Burns v. Sherwin-Williams Co., No. 22-2825 (7th Cir. 2023)
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Burns, working as a truck driver for a transportation company, made a delivery to the Bolingbrook, Illinois Sherwin-Williams 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 empty pallets to his truck. He moved in the direction of a dumpster and other pallets that were on the ground beside it. Burns miscalculated how long it would take to stop the walkie as he approached the pallets, trapped his foot, and broke 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. The district court granted Sherwin-Williams summary judgment. The Seventh Circuit affirmed. Under Illinois law, Sherwin-Williams owed no duty to Burns. The discarded pallets were an open and obvious condition. The court declined to apply the doctrine’s deliberate encounter exception: “Where the possessor of land has reason 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.” The court upheld the exclusion of expert testimony that the walkie was unsafe as unreliable under Rule 702.
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