Cheney v. Menard, Inc. d/b/a Menards
Filing
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OPINION and ORDER entered by Judge Joe Billy McDade on 2/4/16. IT IS ORDERED Defendants' Motion for Summary Judgment 25 is DENIED. Sufficient genuine issues of material fact exist that preclude a finding of summary judgment. This case shall proceed to trial. SEE FULL WRITTEN ORDER. (FDT, ilcd)
E-FILED
Thursday, 04 February, 2016 10:44:50 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
TAMMY CHENEY,
Plaintiff,
v.
MENARD, INC. doing business as
MENARDS #3081,
Defendant.
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Case No. 14-cv-1446
OPINION & ORDER
This case is a negligence action involving a slip and fall that occurred at a
store owned and operated by the Defendant, Menard, Inc. (hereinafter “Menards”)
in Pekin, Illinois. The case was originally brought in the Tenth Judicial Circuit
Court of Tazewell County, Illinois but was removed to this Court by Defendant’s
Notice of Removal (Doc. 1) pursuant to 28 U.S.C. §§ 1441 and 1446.1
Plaintiff attached an Affidavit of Damages to her Complaint in which she averred
that her damages were not less than $50,000. Diversity jurisdiction is only properly
invoked when the amount in controversy is not less than $75,000. 28 U.S.C. § 1332.
Despite that, Defendant explained in its Notice of Removal (Doc. 1) that “[p]re-suit
investigation has revealed that Plaintiff has suffered a shattered elbow, requiring
surgery. Based on the nature of Plaintiff’s injury and the language of her
Complaint, it appears from a reasonable and common sense reading of the
Complaint, that the amount in controversy exceeds the $75,000 jurisdictional
requirement.” Federal law provides “a defendant’s notice of removal need include
only a plausible allegation that the amount in controversy exceeds the jurisdictional
threshold. Evidence establishing the amount is required by § 1446(c)(2)(B) only
when the plaintiff contests, or the court questions, the defendant’s allegation.” Dart
Cherokee Basin Operating Co., LLC v. Owens, 135 S. Ct. 547, 554 (U.S. 2014). Given
this governing legal precedent, the allegations of the Defendant in its Notice of
Removal, and the fact that Plaintiff failed to object to the removal, the Court sees no
reason to question the Defendant’s assertions that the Court’s jurisdiction over this
action is proper.
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Now before the Court is the Motion for Summary Judgment (Doc. 25) brought
by Defendant. The motion is fully briefed and ready for disposition. For the reasons
stated below, the Motion for Summary Judgment (Doc. 25) is DENIED.
LEGAL STANDARDS
In their supporting memoranda, both parties cite Illinois law for the source of
authority governing the standard of adjudication of the summary judgment motion.
This is incorrect. This case is before the Court on the basis of diversity jurisdiction.
As such, the well-known Erie doctrine applies and this Court will apply federal law
to the procedural aspects of the action and state law to the substance of the claims.
Shady Grove Orthopedic Associates, P.A. v. Allstate Ins. Co., 559 U.S. 393, 406
(2010); Rodman Indus., Inc. v. G&S Mill, Inc., 145 F.3d 940, 942 (7th Cir. 1998).
Therefore, Federal Rule of Civil Procedure 56 and the federal case law interpreting
that Rule provide the standard of adjudication for the instant summary judgment
motion.
“The court shall grant summary judgment if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). A genuine issue of material fact exists if
“the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
movant may demonstrate the absence of a genuine dispute of material fact by citing
to admissible evidence, or by showing that the nonmovant cannot produce
admissible evidence to support a genuine dispute of material fact. Fed. R. Civ. P.
56(c)(1). Upon such a showing by the movant, the nonmovant may not simply rest
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on his or her allegations in the complaint, “[t]he nonmovant may not rest upon mere
allegations in the pleadings or upon conclusory statements in affidavits; it must go
beyond the pleadings and support its contentions with proper documentary
evidence.” Warsco v. Preferred Technical Grp., 258 F.3d 557, 563 (7th Cir. 2001)
(internal quotations and citation omitted); Fed. R. Civ. P. 56(c)(1). Typically, all
inferences drawn from the facts must be construed in favor of the non-movant, but
the court is not required to draw every conceivable inference from the record. Smith
v. Hope School, 560 F.3d 694, 699 (7th Cir. 2009). At the summary judgment stage,
however, the court may not resolve issues of fact; disputed material facts must be
left for resolution at trial. Anderson, 477 U.S. at 249-50.
FACTUAL BACKGROUND2
The facts of this case are straightforward. On September 19, 2013, Plaintiff
Tammy Cheney and her husband, Albert, went to Menards in Pekin, Illinois to
purchase some remodeling materials. Upon entering the store, the Cheneys
obtained a cart for carrying the materials. They picked up several long pieces of oak
lumber and placed them on the cart. The boards were so long that they extended
beyond the physical boundaries of the cart in the front and back. The Cheneys then
went up to a checkout line to pay for the materials. While Albert Cheney was in the
process of paying the cashier for their items, Plaintiff was looking at items that
were on display in the checkout aisle. As Plaintiff turned to her left, she lost her
footing and fell over the wood which was protruding from the cart. She landed on
the floor on the other side of the boards. One of the shoes that she was wearing fell
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These facts come from the statements of facts offered by both litigants.
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off and “went flying.” Plaintiff did not know where the shoe landed. A nearby
customer picked up her shoe from its landing spot and handed it to her, at which
time Plaintiff noticed the shoe was wet. Plaintiff then observed water on the floor
near a soda cooler which was located in the aisle where she had been standing.
Neither Plaintiff nor her clothing was wet. She does not recall whether the
shoe that remained on her foot had any water or other liquid on it. Prior to her fall,
Plaintiff did not see any debris on the floor, nor did she see any water or any other
substance on the floor. Plaintiff cannot recall whether the water that she saw on the
floor ran under the cooler or not. Plaintiff was neither holding anything in her
hands nor was she on her cell phone when she fell. There was nothing obstructing
her view of the floor. There were no caution signs present, nor was there anyone
mopping nearby.
The fall was recorded by a Menards’ security video. However, Albert Cheney
did not witness his wife fall nor has Plaintiff identified any other witnesses who saw
her fall. Mr. Cheney testified at a deposition that he did not see any water or liquid
around, near, or in front of the soda cooler either prior to or subsequent to Plaintiff’s
fall. Upon observing his wife lying on the floor in pain, Mr. Cheney was only
concerned about his wife and the pain she was suffering and was unconcerned with
looking for the cause of the fall.
Menards’ employees are trained to be vigilant and on the look-out for any
hazardous conditions on the floor or elsewhere on the premises and to address them
immediately. After the fall, a Menards’ cashier said to Plaintiff that the store had
been having problems with the soda cooler leaking. There is no evidence that the
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cashier herself observed water on the floor at the time. The cashier does not appear
to have been deposed nor has Menards offered an affidavit from her as to what she
observed or stated to Plaintiff at the time.
DISCUSSION
This case involves a simple negligence claim governed by Illinois law, which
requires Plaintiff establish 1) Menards owed her a duty, 2) Menards breached that
duty, and 3) in so breaching the duty, Menards proximately caused Plaintiff's
injuries. Miller v. National Ass’n of Realtors, 648 N.E.2d 98, 100 (Ill. App. Ct. 1st
Dist. 1994). Menards does not assert that it did not owe Plaintiff a duty to exercise
ordinary care in maintaining its premises in a reasonably safe condition as an
invitee to its store. See Ward v. K Mart Corp., 554 N.E.2d 223, 227 (Ill. 1990).
However, Menards contends Plaintiff cannot point to any evidence that it breached
its duty to her or that any such breach was the proximate cause of her fall.
A business owner breaches its duty to an invitee who slips on a foreign
substance if “(1) the substance was placed there by the negligence of the proprietor
or (2) [its] servant knew of its presence, or (3) the substance was there a sufficient
length of time so that, in the exercise of ordinary care, its presence should have
been discovered, i.e. the proprietor had constructive notice of the substance.” Hayes
v. Bailey, 400 N.E.2d 544, 546 (Ill. App. Ct. 3d Dist. 1980); see also Olinger v. Great
Atlantic & Pacific Tea Co., 173 N.E.2d 443 (Ill. 1961). According to Menards, none
of the evidence is sufficient to establish any of these scenarios.
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I.
Menards’ Contention That Plaintiff Has Failed To Produce Evidence
That Any Condition On Its Property Proximately Caused Her Fall Is
Incorrect.
According to Menards, “Plaintiff testified in her deposition that at the time of
her fall, she did not know what caused her to fall and, further, that she did not see
any liquid on the floor of the store prior to her fall.” This is not a full and accurate
recounting of Plaintiff’s testimony. She unambiguously testified that immediately
after her fall, she became aware her shoe was wet and she observed water on the
floor by the soda cooler near where she had been standing. (Doc. 25-2 at 8-9).
Menards claims that Plaintiff’s theory of liability is based upon mere
speculation that water caused her fall. It cites several cases for the proposition that
speculation and conjecture cannot suffice to raise a genuine issue of material fact.
See e.g., Geelan v. City of Kankakee, 605 N.E.2d 1015, 1016 (Ill. App. Ct. 3d Dist.
1992); Argueta v. Krivickas, 952 N.E.2d 1238, 1243 (Ill. App. Ct. 1st Dist. 2011);
Kimbrough v. Jewel Companies, Inc., 416 N.E.2d 328 (Ill. App. Ct. 4th Dist. 1981);
Vance v. Lucky Stores, Inc., 480 N.E.2d 167 (Ill. App. Ct. 2d Dist. 1985); Gentile v.
Kehe, 520 N.E.2d 827 (Ill. App. Ct. 1st Dist. 1987); Barker v. Eagle Food Centers,
Inc., 634 N.E.2d 1276 (Ill. App. Ct. 2d Dist. 1994); and Truelsen’s Estate v. Levin,
321 N.E.2d 528 (Ill. App. Ct. 1st Dist. 1974). While the legal proposition supplied by
these cases is correct, each of these cases presents facts that are distinguishable
from the facts of this case.
For example, in Geelan, the court recognized that to “establish proximate
cause, a plaintiff must demonstrate with reasonable certainty that a defendant’s
alleged negligence caused the injury for which plaintiff seeks recovery.” 605 N.E.2d
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at 1016. There, the plaintiff, who was not a party to the accident, speculated that
poor lighting caused the decedent to have a fatal crash. Id. The court held that
without the decedent’s testimony as to what caused the crash, the plaintiff could
only speculate as to whether poor lighting caused the accident and thus had no facts
capable of establishing proximate cause. Id. Geelan is easily distinguishable from
the instant case because here, the victim of the accident has given clear deposition
testimony as to what caused her fall. She claims pooled water Menards permitted to
be on the premises caused her fall. Consequently, there is no speculation in her
claim and there is no missing evidentiary link as to causation.
Similarly, in Kimbrough, a case very similar to this one, the plaintiff slipped
and fell on a ramp upon leaving the defendant’s store. 416 N.E.2d at 330. The
plaintiff there gave deposition testimony that on the day of the accident, she walked
out of the store and onto a ramp where she took one step, lost her footing and fell.
Id. Throughout her deposition, Kimbrough—unlike the Plaintiff here—admitted she
did not know why she fell. Id. at 331. Although she identified several grease spots
after the fall, she had no idea whether she had stepped in them. Id. Here,
circumstantial evidence exists that Plaintiff stepped in pooled water. Plaintiff
clearly contends that the evidence shows there was water on the floor, her shoe was
wet and therefore, the water caused her foot to lose its grip and ultimately caused
the fall. So, while Kimbrough had no evidence of grease being on her shoes, Plaintiff
has evidence of water being on her shoe, which in turn is evidence that she did in
fact step in the water and can support a plausible inference that water caused her
fall.
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Menards fails to recognize the significance of Plaintiff’s circumstantial
evidence. As was explained in another case cited by Menards, a factual conclusion
regarding proximate cause can be established by circumstantial evidence when the
circumstances are of such a nature and so related to each other that they permit
that certain conclusion. See Levin, 321 N.E.2d at 529.
Although the Plaintiff relies on circumstantial evidence she is not speculating
as to the cause of her fall. Her unambiguous and firm assertion is that the water
pooled near the soda cooler caused her accident. Thus, the cases cited by Menards
are all inapposite because those cases all deal with situations where the plaintiffs’
theories of proximate cause were based on conjecture. That is not the case here.
Menards argues further that “the surveillance video depicting Plaintiff’s fall
clearly demonstrates that Plaintiff did not slip on any substance on the floor;
rather, it is clear that Plaintiff tripped over the board[sic] which were protruding
from her cart.” (Doc. 25 at 11). While the video depicts Plaintiff falling over the
wooden planks, it does not establish that there was no water on the floor or that
pooled water did not cause Plaintiff’s initial slipping action. In any event,
concluding what the actual cause of the fall to be is clearly a factual determination
for the finder of fact. It may very well be at trial the jury will find that Plaintiff fell
because of the boards, not because of any purported water. However, for summary
judgment purposes, Plaintiff has demonstrated enough plausible evidence that
pooled water near the soda cooler caused her to lose her footing to allow the issue to
reach trial.
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II.
Plaintiff Produced Enough Evidence That Menards Was Responsible
For The Alleged Unsafe Condition.
Menards argues that even if there was water on the floor that caused
Plaintiff to fall, it had no reason to know the water was on the floor. However,
under Illinois law, knowledge of the alleged substance is an evidentiary
requirement of only two of the three distinct ways to establish premises liability. As
most recently stated by the Seventh Circuit, “[l]iability can be imposed when a
business’s invitee is injured by slipping on a foreign substance on its premises if the
invitee establishes that (1) the substance was placed there by the negligence of the
business; (2) the business had actual notice of the substance; or (3) the substance
was there a sufficient length of time so that, in the exercise of ordinary care, its
presence should have been discovered, i.e., the business had constructive notice of
the substance. Zuppardi v. Wal-Mart Stores, Inc., 770 F.3d 644, 649 (7th Cir. 2014)
(citing Illinois law) (emphasis added). Tracing this pronouncement of law back to its
source unearths an Illinois Supreme Court case in which that court explained
“where the foreign substance is on the premises due to the negligence of the
proprietor or his servants, it is not necessary to establish their knowledge, actual or
constructive….” Donoho v. O’Connell’s, Inc., 148 N.E.2d 434, 437 (1958).
In order to create a triable issue of fact with respect to placement of
the substance by [a defendant], [a plaintiff] need[s] to present some
evidence showing that the substance was more likely placed on the
premises through the defendant’s negligence rather than a customer’s.
To prove that the defendant business, as opposed to a third person,
created the dangerous condition, Illinois courts have required the
plaintiff to (1) show that the foreign substance was related to the
defendant’s business and (2) “offer[ ] some further evidence, direct or
circumstantial, however slight, such as the location of the substance or
the business practices of the defendant, from which it could be inferred
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that it was more likely that defendant or his servants, rather than a
customer, dropped the substance on the premises ...
Zuppardi, 770 F.3d at 649 (internal quotations marks and citations omitted) (citing
Donoho, 148 N.E.2d 434). Thus, the cases cited by Menards—while they state good
law with regard to knowledge—do not support summary judgment here because the
Plaintiff has enough evidence to proceed under the first prong of premises liability
that does not require proof of the business owner’s knowledge.
Menards states that “Plaintiff’s only evidence that there was a substance on
the floor is Plaintiff’s mere assumption that there was something on the floor
because one of her flip-flops, which had been handed back to her after landing
elsewhere on the floor, was wet and because she saw liquid on the floor nearby.”
(Doc. 25 at 16-17). In its reply, Menards concedes the Plaintiff also has evidence
that a Menards’ cashier indicated that the store had been having problems with the
soda machine leaking water. (Doc. 27 at 6).3 Thus, Plaintiff has evidence that 1)
there was water on the floor near the soda cooler that Plaintiff herself witnessed
and 2) a Menards’ cashier stated the cooler had previously leaked water in the past.
This is sufficient evidence to proceed to a jury.
Menards argues Plaintiff has no “admissible” evidence with regard to its
knowledge as to the presence of any substance on the floor. (Doc. 25 at 16). Menards
is hinting that the statement of the cashier is inadmissible hearsay. Menards
merely implies the statement is inadmissible and fails to make a formal argument
on the issue. Therefore, for purposes of this summary judgment motion, the issue is
waived. See Merry Gentleman, LLC v. George and Leona Prods., Inc., 13 C 2690,
2014 WL 7330911, at *7 (N.D.Ill. Dec. 22, 2014); Judge v. Quinn, 612 F.3d 537, 557
(7th Cir. 2010) (“We have made clear in the past that it is not the obligation of this
court to research and construct legal arguments open to parties, especially when
they are represented by counsel, and we have warned that perfunctory and
undeveloped arguments, and arguments that are unsupported by pertinent
authority, are waived.”).
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Menards offers the soda for sale, so the soda cooler is related to the
defendant’s business. Moreover, if one believes Menards knew the soda cooler had
occasionally leaked water in the past, as the cashier’s statement evinces, and that
there was indeed water on the floor, as Plaintiff observed, then one can fairly draw
the conclusion that Menards is responsible for the water that was on the ground
where Plaintiff was standing. Zuppardi, 770 F.3d at 649 (plaintiff “must offer some
further evidence, direct or circumstantial, however slight, from which it could be
inferred that it was more likely that defendant or his servants, rather than a
customer, dropped the substance on the premises”).
In Ishoo v. Gen. Growth Properties, Inc., 966 N.E.2d 1160 (Ill. App. Ct. 1st
Dist. 2012), another case cited by Menards, an Illinois appellate court stated the
general rule that to establish negligence on the part of the defendants, the plaintiff
need only bring forth facts that her fall was caused by a liquid substance on the
floor attributable to the defendants. The Ishoo court ruled in favor of the defendants
because there were no facts before the court that connected the defendants to the
presence of the liquid substance on the floor. Id. at 1164. That is not the case here.
As explained earlier, there is enough evidence for a jury to conclude the water
was placed on the floor by Menards’ negligence. See Zuppardi, 770 F.3d at 649.
Obviously, Menards had control over the placement of the soda cooler on the aisle
floor. Menards’ cashier stated the store was aware the cooler leaked in the past.
Nevertheless, the soda cooler was allowed to remain on the floor. Finally, Plaintiff
observed water near where she had been standing prior to the fall. In short, there is
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sufficient evidence for a jury to conclude Menards was responsible for the water’s
presence on the floor.
CONCLUSION
For the foregoing reasons it is ORDERED Defendants’ Motion for Summary
Judgment (Doc. 25) is DENIED. Sufficient genuine issues of material fact exist that
preclude a finding of summary judgment. This case shall proceed to trial.
Entered this 4th day of February, 2016.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge
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