Trad Thornton v. M7 Aerospace, LP , 796 F.3d 757 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-1707
TRAD THORNTON, administrator of the ESTATE OF SALLY
URQUHART, deceased, et al.,
Plaintiffs-Appellants,
v.
M7 AEROSPACE LP,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:12-cv-329 — Sara L. Ellis, Judge.*
____________________
ARGUED OCTOBER 27, 2014 — DECIDED AUGUST 6, 2015
____________________
No. 14-2481
TRAD THORNTON, administrator of the ESTATE OF SALLY
URQUHART, deceased, et al.,
Plaintiffs-Appellants,
*Judge Amy St. Eve was the district court judge for this case at the
time the underlying decision was made. This case has since been reas-
signed to Judge Ellis.
2 Nos. 14-1707, 14-2481
v.
JEPPESEN SANDERSON INC. and HONEYWELL INTERNATIONAL
INC.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:12-cv-329 — Sara L. Ellis, Judge.
____________________
ARGUED MAY 26, 2015 — DECIDED AUGUST 6, 2015
____________________
Before WOOD, Chief Judge, and EASTERBROOK and
WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. These appeals arise out of a
commuter airplane crash in May 2005 near Queensland,
Australia. One of the worst aviation accidents in Australian
history, all fifteen people on board died when the descend-
ing plane crashed into terrain. The administrators of the es-
tates of the deceased sued several companies and one indi-
vidual, alleging that they contributed to the crash. In this
opinion, we have consolidated two appeals: the first is the
plaintiffs’ case against the successor to the plane’s manufac-
turer and the second is against the manufacturer of the
plane’s warning system and the maker of navigational
charts. In both appeals, the district court granted the defend-
ants’ motions for summary judgment. Because we find that
the successor had no duty to warn the plane’s operator of the
need to install a more enhanced warning system, and the
Nos. 14-1707, 14-2481 3
operator did not rely on any alleged voluntary undertaking
of a duty to warn, we affirm the district court’s grant of
summary judgment for the successor in the first appeal. Al-
so, because we find that the plaintiffs did not properly pre-
sent any evidence from which a reasonable jury could infer
that the defendants’ products probably contributed to the
crash, and because the warning system’s manufacturer had
no duty to alert the customer that an improved system
should be installed, we affirm the decision of the district
court in the second appeal.
I. BACKGROUND
On May 7, 2005, a commuter aircraft, operated by
Transair, crashed into terrain on its way to the Lockhart Riv-
er airfield in Queensland, Australia. Sadly, the crew and pas-
sengers did not survive. Plaintiffs, as administrators of the
estates of all but one of the deceased, sued several defend-
ants for their roles in the crash. The aircraft that crashed was
a Fairchild SA227-DC Metro 23, Registration Number VH-
TFU (hereinafter “Aircraft”).
A. M7 Aerospace
The first appeal addresses the case against M7 Aerospace
LP (“M7”), the successor to the Aircraft’s manufacturer
Fairchild Aircraft Inc. (“Fairchild”). Now defunct, Fairchild
was an aircraft and aerospace manufacturing company that
was a wholly-owned subsidiary of Fairchild Dornier, a Ger-
man corporation. In 1990, the Federal Aviation Administra-
tion (FAA) issued Fairchild a Type Certificate to manufac-
ture SA227-DC Metro aircrafts (“Metros”).1 In 1992, Fairchild
1The Type Certificate indicates that the manufacturer has met the
FAA’s requirements and gives the holder exclusive ownership of certain
4 Nos. 14-1707, 14-2481
manufactured the Aircraft, a Metro, and sold it in January
1993 to Aerovias de Mexico, a non-party Mexican airline. It
was later transferred to other owners, and at some point be-
tween 1993 and 2005, Transair acquired the Aircraft.
In 2000, Fairchild ceased manufacturing and sold its last
Metro. In 2002, it filed for bankruptcy in the Western District
of Texas. At an auction during the bankruptcy proceedings,
4M Investments LLC bid and won the purchase of Fairchild’s
assets. It executed an Asset Purchase Agreement with
Fairchild which the bankruptcy court approved, stating that
the assets would be free and clear of any liens, claims, and
encumbrances. In 2003, 4M assigned the Asset Purchase
Agreement to Defendant M7.
M7 is a privately held small business whose owners had
no prior relationship with Fairchild. It operates from a facili-
ty in San Antonio that it purchased from Fairchild. As a re-
sult of the acquired assets, M7 owns the rights to use the
Fairchild name and to Fairchild’s technical publications.
Additionally, M7 acquired the Type Certificate and was des-
ignated as the Original Equipment Manufacturer (OEM) for
the Metro fleet. As holder of the Type Certificate and as the
OEM, M7 has the exclusive right to manufacture proprietary
parts for the Metro aircrafts. In 2003, M7 began operations
with three primary business units focusing on Metros and
another line of aircraft: (1) part and product support divi-
sion, (2) government contracts division, and (3) maintenance,
repair, and overhaul operation. In its San Antonio facility,
technical data, including drawings, reports, and analysis used to either
build, substantiate, or validate the aircraft design.
Nos. 14-1707, 14-2481 5
M7 builds and assembles aircraft parts for other aerospace
companies, but it has never manufactured any aircraft.
M7’s operations include distribution of a catalogue of
parts for the Metro aircraft, sale of flight, maintenance, and
inspection manuals to known Metro owners and operators,
and technical support. It issues service bulletins and main-
tains and updates a list of Metro owners and operators.
However, operators do not need to seek M7’s approval or
inform it of a sale, so the list is informal and largely based
upon orders for parts or the owners’ initiation of contact
with M7. Transair was listed on a revised service customer
list. That is to say, Transair at some point purchased parts
from M7, but it is unclear whether Transair was purchasing
parts for the Aircraft or another plane.
The plaintiffs’ primary dispute with M7 concerns the Air-
craft’s ground proximity warning system. At the time of the
crash, the Aircraft was likely fitted with a Ground Proximity
Warning System (GPWS), which alerts the crew of approach-
ing terrain. It was not fitted with an Enhanced Ground Prox-
imity Warning System (EGPWS), which has the capacity to
alert the crew more quickly of terrain than the GPWS and
provides the pilots with more time to react. The Australian
Transportation Safety Bureau (ATSB) concluded that if the
plane had been equipped with an EGPWS, the crash could
have been avoided. The plaintiffs maintain that M7 should
have warned Transair of various defects in the Aircraft, par-
ticularly of the need to install an EGPWS.
The plaintiffs filed a negligence and strict products liabil-
ity action against numerous defendants including M7. Six
counts in the second amended complaint pertained to M7,
four for indirect liability and two for direct liability. First, the
6 Nos. 14-1707, 14-2481
plaintiffs sought to impose liability vicariously on M7 as
successor-in-interest for the actions of its predecessor
Fairchild, but the district court granted summary judgment
for M7 on these counts, and the plaintiffs do not appeal. The
plaintiffs also sought to directly impose liability on M7 for
its alleged negligent breach of its own duty to warn and ad-
vise under operation of law and, in the alternative, under a
theory of voluntarily undertaking a duty to warn. The dis-
trict court granted summary judgment for M7 on these direct
liability theories, and the plaintiffs appeal.
B. Jeppesen and Honeywell
The second appeal addresses the plaintiffs’ case against
two companies, Jeppesen Sanderson (“Jeppesen”) and Hon-
eywell International (“Honeywell”). Because cloud cover did
not allow the flight crew to make a visual approach on the
day of the crash, the pilots used what is called an RNAV in-
strument approach. An RNAV instrument approach is a non-
precision approach using cockpit instruments, including a
global positioning system, to navigate between waypoints
along a flight path. Jeppesen produced and sold charts for
pilots to use while performing non-visual approaches into
the Lockhart River airfield. It received source data for its ap-
proach charts from Airservices Australia (“ASA”), an entity
owned by the Australian government. ASA designed the ap-
proach procedure into Lockhart River airfield. The pilots of
the Aircraft subscribed to Jeppesen’s chart service, but we do
not know for sure if the pilots actually used Jeppesen’s
charts while descending on the day of the crash. Jeppesen’s
charts complied with ASA’s requirements, but they did not
indicate topography of the terrain below the descent path.
That is, they did not show the altitude of the mountain range
Nos. 14-1707, 14-2481 7
beneath the flight path. The Aircraft crashed into the South
Pap ridge at an altitude of approximately 1,210 feet when it
descended at a steeper angle than prescribed in the Jeppesen
charts and flew below the 2,060-foot minimum safe altitude
for its location.
Honeywell manufactured GPWS units. It purchased the
GPWS business from Hamilton Sundstrand in 1993. It manu-
factured a GPWS unit which was fitted on the Aircraft in
2003 (but no wreckage of a GPWS unit was found after the
crash). Honeywell also manufactured and sold EGPWS
units, but it did not sell the EGPWS to the Aircraft’s operator
or tell the operator to purchase an EGPWS.
After the crash, the ATSB investigated the potential caus-
es of the accident and published a detailed report. The ATSB
report concluded that the plane crashed as a “result of a con-
trolled flight into terrain; that is, an airworthy aircraft under
the control of the flight crew was flown unintentionally into
terrain, probably with no prior awareness by the crew of the
aircraft’s proximity to terrain.” The ATSB could not deter-
mine why the Aircraft flew into the ridge, largely because
the plane’s cockpit voice recorder failed to record any audio
of the cockpit and there were no survivors or witnesses. But
the report identified several “contributing safety factors” as
well as “other safety factors.” One of the “other safety fac-
tors” was that Jeppesen’s approach chart could cause a pilot
to lose situational awareness. The report noted several defi-
ciencies in the design of the Jeppesen chart, mostly related to
the ways in which the chart’s depictions could be clearer. As
mentioned, the report also noted that the accident could
have been avoided if the Aircraft had an EGPWS.
8 Nos. 14-1707, 14-2481
The plaintiffs brought strict liability and negligence
claims against Jeppesen for its charts and Honeywell for its
GPWS. Along with two other defendants (the cases against
whom the plaintiffs have not appealed), Jeppesen and Hon-
eywell filed motions for summary judgment. The motions
were granted, and this appeal followed.
II. ANALYSIS
A. Appellate Jurisdiction
Before turning to the merits of the plaintiffs’ claims, we
must address two jurisdictional issues that the plaintiffs
raised in the second appeal. First, the plaintiffs argue that
there is no appellate jurisdiction over the second appeal, de-
spite being the party that filed the notice of appeal. At oral
argument, the plaintiffs’ counsel informed the court that he
“jumped the gun” in filing the notice. In his view, because
the district court had not disposed of all claims in the case,
there is no appellate jurisdiction. However, he did not wish
to move to dismiss the appeal, and the plaintiffs’ brief asks
us to remand the case to the district court so that the district
court could rule on all of the claims. If we truly do not have
appellate jurisdiction, we cannot remand the case to the dis-
trict court or instruct the district court to do anything; we
can only dismiss the appeal. See e.g., In re Mut. Fund Market-
Timing Litigation, 468 F.3d 439, 441 (7th Cir. 2006).
Courts of appeals have jurisdiction of appeals from all fi-
nal decisions of the district courts. 28 U.S.C. § 1291. “A final
decision is one by which a district court disassociates itself
from a case.” Gelboim v. Bank of Am. Corp., 135 S. Ct. 897
(2015). “When a district court believes it is done with a case,
it enters a final judgment under Rule 58.” Luevano v. Wal-
Nos. 14-1707, 14-2481 9
Mart Stores, Inc., 722 F.3d 1014, 1020 (7th Cir. 2013). Once a
district court signals that it is finished with its work by enter-
ing final judgment under Rule 58, its order is final and ap-
pealable. Id.
Here, the district court granted the defendants’ motion
for summary judgment on July 8, 2014. The following day,
the district court entered judgment under Federal Rule of
Civil Procedure 58. Its order is therefore appealable. The
plaintiffs argue that we lack appellate jurisdiction because
the district court’s summary judgment order did not dispose
of all the plaintiffs’ claims against defendant Honeywell, nor
the defendants’ third-party claims against ASA for contribu-
tion or defendants’ and ASA’s counterclaims against certain
plaintiffs. First we note that while the district court did not
mention the defendants’ third-party claims against ASA or
ASA’s counterclaims against certain plaintiffs, by entering
judgment in the defendants’ favor, these claims were “neces-
sarily adjudicated” by the judgment, Bielskis v. Louisville Lad-
der, Inc., 663 F.3d 887, 893 (7th Cir. 2011), and do not “logical-
ly survive,” Am. Nat’l Bank & Trust Co. of Chicago v. Sec’y of
Hous. & Urban Dev., 946 F.2d 1286, 1290 n.6 (7th Cir. 1991).
The plaintiffs seem to recognize this point, since they did not
press the absence of a direct comment on the third-party
claims or counterclaims in their reply brief or at oral argu-
ment.
With respect to the plaintiffs’ fifth count against Honey-
well which the district court did not directly address in its
summary judgment order, lack of comment on that count
does not negate our jurisdiction. BKCAP, LLC v. CAPTEC
Franchise Trust 2000-1, 572 F.3d 353, 358 (7th Cir. 2009). The
district court’s order “effectively ended the litigation and
10 Nos. 14-1707, 14-2481
thus constituted a final order for the purposes of appellate
review.” Id. (internal quotations omitted). That is, the district
court indicated that it was finished with the case and did not
contemplate further activity. Id. Therefore, we have appellate
jurisdiction. Id. The fifth count, while making some different
factual allegations from the other counts in the complaint,
did not constitute a separate basis of liability, but was in-
stead a claim for punitive damages. The plaintiffs may argue
that there were deficiencies in the district court’s reasoning
or arguments which it failed to address, but those are merits
arguments. We still have appellate jurisdiction. And as the
district court likely bore in mind, we recognize that if there
is no evidence supporting liability, then there is no basis for
punitive damages.
B. Subject Matter Jurisdiction
In the second appeal, the plaintiffs also challenge our
federal subject matter jurisdiction.2 The plaintiffs originally
brought this action in Illinois state court in May 2007. The
parties actively litigated in state court for the next four years
until July 2011, when the defendants filed third-party claims
against ASA for contribution and indemnity. The Foreign
Sovereign Immunities Act gives foreign states the right to
remove to federal court any action filed against them in state
court. 28 U.S.C. § 1441(d). Exercising its right as a foreign
sovereign then, ASA removed this action to the United States
District Court for the Northern District of Illinois. ASA then
moved to dismiss the claims against it based upon the stat-
2 Curiously, they did not challenge subject matter jurisdiction in the
first appeal. But if there is no subject matter jurisdiction in No. 14-2481,
then there is no subject matter jurisdiction in No. 14-1707.
Nos. 14-1707, 14-2481 11
ute of limitations, and the plaintiffs moved to remand based
upon fraudulent joinder of ASA. These motions were de-
nied. Two years after removal, the plaintiffs again sought to
remand the case under the doctrine of fraudulent joinder,
asserting that the third-party claims against ASA were
barred by the statute of limitations and therefore had no
chance of success. The district court denied this motion, and
the plaintiffs appeal.
Here, we must again reject the plaintiffs’ remand request,
couched as a challenge to federal subject matter jurisdiction.
The plaintiffs do not dispute that the parties are diverse; the
plaintiffs are Australian citizens and the defendants are U.S.
corporations and a U.S. citizen. The amount in controversy
exceeds $75,000. So federal subject matter jurisdiction plainly
exists under 28 U.S.C. § 1332. By suing an Illinois citizen
(Matthew Heir), the plaintiffs prevented the defendants from
being able to remove the original action to federal court. See
28 U.S.C. § 1441(b)(2). But even without ASA as a third-party
defendant, federal courts have original diversity jurisdiction
over this action. See 28 U.S.C. § 1332; Morris v. Nuzzo, 718
F.3d 660, 665 (7th Cir. 2013) (§ 1441(b)(2)’s “forum defendant
rule” is not jurisdictional). Whether the case was properly
removed to federal court is a matter of removal procedure,
not jurisdiction. Id.
Still though, the plaintiffs argue that because ASA was
fraudulently joined, this case was not properly removed to
federal district court, and it could not have been removed in
ASA’s absence. They say ASA was fraudulently joined be-
cause it was joined four years after the original action was
filed, so Illinois’s two-year statute of limitations had run. In
their view, the defendants fraudulently misrepresented to
12 Nos. 14-1707, 14-2481
the court that they did not have any knowledge of a poten-
tial claim against ASA until November 2009. Under Illinois’s
discovery rule, the statute of limitations begins to run when
the potential plaintiff knows or reasonably should know of
his injury and that the injury was wrongfully caused. Knox
Coll. v. Celotex Corp., 430 N.E.2d 976, 980 (Ill. 1981). The
plaintiffs contend that the triggering event here for the
commencement of the statute of limitations for the defend-
ants’ third-party claim for contribution against ASA is the
date the defendants first knew or reasonably should have
known of an act causing them injury and placing them on
inquiry to determine whether a cause of action exists. See
Brdar v. Cottrell, Inc., 867 N.E.2d 1085, 1100 (Ill. App. Ct.
2007). To them, the defendants knew of at least one of their
claims against ASA as early as May 4, 2007, the date the
plaintiffs filed their complaint in state court. They argue that
as soon as the defendants knew that the plaintiffs had a
claim against Jeppesen for defects in the Jeppesen navigation
charts, the defendants knew they had a third-party claim
against ASA because ASA provided the source material for
the navigation charts.
While ASA certainly has a strong claim that the statute of
limitations has run (and the plaintiffs have cogently made
this argument on its behalf), that is not the standard we
must use to determine whether or not jurisdiction exists. Ju-
risdiction is not defeated by the possibility that the allega-
tions might fail to state a cause of action on which a party
could actually recover. Bell v. Hood, 327 U.S. 678, 682 (1946).
The failure to state a proper cause of action calls for a judg-
ment on the merits and not a dismissal for want of jurisdic-
tion. Id. “Whether the complaint states a cause of action on
which relief could be granted is a question of law and just as
Nos. 14-1707, 14-2481 13
issues of fact it must be decided after and not before the
court has assumed jurisdiction over the controversy.” Id.; see
also Jogi v. Voges, 480 F.3d 822, 825–26 (7th Cir. 2007) (“the ab-
sence of a valid (as opposed to arguable) cause of action does
not implicate subject-matter jurisdiction”). The Bell standard
does provide for an exception. A suit may be dismissed for
want of jurisdiction where the alleged claim “clearly appears
to be immaterial and made solely for the purpose of obtain-
ing jurisdiction or where such a claim is wholly insubstantial
and frivolous.” Steel Co. v. Citizens for a Better Env’t, 523 U.S.
83, 89 (1998) (quoting Bell, 327 U.S. at 682–83). We cannot say
that the claims against ASA were so patently without merit
as to justify a dismissal for want of jurisdiction. The district
court noted that defendants argued they did not know they
had a claim against ASA until 2009, when ASA redesigned
the flight path, indicating that a safer approach path was
possible. While the defendants might have ultimately failed
on the merits of their third-party claims, the claims were not
insubstantial, frivolous, or clearly immaterial.
The standard for fraudulent joinder is similarly demand-
ing of the plaintiffs (if it is even applicable in this situation).
The defendants need to have “no chance of success” in their
claims against ASA. Morris, 718 F.3d at 666 (quoting Poulos v.
Naas Foods, Inc., 959 F.2d 69, 73 (7th Cir. 1992)). A party seek-
ing a different forum on the basis of fraudulent joinder bears
a heavy burden to show that, after resolving all issues of fact
and law in favor of the non-moving party, the non-moving
party cannot establish a cause of action. Poulos, 959 F.2d at
73. We also find that the plaintiffs have not carried this bur-
den. The defendants have some chance of success.
14 Nos. 14-1707, 14-2481
C. The First Appeal: M7 Aerospace
On appeal, the plaintiffs challenge the district court’s
grant of summary judgment for M7 on two grounds. First,
they argue that the district court erred in finding that M7 did
not have a duty to warn by operation of law about the need
to install an EGPWS.3 Second, they argue that the district
court erred in not finding that M7 had voluntarily undertak-
en a duty to warn. We review the district court’s grant of
summary judgment de novo. Omnicare, Inc. v. UnitedHealth
Grp., Inc., 629 F.3d 697, 705 (7th Cir. 2011). A federal court
sitting in diversity applies state substantive law, Malen v.
MTD Prods., Inc., 628 F.3d 296, 303 (7th Cir. 2010), and the
parties agree that Illinois law governs here. It may seem
counterintuitive to apply Illinois law to this dispute when
none of the relevant conduct occurred in Illinois. However,
the parties both cite to it and no one has pointed out a con-
flict between the bodies of law that might apply. So, we ap-
ply the law of the forum state. Gould v. Artisoft, Inc., 1 F.3d
544, 549 (7th Cir. 1993).
1. No Duty to Warn by Operation of Law
A duty is a legal obligation to conform one’s conduct to a
certain standard for the benefit or protection of another.
Kurtz v. Wright Garage Corp., 635 N.E.2d 897, 899 (Ill. App. Ct.
3The plaintiffs suggest that M7 had a duty to warn of other defects
besides the need for an EGPWS. But like the district court, we find that
the plaintiffs do not elucidate the nature of any alleged defects other
than the absence of an EGPWS, and so we will focus on the warning sys-
tem as the district court did. To the extent the plaintiffs try to argue
about other alleged “defects,” they have waived those arguments by fail-
ing to raise them on summary judgment. Cooper v. Lane, 969 F.2d 368, 371
(7th Cir. 1992).
Nos. 14-1707, 14-2481 15
1994). Illinois courts have recognized a limited cause of ac-
tion against the purchaser of a product line for failing to
warn of defects in its predecessor’s products. Caballero v.
Uniloy Milacron, Inc., No. 02 C 3086, 2003 WL 22053629 at *8
(N.D.Ill. 2003). To determine the presence of a nexus or rela-
tionship effective to create a duty to warn, the following fac-
tors have been considered: (1) the succession to a predeces-
sor’s service contracts; (2) coverage of the particular machine
under a service contract; (3) service of that machine by the
purchaser corporation; and (4) a purchaser corporation’s
knowledge of defects and the location or owner of that ma-
chine. Gonzalez v. Rock Wool Eng’g & Equip. Co., 453 N.E.2d
792, 795 (Ill. App. Ct. 1983); see also Kaleta v. Whittaker Corp.,
583 N.E.2d 567, 574 (Ill. App. Ct. 1991). “[T]he critical ele-
ment required for the imposition of this duty is a continuing
relationship between the successor and the predecessor’s
customers benefiting the successor.” Gonzalez, 453 N.E.2d at
795.
The district court found that there was an insufficient
nexus between M7 and Transair to impose an independent
duty to warn on M7, and we agree. None of the four Gonza-
lez factors are met, and the plaintiffs have not presented evi-
dence of any relationship between M7 and Transair with re-
spect to the Aircraft. M7 did not assume any of Fairchild’s
service contracts; consequently, the Aircraft was not covered
by any service contract. M7 never serviced the Aircraft, and
there is no evidence that M7 knew Transair was the current
owner and operator of the Aircraft. The plaintiffs argue that
because Transair was included on M7’s customer list, M7
knew the identity and location of the operator of the Air-
craft. While this evidence may establish that M7 knew of the
existence of Transair as an airline in general, the plaintiffs
16 Nos. 14-1707, 14-2481
have presented no evidence from which a reasonable jury
could conclude that M7 knew Transair was the operator of
this Aircraft. The plaintiffs do not even allege that M7 knew
Transair was the operator of the Aircraft.
The plaintiffs argue that the district court should not
have placed so much emphasis on the fact that the first two
Gonzalez factors were not met, because they were impossible
to meet: Fairchild did not have any service contracts for M7
to assume. The lack of service contracts could be indicative
of a diminished continuing buyer-seller relationship such
that their absence would weigh on the “no duty” side of the
scale. However, even if we were to accept the plaintiffs’ pre-
ferred position of marking the first two factors with “not ap-
plicable,” the plaintiffs fail the last two factors as well. M7
never serviced, maintained, or repaired the Aircraft. See
Gonzalez, 453 N.E.2d at 795 (no duty to warn where succes-
sor did not service, maintain, or repair the machine involved
in the accident). And M7 did not know the location of the
Aircraft or who its current owner was.
The plaintiffs make much of the fact that M7 had a con-
tinuing relationship with the product line in general, includ-
ing servicing other Metros and issuing service and safety
bulletins. However, Illinois courts have refused to adopt the
product line exception to the general rule of nonliability for a
purchaser of assets, Kaleta, 583 N.E.2d at 572, and have been
hesitant to impose a duty on a successor corporation “unless
circumstances following the corporate transfer give rise to
the duty,” Nguyen v. Johnson Mach. & Press Corp., 433 N.E.2d
1104, 1109 (Ill. App. Ct. 1982). Illinois decisions addressing
the duty to warn by operation of law reject imposing liability
where there is not a continuing relationship between the
Nos. 14-1707, 14-2481 17
successor and owner with respect to the specific machine in-
volved in the accident. See Kaleta, 583 N.E.2d at 574 (“Our
review of the record has found no evidence of a continuing
relationship between Tug and American [A]irlines with re-
spect to servicing of the 660 line of beltloaders.”); see also
Gonzalez, 453 N.E.2d at 795 (“[I]n the absence of any evi-
dence indicating a continuing relationship between Bemis
and Forty-Eight Insulations, we find that there is no basis for
the imposition of liability upon Bemis for breach of a duty to
warn.”).4
The plaintiffs essentially ask us to impose a duty to warn
where the successor has a relationship with the product line
in general, but not with the specific owner (beyond the in-
clusion of Transair on a mailing list for possibly unrelated
products) and the specific machine. But we are not at liberty
to impose our own view as to what the law of a state should
be. Leannais v. Cincinnati, Inc., 565 F.2d 437, 441 (7th Cir.
1977). Illinois courts have consistently chosen not to recog-
nize product line successor liability for a variety of policy
reasons, see Diguilio v. Goss Int’l Corp., 906 N.E.2d 1268, 1278
(Ill. App. Ct. 2009), and so we must reject the plaintiffs’ ar-
gument that as a policy matter, we should plug a supposed
gap in tort law. Notably, the Illinois Supreme Court has
found that even a corporation in Fairchild’s position would
4 The use of the word “continuing” is informative in our conclusion
that the relevant relationship is the one that is a continuation of the pur-
chased (allegedly defective) product. The plaintiffs have not presented
evidence that any relationship between Transair and M7 is related to,
and thus a continuation of, Transair’s acquisition of the Aircraft. That
Transair may have bought products for other planes from M7 does not
show an ongoing relationship with respect to the Aircraft.
18 Nos. 14-1707, 14-2481
not have a duty to warn Transair to install an EGPWS, since
the allegedly defective GPWS was not installed until 2003,
ten years after Fairchild sold the plane to Aerovias. See Ja-
blonski v. Ford Motor Co., 955 N.E.2d 1138, 1160 (Ill. 2011)
(“[A] manufacturer is under no duty to issue postsale warn-
ings or to retrofit its products to remedy defects first discov-
ered after a product has left its control.”) (internal citations
and quotations omitted)).5 Considering the evidence in the
light most favorable to the plaintiffs, under Illinois law, there
is not enough of a continuing relationship between M7 and
Transair with respect to the Aircraft to justify the imposition
of a duty.
2. No Voluntary Undertaking of a Duty to Warn
In addition to a duty to warn by operation of law, Illinois
law offers a voluntary assumption of duty theory. Ordman v.
Dacon Mgmt. Corp., 633 N.E.2d 1307, 1310 (Ill. App. Ct. 1994).
“In situations in which a duty would not otherwise arise, a
duty to act reasonably may be imposed when a defendant
negligently performs a voluntary undertaking.” Id. The theo-
ry of voluntary assumption of a duty is narrowly construed.
Bell v. Hutsell, 955 N.E.2d 1099, 1104 (Ill. 2011). “The extent of
the duty imposed on one who voluntarily undertakes to per-
form an act is limited to the extent of the undertaking.”
Ordman, 633 N.E.2d at 1310. And where, like here, the plain-
5Since the plaintiffs have brought up pragmatic, policy concerns, we
note that Transair (and seemingly everyone in the aviation industry)
knew of the need to install an EGPWS. In 2000, the FAA mandated that
Metro owners install an EGPWS by March 2005. The ATSB required in-
stallation by June 2005. It is tragic that this accident occurred less than
two months prior to the Australian regulatory deadline, but it is unclear
how any warning from M7 would have made a difference.
Nos. 14-1707, 14-2481 19
tiff seeks to hold the defendant liable for nonfeasance (omis-
sion to perform a voluntary undertaking) rather than mis-
feasance (negligent performance of a voluntary undertak-
ing), Illinois law requires that the harm suffered must be a
result of one’s reliance upon the undertaking. Bell, 955
N.E.2d at 1107–08.
We agree with the district court that even if the plaintiffs
were able to show that M7 voluntarily undertook the task of
warning Transair of the need to install an EGPWS, the plain-
tiffs have not established reliance. In Frye v. Medicare-Glaser
Corp., the Supreme Court of Illinois upheld the grant of
summary judgment for the defendants because there was
“no evidence” that the plaintiff’s injury “was due to his reli-
ance on the defendants’” actions. 605 N.E.2d 557, 560 (Ill.
1992). Similarly here, the plaintiffs have failed to provide
any evidence that demonstrates that their injuries occurred
because of Transair’s reliance on M7. The plaintiffs contest
the district court’s statement that they had not proffered suf-
ficient evidence of reliance as more burdensome than the
summary judgment standard mandates, but we find that the
plaintiffs have presented no evidence that Transair relied
upon M7 to warn it of supposed defects. The plaintiffs argue
that because M7 holds itself out as the original manufacturer
and an authority on safety concerns for Metros, “it is logical
to assume that owners and operators” rely on M7 to warn
them of defects in the Metros. But whether other owners re-
lied upon M7 to warn it of defects does not answer the ques-
tion of whether Transair, the relevant entity, relied upon M7.
And surviving summary judgment requires evidence, not
assumptions. Sybron Transition Corp. v. Sec. Ins. Co. of Hart-
ford, 107 F.3d 1250, 1255 (7th Cir. 1997) (“A party must pre-
sent more than mere speculation or conjecture to defeat a
20 Nos. 14-1707, 14-2481
summary judgment motion.”). There is no evidence that
Transair read M7’s newsletters, regularly checked the service
bulletins, communicated with M7, or attended any of M7’s
conferences. Furthermore, Transair knew of the need to in-
stall an EGPWS. It is actually illogical to think that Transair
relied upon M7’s lack of warning as justification for not in-
stalling an EGPWS, when Transair was required by the
ATSB to install the system.
D. The Second Appeal: Jeppesen and Honeywell
Jeppesen and Honeywell sought summary judgment on
all claims against them, asserting that the plaintiffs had not
established a prima facie case that their products contributed
to the cause of the crash and that Honeywell owed no duty
to advise of the existence of a superior product. The district
court agreed. Again, we review the grant of summary judg-
ment de novo, construing all facts and reasonable inferences
in the light most favorable to the non-moving party. Piltch v.
Ford Motor Co., 778 F.3d 628, 631 (7th Cir. 2015).
Unfortunately for the plaintiffs, few facts in their favor
were properly before the district court when it was ruling on
these defendants’ motions for summary judgment. That is
because the plaintiffs failed to comply with Local Rule 56.1.
They did not file a response to the defendants’ statement of
facts or their own statement of facts in response to any of the
defendants’ motions for summary judgment. See Local Rule
56.1(b)(3) (requiring the non-moving party at the summary
judgment stage to file a reply, including “a response to each
numbered paragraph in the moving party’s statement” as
well as “a statement, consisting of short numbered para-
graphs, of any additional facts that require the denial of
summary judgment,” with appropriate references to the rec-
Nos. 14-1707, 14-2481 21
ord). So the district court only considered those facts includ-
ed in the defendants’ statement of material facts.
The plaintiffs do not object to any of the defendants’
statements of facts, so they do not quarrel with those facts
being deemed admitted. See id. 56.1(b)(3)(C) (“All material
facts set forth in the statement required of the moving party
will be deemed to be admitted unless controverted by the
statement of the opposing party.”). But they argue that the
district court should have excused their failure to comply
with Local Rule 56.1 by not filing their own statement of
facts and considered the expert report and witness affidavits
which they submitted, concededly in violation of Rule 56.1,
in order to prevent manifest injustice. We review the deci-
sion of a district court concerning compliance with local
rules such as Rule 56.1 only for an abuse of discretion. Koszo-
la v. Bd. of Educ. of City of Chicago, 385 F.3d 1104, 1108 (7th
Cir. 2004). This court has repeatedly held that the district
court is within its discretion to strictly enforce compliance
with its local rules regarding summary-judgment motions,
Patterson v. Ind. Newspapers, Inc., 589 F.3d 357, 360 (7th Cir.
2009), including by disregarding evidentiary documents be-
cause a required statement of facts was not filed, Bordelon v.
Chicago Sch. Reform Bd. of Trs., 233 F.3d 524, 529 (7th Cir.
2000). While the plaintiffs’ attorney offers excuses here for
his failure to comply, these excuses were not presented to
the district court. District courts are not obliged to scour the
record looking for factual disputes. Waldridge v. Am. Hoechst
Corp., 24 F.3d 918, 922 (7th Cir. 1994). The district court’s ap-
plication of Rule 56.1 here was no abuse of discretion.
22 Nos. 14-1707, 14-2481
1. Jeppesen: No Evidence of Causation
In their complaint, the plaintiffs allege Jeppesen negli-
gently prepared the navigation charts the pilots used in con-
ducting their approach to the Lockhart River airfield. They
claim that the failure of Jeppesen’s charts to include the ele-
vation of the terrain directly beneath the flight path, the fail-
ure to depict any terrain with colored contours and values,
and the failure to depict an offset between the approach and
the runway caused the pilots to believe they were safely fly-
ing over a valley and not over the mountain into which they
ultimately crashed. They also allege that the manner in
which other information was depicted and the failure to in-
clude certain information on the Jeppesen charts caused the
pilots to become confused, lose situational awareness, be-
lieve they were further along the flight path than they were,
descend below the minimum safe altitude and crash. The
problem however is that the plaintiffs have failed to come
forward with any evidence from which a reasonable jury
could infer causation.
Under Illinois law,6 in a products liability action, whether
based on strict liability or negligence, the plaintiff must
demonstrate a causal relationship between the injury and the
manufacturer’s product. Tragarz v. Keene Corp., 980 F.2d 411,
418 (7th Cir. 1992) (citing Zimmer v. Celotex Corp., 549 N.E.2d
881, 883 (Ill. App. Ct. 1989)). The causal relationship can be
6 Like the district court, we apply Illinois law because Jeppesen as-
serts, and the plaintiffs do not contest, that there is no conflict between
federal, Illinois, and Queensland law on this issue. Gould, 1 F.3d at 549
n.7 (“Where the parties have not identified a conflict between the two
bodies of state law that might apply to their dispute, we apply the law of
the forum state—here, Illinois.”).
Nos. 14-1707, 14-2481 23
proven by circumstantial evidence. Id. But in order to get to
the jury, the plaintiff must demonstrate more than a mere
possibility that the product caused the injury. Id. Rather, the
plaintiff must come forward with evidence justifying an in-
ference of probability. Id.
First, we note that the plaintiffs say the district court im-
posed an incorrect burden on them. They claim that the dis-
trict court required them to show that the defects in the de-
fendants’ products probably contributed to the crash, but the
plaintiffs’ only burden was to show an inference of probabil-
ity. We disagree. The district court cited and applied the cor-
rect standard.
Given that the plaintiffs failed to comply with Rule 56.1,
the district court tried to give them something by looking at
the conclusions of the ATSB report to determine whether
anything in the report supported causation. But the plaintiffs
argue that reliance on the conclusions of this report was im-
proper (despite relying upon the same report in trying to
piece together evidence warranting an inference of causa-
tion). They claim that the district court should not have re-
lied upon the inadmissible conclusions of the ATSB report
because the ATSB report used a standard of a 66% or more
likelihood to determine whether something was a “contrib-
uting safety factor,” but the burden in civil litigation in Illi-
nois is only 50% or more likelihood. But the district court did
not heighten the burden of proof for the plaintiffs. It knew
that the report used a 66% or greater standard. It did not rely
upon the ATSB report to find that the plaintiffs could not
survive summary judgment. It relied on the fact that no evi-
dence was properly before it that would warrant an infer-
ence of causation (since the plaintiffs had not complied with
24 Nos. 14-1707, 14-2481
Rule 56.1). It merely looked at the ATSB report to determine
whether anything in it could warrant such an inference. But
if we disregard the conclusions of the ATSB report—as the
plaintiffs contend we should—we are still left with nothing
to support an inference of causation.
There is no evidence from which a reasonable jury could
infer that Jeppesen’s charts probably contributed to the
crash. No one survived the crash. There is no cockpit voice
recording. We do not know for sure whether or not the pi-
lots were using the Jeppesen charts when they descended.
Even if they were using the charts, there is no evidence from
which a jury could infer that the plaintiffs’ version of the ac-
cident actually occurred. The plaintiffs do not argue that the
Jeppesen charts were inaccurate or did not comply with the
ASA’s requirements. They mostly rely on the factual find-
ings of the ATSB report which described various ways that
the charts could have been improved. But they have nothing
to establish that any flaws in the charts actually caused the
pilots to lose situational awareness or otherwise decide to
descend below the minimum safe altitude. The plaintiffs
would like for us to allow this case to reach a jury based on
the argument that because they can establish that the charts
were flawed, we can infer that the charts probably contribut-
ed to the crash. But this speculation is impermissible. See
Tragarz, 980 F.2d at 418; Rahic v. Satellite Air-Land Motor Serv.,
Inc., 24 N.E.3d 315, 322 (Ill. App. Ct. 2014) (“Liability against
a defendant cannot be predicated on speculation, surmise, or
conjecture.”).
We agree with the district court that there was no evi-
dence properly before the district court that Jeppesen’s
Nos. 14-1707, 14-2481 25
charts probably contributed to the crash,7 so summary
judgment was appropriate.
2. Honeywell
On appeal, the plaintiffs claim that Honeywell’s GPWS
failed to give an alert and therefore caused the crash. They
also claim that Honeywell negligently sold the GPWS to the
initial operator when it knew the design of the GPWS was
outdated and that the more effective EGPWS was available,
and failed to advise this initial purchaser to get an EGPWS
instead of a GPWS.
First we must decide which law governs the plaintiffs’
claims against Honeywell. At summary judgment, Honey-
well argued that the court should apply Washington law be-
cause the relevant conduct—the design and manufacture of
the GPWS unit—occurred in Washington. However, on ap-
peal, Honeywell no longer presses this argument, so it is
waived. Ricci v. Arlington Heights, Ill., 116 F.3d 288, 292 (7th
Cir. 1997) (arguments not raised in a brief are waived). Since
the plaintiffs contend that Illinois law applies, Honeywell
has not contested this, and the parties have not presented a
7 The plaintiffs argue that the district court went beyond the scope of
Rule 56.1 by ignoring their references to evidence in the record submit-
ted by the defendants, including deposition testimony from employees
of the defendants. They reference these depositions in their arguments to
this court as well. However, the full transcripts of these depositions were
not part of the defendants’ summary judgment submissions. The evi-
dence the plaintiffs seek to rely on was not properly before the district
court. We have ignored it as well since our review is limited to the evi-
dence properly before the district court. Blue v. Hartford Life & Accident
Ins. Co., 698 F.3d 587, 596 (7th Cir. 2012).
26 Nos. 14-1707, 14-2481
conflict in the two bodies of law to this court, we apply Illi-
nois law. See Gould, 1 F.3d at 549.
a. No Evidence of Causation
With respect to the plaintiffs’ defective or negligent de-
sign and manufacture claims, we find that, like Jeppesen, the
plaintiffs have not presented any evidence from which a rea-
sonable jury could infer that any defect in the GPWS proba-
bly contributed to the crash. See Tragarz, 980 F.2d at 418.
Again, the plaintiffs contend that the district court imposed
a heightened burden regarding causation on them and that
the district court improperly relied upon conclusions of the
ATSB report. For the reasons stated in the Jeppesen discus-
sion above, these arguments are rejected.
No GPWS unit was found in the wreckage, so we do not
know for sure whether the GPWS was on the Aircraft that
day. The Aircraft’s cockpit voice recorder was not function-
ing, so it did not capture the crew’s dialogue or any alerts
that a GPWS may have provided, and there are no surviving
witnesses to testify about the performance of the GPWS. Be-
cause of these limitations, the plaintiffs rely largely on the
ATSB report to argue that the GPWS was defective and its
defects caused the crash.8 According to the factual findings
of the ATSB report, a functioning GPWS would have given a
“terrain, terrain” warning at 25 seconds before impact,
which the pilots may have ignored because the same warn-
ing is given when an aircraft has cleared terrain. It also
8 Again, the plaintiffs seek to rely on other evidence which they
failed to submit to the district court in compliance with Local Rule 56.1.
The district court ignored that evidence, and so do we. See Blue, 698 F.3d
at 596.
Nos. 14-1707, 14-2481 27
would have given a “terrain, terrain, pull up” warning at
five seconds before impact. The plaintiffs argue that the
GPWS computer must have been defective because the flight
crew did not pull up as the plane approached the South Pap
ridge. A functioning GPWS would have given an alert five
seconds before impact, but the flight crew did not pull up in
a manner that would indicate a response to the five-second
warning. But regardless, according to the ATSB report, an
alert five seconds before impact would not have provided
the flight crew with enough time to avoid crashing into the
ridge (and the plaintiffs do not contend that it would have).
So even if the plane was fitted with a GPWS manufactured
by Honeywell, and the GPWS malfunctioned or was defec-
tive as the plaintiffs claim, the plaintiffs have not presented
any evidence from which a jury could conclude that any de-
fect in the GPWS contributed to the crash.
We note that at times, the plaintiffs also seem to argue
that the GPWS was defective because it did not give more
advanced warnings like the EGPWS would have. Expert tes-
timony is required to establish that a product is defective or
unreasonably dangerous, Show v. Ford Motor Co., 659 F.3d
584, 588 (7th Cir. 2011), but the plaintiffs have failed to pre-
sent such evidence. Also, a product is not defective simply
because an improved product hits the market that does more
than the previous version. See Salerno v. Innovative Surveil-
lance Tech., Inc., 932 N.E2d 101, 111 (Ill. App. Ct. 2010) (stat-
ing a manufacturer’s duty to design reasonably safe prod-
ucts “does not require the product to reflect the safest design
possible … . [T]he threshold question is not whether the
product could have been made safer, but whether it is dan-
gerous because it fails to perform in the manner reasonably
28 Nos. 14-1707, 14-2481
to be expected in light of its nature and intended function.”)
(internal citations and quotations omitted).
b. No Duty to Warn
And with this mention of the EGPWS, we move to the
plaintiffs’ last claim on appeal, which is that the district
court erred in finding that Honeywell did not have a duty to
warn operators of the need to install an EGPWS. The plain-
tiffs contend that the district court failed to consider their
claim that Honeywell did not advise the initial purchaser of
the GPWS (the Mexican airline) of the alleged “defects” in
the GPWS and that it should instead purchase an EGPWS. In
their opening brief, the plaintiffs did not contest the district
court’s finding that Honeywell did not have a duty to warn
Transair, so that argument is waived. See Carroll v. Lynch, 698
F.3d 561, 568 (7th Cir. 2012).
In their reply brief, the plaintiffs cite generally Proctor v.
Davis, 682 N.E.2d 1203 (Ill. App. Ct. 1997) and Fuller v. Fend-
All Co., 388 N.E.2d 964 (Ill. App. Ct. 1979) for the proposition
that Honeywell had a duty to warn the initial purchaser of
defects in the design of the GPWS. We agree with Honey-
well that this argument is likely waived, since the plaintiffs
did not cite to any legal authority to support their proposi-
tion that Honeywell had a duty in their opening brief. See
Mahaffey v. Ramos, 588 F.3d 1142, 1146 (7th Cir. 2009) (“Per-
functory, undeveloped arguments without discussion or ci-
tation to pertinent legal authority are waived.”). But even
turning to the merits of the plaintiffs’ claim, we agree with
the district court that Honeywell did not have a duty to
warn the initial purchaser. That is because the plaintiffs have
not established that there was any “defect” in the design of
the GPWS of which to warn. They failed to comply with
Nos. 14-1707, 14-2481 29
Rule 56.1, so little evidence in their favor is properly before
this court. They have offered no evidence that the GPWS
was actually defectively designed or dangerous. Their fail-
ure to come forward with expert testimony regarding any
alleged design defect or dangerousness is fatal to their claim.
See Salerno, 932 N.E.2d at 112 (“Because products liability ac-
tions involve specialized knowledge or expertise outside of a
layman’s knowledge, the plaintiff must provide expert tes-
timony” to establish the product’s dangerousness.).
Because the plaintiffs’ claims of defect and causation are
not supported by any evidence properly before the district
court and because Honeywell owed no duty to warn any
operator of the Aircraft of the alleged defects in the GPWS,
the district court properly granted Honeywell’s motion for
summary judgment.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgments of
the district court.