CHICAGO — A federal appeals panel will allow a man who claims he lost a finger in an accident while rodding out his sewer to continue part of his lawsuit against Home Depot over the allegedly faulty sewer rodding tool he rented from the retailer, and the decision could have lasting legal implications for a host of tool rental businesses.
In 2017, Calvin Horne sued Home Depot and Electric Eel Manufacturing Company, bringing state law claims including negligence, warranty breach and strict product liability. After the defendants removed the complaint to federal court, U.S. District Judge Ronald Guzmán granted summary judgement in favor of the companies. Horne then filed a motion contesting Guzmán’s conduct of the proceedings, which he denied, prompting Horne’s appeal to the U.S. Seventh Circuit Court of Appeals.
Judge Ilana Rovner wrote the opinion, issued Feb. 10. Judges David Hamilton and Michael Scudder concurred, but Scudder wrote a partial dissent.
Elizabeth Bartolucci
| Bartolucci Law
Horne rented a rodder from the Home Depot in south suburban Homewood in July 2017, according to court documents. The documents said he also earlier rented similar equipment to clear the same sewer drain at his house. According to the narrative included in the decision, the rodding tool Horne rented malfunctioned while he was using it, and resulting in a gangrenous wound on his hand, and the need to amputate most of his index finger.
Home Depot argued the rental agreement Horne signed should protect them against his lawsuit.
On appeal, Horne said a provision in that three-page rental contract is unenforceable because Home Depot didn’t provide equipment “in good working condition,” wrote Rovner, “contrary to an express promise in the agreement.” Horne argued Judge Guzmán improperly put the burden of proof on him as a plaintiff, and furthermore said conflicting evidence over the rodder’s condition should have been sufficient to deny summary judgment.
Rovner wrote that Guzmán incorrectly focused on an argument over whether Horne rented the machine described in Home Depot’s contract — Horne ultimately admitted he did take home the cited equipment — explaining the decision for summary judgment should’ve turned on whether the rodder was “in good working condition” or, as Horne alleged, if the company supplied “a device with a malfunctioning foot pedal, an inoperative forward/reverse toggle switch and a preexisting kink in the cable.”
In reviewing the motion for summary judgment independent of Guzmán’s ruling, Rovner wrote, the panel determined “Home Depot made no attempt to demonstrate that it was not in breach” of its rental contract, bolstering Horne’s position. Furthermore, she said, “the rental agreement contained ambiguous and even contradictory provisions on the promised condition of the device,” such as a promise to provide tools “ ‘as is’ and in good working condition.”
The panel agreed with Home Depot on Horne’s inability to prove the contract clause written to free it from liability violates public policy. The panel also said his claims against Electric Eel suffered because he couldn’t demonstrate the rodder was defective at the time Eel shipped the unit to Home Depot.
The panel also said Guzmán was right to deny Horne’s request to subpoena RGIS, which Home Depot hired to inventory its rental tools, on the ground he filed his request too late in proceedings.
Although it affirmed the judgement in favor of Electric Eel and the subpoena ruling, the panel vacated the judgement in favor of Home Depot and sent the case back to the Northern DIstrict of Illinois federal court for further proceedings. The panel also tossed out the fee award to Home Depot as a prevailing party, and told Guzmán to reconsider the fee award to Electric Eel.
In his dissent, Scudder focused on the damages available under Horne’s warranty breach claim against Home Depot. Scudder said the rental contract’s limited liability clause should be enforced, while also noting the agreement’s “exculpatory clause bars him from recovering damages for his injury.”
Scudder explained the agreement doesn’t completely free Home Depot of all liability if the retailer should fail to provide equipment in good working condition, which he said was the majority’s position. Rather, the limited liability clause stipulates that should “Home Depot fail to meet any of its obligations under this agreement, customer’s only remedy is repair or replacement of deficient equipment or to receive, at The Home Depot’s option, a rental charge adjustment.”
Since the majority’s opinion prevailed, Scudder said, stores like Home Depot “might do well to revisit their rental agreements” to make sure there are no clauses that could be read as contradictory promises or language “exculpating all liability in one clause, but only limiting that liability in another,” because so doing “creates another interpretive challenge.”
Horne is represented in the case by attorneys Elizabeth M. Bartolucci, of Bartolucci Law LLC, and James L. Bizzieri, of Bizzieri Law Offices LLC, both of Chicago.
Home Depot and Electric Eel have been represented by attorneys Michael J. Meyer and Daniel S. Nathan, of the firm of Tribler Orpett & Meyer P.C., of Chicago.