                               In the

     United States Court of Appeals
                 For the Seventh Circuit
No. 16-4085

CEDRIC J. SMITH,
                                                  Plaintiff-Appellant,

                                  v.


UNITED STATES OF AMERICA,
                                                 Defendant-Appellee.


         Appeal from the United States District Court for the
                     Central District of Illinois.
            No. 4:14-cv-4009 — Harold A. Baker, Judge.


       ARGUED APRIL 18, 2017 — DECIDED JUNE 23, 2017


   Before EASTERBROOK, KANNE, and ROVNER, Circuit Judges.
    ROVNER, Circuit Judge. Cedric Smith brought suit against
the federal government under the Federal Tort Claims Act, 28
U.S.C. §§ 2671, et seq., for injuries he sustained when he fell off
a stool at the federal courthouse in Rock Island, Illinois. Smith
relies on the doctrine of res ipsa loquitur to impute negligence
to the government. The district court concluded that Smith had
not made a showing sufficient to trigger the res ipsa loquitur
2                                                    No. 16-4085

inference of negligence. R. 12. We find to the contrary and
reverse and remand for further proceedings.
                                I.
   As the case was decided on summary judgment, we take
the facts in the light most favorable to Smith. E.g., Vega v. New
Forest Home Cemetery, LLC, 856 F.3d 1130, 1131 (7th Cir. 2017).
   On the morning of January 18, 2013, Smith was transported
from the Rock Island County Jail to the U.S. District Court-
house in Rock Island to be arraigned on a federal weapons
charge. Following the arraignment before Judge Darrow,
deputy U.S. marshals took Smith to an interview room so that
he could meet with his appointed counsel to discuss the case.
    The U.S. Marshals Service maintains two secure attorney
interview rooms in the courthouse where lawyers may confer
with clients who are in the government’s custody. The Mar-
shals Service inspects the furniture and equipment in the
rooms on a weekly basis. The room to which Smith was taken
is divided in half by a wall with a large screened opening that
enables the lawyer sitting on one side of the screen to speak
with his (detained) client sitting on the other. On the detainee’s
side of the room there is a metal stool attached to the wall by
means of a swing-arm that permits the stool to be positioned
in front of the wire screen or moved out of the way to accom-
modate a detainee in a wheelchair. The Marshals Service
controls access to the room, escorting a detainee like Smith into
his side of the room and separately buzzing the attorney into
the other half of the room by means of an electronic lock.
Typically, a detainee’s handcuffs are removed when he is
brought into the room, but his leg irons are left in place.
No. 16-4085                                                    3

   According to Smith, when he entered the interview room
and sat down on the stool (which was already positioned in
front of the screen), the stool “broke” and tilted backwards,
with the front of the stool rising and the back descending,
causing him to fall to the floor and strike his head. As he
looked up from the floor at the underside of the stool, he could
see that there were bolts missing. When he tried to balance
himself on the stool as he lifted himself from the floor, it
wobbled again.
    Smith’s attorney summoned a court security officer to help
Smith, and he was sent back to the Rock Island County Jail
with instructions that he be seen immediately by the jail nurse.
When the nurse examined Smith and noted that his speech was
slurred, she arranged for him to be taken to the emergency
room at a local hospital. There he was treated for a stroke. By
his own account, Smith continues to suffer a variety of adverse
effects from the incident, including weakness on the left side of
his body, difficulty speaking, headaches, and memory impair-
ment.
   Smith avers that when he returned to the Rock Island
courthouse at a later date and used the same interview room,
he examined the stool and found that it had been welded into
place. The stool no longer wobbled.
   Smith filed an administrative tort claim against the Mar-
shals Service alleging that the stool was broken on January 18,
2013, and that he had fallen and struck his head as a result.
That claim was denied.
4                                                         No. 16-4085

    Smith then brought suit against the government under the
FTCA.1 The district court recruited counsel to represent him
pro bono. Smith asserted multiple claims below, but the sole
claim that he pursues on appeal is one of ordinary negligence.
That claim is premised on the theory that the government
breached the duty of care that it owed to Smith to maintain
reasonably safe premises at the courthouse and in particular to
keep the stool in the interview room in a condition safe for use.
Smith relied on the doctrine of res ipsa loquitur to impute
negligence to the government. Smith reasoned that the
government (through the Marshals Service) controlled access
to the room; that it inspected the equipment in the room and
was responsible for maintenance of that equipment, including
the stool; and that the stool did not function as intended when
it caused him to fall to the floor. These circumstances, Smith
asserted, supported an inference that negligence on the part of
the government was the cause of the mishap.
   Judge Baker, however, was not convinced that the facts
warranted resort to the res ipsa loquitur inference of negli-
gence. He noted that the ill-fated conference between Smith
and his counsel took place at approximately 11 a.m.; conse-
quently, “[i]t is possible that others could have damaged the
seat earlier that day or in the days prior. It is also possible that
[Smith] could have, through inadvertence or otherwise,
damaged the seat himself.” R. 12 at 8–9. For that matter, the
judge noted, Smith might have simply tilted backward and


1
 Smith initially named the U.S. Attorney General and the Marshals Service
as defendants, but the district court ordered the United States to be
substituted as the appropriate defendant. R. 9 at 2 ¶ 2.
No. 16-4085                                                        5

fallen off the stool without the stool having malfunctioned in
any way. Id. at 9. In sum, the facts did not support an inference
that negligence on the part of the government was the only
explanation for the fall. Id.
                                 II.
   We review the district court’s summary judgment decision
de novo. E.g., Vega, supra, 856 F.3d at 1132. As we explain
below, because the evidence that Smith presented to the court
was sufficient to meet the criteria for application of the res ipsa
loquitur doctrine, a factfinder could infer that the government
was negligent. The decision to enter summary judgment in the
government’s favor was thus in error.
    The FTCA incorporates the substantive law of the state
where the alleged tort occurred. E.g., Buscaglia v. United States,
25 F.3d 530, 534 (7th Cir. 1994). Thus, Smith’s negligence claim
is subject to Illinois law, which requires him to establish that
the government owed him a duty of care, that it breached that
duty, and that the breach proximately caused his injuries. See,
e.g., Calles v. Scripto-Tokai Corp., 864 N.E.2d 249, 270 (Ill. 2007).
   There is no dispute that the government owed Smith, as a
detainee in its custody, a duty of care. The government
concedes that “it owes a duty to provide pretrial detainees, like
Smith, with a reasonably safe environment and to maintain the
premises in a reasonably safe condition.” Government Brief 13.
The focus of the parties’ dispute is on whether Smith has
presented enough evidence to permit the inference that the
government breached its duty to Smith with respect to the
stool.
6                                                       No. 16-4085

    Lacking direct evidence of negligence on the government’s
part, Smith resorts to the doctrine of res ipsa loquitur (“the
thing speaks for itself”). See Blasius v. Angel Auto., Inc., 839 F.3d
639, 649 (7th Cir. 2016). In circumstances where such proof is
primarily within the knowledge and control of the defendant,
this doctrine permits the plaintiff to resort to a particular type
of circumstantial evidence as support for the notion that the
defendant was negligent. See Smith v. Eli Lilly & Co., 560 N.E.2d
324, 339 (Ill. 1990); Metz v. Central Ill. Elec. & Gas Co., 207
N.E.2d 305, 307 (Ill. 1965); Aguirre v. Turner Constr. Co., 501
F.3d 825, 831 (7th Cir. 2007) (Illinois law). To wit, if the plaintiff
can show that he was injured (1) in circumstances that ordi-
narily would not occur absent negligence, (2) by an agency or
instrumentality within the defendant’s management or control,
then res ipsa loquitur permits the factfinder to infer that the
defendant was negligent. Metz, 207 N.E.2d at 307; see also
Heastie v. Roberts, 877 N.E.2d 1064, 1076 (Ill. 2007); Gatlin v.
Ruder, 560 N.E.2d 586, 590–91 (Ill. 1990). Other evidence may
point to a contrary conclusion, and proof sufficient to trigger
the res ipsa loquitur doctrine permits but does not compel the
inference that the defendant was negligent. Metz, 207 N.E.2d at
307. But if Smith’s proof satisfies the criteria for res ipsa
loquitur, then he has shown enough to preclude summary
judgment on the question of negligence. See id. (adopting view
that “the inference, or presumption, [of negligence] does not
simply vanish or disappear when contrary evidence appears,
but remains to be considered with all the other evidence in the
case and must be weighed by the jury against the direct
No. 16-4085                                                                    7

evidence offered by the party charged”); see also Imig v. Beck,
503 N.E.2d 324, 329–30 (Ill. 1986).2
    The evidence satisfies the first of the two criteria. A prop-
erly functioning stool of the type described should not wobble
so as to tip its occupant onto the floor. But, on Smith’s repre-
sentation of the facts, wobble it did. The scenario Smith has
described bespeaks a malfunctioning stool, and the malfunc-
tion—which would pose a hazard to anyone using the
stool—points to negligence. See Robinson v. Peoples Gas Light &
Coke Co., 64 N.E.2d 556 (Ill. App. Ct. 1946) (abstract of op.) (res
ipsa loquitur applied where customer in defendant’s sales
room invited to sit in folding chair and chair collapsed when
customer sat down; on subsequent inspection, rivet on side of
chair observed to have come out of slot); Hunter v. Alfina, 251
N.E.2d 303, 305–06 (Ill. App. Ct. 1969) (summarizing facts of
Robinson and collecting cases in which res ipsa loquitur has
been applied to collapse of seating devices in business estab-
lishments).




2
    Although the government has contended that Smith must present
additional evidence that it had notice of any problem with the stool, see
Schmid v. Fairmont Hotel Co.-Chicago, 803 N.E.2d 166, 174 (Ill. App. Ct. 2003)
(liability under rules of ordinary negligence requires some knowledge,
actual or constructive, of danger complained of) (quoting Prater v. Veach,
181 N.E.2d 739, 741 (Ill. App. Ct. 1962)), the inference triggered by the res
ipsa loquitur doctrine would include the proposition that the defendant had
notice of the defective nature of the instrumentality that caused the
plaintiff’s injury. See Higgins v. White Sox Baseball Club, Inc., 787 F.2d 1125,
1129 (7th Cir. 1986) (Illinois law); DeBello v. Checker Taxi Co., 290 N.E.2d 367,
370 (Ill. App. Ct. 1972).
8                                                            No. 16-4085

    Judge Baker cited the possibility that Smith might simply
have fallen from the stool without it having malfunctioned in
any way; and the government pursues the same point on
appeal. See Britton v. Univ. of Chicago Hosps., 889 N.E.2d 706,
709 (Ill. App. Ct. 2008) (“if two reasonable inferences are
deducible from the same facts, one of which comports with
defendant’s responsibility and the other is directly contra
thereto, neither should be indulged to permit recovery by use
of the doctrine of res ipsa loquitur … ”); Nickel v. Hollywood
Casino-Aurora, Inc., 730 N.E.2d 1212, 1215 (Ill. App. Ct. 2000)
(res ipsa loquitur does not apply where injury “can be as
readily attributed to pure accident as to negligence”). Smith
does not simply represent that he fell from the stool, a mishap
that plausibly could be explained by him slipping off the stool
due to his own misadventure as by the stool’s malfunction. Cf.
id. at 1213, 1215–16 (casino patron with difficulty walking and
standing alleged that metal stool slid out from under her as she
tried to sit down, causing her to fall to floor; she did not know
what caused stool to slip away from her nor could she recall
condition of stool). Smith avers that the stool wobbled and
tipped him backwards. (His averment regarding missing bolts
reinforces the notion that the stool was broken.) Certainly he
could be wrong, and perhaps a factfinder might conclude that
the stool did not, in fact, wobble.3 But at this stage of the


3
  There is (disputed) testimony in the record that no one had fallen from
the stool previously; that no detainee had ever complained about the stool
posing a danger; and that the stool had never been observed in a state of
disrepair. We also note that Smith’s federal defender, when deposed,
testified that shortly after Smith took a seat on the stool, he reared back
                                                              (continued...)
No. 16-4085                                                                 9

proceedings, we must credit Smith, who avers unequivocally
that the stool in fact did wobble and that he was tipped onto
the floor as a result. Contrary inferences would be for the
factfinder to draw (or not) after a trial. Maroules v. Jumbo, Inc.,
452 F.3d 639, 646 (7th Cir. 2006).
    The evidence also satisfies the control element of res ipsa
loquitur. The stool was within a room maintained and con-
trolled by the government. Access to the room is regulated by
the Marshals Service and for obvious reasons is granted to a
limited universe of individuals under its supervision. The
government must be concerned not only that the room
functions for its intended purpose (attorney-client conferences)
but that the room is secured—in the sense that a detainee
cannot escape from it; that an unauthorized person cannot
access it from the outside (to help a detainee escape, to harm a
detainee, or to leave a weapon or other contraband for the
detainee); and that a detainee cannot in some way use the
contents of the room to work mischief (to make a weapon, for
example). Given such safety concerns, it comes as no surprise
that the government admits that the Marshals Service regularly
inspects the stool and the other equipment in the room. Cf.
Hunter, 251 N.E.2d at 306 (distinguishing respective duties of


3
  (...continued)
slightly, his eyes widened, and he made a gurgling noise before falling to
the floor; counsel had the impression that Smith was adjusting himself on
the stool and lost his balance. The attorney’s recollection is not necessarily
inconsistent with Smith’s account of what caused him to fall. But Smith had
suffered a stroke prior to this incident, and the government cites the
attorney’s version as support for the notion that a stroke caused Smith to
fall rather than the other way around.
10                                                     No. 16-4085

care owed by owner of private home and proprietor of
business establishment).
    The government nonetheless argues, and the district court
concluded, that the Marshals Service did not have literally
exclusive control over the stool given that Smith and other
detainees regularly used the room (and likely had done so on
the day Smith was injured) and may themselves have been
responsible for the alleged malfunctioning of the stool.
    However, as the Illinois Supreme Court has recognized, the
control criterion of the res ipsa loquitur doctrine is a flexible
rather than a rigid standard. Heastie, 877 N.E.2d at 1076. “[T]he
key question is whether the probable cause of the plaintiff’s
injury was one which the defendant was under a duty to the
plaintiff to anticipate or guard against.” Id. (collecting cases);
see also Nichols v. City of Chicago Heights, 31 N.E.3d 824, 842 (Ill.
App. Ct. 2015); Aguirre, 501 F.3d at 831 (citing Lynch v. Precision
Mach. Shop, Ltd., 443 N.E.2d 569, 573 (Ill. 1982)) .
    If indeed the stool malfunctioned, as we have assumed
based on Smith’s account of events, then his was an injury that
the government was under a duty to anticipate and guard
against. The government maintains the room and the equip-
ment therein, and admits that it inspects the equipment,
including the stool, on a regular basis. A broken stool, regard-
less of the cause, would be the type of condition such inspec-
tions are aimed at discovering. Indeed, given the security
concerns that a loose bolt, for example, might present in the
wrong hands, the Marshals Service would have a strong
incentive to check the stool to make sure it was secure.
No. 16-4085                                                     11

    The fact that a detainee is typically left alone to confer in
private with his lawyer does not defeat the notion that the
room—and the stool—remain within the control of the
government even when a deputy marshal is not present. The
stool does require a user to “operate” it in the way that a
revolving door does, for example, such that a malfunction
might just as likely be the result of negligence on the part of the
user as opposed to the premises owner. Cf. Britton, 889 N.E.2d
at 709 (pointing out that revolving door cannot operate itself
and that injured user or previous user may have applied
excessive force to door, causing door glass to shatter). When
Smith was escorted into the interview room, the stool had
already been placed in front of the screen; he simply had to sit
down. The sort of malfunction that Smith has described is the
kind of hazard that the government may be expected to guard
against.
   The evidence, in sum, meets the criteria for application of
the res ipsa loquitur doctrine. The record would therefore
permit the factfinder to infer negligence on the part of the
government.
                               III.
   As there is a dispute of material fact as to whether the
government was negligent, summary judgment was improper.
The judgment is REVERSED, and the case is REMANDED to
the district court for further proceedings consistent with this
opinion.
