Diane Parker v. Four Seasons Hotel

Filing

Filed opinion of the court by Judge Rovner. REVERSED and REMANDED. William J. Bauer, Circuit Judge; Ilana Diamond Rovner, Circuit Judge and David F. Hamilton, Circuit Judge. [6809736-1] [6809736] [16-1244]

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In the

United States Court of Appeals
For the Seventh Circuit
No. 16-1244
DIANE PARKER,
Plaintiff-Appellant,
v.
FOUR SEASONS HOTELS, LIMITED,
Defendant-Appellee.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:12-cv-03207 — Manish S. Shah, Judge.

ARGUED SEPTEMBER 27, 2016 — DECIDED JANUARY 6, 2017

Before BAUER, ROVNER, and HAMILTON, Circuit Judges.
ROVNER, Circuit Judge. Diane Parker was injured when a
sliding glass door in the bathroom of her Four Seasons Hotel
room shattered. The hotel admitted negligence and a jury
awarded Parker $20,000 in compensatory damages, which was
reduced to $12,000 after a motion for set-off was granted. The
district court declined Parker’s request to put the question of

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punitive damages to the jury, finding her evidence insufficient
as a matter of law. We reverse and remand for further proceedings on the question of punitive damages.
I.
Four Seasons asserts that the federal courts lack jurisdiction
over this diversity suit because the amount in controversy does
not exceed $75,000, citing the ultimate award of $12,000. But
the requirements for diversity jurisdiction (including the
amount in controversy) must be satisfied only at the time the
suit is filed. Rosado v. Wyman, 397 U.S. 397, 405 n.6 (1970)
(noting the well-settled rule that a federal court does not lose
jurisdiction over a diversity action which was well founded at
the outset even though one of the parties may later change
domicile or the amount recovered falls short of the statutory
threshold); St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S.
283, 289–90 (1938) (“Events occurring subsequent to the
institution of suit which reduce the amount recoverable below
the statutory limit do not oust jurisdiction.”). Four Seasons
does not deny that, when Parker filed her complaint, she
brought claims in apparent good faith for compensatory and
punitive damages exceeding $150,000. Dart Cherokee Basin
Operating Co. v. Owens, 135 S. Ct. 547, 553 (2014) (“When a
plaintiff invokes federal-court jurisdiction, the plaintiff’s
amount-in-controversy allegation is accepted if made in good
faith.”); Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 541 (7th
Cir. 2006) (once the facts supporting the amount in controversy
have been established, the proponent’s estimate of the claim’s
value must be accepted unless there is legal certainty that the
controversy’s value is below the threshold). Parker’s claimed

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damages are well in excess of the requisite amount, and federal
jurisdiction is secure.
We turn to the facts, which we will simplify to focus on the
issue at hand. Parker and her sister, Cindy Schiavon, checked
into the Four Seasons on April 27, 2007, requesting adjoining
rooms. After a short delay at the desk, Parker was assigned to
room 3627 and her sister was given the room next door. In
Parker’s room, a sliding glass door separated the shower area
from the vanity area.1 On the day after check-in, Parker took a
shower and attempted to exit the shower area by opening the
glass door. As she slid the door, it exploded suddenly, raining
shards of glass onto her naked body and causing her injuries.
Parker’s sister summoned help from the front desk. Shortly
thereafter, Joseph Gartin, an engineer employed by the hotel,
arrived to investigate the incident. According to Schiavon’s
affidavit, Gartin:
immediately looked up at the overhead track
and said: “Looks like the stopper moved again!”
… He explained that the hotel had recently
undergone renovations, and that a “bunch” of
the newly installed sliding glass doors had
exploded because the overhead track stoppers
were not working properly. That allowed the
door-handles to crash into the walls and cause
the glass doors to explode. This was one of the

1

This door is referred to in the record as a “barn door.” Apparently, it is
separate from or in addition to a shower door.

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rooms on the “do not sell” list. You might want
to check yours.

R. 101-7, at 2. Taking Gartin’s advice, Schiavon checked the
sliding door in her bathroom in the adjoining room and
determined that it suffered from the same defect.
Parker also uncovered evidence suggesting that the sliding
door in her room had shattered before the incident that caused
her injury, and that the door had been replaced. An October
2007 email between third party contractors working on door
breakage issues revealed that several rooms configured in the
same manner as Parker’s room had similar issues:
BobHere is an update from Contract Mirror &
Supply on the shower doors at the Four Seasons.
CMS installed 150 tub doors, 136 shower doors,
and 136 sliding barn doors during the renovation. We have had one shower door break (room
4401) and five sliding glass barn doors break
(rooms 3427, 3527, 3627 twice, and 4419). The
cause of the shower door breakage was identified and all of the shower doors were inspected
to be sure that there were no additional problems. Since the X27 rooms represent 80% of the
barn door failures these rooms were examined
to identify what was different in these rooms
that may have caused the problems. The thicker
wall construction in this room leaves less clearance for the door (+/- ½” clearance versus +/- 1"
in other rooms) and the tight tolerance may

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contribute to the breakage because the door may
deflect up to ½” if someone pulls on the door
while operating it which would allow the corner
of the glass to hit the stone. CMS has been
working with Jim DeFily to add corner protection to the glass to protect the corners in the
event of impact and CMS is also researching a
continuous bottom guide that was suggested by
the hotel.
R. 101-2.2
The hotel conceded negligence and so the only issue for
trial was damages. But Four Seasons moved to block Parker
from raising the issue of punitive damages before the jury,
contending that her evidence was insufficient as a matter of
law to present that claim to the jury. The district court agreed,
and after trial, Parker recovered $20,000 in compensatory
damages which was reduced to $12,000 after set-off. Parker
appeals.

2

Judge Leinenweber found this email admissible under the residual
exception to the hearsay rule. Parker v. Four Seasons Hotels, Ltd., 2014 WL
1292858, *3 (N.D. Ill. March 31, 2014). Although Four Seasons argues in its
response brief that the email is inadmissible, the hotel fails to acknowledge
that the district court rejected this argument, and fails to make any
argument that the district court abused its discretion in deeming the email
admissible. United States v. Ferrell, 816 F.3d 433, 438 (7th Cir. 2015) (we
review a district court’s decision on the admissibility of hearsay statements
for abuse of discretion, reversing if the decision strikes us as fundamentally
wrong). By failing to argue that the district court abused its discretion, Four
Seasons has waived any claim regarding the admissibility of this evidence.

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II.

Parker proceeded pro se through much of the litigation in
the district court and also represented herself in this appeal. A
trial court is obligated to liberally construe a pro se plaintiff’s
pleadings. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Kelley v.
Zoeller, 800 F.3d 318, 325 (7th Cir. 2015); Nichols v. Michigan City
Plant Planning Dept., 755 F.3d 594, 600 (7th Cir. 2014). On
appeal, we too construe pro se filings liberally, and will address
any cogent arguments we are able to discern in a pro se
appellate brief. Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir.
2001). The Honorable Harry Leinenweber oversaw the case
from filing in April 2012 until July 2014, when it was transferred to the newly forming docket of the recently appointed
Honorable Manish S. Shah. Shortly before his transfer off the
case, Judge Leinenweber ruled on the Four Seasons’ motion for
summary judgment. Faced with the plaintiff’s rambling pro se
complaint, a document that did not set forth any particular
counts, Judge Leinenweber liberally construed the document
and inferred six possible causes of action under Illinois law:
premises liability, common law fraud, violation of the Illinois
Safety Glazing Materials Act and the Chicago Municipal Code,
negligence in the installation of the sliding glass doors,
spoliation of the evidence, and intentional infliction of emotional distress. Judge Leinenweber granted summary judgment
in favor of the defendants on all of these claims except premises liability.
Under Illinois law, property owners owe to their invitees a
duty to maintain the premises in a reasonably safe condition.
Ward v. Kmart Corp., 554 N.E.2d 223, 227 (Ill. 1990). See also
Marshall v. Burger King Corp., 856 N.E.2d 1048, 1058 (Ill. 2006).

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In a premises liability action, a plaintiff has the burden of
proving: (1) the existence of a condition that presents an
unreasonable risk of harm to persons on the premises; (2) that
the defendants knew, or should have known, that the condition
posed an unreasonable risk of harm; (3) that the defendants
should have anticipated that individuals on the premises
would fail to discover or recognize the danger or otherwise fail
to protect themselves against it; (4) a negligent act or omission
on the part of the defendant; (5) an injury suffered by the
plaintiff; and (6) that the condition of the property was a
proximate cause of the injury to the plaintiff. Jordan v. National
Steel Corp., 701 N.E.2d 1092, 1094 (Ill. 1998); Mueller v. PharMor, Inc., 784 N.E.2d 226, 231 (Ill. App. Ct. 2000). Judge
Leinenweber concluded that Schiavon’s affidavit and the
contractor’s email provided sufficient evidence to preclude
summary judgment on a premises liability claim. The court did
not specifically address whether Parker’s premises liability
claim was limited to compensatory damages for negligence or
whether she could also seek punitive damages for wilful and
wanton conduct.
After the case had been transferred to the docket of Judge
Shah and shortly before trial, Four Seasons submitted a motion
seeking to prohibit the plaintiff from presenting a claim for
punitive damages to the jury. Although the hotel characterized
its filing as a motion in limine, it was really a motion for partial
summary judgment on the issue of punitive damages, and the
district court appeared to treat it as such. Judge Shah considered whether Parker had presented sufficient evidence to meet
the standard for punitive damages under Illinois law, specifically whether she had evidence of wilful and wanton conduct

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by the defendant. Judge Shah agreed with Judge Leinenweber
that Parker had sufficient evidence to present to the jury a
premises liability claim founded on negligence but concluded
that the same evidence was insufficient as a matter of law to
prove the wilful and wanton conduct that could justify
punitive damages.
Parker’s primary claim on appeal is that the district court
erred when it concluded that her claim for punitive damages
failed as a matter of law. Four Seasons contends that we should
review the district court’s decision for abuse of discretion
because it involves the admission or exclusion of evidence,
matters peculiarly within the competence of the district court.
But the basis of the court’s decision was whether a particular
claim could be sustained as a matter of law, not whether
evidence should be admitted or excluded.3 We therefore
review the district court’s grant of partial summary judgment
de novo, examining the record in the light most favorable to
Parker and construing all reasonable inferences from the
evidence in her favor. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986); Yahnke v. Kane County, Ill., 823 F.3d 1066, 1070
(7th Cir. 2016). Summary judgment is appropriate when there
are no genuine disputes of material fact and the movant is
3

In deciding the legal issue under review here, the district court also
determined the admissibility of certain evidence, namely, the email
regarding door problems. Admissibility is a threshold question because a
court may consider only admissible evidence in assessing a motion for
summary judgment. Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009). As
we noted above, Four Seasons made no argument that the district court
abused its discretion in finding the email admissible and thus only the
summary judgment decision is at issue at this stage.

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entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a);
Anderson, 477 U.S. at 255; Yahnke, 823 F.3d at 1070. The preliminary question of whether the facts of a particular case justify
the imposition of punitive damages is properly one of law.
Kelsay v. Motorola, Inc., 384 N.E.2d 353, 359 (Ill. 1978).
Under Illinois law, “punitive or exemplary damages may
be awarded when torts are committed with fraud, actual
malice, deliberate violence or oppression, or when the defendant acts willfully, or with such gross negligence as to indicate
a wanton disregard of the rights of others.” Kelsay, 384 N.E.2d
at 359. See also Stojkovich v. Monadnock Bldg., 666 N.E.2d 704,
712 (Ill. App. Ct. 1996) (same). Although Parker contends that
the hotel committed fraud when it failed to warn her at checkin time that her room contained a hazardous condition, like the
district court we conclude that Parker has presented no
evidence of fraud or intent to deliberately harm her. Instead,
the question is whether the hotel’s conduct was so grossly
negligent “as to indicate a wanton disregard of the rights of
others.” Kelsay, 384 N.E.2d at 359. Punitive damages serve to
punish the offender and to deter that party and others from
engaging in similar acts of wrongdoing in the future. Loitz v.
Remington Arms Co., 563 N.E.2d 397, 401 (Ill. 1990). “Because of
their penal nature, punitive damages are not favored in the
law.” Loitz, 563 N.E.2d at 401.
Illinois courts distinguish negligence from wilful and
wanton conduct. Stojkovich, 666 N.E.2d at 712; Loitz, 563 N.E.2d
at 402. One court described wilful and wanton conduct as “a
hybrid between acts considered to be negligent and intentional
acts.” Stojkovich, 666 N.E.2d at 712. Negligence that does not
justify punitive damages includes “mere inadvertence,

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mistake, errors of judgment and the like.” Stojkovich, 666
N.E.2d at 712; Loitz, 563 N.E.2d at 402. But punitive damages
may be awarded in cases involving “reckless indifference to
the rights of others,” or conduct that approaches the degree of
moral blame attached to intentional harm, where a defendant
inflicts a highly unreasonable risk of harm on another in
conscious disregard of that risk. Loitz, 563 N.E.2d at 402. In the
context of premises liability, wilful and wanton conduct
includes an act committed with reckless disregard for the
safety of others, “such as a failure, after knowledge of impending danger, to exercise ordinary care to prevent it or a failure
to discover the danger through recklessness or carelessness
when it could have been discovered by the exercise of ordinary
care.” Salazar v. Crown Enterprises, Inc., 767 N.E.2d 366, 371 (Ill.
App. Ct. 2002) (citing American Nat. Bank & Trust Co. v. City of
Chicago, 735 N.E.2d 551, 557 (Ill. 2000)).
The district court focused on Stojkovich, Loitz and Salazar in
finding that Parker did not meet the Illinois standard for
punitive damages. In Loitz, the plaintiff was injured when the
barrel of his Remington shotgun exploded, injuring his hand.
Remington had received reports of ninety-four shotgun barrel
explosions resulting in injury for this particular model. But the
company had investigated every reported incident and
determined the cause in each instance to be shells that had
been reused and overloaded by the user of the gun. The court
concluded that Remington’s conduct was not wilful and
wanton in part because guns are inherently dangerous instrumentalities and so the mere occurrence of an explosion without
more does not establish a level of misconduct sufficient to
justify punitive damages. Loitz, 563 N.E.2d at 404. The court

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further found that punitive damages were not warranted
because the plaintiff had cast no doubt on Remington’s good
faith in investigating prior explosions. Loitz, 563 N.E.2d at 407.
In Stojkovich, the plaintiff was injured while attempting to
escape from an elevator that had stalled between the second
and third floors of the historic Chicago building. The elevator
had stalled on seventeen prior occasions and five of the
stoppages had resulted in passengers being trapped. In each
prior instance, the elevator was serviced and became operable
again. The elevator was never taken out of service and the true
problem was not diagnosed until after the plaintiff fell down
the shaft while trying to leave the stalled elevator. There was
no evidence that the company responsible for maintaining the
elevator had ever failed to respond to service calls, failed to
attempt to repair the problematic elevator when called upon to
do so, or placed the elevator back in service knowing that it
was defective and remained unrepaired. 666 N.E.2d at 712–13.
Absent evidence that the company deliberately refused to
attempt repairs, or placed it back in service knowing both the
cause of the stoppages and that the cause had not been
remedied, the court declined to find that the company’s
conduct approached the degree of moral blame necessary to
justify punitive damages. 666 N.E.2d at 713.
Salazar addressed the duty of a landowner to a trespasser
on the land. The trespasser, a homeless person, was beaten to
death on the defendant’s unsecured property. His survivors
alleged that the property was in such a state of disrepair and
abandonment that it posed structural, sanitary and social
hazards that rendered it unreasonably dangerous even to
trespassers. In Illinois, landowners owe trespassers a duty only

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to refrain from wilful and wanton conduct. The court declined
to find that the landowner could be held responsible for the
criminal acts of a third party against a trespasser where the
plaintiff lacked evidence that the landowner engaged in any
intentional act or knew of other injuries or accidents caused by
the allegedly dangerous condition. Without that knowledge,
the court concluded that allowing the property to fall into
disrepair did not rise to the level of wilful and wanton conduct.
767 N.E.2d at 371.
With those standards in mind, we turn to Parker’s evidence
of wilful and wanton conduct here. The affidavit from
Schiavon and the email from the contractor working on the
door issues were Parker’s best evidence that the hotel knew
there was a serious problem with the sliding doors at the time
the room was rented to Parker. Parker had the admission of the
hotel’s engineer that the stopper had moved “again,” that a
“bunch” of the newly installed sliding glass doors had exploded because the overhead track stoppers were not working
properly, that the doors were crashing into the walls and
exploding, and that rooms affected by the problem had been
placed on a “do not sell” list. See Barton v. Chicago & N. W.
Transp. Co., 757 N.E.2d 533, 555 (Ill. App. Ct. 2001) (evidence of
substantially similar occurrences is admissible to show a
conscious disregard for the safety of others). She also had the
email suggesting that several doors had broken in a similar
manner and that the glass door in her very room had previously exploded and been replaced.
Although competing inferences could be drawn from this
evidence, on summary judgment we draw all reasonable
inferences in favor of the party opposing judgment, in this

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instance, Parker. Construing this evidence in Parker’s favor, it
would be fair to infer that the Four Seasons knew that there
was a problem with the glass doors generally, that the door in
Parker’s room had previously shattered, and that there was a
problem with the stopper that allowed the door handle to
come into contact with the wall, resulting in the shattering of
the glass door. It would also be fair to infer that the hotel knew
that the problem had not been fixed as of the time that Parker
checked into the room, and that the room had been taken out
of service for that very reason, and placed on a “do not sell”
list. Yet the hotel rented the room to Parker anyway. Although
Parker may not have presented evidence that the glass door
explosions had previously resulted in injury, at this stage she
need only show that injury was reasonably foreseeable. See
Barton, 757 N.E.2d at 556–57 (noting that in assessing substantially similar occurrences, the relevant test is not injuries
actually suffered but injuries reasonably foreseeable from such
incidents). Injury is more than reasonably foreseeable when a
hotel installs in a shower area a glass door that is prone to
exploding in regular use.
Parker asserts that her case is more like Mathias v. Accor
Economy Lodging, Inc., 347 F.3d 672 (7th Cir. 2003), than it is like
Stojkovich, Salazar or Loitz. In Mathias, a motel knowingly and
repeatedly rented out hotel rooms that it knew were infested
with bedbugs. Although the defendant claimed that it was
guilty of nothing more than simple negligence, we explained
that the hotel’s conduct easily fit the definition of gross
negligence and even recklessness because of the unjustifiable
failure to avoid a known risk. As we noted, rooms “that the
motel had placed on ‘Do not rent, bugs in room’ status never-

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theless were rented.” 347 F.3d at 675. The plaintiffs received a
room the motel had classified as “DO NOT RENT UNTIL
TREATED,” even though the room had not been treated.
Because the motel likely could not have rented any rooms at
the prices charged if the guests had been informed that the risk
of being bitten by bedbugs was appreciable, we concluded that
the failure to either warn the guests or to take effective
measures to control the bedbugs amounted to fraud and
probably battery as well. 347 F.3d at 675. The conduct therefore
met the standard for wilful and wanton conduct under Illinois
law, allowing a claim for punitive damages to proceed.
Parker’s case falls somewhere between Mathias on the one
hand and Stojkovich, Salazar or Loitz on the other. In both
Stojkovich and Loitz, the defendants investigated the problem
and believed they had addressed any danger. In Loitz, a case
involving a product the court characterized as inherently
dangerous, Remington could not control user errors in overloading shells and the company had investigated the problem
in good faith, finding no flaws in the construction of the
shotgun. See also Barton, 757 N.E.2d at 555–56 (distinguishing
Loitz from a case involving a passenger injured when
deboarding a commuter train because Loitz involved an
inherently dangerous product or situation and deboarding a
train stopped at a station is not inherently dangerous). In
Stojkovich, the elevator repair company thought that it had
fixed the problem each time the elevator had stalled, and no
one placed the elevator back in service knowing or even
suspecting that the true problem had not been fixed. In Salazar,
the property owner could not foresee the criminal acts of a
third party when such an act had never occurred on the

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property. But in Parker’s case, a factfinder could infer that the
hotel, like the motel in Mathias, was aware that there was a
problem that could cause injuries, that the problem had not yet
been fixed, and that the room had been removed from service
because of the problem. And yet, as previously noted, the hotel
rented the room to Parker. A fact-finder could conclude that
this was a “failure, after knowledge of impending danger, to
exercise ordinary care to prevent it.” Salazar, 767 N.E.2d at 371.
Four Seasons vigorously disagrees with Parker’s characterization of the facts. The hotel has evidence that, if credited by
the fact-finder, counters those inferences. Four Seasons may
have thought it repaired the problem. Parker’s room could
have been pulled from service for some other reason, and
Parker’s sister may not be a credible witness when weighed
against the building engineer, Gartin, who may have a different recollection. These are issues for a fact-finder to decide.
Barton, 757 N.E.2d at 555 (whether punitive damages can be
awarded for a particular cause of action is a matter of law, but
the question of whether a defendant’s conduct was sufficiently
wilful and wanton to justify imposing punitive damages is
generally for the jury to decide). On summary judgment, we
conclude that Parker has the right to present her punitive
damages claim to the jury. We therefore remand the case for
further proceedings on the question of punitive damages.
We must briefly address a few other issues. Parker contends that the district court abused its discretion when it
allowed her attorney to withdraw prior to trial. We review for
abuse of discretion a district court’s decision to grant a motion
to withdraw in a civil case. Stafford v. Mesnik, 63 F.3d 1445, 1448
(7th Cir. 1995). “The attorney seeking to withdraw must

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establish that his client consents or that a valid and compelling
reason exists for the court to grant the motion over an objection.” Stafford, 63 F.3d at 1448 (citing Woodall v. Drake Hotel,
Inc., 913 F.2d 447, 449 (7th Cir. 1990)). The court was well
within its discretion to allow the attorney to withdraw where
he had reached an impasse with Parker in how to proceed with
the case. Washington v. Sherwin Real Estate, Inc., 694 F.2d 1081,
1087–88 (7th Cir. 1982) (finding no abuse of discretion in
allowing attorney to withdraw in civil matter where client
refused to accept attorney’s advice and attorney no longer felt
able to adequately represent client’s interests). Moreover,
Parker suffered no prejudice from her attorney’s withdrawal.
After the court allowed Parker’s lawyer to withdraw, more
than eleven months passed before the trial began, allowing
Parker ample time to either prepare for trial herself or to
replace her lawyer. And as the trial and the appeal have
demonstrated, Parker proved to be a very capable advocate.
That said, Parker, having raised one meritorious issue on
appeal, also makes a number of poorly founded arguments in
her brief. To the extent that we do not address a particular
issue raised in the briefs, it is because we have concluded that
the issue does not merit discussion.
REVERSED AND REMANDED.