In Hutchison v. Fitzgerald Equipment Co., Inc., No. 18-2203 (7th Cir., December 14, 2018), the Seventh Circuit affirmed and held that the District Court did not err in granting defendant’s motion for summary judgment in plaintiff’s negligence claim alleging that defendant, which had preventative maintenance contract with plaintiff’s employer on forklift used in plant, was negligent in failing to warn plaintiff’s employer to install backup alarm on said forklift, where said forklift that was operated by plaintiff’s co-worker backed over plaintiff’s foot. Record showed that forklift was not shipped to original owner with installed backup alarm, and that no regulations required forklift to have backup alarm at time of instant accident. Moreover, plaintiff could not establish that defendant owed any duty to warn about backup alarm, where record showed that plaintiff’s employer and defendant were equally aware of availability and use of backup alarm. Also, Ct. rejected plaintiff’s contention that defendant voluntarily undertook responsibility to advise plaintiff’s employer to install backup alarm based on fact that other forklift at plant had such alarm, since: (1) plaintiff failed to establish that individuals at defendant were aware of any forklift at plant having such alarm; and (2) defendant’s undertaking at plant was limited to scope of its maintenance contract on said forklift. Too, plaintiff could not prevail on any “in-concert” liability claim against defendant, where plaintiff only alleged that defendant had failed to act, rather than provided substantial assistance in any tortious conduct.
