MEMORANDUM OPINION AND ORDER

ANDREA R. WOOD, District Judge.

Plaintiff Todd Gammons suffered injuries as a result of falling from a cellular tower allegedly owned by Defendant Crown Castle USA, Inc. ("Crown Castle") and leased by Defendant Verizon Sourcing, LLC ("Verizon"). In this lawsuit, Gammons advances various theories of negligence—construction negligence, premises liability, and ordinary negligence— against Crown Castle and Verizon. Before the Court are both Defendants' motions to dismiss Gammons's five-count amended complaint pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(f). For the reasons stated below, the motions are denied.

BACKGROUND

This is Gammons's second attempt to plead negligence claims against Defendants. Gammons originally filed this lawsuit in the Circuit Court of Cook County, Illinois. The case was then removed to this Court pursuant to 28 U.S.C. § 1441(a) on the basis of diversity jurisdiction.1 (See Defs.' Not. of Removal, Dkt. No. 1.) Crown Castle and Verizon each filed a motion to dismiss the original complaint for failure to state a claim. (Dkt. Nos. 15, 21.) The Court granted both motions and dismissed the complaint without prejudice, allowing Gammons another opportunity to attempt to state a claim. In its Memorandum Opinion and Order, the Court provided a detailed explanation of the original complaint's pleading deficiencies along with clear guidance as to what Gammons must allege to state a claim for negligence under Illinois law. (See Mem. Op. & Order, Dkt. No. 62.) Gammons now has filed an amended complaint in which he alleges as follows.2

On February 13, 2014, Gammons, an employee of P & D Antenna Service, Inc. ("P & D Antenna"), climbed a cellular tower located at 929 North Christiana Avenue in Chicago, Illinois "to perform elevated work, including services and/or maintenance." (Am. Compl. ¶¶ 1, 5 of Count I, Dkt. No. 68.) Gammons claims that as a result of Crown Castle's and Verizon's negligence, he fell from the tower. (Id. ¶¶ 11-12 of Count I, ¶¶ 12, 15 of Count III.) Specifically, Gammons attributes his fall to Crown Castle's and Verizon's failure to provide, or their removal of, "safety cables, safety connections and/or climbing pegs." (Id. ¶ 11 of Count I, ¶ 12 of Count III.) Gammons alleges that due to "the lack of fall[-]protection systems available," he was unable to secure his harness to the cell tower. (Id. ¶ 13 of Count I.) As a result, he fell and sustained severe and permanent injuries. (Id.)

Like his original complaint, Gammons's amended complaint asserts claims for premises liability and ordinary negligence against Crown Castle (Counts I and II, respectively) and claims for construction negligence, premises liability, and ordinary negligence against Verizon (Counts III, IV, and V, respectively). In their motions to dismiss, Crown Castle and Verizon argue that Gammons has failed to remedy the deficiencies identified by the Court in dismissing his first complaint. They further argue that certain of Gammons's claims are duplicative and should be stricken as redundant.

DISCUSSION

In its exercise of diversity jurisdiction, the Court applies the substantive law of Illinois to determine the elements that Gammons must prove to establish his claims. See Sabratek Liquidating LLC v. KPMG LLP, No. 01 C 9582, 2002 WL 774185, at *2 (N.D. Ill. Apr. 26, 2002) (citing Charter Oak Fire Ins. Co. v. Hedeen, 280 F.3d 730, 735 (7th Cir. 2002)). To determine the sufficiency of Gammons's amended complaint, however, the Court looks to federal pleading standards. See id.

Federal Rule of Civil Procedure 8(a) requires a complaint to contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). To survive a Rule 12(b)(6) motion to dismiss, the short and plain statement must meet two threshold requirements. First, the complaint's factual allegations must be sufficient to give the defendant fair notice of the claim and the grounds upon which it rests. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Second, the complaint "must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).

While a complaint need not contain detailed factual allegations, there "must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. "A pleading that offers `labels and conclusions' or `a formulaic recitation of the elements of a cause of action will not do.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). "Nor does a complaint suffice if it tenders `naked assertion[s]' devoid of `further factual enhancement.'" Id. (quoting Twombly, 550 U.S. at 557). Moreover, the Court is not bound to accept as true legal conclusions couched as factual allegations. See id. (citing Twombly, 550 U.S. at 555). Rather, "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Adams v. City of Indianapolis, 742 F.3d 720, 728 (7th Cir. 2014) (quoting Iqbal, 556 U.S. at 678).

I. Gammons's Claims against Crown Castle

A plaintiff bringing a negligence claim under Illinois law must establish that the defendant owed him a duty of care, that the defendant breached that duty, and that the plaintiff was injured as a proximate result of the breach. Winters v. Fru-Con Inc., 498 F.3d 734, 746 (7th Cir. 2007). "Unless a duty is owed, there is no negligence." LaFever v. Kemlite Co., a Div. of Dyrotech Indus., Inc., 706 N.E.2d 441, 446 (Ill. 1998) (quoting Am. Nat'l Bank & Tr. Co. v. Nat'l Advert. Co., 594 N.E.2d 313, 318 (Ill. 1992)). In assessing whether a duty exists, courts generally consider the following factors: reasonable foreseeability and likelihood of the injury, the magnitude of the burden on the defendant in guarding against the injury, and the consequences of placing that burden on the defendant. See id.

When a plaintiff alleges he was injured by a condition on the defendant's property while on the property as an invitee, Illinois courts decide the foreseeability prong of the duty test by reference to § 343 of the Restatement (Second) of Torts. See id. at 447. Pursuant to § 343, a possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if he: (a) knows or by the exercise of reasonable care would discover the condition and should realize that it involves an unreasonable risk of harm; (b) should expect that invitees will not discover or realize the danger, or will fail to protect themselves against it; and (c) fails to exercise reasonable care to protect them against the danger. Restatement (Second) of Torts § 343 (1965). It is a prerequisite to premises liability that the defendant be a possessor of the land at issue—a person who is in occupation of the land with intent to control it. Madden v. Paschen, 916 N.E.2d 1203, 1214 (Ill. App. Ct. 2009) (citing Restatement (Second) of Torts §§ 343, 328E (1965)).

This Court identified a number of deficiencies in Gammons's original premises liability claim against Crown Castle. First, aside from the naked assertion that Crown Castle "owned, possessed, operated, [et cetera]" the cell tower, Gammons pleaded no facts to show that Crown Castle was a "possessor" as defined above. The amended complaint still does not explain in clear terms Crown Castle's (or Verizon's) interest in, occupation of, or control over the cell tower and surrounding premises. Gammons again uses the same "owned, possessed, operated, [et cetera]" language as contained in the original complaint. (See, e.g., Am. Compl. ¶ 1 of Count I, ¶ 1 of Count IV, Dkt. No. 68.) Elsewhere in the amended complaint, however, Gammons alleges that the tower is owned by Crown Castle and leased by Verizon. (Id. ¶ 1.) He further alleges that Crown Castle is the owner and controller of the premises and cell tower while Verizon is the owner and controller of certain portions of the tower. (Id. ¶ 4 of Count I, ¶ 4 of Count IV.) Although not a model of clarity, these allegations allow the reasonable inference that both Crown Castle and Verizon meet the definition of "possessor" for purposes of premises liability.3

In addition, Gammons's original complaint did not contain any facts, as opposed to legal conclusions, to show that Crown Castle knew or should have known of the allegedly dangerous condition of the cell tower, should have realized that that condition posed an unreasonable risk of harm, or should have expected that invitees such as Gammons would not realize the danger or would fail to protect themselves against it. (See Mem. Op. & Order at 5, Dkt. No. 62.) In an effort to overcome those deficiencies, Gammons has included the following allegations in his amended complaint:

According to the amended complaint, then, Crown Castle should have foreseen that Gammons would fail to protect himself against the dangerous condition of the tower, by proceeding to climb it without the proper safety equipment, in order to keep his job. Therefore, Crown Castle had a duty to guard against that danger. Crown Castle, on the other hand, argues that it should not be liable for Gammons's unreasonable decision to encounter the open and obvious risk of climbing the cell tower without safety equipment.

Generally, "[a] possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness." LaFever, 706 N.E.2d at 447 (quoting Restatement (Second) of Torts § 343A(1) (1965)).4 "[H]arm may be reasonably anticipated when the possessor `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.'" Id. at 448 (quoting Restatement (Second) of Torts § 343A cmt. f (1965)).5 The question is thus whether Crown Castle could have reasonably foreseen that Gammons would risk climbing the cell tower without fall-protection gear because it was necessary for him to fulfill his employment obligations. See id.

Illinois courts have recognized that "individuals will make deliberate choices to encounter hazards when faced with employment concerns and that those encounters are reasonably foreseeable by possessors of a property." Atchley v. Univ. of Chi. Med. Ctr., 64 N.E.3d 781, 791 (Ill. App. Ct. 2016) (quoting Kleiber v. Freeport Farm & Fleet, Inc., 942 N.E.2d 640, 648 (Ill. App. Ct. 2010)). See also Lucasey v. Plattner, 28 N.E.3d 1046, 1057 (Ill. App. Ct. 2015) (noting that the deliberate-encounter exception has most often been applied in cases involving some economic compulsion, such as where workers are compelled to encounter dangerous conditions as part of their employment obligations, and the cases in which courts have applied the exception almost always involve a plaintiff forced to make a choice between either facing the danger or neglecting his duties); Jakubiec v. Cities Serv. Co., 844 F.2d 470, 472 (7th Cir. 1988) (noting that, "[if Plaintiff] acted in the face of an obvious danger, it cannot be said as a matter of law that he acted unreasonably since his only other choice was to forego his assigned [employment] duties.").6

There are no detailed factual allegations in the amended complaint to suggest why Crown Castle should have foreseen that Gammons would feel it necessary to risk severe and permanent injury to maintain his employment.7 But detailed factual allegations are not required at the motion to dismiss stage. Gammons alleges that Crown Castle (1) hired P & D Antenna to perform elevated work on the cell tower and therefore knew that such work was going to be performed; (2) failed to provide the necessary safety equipment for such work and therefore knew or should have known that the tower was in an unreasonably dangerous condition; and (3) should have known that individuals working on the tower would choose to encounter that danger to perform their employment duties. Although it is a close call, these allegations plausibly suggest that Crown Castle should have foreseen that individuals like Gammons would proceed to climb the tower despite the lack of fall-protection equipment. Whether Crown Castle in fact did anticipate or should have anticipated that danger will turn on facts to be explored through the discovery process. Of course, Gammons will face a much higher hurdle on this point at the summary judgment stage, which, incidentally, is the stage at which most of the relevant cases cited by Crown Castle were decided. See, e.g., Swearingen v. Momentive Specialty Chemicals, Inc., 662 F.3d 969, 973-74 (7th Cir. 2011).

This does not end the inquiry, however. See LaFever, 706 N.E.2d at 450 ("Our finding that a landowner may reasonably be expected in certain instances to predict that an invitee may suffer harm from an open and obvious danger is conclusive only of the possessor's duty, and then only partially so, since foreseeability alone is not determinative of duty."); see also Atchley, 64 N.E.3d at 791 ("[T]he existence of an open and obvious dangerous condition affects the first two factors relevant to assessing duty: the reasonable foreseeability and likelihood of the injury."). The Court still must consider the remaining duty factors: the magnitude of the burden on the defendant in guarding against the injury and the consequences of placing that burden on the defendant. See, e.g., Swearingen, 662 F.3d at 973 ("Regardless of whether the general rule, the open-and-obvious doctrine, or the deliberate-encounter exception applies, the Illinois Supreme Court has applied the four-factor duty inquiry[.]"). Those factors apply equally to Gammons's ordinary negligence claim against Crown Castle.

In his original complaint, Gammons did not plead any facts from which the Court could reasonably infer that Crown Castle owed him a duty of ordinary care, that Crown Castle's alleged failure to provide safety equipment constituted a breach of that duty, or that such failure was a direct and proximate cause of his fall. (See Mem. Op. & Order at 6, Dkt. No. 62.) As the Court explained in dismissing the original complaint:

of his fall, how the lack of equipment caused his injuries.

(Id. at 6-7.) With respect to the latter point, Gammons alleges in his amended complaint that due to the lack of fall-protection equipment, he was unable to secure his harness to the cell tower, which caused him to fall. (See, e.g., Am. Compl. ¶ 14 of Count II, Dkt. No. 68.) While that allegation does not completely clarify the circumstances of Gammons's fall, it plausibly suggests that the fall was a result of Crown Castle's (or Verizon's) alleged failure to provide safety equipment, and thereby adequately addresses the causation element of his negligence claims.

With respect to duty, Gammons's original complaint did not contain any allegations from which it could be reasonably inferred that Crown Castle owed him the duty to provide fall-protection gear or to otherwise prevent his injuries. (See Mem. Op. & Order at 8, Dkt. No. 62.) In dismissing that complaint, the Court noted that it might have reached a different conclusion if Gammons had alleged that in his line of work, it is customary for the owner or controller of the cell tower to install climbing pegs or to provide safety equipment to individuals performing services or maintenance, or even that, as the owner of the premises, Crown Castle was required to provide safety equipment to individuals servicing the tower. (Id. at 8-9.) Gammons's amended complaint includes the following allegations almost exactly along those lines:

These allegations—however parroting of the Court's memorandum opinion they may be—must be accepted as true. There is nothing in Defendants' briefs to suggest that industry practice is otherwise and, even if there were, this is a question of fact inappropriate to be decided at the motion to dismiss stage. While industry customs and practices are not necessarily dispositive, Gammons's allegations make it plausible that the remaining factors in the duty analysis weigh in his favor. The actual magnitude of the burden and the consequences of placing it on Crown Castle or Verizon cannot be decided at this juncture without any discovery.8

Gammons's amended complaint remedies the deficiencies identified with respect to his original claims against Crown Castle and therefore both of those claims survive. Contrary to Crown Castle's position, "Illinois law recognizes a claim for premises liability that is separate from ordinary negligence." Gutterman v. Target Corp., No. 15 C 5714, 2016 WL 397377, at *1 (N.D. Ill. Feb. 2, 2016) (noting that courts have recognized the independence of these two claims and have highlighted the different elements required to prove each one, but have not indicated that alleging them together is duplicative or prohibited, in holding that the plaintiff had sufficiently pleaded negligence and premises liability as alternative claims for relief). The Court thus declines to strike Count I as duplicative of Count II as urged by Crown Castle.9

II. Gammons's Claims against Verizon

Gammons's allegations in support of his claims for premises liability and ordinary negligence against Verizon—Counts IV and V, respectively—mirror his allegations against Crown Castle and therefore suffice for the reasons discussed above.10 In Count III, Gammons asserts a construction negligence claim against Verizon. Under Illinois law, "[o]ne who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care." Miller v. Ill. Cent. R.R. Co., 474 F.3d 951, 956 (7th Cir. 2007) (citing Restatement (Second) of Torts § 414 (1965)).11 It is not enough that a defendant has merely a general right to order the work stopped or resumed, to inspect its progress or receive reports, to make suggestions or recommendations, or to prescribe alterations and deviations. See Bokodi v. Foster Wheeler Robbins, Inc., 728 N.E.2d 726, 732 (Ill. App. Ct. 2000) (citing Restatement (Second) of Torts § 414 cmt. c (1965)). Rather, the defendant must retain a right of supervision such that the contractor is not entirely free to do the work in his own way. Id.

Count III of Gammons's original complaint contained boilerplate allegations that merely tracked the elements of a construction negligence claim, without any supporting facts. (See Mem. Op. & Order at 10-11, Dkt. No. 62.) Moreover, Gammons's conclusory allegations regarding Verizon's coordination of the work being done on the cell tower did not suggest that Verizon supervised the work to the extent that P & D Antenna and its employees were not entirely free to do the work in their own way. (See id.) The allegations in the amended complaint are nearly identical to the conclusory allegations in the first complaint with the following relevant additions:

Gammons's bare conclusion that he was not entirely free to perform the work in his own way, standing alone, would not allow this claim to proceed. The question is whether the facts alleged in support of that conclusion, taken together, plausibly suggest that Verizon retained sufficient control of the cell cite construction to subject it to liability for construction negligence.

A number of the facts alleged in the amended complaint suggest that Verizon had no more than a general right to inspect the work being done, receive reports, or make suggestions or recommendations. That Gammons may have been required to report to, and P & D Antenna required to participate in periodic meetings with, Verizon does not necessarily mean that P & D Antenna and its employees were not free to do the work in their own way. Nor does the allegation—included in both the original and amended complaint—that Verizon was present or had a duty to be present during the course of the work. The allegation that Verizon set forth the specific tasks to be performed and the time frame in which they were to be performed is a closer call, but Gammons still does not allege that Verizon controlled how those tasks were to be performed. Nevertheless, that allegation, taken together with some of the other allegations in both the original and amended complaints—that Verizon participated in coordinating the work being done, designated various work methods, and had the authority to order changes in the work— nudges Gammons over the line between possibility and plausibility of entitlement to relief. See Twombly, 550 U.S. at 557. In addition, the facts alleged suggest that Gammons was required by Verizon to climb the cell tower without fall-protection gear, which presumably is not how he would have chosen to do it. In other words, Verizon's alleged failure to provide the necessary safety equipment meant that Gammons was not free to do the work in his own way (i.e., with safety equipment).12

Therefore, Gammons has adequately alleged that Verizon had a duty to provide him with a safe workplace. Elsewhere in the amended complaint, Gammons alleges that Verizon knew or should have known that common industry practice requires safety cables, safety connections, or climbing pegs on cell towers for the safety of individuals hired to perform cell-site construction, and that Verizon should have known that omitting or removing such equipment would make the cell tower difficult and dangerous to climb for those individuals. See Rich v. Quad/Graphics Printing Corp., No. 11 C 7656, 2014 WL 5835623, at *7 (N.D. Ill. Nov. 10, 2014) ("To show duty of care, a plaintiff must show that the general contractor had actual or constructive knowledge of unsafe work methods or a dangerous condition.") (citing Cochran v. George Sollitt Constr. Co., 832 N.E.2d 355, 365-66 (Ill. App. Ct. 2005)).13 Gammons further alleges that in failing to provide fall-protection equipment, Verizon breached its duty to exercise control over the cell-site construction with reasonable care. Without such equipment, Gammons was unable to secure his harness to the cell tower, which caused him to fall and sustain injuries. These allegations plausibly suggest that Verizon is liable for construction negligence.

CONCLUSION

Overall, this time around Gammons has adequately elucidated the basis for the duty allegedly owed to him by Crown Castle and Verizon, how those defendants allegedly breached that duty, and how that breach allegedly caused his fall. Thus, for the reasons stated above, Defendants' motions to dismiss (Dkt. Nos. 73, 76) are denied.