In the

United States Court of Appeals
                For the Seventh Circuit

No. 07-3386

L OLA C AMP,
                                              Plaintiff-Appellant,
                                 v.

TNT L OGISTICS C ORPORATION and
T RELLEBORG YSH, INCORPORATED ,

                                            Defendants-Appellees.


           Appeal from the United States District Court
               for the Central District of Illinois.
               No. 04 C 1358—Joe Billy McDade, Judge.



   A RGUED S EPTEMBER 26, 2008—D ECIDED JANUARY 14, 2009




 Before R IPPLE, M ANION, and S YKES, Circuit Judges.
  M ANION, Circuit Judge.     Lola Camp brought this
diversity action against TNT Logistics Corp. (“TNT”)
and Trelleborg YSH, Inc. (“Trelleborg”), seeking to
recover damages for injuries she sustained as a result
of their alleged negligence in connection with the ship-
ment of a pallet of automobile parts. The district court
2                                               No. 07-3386

granted summary judgment for the defendants. Camp
appeals. We affirm, although on partially different
grounds than those relied upon by the district court.


                      I. Background
  During the relevant time period, Mitsubishi Motors
North America, Inc. (“Mitsubishi”) manufactured automo-
biles using an efficient and cost-effective “just-in-time”
inventory system. Under this system, automotive parts
from suppliers were delivered to plants “just in time” to
be used on assembly lines. TNT provided logistics
services to Mitsubishi, coordinating the purchase and
transportation of automobile parts from suppliers as
Mitsubishi’s needs arose. TNT contracted with DeKeyser
Express, Inc. (“DeKeyser”), a motor carrier service pro-
vider, to transport the parts. Camp worked for Transport
Leasing Company (“TLC”). TLC leased Camp’s services
as a tractor-trailer driver to DeKeyser.
  On January 21, 2003, TNT directed DeKeyser to
transport some parts from several suppliers (one of
which was Trelleborg) to Mitsubishi’s factory in
Normal, Illinois. DeKeyser dispatched Camp to make
the pick-ups and delivery. The next day Camp arrived at
Trelleborg’s facility, which was the final stop on her
route. At Trelleborg’s loading dock, Camp noticed that
the three pallets of parts scheduled for pick-up would fit
inside the trailer only if the third pallet was stacked on
top of one of the other two pallets. Camp was concerned
that the load “would not ride” (i.e., that the unsecured
pallet might shift due to the vacant space next to it and be
No. 07-3386                                               3

damaged). She told Trelleborg personnel of her concern
and contacted DeKeyser dispatcher Ken Kasprzak and
TNT transport supervisor Alan Marten to advise them
of the problem. Marten contacted Dave Finck, TNT’s on-
site liaison at Mitsubishi’s Normal, Illinois factory. After
the conversation with Finck, Marten advised Camp and
Kasprzak that TNT wanted the entire load delivered and
directed Camp to write on the bill that TNT was aware
of the situation and was releasing the shipper (Trelleborg)
and the driver (Camp) from responsibility for any cargo
damage. Camp then wrote the following on the bill of
lading: “Shipper and Driver released of liability for any
product damage as called TNT and told them didn’t think
would ride. Ship anyway per Dave Fink [sic].” After
Trelleborg loaded the three pallets, Camp drove to TNT’s
cross-dock facility located across the street from the
Mitsubishi plant. Before backing up to TNT’s dock, Camp
stopped in the parking lot and opened the right trailer
door; when she did, the unsecured third pallet began to
fall. When she attempted to close the trailer door to
prevent the pallet from falling out, Camp injured her
shoulder and arm.
   Camp filed suit against TNT and Trelleborg in Illinois
state court, asserting a common-law negligence claim
against each defendant based upon their alleged acts and
omissions in connection with the transport of the unse-
cured pallet. The defendants removed the action to the
United States District Court for the Central District of
Illinois by invoking the court’s diversity jurisdiction.
  The district court granted summary judgment in favor
of the defendants on Camp’s negligence claims. In doing
4                                                  No. 07-3386

so, the court rejected Camp’s claim that she could hold
TNT liable under two provisions of the Federal Motor
Carrier Safety Regulations (“FMCSR”) and found that
Camp had not presented sufficient authority in support
of her “common law standpoint” argument to survive
TNT’s motion for summary judgment. The district court
also held that Trelleborg was not liable to Camp under
the FMCSR and that Trelleborg owed no duty to her in
light of Illinois’s open and obvious doctrine. Camp ap-
peals.


                        II. Discussion
  Our review of the district court’s grant of summary
judgment is de novo. Grieveson v. Anderson, 

,
767 (7th Cir. 2008). We affirm only if, after viewing all
facts in the light most favorable to the non-movant (Camp)
and drawing all reasonable inferences in her favor, we
conclude that no genuine issue of material fact exists and
that the defendants are entitled to judgments as a matter
of law. Peirick v. Indiana Univ.-Purdue Univ. Indianapolis
Athletics Dep’t, 

, 687 (7th Cir. 2007). In addition,
we may affirm on a ground other than that relied upon by
the district court as long as the alternative basis has
adequate support in the record. Bombard v. Fort Wayne
Newspapers, 

, 562 (7th Cir. 1996).
  As a federal court sitting in diversity, we apply state
substantive law and federal procedural law. Harper v.
Vigilant Ins. Co., 

, 525 (7th Cir. 2005). Because
none of the parties raised the choice of law issue, we
No. 07-3386                                                    5

apply the substantive law of Illinois, the forum state. Wood
v. Mid-Valley Inc., 

, 426 (7th Cir. 1991). Under
Illinois law, “[t]o succeed in an action for negligence, a
plaintiff must prove facts that establish the existence of
a duty, a breach of the duty, and an injury to the plaintiff
which was proximately caused by the breach.” Hills v.
Bridgeview Little League Ass’n, 

, 1178 (Ill.
2000). Whether a duty of care exists is a question of law
for the court to decide, while breach and proximate
cause are questions of fact for the fact-finder. Iseberg v.
Gross, 

, 284 (Ill. 2007).


A. Statutory Duty
  On appeal, Camp first claims that TNT and Trelleborg
are liable for negligence based on two provisions of the
FMCSR, 49 C.F.R. §§ 390.13 and 392.9(a)(1), which are
explained in detail below. Parts 390 and 392 (among
several others) of the FMCSR are adopted by reference into
the Illinois Vehicle Code by 625 ILCS 5/18b-105(b),1 part of



1
  Camp never referred to this section of the Illinois Vehicle
Code. However, at oral argument Camp declared that both of
her claims (against each defendant) are based upon state law: a
common-law cause of action and a statutory cause of action
under the safety regulations. We are not aware of (and Camp
has not pointed to) any Illinois statute that creates a cause of
action for a violation of the FMCSR. However, Camp did state
that a violation of the FMCSR is evidence of negligence. We
construe this statement as an assertion that the defendants’
                                                   (continued...)
6                                                   No. 07-3386

the Illinois Motor Carrier Safety Law. People v. Blackorby,

, 1237 (Ill. 1992). “In a common law
negligence action, a violation of a statute or ordinance
designed to protect human life or property is prima
facie evidence of negligence; the violation does not consti-
tute negligence per se.” Abbasi ex rel. Abbasi v.
Paraskevoulakos, 

, 185 (Ill. 1999). “To recover
damages based upon a defendant’s alleged statutory
violation, a plaintiff must show that (1) she belongs to the
class of persons that the statute was designed to protect;
(2) her injury is of the type that the statute was designed
to prevent; and (3) the violation proximately caused
her injury.” First Springfield Bank & Trust v. Galman, 

, 1071 (Ill. 1999). We consider the application
of §§ 390.13 and 392.9(a)(1) to TNT and Trelleborg sepa-
rately below.


    1. TNT
  Initially we must determine whether the relevant safety
regulations apply to TNT, for if they do not TNT could not
have violated them. Under 49 C.F.R. § 392.9(a)(1), “[a]


1
  (...continued)
alleged violation of 625 ILCS 5/18b-105(b)—which incorporates
the relevant provisions of the FMCSR—is prima facie evidence
of common-law negligence under Illinois law. Kalata v. Anheuser-
Busch Cos., 

, 661 (Ill. 1991). Therefore, we proceed
with the understanding that Camp is pursuing a common-law
negligence claim against each defendant based on distinct
theories of duty—statutory and traditional common-law.
No. 07-3386                                                     7

driver may not operate a commercial motor vehicle and
a motor carrier may not require or permit a driver to
operate a commercial motor vehicle unless 1) the com-
mercial motor vehicle’s cargo is properly distributed and
adequately secured as specified in §§ 393.100 through
393.136 of this subchapter.” According to 49 C.F.R. § 390.5,
a “motor carrier” is “a for-hire motor carrier or a private
motor carrier.” 2 (emphasis added). The same regulation
defines a “for-hire motor carrier” as “a person engaged
in the transportation of goods or passengers for compen-
sation.” 3 49 C.F.R. § 390.5. A “person” includes a corpora-
tion like TNT.4 

that § 392.9(a)(1) applies to TNT because
TNT had a motor carrier license and was acting as a
motor carrier. More particularly, Camp contends that the
following facts demonstrate that TNT maintained de facto
control over the cargo shipment and thus acted as a
motor carrier: TNT planned the configuration of the load
with its software, determined the supplier stops Camp
made, and mapped the route she took; TNT employee



2
  While not relevant here, a “private motor carrier” is “a person
who provides transportation of property or passengers, by
commercial motor vehicle, and is not a for-hire motor car-
rier.” 49 C.F.R. § 390.5.
3
   Similarly, 49 U.S.C. § 13102(14) defines “motor carrier” as “a
person providing motor vehicle transportation for compensa-
tion.”
4
   A person is “any individual, partnership, association, corpora-
tion, business trust, or any other organized group of individu-
als.” 49 C.F.R. § 390.5.
8                                                     No. 07-3386

Dave Finck made the decision that all three pallets had to
be transported; and TNT decided that the trailer would
not have the load-bar bracing equipment that helps to
secure the cargo. TNT, on the other hand, maintains that its
mere possession of a motor carrier license is not dispositive
and asserts that it was acting as a broker5 rather than a
motor carrier. In addition, TNT argues that it did not
provide motor carrier services for Mitsubishi and that
DeKeyser was the motor carrier because it was contractu-
ally obligated to supply the driver, truck, and equipment.
  We agree with TNT that the fact it possessed a motor
carrier license is not determinative of the applicability of
§ 392.9(a)(1); instead, the crucial inquiry is in what
capacity TNT was acting during the transaction. See, e.g.,
Paul Arpin Van Lines, Inc. v. Universal Transp. Servs., Inc., 

, 292 (1st Cir. 1993); Schramm v. Foster, 

536, 549 (D. Md. 2004). Only if TNT was functioning as
“a person engaged in the transportation of goods or
passengers for compensation” does § 392.9(a)(1) apply. 49
C.F.R. § 390.5. “Transportation” is defined as
    (A) a motor vehicle, vessel, warehouse, wharf, pier,
    dock, yard, property, facility, instrumentality, or
    equipment of any kind related to the movement of
    passengers or property, or both, regardless of owner-



5
   A broker is “a person, other than a motor carrier or an
employee or agent of a motor carrier, that as a principal or
agent sells, offers for sale, negotiates for, or holds itself out by
solicitation, advertisement, or otherwise as selling, providing,
or arranging for, transportation by motor carrier for compensa-
tion.” 49 U.S.C. § 13102(2).
No. 07-3386                                                  9

   ship or an agreement concerning use; and (B) services
   related to that movement, including arranging for,
   receipt, delivery, elevation, transfer in transit, refriger-
   ation, icing, ventilation, storage, handling, packing,
   unpacking, and interchange of passengers and prop-
   erty.
49 U.S.C. § 13102(23). TNT did not engage in the actual
movement of the automobile parts under the first prong
of the transportation definition. Indeed, the contract
between TNT and DeKeyser provides that DeKeyser was
responsible for supplying the truck, driver, and associated
equipment for the movement of the cargo, and there is
no question that DeKeyser (not TNT) provided the
driver and truck that moved the auto parts.
  Camp argues that TNT provided “services related to
th[e] movement” of the cargo under the second prong of
the transportation definition. 49 U.S.C. § 13102(23). We
disagree. Although TNT determined the stops Camp
made and the route she took, rather than being services
pertaining to the movement of the automobile parts
these actions were merely details upon which TNT
insisted to ensure that the delivery of the parts by
DeKeyser would be on time. The same was also true of
TNT’s decision that the third pallet had to be delivered
despite its instability. TNT’s determination that the
trailer would not have load-bar bracing equipment was
also not a service germane to the movement of the cargo
but was instead a condition under which the actual
movement of the goods by DeKeyser was to take place.
That TNT planned the configuration of the load on the
10                                               No. 07-3386

trailer with its software might, at first glance, seem to be
a service by which TNT “arrang[ed] for” the movement
of the cargo; however, this configuration scheme is more
accurately viewed as a detail pertaining to the positioning
of the cargo on DeKeyser’s trailers upon which TNT
insisted in order to facilitate the smooth operation of
Mitsubishi’s “just-in-time” system. For these reasons,
TNT’s actions did not rise to the level of providing
services related to the movement of the parts and thus
TNT was not acting as a “motor carrier.” Rather, TNT was
a third-party logistics company whose main focus was
the timely and efficient procurement of auto parts for
Mitsubishi. TNT’s role was that of a “broker” who, on
behalf of Mitsubishi, “negotiat[ed] for . . . transportation”
by DeKeyser that would satisfy the demands of the “just-
in-time” system. 49 U.S.C. § 13102(2). Therefore, 49 C.F.R.
§ 392.9(a)(1) does not apply to TNT and thus it owed no
duty to Camp under this provision. The district court
correctly granted summary judgment for TNT on this
issue.
  The district court also held that Camp could not hold
TNT liable under § 390.13 because she would be suing
TNT for aiding and abetting her own violation of the
FMCSR. Under 49 C.F.R. § 390.13, “[n]o person shall aid,
abet, encourage, or require a motor carrier or its em-
ployees to violate the rules of this chapter.” Camp argues
that TNT violated § 390.13 when it encouraged her to
transport the third pallet in an unsecured state as pro-
scribed by § 392.9(a)(1). Camp is correct that the plain
language of § 390.13 applies to a “person” regardless of its
function, and not just persons acting as drivers and motor
carriers as with § 392.9(a). However, like the district court,
No. 07-3386                                                     11

we conclude that Illinois case law precludes Camp’s
recovery under § 390.13.
   Specifically, under Illinois law, a plaintiff cannot
recover from a defendant for the defendant’s aiding and
abetting the plaintiff’s own tortious conduct. The case of
Hudkins v. Egan, 

(Ill. App. Ct. 2006), estab-
lished this principle of law. In Hudkins, a driver lost control
of a car and died in the 

. The
decedent’s administratrix sued one of the decedent’s
friends who was riding in the car for encouraging the
decedent to drive recklessly. 

Appellate
Court held that the decedent as the direct tortfeasor
could not have recovered as a third-party victim from the
friend who encouraged her to drive dangerously (i.e., the
indirect tortfeasor). 

Camp’s aiding and
abetting claim is controlled by this common-law principle
from Hudkins: Camp, as the person who operated the
tractor-trailer with the unsecured pallet contrary to
§ 392.9(a)(1), cannot recover from TNT as a third-party
victim under § 390.13 for its role in encouraging her
to violate § 392.9(a)(1). Therefore, the district court prop-
erly granted TNT summary judgment on this theory as
well.


    2. Trelleborg
  On appeal, Camp conceded that Trelleborg was acting
as a shipper 6 rather than as a motor carrier and that


6
    A shipper is “[a] person who sends or receives property which
                                                     (continued...)
12                                              No. 07-3386

§ 392.9(a)(1) does not apply to it. However, Camp main-
tains that she may hold Trelleborg liable under § 390.13
for aiding and abetting her own violations of the FMCSR.
The principle from Hudkins which we discussed above
applies equally to Trelleborg. Accordingly, Camp cannot
recover from Trelleborg for its part in aiding and abetting
her own violations of the FMCSR, and thus the district
court properly granted Trelleborg summary judgment.


B. Common-law Duty
    1. TNT
  Camp also challenges the district court’s award of
summary judgment for TNT based upon a traditional
common-law duty approach. The court determined that
Camp failed to support this “theory” with any authority
and that her bare statement that “TNT is liable from a
common law standpoint” was not enough to survive
summary judgment. Camp accurately points out that she
did in fact offer some authority (albeit at the very end of
her Response and in the section in which she opposed
Trelleborg’s motion for summary judgment) in support of
her position that TNT owed her a common-law duty of
care and stated that TNT breached that duty. We will
assume without deciding that the authority which
Camp mentioned was sufficient to preserve and advance
her argument that TNT owed her a common-law duty.


6
  (...continued)
is transported in interstate or foreign commerce.” 49 C.F.R.
§ 376.2(k).
No. 07-3386                                                 13

  Camp says that TNT mistakenly scheduled the third
pallet, failed to arrange for bracing equipment in the
trailer when it knew there would be an unsecured pallet,
failed to expedite the pallet by another truck, failed to
suggest that the pallet could be broken down into
smaller pieces, and failed to advise her and Trelleborg
that the pallet should be double-stacked on the right side
of the trailer. According to Camp, these facts indicate that
TNT breached the common-law duty of care it owed her.
  In Illinois, “[t]he existence of a duty depends on
whether the plaintiff and the defendant stood in such a
relationship to each other that the law will impose upon
the defendant an obligation of reasonable conduct for the
benefit of the plaintiff.” Bajwa v. Metro. Life Ins. Co., 

, 526 (Ill. 2004). “This question turns largely on
public policy considerations, informed by consideration
of four traditional factors: (1) the reasonable foreseeability
of the injury; (2) the likelihood of the injury; (3) the magni-
tude of the burden of guarding against the injury; and
(4) the consequences of placing that burden on the defen-
dant.” City of Chicago v. Beretta U.S.A. Corp., 

, 1125 (Ill. 2006). Whether these factors create a
common-law duty is a question of law for the court.

.
  After considering these factors, we conclude that TNT
did not owe Camp a duty of care. As evidenced by her
expressions of concern to Trelleborg, DeKeyser, and TNT
personnel, there is no question that Camp was aware of
the risk that the third pallet might shift during the trip.
Moreover, Camp testified at her deposition that she
14                                                      No. 07-3386

knew that there was a possibility the unsecured pallet
had shifted in transit, that it might have been leaning
against the trailer doors, and that it might fall out if the
trailer doors were opened. Under these circumstances,
TNT could not have reasonably foreseen that Camp would
open the trailer doors in a way that would cause her harm.
  Camp asserts that she was under economic compulsion
from TNT to encounter the danger posed by the pallet and
that therefore her injuries were foreseeable.7 She points to
the following language in the Master Agreement between
TNT and DeKeyser as evidence that TNT had control over
her or her employment status: “When directed by [TNT],
[DeKeyser] shall cause any [DeKeyser] Employee to be



7
  Camp argues that the deliberate encounter exception to the
open and obvious doctrine (discussed infra n.8) applies to
this case. Under this exception, harm is foreseeable to a pos-
sessor of land if he “‘ 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.’ ” LaFever v. Kemlite
Co., a Div. of Dyro-Tech Indus., Inc., 

, 448 (Ill. 1998)
(quoting R ESTATEMENT (S ECOND ) OF T ORTS § 343A, Comment f,
at 220 (1965)). This exception is most often applied in cases
involving economic compulsion. Sollami v. Eaton, 

,
224 (Ill. 2002). As we later emphasize, infra p. 18, we have not
extended Illinois’s open and obvious doctrine to this case.
However, we will assume for the sake of argument that the
principle inherent in the deliberate encounter exception to
that doctrine is relevant to TNT’s foreseeability of Camp’s
injuries.
No. 07-3386                                            15

removed from providing Services hereunder.” Assuming
that Camp qualifies as DeKeyser’s “employee,” all this
quoted passage demonstrates is that TNT could prevent
Camp from providing carrier services to TNT. Camp
ignores the provision from the same section of the
TNT/DeKeyser contract which states: “[TNT] shall have
no authority to, on behalf of [DeKeyser] or otherwise,
discharge, promote, suspend or otherwise discipline
any [DeKeyser] employee providing services for TNT
hereunder.” Thus, TNT could not have taken any em-
ployment action against Camp; at most it could have
directed DeKeyser not to lease Camp’s services as a driver
from TLC when providing future services to TNT. This
part of the Master Agreement does not support Camp’s
assertion that she was under economic compulsion
from TNT to encounter the pallet.
   Camp also contends that other provisions in the
TNT/DeKeyser agreement show that “additional conse-
quences” could have arisen from her refusal to encounter
the known risk. However, the sections of the agreement
that she cites state that DeKeyser could be liable to TNT
if its error led to a plant shutdown or the need for expe-
dited transportation. Because these passages do not show
that Camp could have been held liable to TNT, she was not
economically compelled by TNT to encounter the unse-
cured pallet.
  As additional proof of her economic compulsion (this
time from DeKeyser) to encounter the risk posed by the
third pallet, Camp stated that at a recent DeKeyser safety
meeting she had been told that she would lose her job
16                                             No. 07-3386

if any parts were damaged due to improper loading or
her negligence as a driver. We find this fact irrelevant,
for in order for Camp’s economic compulsion from
DeKeyser to have bearing on TNT’s foreseeability of
Camp’s injuries, TNT must have known or had reason to
know of such circumstances. See Buerkett v. Illinois Power
Co., 

, 710 (Ill. App. Ct. 2008) (stating that
“the focus with the deliberate-encounter analysis is on
what the landowner anticipates or should anticipate the
entrant will do” (emphasis added)). Because Camp has not
produced any evidence that TNT knew or should have
known of the recently implemented DeKeyser policy,
the deliberate encounter principle does not apply.
   As it was with the foreseeability factor, Camp’s knowl-
edge is especially relevant to the likelihood of injury
factor. A reasonable person in Camp’s shoes would have
readily appreciated and avoided the danger she knew
was lurking behind the trailer doors. Therefore, from
TNT’s perspective there was at most a slight likelihood
that Camp would be injured in light of her knowledge
about the danger posed by the pallet.
  The latter two factors do not counsel in favor of
finding that TNT owed Camp a duty of care. Although
TNT could have chosen not to ask for the pallet to be
shipped or could have taken other steps to avoid Camp’s
injuries, Camp was in a better position to prevent her
injuries because she could have opened the trailer door
in a way that did not put her at risk of injury or could
have sought DeKeyser’s assistance and direction before
doing so. In addition, Camp had been released from
No. 07-3386                                                   17

liability for damage to the cargo and could have opened
the door, retreated to safety, and let the chips (i.e, the auto
parts) fall where they may. It would be an onerous
burden for TNT to guard against injuries which result
from a person’s voluntary encounter with a known risk.
Moreover, TNT would have to expend significant
resources overseeing the actions of its motor carriers’
drivers were a duty imposed in these circumstances.
Accordingly, for these reasons we conclude that TNT did
not owe a duty of care to Camp under Illinois common
law and that summary judgment was appropriate for TNT.


    2. Trelleborg
  Camp next asserts that the district court’s grant of
summary judgment to Trelleborg on her common-law duty
theory was improper. The district court held that Camp’s
argument that Trelleborg owed her a common-law duty
foundered because the unstable pallet was an open and
obvious danger.8 We are not aware of any Illinois court


8
   Under Illinois law, a component of the foreseeability factor
of the common-law duty analysis is the open and obvious
doctrine. Ward v. K Mart Corp., 

, 232 (Ill. 1990).
This doctrine provides that “persons who own, occupy, or
control and maintain land are not ordinarily required to
foresee and protect against injuries from potentially dangerous
conditions that are open and obvious.” Bucheleres v. Chicago Park
Dist., 

, 832 (Ill. 1996). The Supreme Court of
Illinois has also applied this doctrine to preclude a manufac-
                                                   (continued...)
18                                                No. 07-3386

that has applied the open and obvious doctrine outside
of the premises or product liability arenas to a situation
where, as here, a plaintiff knowingly encounters a condi-
tion located on the personal property of a third-party
that was created by a defendant. It may be plausible to
extend the open and obvious principle to the circum-
stances of this case. However, we need not decide
whether the district court’s Erie-application (Erie R.R. Co.
v. Tompkins, 

, 78 (1938)) of the doctrine was
appropriate because we conclude that Trelleborg did not
owe a duty of care to Camp based upon the following
traditional common-law duty analysis.
  Camp stated that Trelleborg loaded the third pallet
and made the decision to stack it on top of another pallet
on the driver’s side of the trailer. Camp points to testi-
mony that “Truckloading 101” teaches that double-stacked
freight with an adjacent empty space should always be
placed on the passenger’s side because roadways are
crowned in the center and freight will invariably shift to
the right. Stacking on the left is purportedly an improper
trucking practice. Based on these facts, Camp argues
that Trelleborg deviated from the common-law duty of
care it owed her.
  However, like TNT, Trelleborg could not have rea-
sonably foreseen that Camp would choose to encounter
the risk of the third pallet falling out of the truck and


8
  (...continued)
turer’s duty to warn in the product liability context. 

.
No. 07-3386                                                        19

the injuries she received from trying to close the trailer
door. Camp knew the third pallet was unsecured. Camp
also knew the pallet may have shifted in transit, that it
might have been leaning against the trailer doors, and
that it might fall out if the trailer doors were opened.9




9
  In support of her position, Camp cites two unpublished
opinions: Holmes v. Goodyear Tire & Rubber Co., No. 96 C 345,

(N.D. Ill. Feb. 12, 1997) and Reed v. Ace Doran
Hauling & Rigging Co., No. 95 C 4082, 

(N.D. Ill.
Apr. 7, 1997). In Holmes, a truck driver was injured when a tire
struck him as he opened the door to the trailer he had been
hauling. 

, at *1. The court held that Goodyear
(the loader of the cargo) owed a duty to minimize harm to
whomever opened the sealed load. 

Holmes is
inapposite because the plaintiff in that case picked up the
trailer after it had been loaded and sealed and therefore had
no knowledge that the tire posed a risk of falling when he
opened the trailer doors. 

Unlike the driver in Holmes,
Camp knew that the unsecured pallet posed a risk of falling
out when she opened the trailer door.
   Reed is also distinguishable. In that case, the vehicle in
which the plaintiff was riding was struck by a steel coil that fell
off of a flatbed truck when the truck driver lost control of the
truck. Reed, 

, at *1. The district court held that
the loader of the coil owed a common-law duty to the plaintiff
to check the load and to ensure that it was safely secured. 

In contrast to this case, the plaintiff in Reed was neither the
driver of the truck that was improperly loaded nor did he have
prior knowledge of the instability of the coil and its concomitant
risk to his safety.
20                                                No. 07-3386

  In addition, the likelihood of injury was quite low from
Trelleborg’s vantage point because a reasonable person
with Camp’s knowledge would have appreciated and
avoided the danger posed by the pallet. The other two
factors in the traditional common-law duty analysis do
not militate in favor of finding Trelleborg owed Camp a
duty of care. True, Trelleborg, after offering not to load
the third pallet, could have refused to load it or at least
could have loaded it on the right side of the trailer. (The
record does not reflect whether Camp objected to loading
the pallet on the left side.) However, as stated before,
Camp was in a superior position to prevent her injuries.
It would be a weighty burden for Trelleborg to guard
against injuries to a person who was fully aware of the
danger to which she exposed herself. Trelleborg’s responsi-
bilities as a shipper of cargo would be expanded greatly
at considerable expense were it required to oversee
the conduct of motor carrier drivers (retained by others)
that transport its products. For these reasons, we con-
clude that Trelleborg did not owe a common-law duty to
Camp and that it was entitled to a judgment as a matter
of law.10



10
   Camp also argues that the district court abused its discre-
tion when it deemed admitted certain facts listed in the defen-
dants’ motions. The court made this decision because Camp
did not comply with Central District of Illinois Local Rule
7.1(d)(2)(b)(2), which instructs that claims of disputed facts
must be supported by specific references to evidentiary docu-
mentation. We do not reach this issue because we have pro-
                                                 (continued...)
No. 07-3386                                            21

                     III. Conclusion
  Based upon the foregoing analysis, we conclude that
TNT did not owe a duty to Camp under § 392.9(a)(1)
because it was not acting as a motor carrier. We also hold
that Illinois law does not permit Camp to hold TNT or
Trelleborg liable under § 390.13 for aiding and abetting
her own violation of § 392.9(a)(1). In addition, we con-
clude that neither TNT nor Trelleborg owed Camp a
common-law duty of care. Accordingly, the district
court’s grant of summary judgment in favor of the defen-
dants is A FFIRMED.




10
  (...continued)
ceeded in this opinion without deeming any facts admitted
by Camp.



                          1-14-09