407 F2d 680 Bailey v. Dow Chemical Company

407 F.2d 680

Thomas BAILEY, Plaintiff-Appellant,
The DOW CHEMICAL COMPANY, a corporation, Defendant-Appellee.

No. 17129.

United States Court of Appeals Seventh Circuit.

Feb. 19, 1969.

Norman Kinder, Jr. and Charles W. Chapman,* Chapman, Strawn & Kinder, Granite City, Ill., for appellant.

Gordon Burroughs, Edwardsville, Ill., Emerson Batez,* Alton, ill., Charles W. King, Edwardsville, Ill., for appellee.

*Gave oral argument.

Before CASTLE, Chief Judge, HASTINGS, Senior Circuit Judge, and KERNER, Circuit Judge.


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This appeal arises from the District Court's granting of defendant's motion for a directed verdict in a diversity action brought by plaintiff to recover for injuries suffered by him. Defendant had engaged Biltmoor Moving and Storage Company to move a press from its plant in Madison, illinois. Plaintiff was an employee of Biltmoor and was injured when the press fell on him while he and fellow employees of Biltmoor were in the process of moving the press for defendant on the latter's premises.


Plaintiff contends that defendant is liable since an employee of defendant gave Biltmoor an incorrect estimate of the weight of the press and since defendant failed to provide a fork lift for moving it. The evidence, however, together with all the reasonable inferences deducible therefrom, when viewed in a light most favorable to the plaintiff, fails to establish the existence in defendant of any legal duty toward plaintiff in either respect or that a breach of any duty the defendant owed plaintiff was a proximate cause of the injuries he suffered.


Therefore, since a legal duty, requiring the actor to conform to certain standards of conduct, is a necessary element to a cause of action based on negligence,1 and since such duty has not been established in the instant case, the judgment below is affirmed.




Franklin v. United States, 342 F.2d 581, 589 (7th Cir. 1965); Waynick v. Chicago's Last Dept. Store, 269 F.2d 322, 325, 77 A.L.R.2d 1260 (7th Cir. 1959); Murphy v. Cory Pump & Supply Co., 47 Ill.App.2d 382, 401, 197 N.E.2d 849, 858 (1964)