Moore v. S&C Electric Co. , 2024 IL App (1st) 230419-U ( 2024 )

2024 IL App (1st) 230419-UNo. 1-23-0419
Order filed March 29, 2024
Sixth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in
the limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
)
)
KEVIN J. MOORE,
) Appeal from the Circuit Court
) of Cook County.
Plaintiff-Appellant,
)
)
v.
) No. 18 L 005233
)
S&C ELECTRIC COMPANY, an Illinois
)
Corporation,
) The Honorable
) Catherine Schneider,
Defendant-Appellee.
) Judge, presiding.
JUSTICE HYMAN delivered the judgment of the court.
Presiding Justice Oden Johnson and Justice Tailor concurred in the judgment.
ORDER
¶1 Held: Summary judgment affirmed where plaintiff failed to state a claim for construction
negligence under Canadian law.
¶2 S&C Electric Canada, Ltd. contracted with Reliable Fire and Security, an Illinois company,
to upgrade its security system at its facility in Toronto. During the installation, an S&C Canada
employee drove a boom lift truck into Reliable’s employee, Kevin Moore, injuring him. Moore
sued S&C Canada and its parent company, S&C Electric Company (S&C Chicago), an Illinois
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company, alleging negligence and construction negligence. The court dismissed Moore’s
claims against S&C Canada for lack of jurisdiction. In addition, the court found that even if it
had jurisdiction, Canadian law applied, and the case should be transferred to Canada under
forum non conveniens. S&C Chicago moved for summary judgment on the remaining count,
alleging construction negligence. The trial court granted the motion, finding Moore could not
state a claim under Canadian law.
¶3 Moore contends the trial court erred in applying Canadian law. Specifically, Moore asserts
the trial court should have analyzed choice of law anew when ruling on S&C Chicago’s
summary judgment motion rather than adopting the ruling as to S&C Canada. Moore further
contends the trial court erred because a genuine issue exists as to whether S&C Chicago is
liable under Canadian and Illinois law.
¶4 We disagree and affirm. The trial court’s choice of law ruling applied to the issues in the
case, and the court was not required to make separate rulings for each defendant. We also agree
that Canadian law applies under Illinois’ choice of law principles, and Moore failed to state a
claim.
¶5 Background
¶6 S&C Chicago hired Reliable Fire and Security to upgrade the security systems at its
facilities in Chicago and Wisconsin. In 2019, S&C Chicago advised S&C Canada, its wholly
owned subsidiary, to upgrade the security in Toronto. Part of the project included installing
security cameras around the exterior of the building that could be monitored from Chicago.
Jeffrey Zwijack, a facilities engineer for S&C Chicago, recommended that S&C Canada use
Reliable for the upgrade. Zwijack went to Toronto to assess the site, review the project’s
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technical scope, and request a quote from Reliable on behalf of S&C Canada. (Zwijack left
S&C Chicago during the bidding process.)
¶7 According to an affidavit from Richard Williams, S&C Chicago’s Director of Global
Security, S&C Chicago did not mandate S&C Canada upgrade its security system or direct,
participate, coordinate, or schedule the work. Nor was S&C Chicago a party to the contract
between S&C Canada and Reliable. Williams said S&C Chicago prepared a preliminary scope
for S&C Canada as it would be more economical.
¶8 James Austin, a Reliable account executive, designed the security system for S&C Canada
using photographs from Zwijack. Austin sent the proposal and quote to Zwijack. Besides
specifications for the project, the proposal included a statement of Reliable’s “Standard Terms
and Conditions,” which stated, in part: “This agreement is made and entered into in the State
of Illinois and shall be in all respects governed by and construed in accordance with the laws
of the United States and the State of Illinois as if entirely performed in Illinois and without
regard to any conflict of laws rules ***.” (An unsigned copy of the proposal appears in the
record; the parties acknowledge that the agreement to perform the work was between S&C
Canada and Reliable.)
¶9 S&C Canada’s facilities engineer, Keith Higgins, approved the proposal and submitted a
purchase order to Reliable. The purchase order listed S&C Canada as the buyer and its Toronto
facility as the “ship to” address. The purchase order directed that invoices go to S&C Canada’s
accounting department, which was responsible for payment. In an email, Higgins provided
Reliable with the name and contact information of the two S&C Canada employees managing
the project.
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¶ 10 Moore traveled to Toronto in November 2019. He and two S&C Canada employees used
a boom lift truck to reposition and weather-seal security cameras near the facility’s roofline.
Afterward, a S&C Canada employee drove the boom lift truck into oncoming traffic on a public
road. According to Moore, the employee instructed him to walk in front of the truck to direct
traffic. As he did so, the truck rolled over Moore, injuring his foot and ankle and necessitating
surgery.
¶ 11 Procedural History
¶ 12 Moore filed a two-count complaint against S&C Chicago alleging negligence and
construction negligence. S&C Chicago moved to dismiss, arguing it did not owe Moore a duty
of care because it neither owned or controlled the Toronto premises, owned or operated the
boom lift truck, nor employed the boom lift truck driver. Before the trial court ruled on the
motion, Moore filed an amended complaint that added S&C Canada as a defendant.
¶ 13 S&C Chicago renewed its motion to dismiss, which the trial court granted without
prejudice. Moore filed a second amended complaint raising nearly identical negligence and
construction negligence claims against S&C Chicago and S&C Canada. Moore alleged that
S&C Chicago, through its agents and employees, was present and directly participated in the
accident. The trial court granted S&C Chicago’s motion for summary judgment as to count I,
alleging negligence, with prejudice, but not as to count II, alleging construction negligence,
for the reasons stated in open court. (The record does not contain a copy of the hearing
transcript.)
¶ 14 Meanwhile, S&C Canada moved to dismiss for lack of personal jurisdiction or,
alternatively, on forum non conveniens grounds because the accident occurred in Canada and
involved a truck owned by S&C Canada driven by an S&C Canada employee. The trial court
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granted the motion, finding the court lacked personal jurisdiction over S&C Canada, and even
if the court had jurisdiction, Canadian law applied based on Illinois’ choice of law factors, and
Canada was the more convenient forum. Moore did not appeal these rulings.
¶ 15 S&C Chicago renewed its summary judgment motion on the remaining count of
construction negligence. S&C Chicago argued the trial court had already decided Canadian
law applied and, under either Canadian or Illinois law, the motion should be granted absent
evidence S&C Chicago participated in the incident or could have foreseen Moore would be
injured by a boom truck lift moving against traffic on a Toronto public road. Specifically, S&C
Chicago argued it (i) did not own or control the property where the alleged injuries occurred;
(ii) did not own or control the boom lift truck that struck Moore; (iii) did not employ or control
the person who allegedly drove the truck; and (iv) did not exert sufficient control over S&C
Canada or the project to be held liable for the alleged conduct.
¶ 16 S&C Chicago attached to the motion the deposition of John Johann, S&C Chicago’s
corporate secretary and treasurer, who testified that S &C Canada is a wholly owned subsidiary
of S&C Chicago but (i) operates as a separate entity, (ii) with a separate board of directors,
(iii) its own payroll, (iv) pays its own taxes, and (v) maintains its own accounts separate from
S&C Chicago. S&C Canada is incorporated in Canada and solely owns the Toronto facility.
Additionally, S&C Chicago did not own the boom lift truck or employ the driver.
¶ 17 In response, while noting that the trial court had already ruled Canadian law applied, Moore
argued that under both Canadian and Illinois law, he had raised issues of material fact
precluding summary judgment.
¶ 18 The trial court granted the motion. The trial judge (not the judge who ruled on choice of
law involving S&C Canada) found the earlier choice of law ruling bound her and concluded
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that under Canadian law, Moore failed to raise a genuine issue of material fact as to whether
S&C Chicago could be liable on a theory of negligence. The trial court stated that to hold a
parent company liable under Canadian law, a plaintiff must show (i) direct liability and (ii)
duty of care. United Canadian Malt Ltd. v. Outboard Marine Corp. [2000] OJ No 1554. Duty
of care requires the plaintiff to show the injury was foreseeable, and that sufficient proximity
existed between the plaintiff and the defendant. Cooper v. Hobart, [2013] 3 SCR 537, 548.
¶ 19 Factors relevant to determining proximity include (i) whether the defendant is materially
implicated in the creation of the risk to which it has invited others or has control of it; (ii)
whether respect for the autonomy of the parties gives rise to a duty to act; or (iii) a commercial
or public function that carries an attendant responsibility to reduce the risk of activity to the
public. Fullowka v. Pinkerton’s of Canada, [2010] 1 SCR 132, 150. Relying on this test, Moore
could not state a claim because his injury was not foreseeable and even if foreseeable, “there
is no degree of control, supervision, or relationship between S&C [Chicago] and Moore to
place S&C [Chicago] under a duty of care towards Moore.” Accordingly, the court entered
summary judgment in favor of S&C Chicago.
¶ 20 Analysis
¶ 21 Preliminarily, S&C Chicago contends Moore’s brief violates Supreme Court Rules by
including misleading headings and false assertions in the statement of facts in violation of
341(h)(6) and improper argument in violation of Rule 341(h)(7). S&C Chicago asks that we
strike false and argumentative portions of Moore’s statement of facts and find that he has
waived parts of his argument not supported by citation to the record.
¶ 22 Under Illinois Supreme Court Rule 341(h)(6) (eff. Oct 1, 2020), the statement of facts
should contain the facts necessary to understand the appeal “stated accurately and fairly
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without argument or comment, and with appropriate reference to the pages of the record on
appeal * * *.” Rule 341(h)(7) provides that the argument section sets out the appellant’s
contentions and the reasons with citation of the authorities and the pages of the record. Ill. S.
Ct. Rule 341(h)(7) (eff. Oct. 1, 2020). These rules are obligatory, not advisory. But, where, as
here, the brief is adequate in most respects, and the deficiencies do not hinder our ability to
review the issues, we will refrain from exercising our discretion. See Spangenberg v. Verner,
321 Ill. App. 3d 429, 432 (2001) (declining to strike brief that complied with rules in other
ways and violation not so flagrant as to hinder or preclude review). But we caution counsel—
adhere to the rules in the future.
¶ 23 Standard of Review
¶ 24 Summary judgment applies where “the pleadings, depositions, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c)
(West 2022). The court construes the pleadings, depositions, admissions, and affidavits strictly
against the movant and liberally in favor of the opponent. Adams v. Northern Illinois Gas Co.,
211 Ill. 2d 32, 43 (2004). “A triable issue precluding summary judgment exists where the
material facts are disputed, or where, the material facts being undisputed, reasonable persons
might draw different inferences from the undisputed facts.” Id. Courts grant summary
judgment where the movant’s right is clear and free from doubt. Id. We review the trial court’s
grant of summary judgment de novo. Argonaut Midwest Insurance Co. v. Morales, 2014 IL
App (1st) 130745, ¶ 14.
¶ 25 Choice of Law
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¶ 26 We apply Illinois’ choice-of-law rules when a party raises an issue regarding the governing
substantive jurisdictional law. Townsend v. Sears, Roebuck & Co., 227 Ill. 2d 147, 155 (2007).
The first step determines whether an actual conflict between Illinois law and the other
jurisdiction’s law would impact the outcome. Id. We apply Illinois law in the absence of a
conflict—that is, no outcome-determinative difference in the two jurisdictions’ substantive
law. RS Investments Ltd. v. RSM US, LLP, 2019 IL App (1st) 172410, ¶ 18.
¶ 27 If the court determines a conflict exists, the court proceeds to the second step—determining
whose jurisdictional laws apply. Townsend, 227 Ill. 2d at 159-60. In a tort case, we presume
where the plaintiff’s injury occurred governs substantive law and adhere to that presumption
unless another jurisdiction has a more significant relationship to the case. Id. at 163; Ingersoll
v. Klein, 46 Ill. 2d 42, 47-48 (1970). When the site of the injury is fortuitous, this presumption
may be inapplicable or relaxed. See Perkinson v. Courson, 2018 IL App (4th) 170364, ¶ 53;
Restatement (Second) of Conflict of Laws § 145, cmt. e (1971).
¶ 28 Analyzing whether another jurisdiction has a more significant relationship involves two
sections of the Second Restatement of Conflict of Laws and consideration of several factors.
See Townsend, 227 Ill. 2d at 160; Restatement (Second) of Conflict of Laws §§ 6, 145. The
factors we consider include: (i) the policies of the forum and other interested jurisdictions, (ii)
the relative interests of those jurisdictions in deciding the issue, and (iii) factual questions such
as the situs of the injury, the place the conduct causing the injury occurred, the parties’ domicile
and place of business, and where the relationship between the parties is centered. Townsend,
227 Ill. 2d at 160, 170.
¶ 29 Further, as the trial court did here, should an Illinois court determine a foreign jurisdiction’s
law governs, we consider whether applying the foreign law would violate Illinois public policy.
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See, e.g., Marchlik v. Coronet Insurance Co., 40 Ill. 2d 327, 333-34, 239 N.E.2d 799 (1968)
(Wisconsin direct-action statute violated Illinois public policy, and Illinois courts would not
enforce it); Pancotto v. Sociedade de Safaris de Mocambique, S.A.R.L., 422 F. Supp. 405, 411
(N.D. Ill. 1976) (applying Illinois law, “our educated prediction is that the Illinois courts would
refuse to enforce the Portuguese limitation [on compensatory damages] as unreasonable and
contrary to Illinois public policy”).
¶ 30 The parties agree a conflict exists between Illinois and Canadian law. Applying Illinois
conflict of law principles, the trial court found Canadian law applied to resolving S&C
Canada’s motion to dismiss. Without citing authority, Moore contends that the ruling regarding
S&C Canada does not apply to S&C Chicago’s summary judgment motion. Moore argues the
trial court should have repeated the choice of law analysis. Moore also contends that the court
erred in granting summary judgment under Canadian or Illinois law.
¶ 31 S&C Chicago responds that Moore waived this choice of law argument by not raising it in
the trial court.
¶ 32 Generally, arguments not brought before the trial court are forfeited and cannot be raised
for the first time on appeal. Mabry v. Boler, 2012 IL App (1st) 111464, ¶ 15. Moore failed to
assert in the trial court that Canadian law did not apply. Indeed, Moore appears to have
conceded that it did, stating in his response to S&C Chicago’s summary judgment motion,
“This Honorable Court previously ruled Canadian law to apply,” and adding that under
Canadian law, the trial court should deny the summary judgment motion.
¶ 33 Nevertheless, the doctrine of forfeiture limits the parties, not the court. Walworth
Investments-LG, LLC v. Mu Sigma, Inc., 2022 IL 127177, ¶ 94; see also Sakellariadis v.
Campbell, 391 Ill. App. 3d 795, 800 (2009). We may consider arguments not timely raised in
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the interests of achieving a just result and maintaining a uniform body of precedent (Golden
Rule Insurance Co. v. Schwartz, 203 Ill. 2d 456, 463 (2003)), especially a legal issue fully
briefed on appeal (Committee for Educational Rights v. Edgar, 174 Ill. 2d 1, 11 (1996)). The
choice of law issue is well-suited for consideration on the merits.
¶ 34 Principle of Depecage
¶ 35 S&C Chicago contends that Moore’s argument that the trial court should have made one
choice of law determination for S&C Canada and a separate choice of law determination for
S&C Chicago fails under the principle of depecage, and neither caselaw nor other authority
supports Moore position.
¶ 36 Depecage is “the process of cutting up a case into individual issues, each subject to a
separate choice-of-law analysis.” Townsend, 227 Ill. 2d at 161. Depecage conforms with the
Restatement (Second) of Conflict of Laws, which focuses on a “selective, issue-oriented
approach to determining choice-of-law for a particular issue presented” in a cause of action.
Id. Depecage applies to the issues, not the different defendants. Id. (depecage entails “issue-
oriented” approach and “begins by isolating the issue”); Ruiz v. Blentech Corp., 89 F.3d 320,
324 (7th Cir.1996) (“[t]o properly apply the Second Restatement method, a court must begin
its choice-of-law analysis with a characterization of the issue at hand in terms of substantive
law.”); see also Restatement (Second) of Conflict of Laws § 145, Comment d, at 417 (1971)
(noting, analytical approach of depecage calls for “separate consideration” of each issue in
determining choice of law); Black’s Law Dictionary 436 (11th ed. 2019) (defining depecage
as “[a] court’s application of different state laws to different issues in a legal dispute process
“whereby different issues” are decided according to laws of different states).
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¶ 37 Moore’s second amended complaint alleges one injury and asserts two virtually identical
claims against each defendant: negligence and construction negligence. Moreover, in his
response to S&C Canada’s motion to dismiss, Moore asserted, “S&C Canada and S&C
Chicago were both deeply involved in the installation project that Plaintiff performed.
Plaintiff’s position is that they are both liable in this case and that a jury should allocate liability
between the Defendants.” In short, the issues in counts I and II (against S&C Chicago) mirror
counts III and IV (against S&C Canada). The trial court did not err in finding that the ruling
on choice of law applied to all issues.
¶ 38 Canadian Law Applies
¶ 39 Depecage aside, we agree with the trial court that Canadian law controls Moore’s claims
against S&C Chicago. Illinois has adopted the choice of law methodology set out in the Second
Restatement of Conflict of Laws. Townsend, 227 Ill. 2d at 155. The “objective of that process”
is to “apply the law of the state that, with regard to the particular issue, has the most significant
relationship with the parties and the dispute.” Id. at 159-60. After establishing that an actual
conflict of law exists, the court determines whether the Second Restatement contains a
presumptive rule. In personal injury action, §146 provides “the local law of the state where the
injury occurred determines the rights and liabilities of the parties, unless, with respect to the
particular issue, some other state has a more significant relationship under the principles stated
in § 6 to the occurrence and the parties, in which event the local law of the other state will be
applied.” Restatement (Second) of Conflict of Laws § 146 (1971).
¶ 40 Townsend prescribes that the court “test this presumptive choice against the principles
embodied in section 6 [of the Second Restatement] in light of the relevant contacts identified
by the general tort principle in section 145.” 227 Ill. 2d at 158. “A detailed analysis of all seven
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of the section 6 general principles is unnecessary” in a choice-of-law determination for a
personal injury tort case. Townsend, 227 Ill. 2d at 169-70 (finding subsections (a), (d), (f) and
(g) of section 6(2) are not implicated in tort cases). Instead, we concentrate on three subsections
of section 6, namely, (b) the relevant policies of the forum, (c) the relevant policies of the other
interested state and the relative interests of that state in the determination of the issue, and (e)
the basic policies underlying the field of law. See Townsend, 227 Ill. 2d at 170, 316.
¶ 41 To these guiding principles, we turn to the concept of the “most significant relationship”
formula to discern which state has the most significant relationship with the parties and the
dispute. See Townsend, 227 Ill. 2d at 159-60. Section 145 “provides a list of the factual contacts
or connecting factors that the forum court should consider in choosing the applicable law.”
Townsend, 227 Ill. 2d at 160. The applicable contacts are:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicil, residence, nationality, place of incorporation, and place of business of
the parties, and
(d) the place where the relationship, if any, between the parties is centered.”
Restatement (Second) of Conflict of Laws § 145(2), at 414 (1971). See also Townsend,
227 Ill. 2d at 160.
¶ 42 Courts evaluate these contacts according to their relative importance to the issue. Id.¶ 43 Whether a court looks first at the section 6(2) general principles or at the section 145(2)
contacts does not matter. “ ‘In either case the Second Restatement’s goal is the same—to ensure
that a court is not merely “counting contacts,” and that each contact is meaningful in light of
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the policies sought to be vindicated by the conflicting laws.’ ” Murphy v. Mancari’s Chrysler
Plymouth, Inc., 408 Ill. App. 3d 722, 727 (2011) (quoting Townsend, 227 Ill. 2d at 168).
¶ 44 Because the injury occurred in Canada, we presume Canadian law applies unless another
jurisdiction has a more significant relationship. Townsend, 227 Ill. 2d at 159-60.
¶ 45 Turning to the most significant relationship test, the first two factors are easily determined.
First, as noted, Moore’s injury occurred in Canada at S&C Canada’s Toronto facility. Second,
the alleged injury-causing conduct—the S&C Canada employee driving into Moore—occurred
in Canada. The third factor, the parties’ domicile, is also easily determined—Moore resides in
Illinois and S&C Chicago is incorporated in Illinois.
¶ 46 Finally, we determine where the relationship of the parties was centered. Relating to
Moore’s injury while working in Canada, Moore and S&C Chicago did not have a relationship.
Moore’s employer, Reliable, contracted with S&C Canada, not with S&C Chicago, and S&C
Chicago did not own the property where the accident occurred or the truck or employ its driver.
Moore had a prior relationship with S&C Chicago, having worked with the parent company
on its security systems in Chicago and Wisconsin, and that relationship was centered in Illinois.
But as it relates to the incident giving rise to this litigation—the boom lift truck injuring
Moore—his relationship, through his employer, was with S&C Canada and its employees, not
with S&C Chicago. Thus, Canada has a more significant relationship with the dispute.
¶ 47 Turning to the policy factors in section 145 of the Restatement, Moore argues they favor
Illinois law: (i) both parties reside in Illinois, (ii) he was injured while working for an Illinois
company under a contract with a choice of law provision applying Illinois law, (iii) two Illinois
companies negotiated the contract, and (iv) Illinois policy favors an Illinois resident recovering
for injuries to the fullest extent of Illinois law, which Canadian law would thwart.
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¶ 48 As to the residency, as noted, both parties are based in Illinois, which is the lone connection
to the state. Moore’s arguments as to the contract and its choice of law provision fail because
neither Moore nor S&C Chicago were parties to the contract between Reliable and S&C
Canada. Moore cites no cases supporting a finding that non-parties to a contract may enforce
its choice of law provision.
¶ 49 Regarding the sole remaining argument, whether Illinois policy favors applying Illinois
law over Canadian law, Moore relies on Esser v. McIntyre, 169 Ill. 2d 292 (1996). In Esser,
the plaintiff, an Illinois resident, while vacationing in Mexico with others, slipped and fell on
unpopped popcorn kernels in the kitchen of their villa. The plaintiff sued the guest, also an
Illinois resident, who spilled the popcorn, alleging negligence. On the choice of law question,
Illinois rather than Mexican law applied due to “the interest of the State of Illinois in providing
a remedy for an Illinois resident who has been allegedly injured by another Illinois resident
outweigh[ing] Mexico’s interest in limiting tort recoveries.” Id. at 300. Further, “allowing
plaintiff to state a claim under Illinois law will not impinge upon Mexican interests since the
case requires no involvement by Mexican courts, Mexican defendants, Mexican witnesses.
Although Mexico has an interest in activity occurring at hotels within its borders, this is a
wholly private dispute involving only Illinois residents.” Id. at 300-01.
¶ 50 Esser is readily distinguishable. Even assuming, as Moore alleges, that both parties are
Illinois residents, a Canadian resident working for a Canadian company caused his injuries,
and testimony at trial will involve multiple Canadian witnesses. Accordingly, Canada has
strong ties to the incident and the lawsuit, which supports the trial court turning to Canadian
law on S&C Chicago’s summary judgment motion.
¶ 51 Liability Under Canadian Law
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¶ 52 Canadian law provides that a parent company may be liable for a subsidiary’s conduct
when a plaintiff establishes direct liability and a duty of care. United Canadian Malt Ltd. v.
Outboard Marine Corp. [2000] OJ No 1554. To establish a duty of care, a plaintiff must prove
(i) the injury was foreseeable and (ii) sufficient proximity between the plaintiff and defendant.
Cooper v. Hobart, [2001] 3 SCR 537, 548. Foreseeability means a reasonable person in the
defendant’s position would have foreseen the risk of harm that caused the plaintiff’s injury.
Childs v. Desormeaux, [2006] 1 SCR 643. The defendant need not be able to predict the exact
injury, but the nature of the general harm must be foreseeable. Bingley v. Morrison Fuels, a
Division of 503373 Ontario Ltd [2009], 95 O.R. 3d 191.
¶ 53 Proximity focuses on the nature of the parties’ relationship for determining a duty of care
on the defendant to guard against foreseeable harm to the plaintiff. Cooper, 552. In weighing
proximity, Canadian courts consider whether (i) the defendant created or controlled the risk to
which it invited others, (ii) the autonomy of the parties giving rise to a duty to act, and (iii) a
commercial or public function carries an attendant responsibility to reduce the risk of the
activity to the public. Fullowka, 152.
¶ 54 As to foreseeability (similar to foreseeability under Illinois law), we agree with the trial
court. S&C Chicago could not have foreseen Moore’s injury. S&C Chicago may have known
Moore was performing the work at the Toronto facility and that cameras were near the roof
line. But Moore’s walking in front of the lift truck traveling into oncoming traffic on a public
road could not be considered reasonably foreseeable.
¶ 55 As to proximity, Moore addresses just the first factor, arguing S&C Chicago created or
controlled the risk and Moore relied on S&C Chicago “to conduct themselves properly and to
ensure [he] had a safe place to perform the work that S&C Chicago contracted him to do.” The
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record does not support his contention. According to Johann’s affidavit and Zwijack’s
deposition testimony, S&C Chicago’s involvement extended to recommending Reliable to
S&C Canada, visiting the Toronto facility, and preparing a scope of project report for S&C
Canada. Moore has provided no evidence rebutting this. Further, Reliable contracted with S&C
Canada, not S&C Chicago. And while completing the project, Moore worked only with S&C
Canada employees and acted at the direction of an S&C Canada employee when he walked in
front of the truck.
¶ 56 While S&C Chicago may have initiated the project and participated in the planning stages,
it was not a party to the contract, involved in the work, in control of the risk, or under a duty
to act to prevent Moore’s injury. So, Moore has failed to establish his injury was foreseeable
or of sufficient proximity. We affirm the order granting summary judgment.
¶ 57 Affirmed.
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