citing Daubert v. Merrell 

Dow Pharms., Inc., 509 U.S. 579,593–94 (1993)). Instead, it is a 

bare conclusion which was properly excluded. C.W. ex rel. 

Wood v. Textron, Inc., 807 F.3d 827, 834 (7th Cir. 2015) (“When 
14 No. 22-2825 

a district court concludes that there is simply too great an analytical gap between the data and opinion proffered such that 

the opinion amounts to nothing more than the ipse dixit of the 

expert, it is not an abuse of discretion under Daubert to exclude that testimony.”) (cleaned up). Ferrone also opined that

Sherwin-Williams failed to maintain the braking system on 

the walkie and failed to inspect the equipment. But he provides no support or foundation for these opinions. He only 

recites facts of the case without providing an analysis. Accordingly, this testimony is inadmissible as well. Metavante 

Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 761 (7th Cir. 2010) 

(an expert “cannot simply assert a ‘bottom line.’”) (citation 

omitted). 

Ferrone’s second opinion fails to satisfy a different element of Rule 702: helpfulness. An expert witness may not offer an opinion unless “the expert’s scientific, technical, or 

other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” Fed. R. 

Evid. 702. Ferrone opined that Sherwin-Williams failed to 

keep its dock area in a reasonably safe condition because it 

allowed oversized, discarded pallets to lay by the dumpster. 

But this observation is entirely unhelpful because a factfinder 

is equally able to assess the risk posed by the pallets. The photos speak for themselves. Thus, the district court was well 

within its discretion to exclude this opinion. 

Burns conceded at argument that he cannot prove the 

walkie was unsafe without Ferrone’s testimony. Because we 

hold that Ferrone’s report was properly excluded, Burns’s 

product liability claims related to the walkie must fail. 

AFFIRMED
No. 22-2825 15 

HAMILTON, Circuit Judge, dissenting. I agree with my colleagues that summary judgment for defendant was proper on 

plaintiff’s claims relating to the “walkie” forklift. The majority 

opinion correctly explains why plaintiff’s expert testimony 

was properly excluded. Without that testimony there is no 

dispute of material fact regarding the forklift. But we should 

reverse summary judgment on plaintiff’s claims for negligence and premises liability. Those issues should be decided 

by a jury. Our duty under Erie Railroad Co. v. Tompkins, 304 

U.S. 64 (1938), is to abjure creating a federal law of Illinois 

torts. We should instead do our best to follow decisions of Illinois courts on these issues.

The district court held as a matter of law that the “deliberate encounter” exception to the “open and obvious danger” 

doctrine did not apply to this case. The court reached that conclusion because plaintiff offered no evidence that he had no 

choice in which direction he turned the forklift. The court 

wrote that the “existence of a choice — a safe path around the

danger — means that the exception does not apply.” Burns v. 

Sherwin-Williams Co., 2022 WL 4329417, at *9 (N.D. Ill. Sept. 

18, 2022). “The exception does not apply if [Burns] could have 

done his job without encountering the danger.” Id. (emphasis 

in original).

That statement of Illinois law is just flat wrong. In LaFever 

v. Kemlite Co., 706 N.E.2d 441 (Ill. 1998), the plaintiff was doing 

his job picking up waste materials at the defendant’s factory. 

He was hurt when he fell on some waste material that was 

dangerously slippery. The defendant argued that the danger 

was open and obvious and that the deliberate encounter exception could not apply unless there was no reasonable alternative available to the plaintiff’s encountering the dangerous 
16 No. 22-2825 

condition. The Illinois Supreme Court squarely rejected that 

proposal: “The test proposed by Kemlite would require a 

court to decide foreseeability by measuring the reasonableness of the entrant's actions, and not those of the landowner, 

even though the Restatement plainly requires otherwise.” Id.

at 448, citing Restatement (Second) of Torts § 343A, comment 

f (Am. L. Inst. 1965). 

On that basis, the Illinois Supreme Court affirmed a plaintiff’s verdict in a premises liability case where the injured 

plaintiff had a reasonable alternative available to him but his 

deliberate encounter with the risk was still foreseeable. Accord, Morrissey v. Arlington Park Racecourse, LLC, 404 Ill. App. 

3d 711, 343 Ill. Dec. 636, 935 N.E.2d 644, 656–57 (Ill. App. 2010) 

(reversing summary judgment for defendant, discussing LaFever, and rejecting defendant’s argument “that the deliberate 

encounter exception applies only to situations where no reasonable alternative is provided to the plaintiff” because LaFever “specifically addressed and rejected” that argument); 

Ralls v. Village of Glendale Heights, 598 N.E.2d 337, 344–45 (Ill. 

App. 1992) (reversing summary judgment for defendant; deliberate encounter exception was available where workman 

was injured in taking shorter but ice-covered path, despite 

presence of alternative safer path). The district court here did 

not cite these decisions by Illinois courts on the scope of the 

“deliberate encounter” exception. 

A decision based on such a clear mistake in applying state 

law should lead us to reverse. The error was not harmless because it was the fulcrum of the district court’s decision. The 

majority opinion nevertheless affirms by assuming in effect 

that the Illinois Supreme Court did not actually mean what it 

said in LaFever. The majority opinion focuses on whether 
No. 22-2825 17

plaintiff acted reasonably in backing the forklift in the direction of the dumpster and the pallets lying around it. Ante at 

9, citing not LaFever but Hastings v. Exline, 760 N.E.2d 993, 997 

(Ill. App. 2001).

In applying the deliberate encounter exception, Illinois 

courts have consistently rejected the “no alternative” requirement in cases where the injured visitor was doing his or her 

job and was, in the language of the cases, facing “economic 

compulsion” or “employment concerns.” That was true in LaFever, Morrissey, and Ralls. It was also true in Atchley v. University of Chicago Medical Ctr., 64 N.E.3d 781, 793–94 (Ill. App. 

2016) (reversing summary judgment for defendant); Grillo v. 

Yeager Construction, 900 N.E.2d 1249, 1268 (Ill. App. 2008) (affirming verdict for injured workman); and Preze v. Borden 

Chemical, Inc., 782 N.E.2d 710, 715 (Ill. App. 2002) (reversing 

summary judgment in part: “the scope of a defendant’s duty 

is not defined by plaintiff’s negligence”).1

The majority opinion does not address these cases involving injuries on the job where the Illinois courts reject the “no 

alternative” requirement. The majority opinion relies instead 

on Hastings, where the injured plaintiff was a social visitor 

(the property owner’s daughter-in-law). For at least two reasons, Hastings is not a reliable guide for our “Erie prediction” 

1 The only arguable exception involving a person injured while doing 

his job seems to be Lucasey v. Plattner, 28 N.E.3d 1046, 1057 (Ill. App. 2015), 

where the relationship between property owner and visitor was very different. The injured plaintiff had been hired to appraise the value of a 

house. He was hurt when he fell off a snow-covered retaining wall and 

sued the homeowners. The court affirmed summary judgment for the 

owners, saying they had no reason at all to expect that the appraiser would 

choose to climb on top of that wall as part of his appraisal. 
18 No. 22-2825 

about Illinois law here. First, as the cases cited above show, 

the Illinois courts have been much more receptive to the deliberate encounter exception—without insisting on proof that 

the plaintiff had no reasonable alternative—in cases like this 

one where the plaintiff was injured in the course of his or her 

employment. Hastings was different and applied a different 

standard. Second, the court’s opinion in Hastings shows its 

disagreement with the Illinois Supreme Court’s reasoning in 

LaFever. Id. at 996–97 (noting “tension” in LaFever and Ralls, 

“unexplained” points in Ralls, and “undeveloped” question 

in LaFever, Ralls, and Restatement). The Hastings court’s resistance to LaFever shows it is not a reliable guide on this point 

of Illinois law, especially in course-of-employment cases. 

The majority opinion concludes its discussion of the deliberate encounter exception in a paragraph that balances risks 

and burdens, concluding that plaintiff acted unreasonably. 

Ante at 10. That passage might be effective as a closing argument to a jury about comparative fault, but it should not be 

used to take the deliberate encounter issue away from a jury. 

This reluctance to apply LaFever—especially when the 

plaintiff has been injured in the course of employment—

seems surprisingly entrenched in federal courts in Illinois. 

Like the district court, the majority opinion relies on federal 

district court decisions applying or rejecting the deliberate encounter exception under Illinois law. With respect, those federal decisions simply cannot outweigh decisions of Illinois 

courts on issues of Illinois law. Similarly, in Dunn v. Menard, 

Inc., 880 F.3d 899 (7th Cir. 2018), we affirmed summary judgment for a defendant, reasoning that the deliberate encounter 

exception did not apply because the injured plaintiff had another option available to him, seeking help from store 
No. 22-2825 19

employees. Id. at 908, citing Kleiber v. Freeport Farm & Fleet, 

Inc., 406 Ill.App.3d 249, 347 Ill. Dec. 437, 942 N.E.2d 640, 648 

(2010). Our opinion in Dunn did not cite the Illinois Supreme 

Court’s discussion of the deliberate encounter exception in LaFever, perhaps because Dunn and Kleiber both involved injured customers, not people who were doing their jobs and 

subject to the economic pressure that plays a large role in Illinois courts’ application of the deliberate encounter exception. 

Our duty under Erie Railroad is to apply Illinois law as determined by the state’s supreme court. E.g., Smith v. 

RecordQuest, LLC, 989 F.3d 513, 519 (7th Cir. 2021) (“[A]bsent 

a conflict with the Constitution or a federal law, we cannot 

overturn established state precedent. The so-called ‘Erie

guess’ is not an Erie veto.”), quoting Sanchelima Int’l, Inc. v. 

Walker Stainless Equip. Co., LLC, 920 F.3d 1141, 1146 (7th Cir. 

2019). I would correct the federal courts’ persistent and erroneous course on this issue of Illinois law, take LaFever at face 

value, and allow a jury to decide the reasonableness of both 

parties’ actions. I respectfully dissent.