Nunez v. Gordon Food Service, Inc.

Filing 15

ORDER & OPINION entered by Judge Joe Billy McDade on 8/22/2017. IT IS THEREFORE ORDERED that Defendant's Motion for Summary Judgment 12 is GRANTED. CASE TERMINATED. SEE FULL WRITTEN ORDER & OPINION. (SAG, ilcd)

E-FILED

Tuesday, 22 August, 2017 02:26:52 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
LEONORA NUNEZ,

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Plaintiff,
v.
GORDON FOOD SERVICE, INC.,
Respondent.

Case No. 1:16-cv-1077-JBM-JEH

ORDER & OPINION
This matter is before the Court on Defendant Gordon Food Service’s Motion for
Summary Judgment (Doc. 12). For the reasons described below, Defendant’s Motion
is granted and the case is terminated.
BACKGROUND1
Plaintiff’s claim arises from a slip and fall incident at Defendant’s store in
February 2014. Sometime in the early afternoon of February 10, 2014, Plaintiff and
her husband visited Defendant’s store. It was winter and it had snowed four or five
inches the previous day. Although some of the roads were clean, some of the roads
were still in poor condition and Plaintiff’s husband drove their Ford Explorer because
it got better traction in the snow. Plaintiff was wearing snow boots and her husband
wore tennis shoes.

These background facts are drawn from the parties’ respective statements of
material facts, and are undisputed unless otherwise indicated. Facts that are
immaterial to the disposition of the Motion for Summary Judgment are excluded.
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When they arrived at Defendant’s store, they discovered that the store’s
parking lot had not been cleared. They walked through about two to three inches of
snow in the parking lot—enough to cover Plaintiff’s husband’s shoes—to the entrance.
The sidewalk leading from the parking lot into the store was clear of snow and ice.
Once they got into the store entrance, Plaintiff and her husband stopped in the
carpeted vestibule. There, they each cleared the snow off of their footwear by
stamping or tapping their feet; however, neither of them looked at the bottom of their
footwear to ensure they were free of snow. As they left the vestibule and entered the
store, Plaintiff noticed that there was moisture or snow that had apparently been
tracked into the store by customers. Plaintiff did not inform Defendant’s employees
of this water.
After Plaintiff and her husband spent about ten minutes walking the aisles of
the store, they headed down an aisle as they looked for bags.2 At the time, Plaintiff’s
husband was about five feet away from her and they were the only people in the aisle.
After grabbing a pack of kitchen garbage bags, Plaintiff went to step with her left foot
and her left leg slid out from under her. Plaintiff fell onto her left side and Plaintiff’s
husband sought help. Eventually, an ambulance arrived to take Plaintiff to the
hospital.
Neither Plaintiff nor her husband knew how long the water had been there.
Plaintiff first noticed the moisture after she fell and her husband first noticed it as

Neither Defendant nor Plaintiff offered facts detailing to the actual fall. For
completeness, the Court supplements these facts from the Plaintiff’s deposition. (Doc.
12-1). See Fed. R. Civ. P. 56(c)(3). This sentence and the remainder of this paragraph
are pulled from Plaintiff’s deposition.
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he assisted her after she fell. Parties dispute whether there was just one spot or
multiple moisture spots.
Plaintiff was unsure what the moisture was and could only say for certain that
the moisture was clear. In his deposition, Plaintiff’s husband stated that he believed
that it was water that had come from snow melting off of peoples’ shoes. Additionally,
he stated that he did not observe any other possible source of water and had no reason
to believe it came from anything other than snow melting off of shoes or boots.
On February 4, 2016, Plaintiff filed a negligence claim against Defendant in
the Circuit Court of Peoria County, Illinois. (Doc. 1 at 1). Plaintiff alleged that
Defendant’s negligence caused her to slip and fall, which caused her to be severely
and permanently injured and to sustain damages. (Doc. 1-1 at 5). Defendant was
served on February 9, 2016. (Doc. 1 at 2).
On March 10, 2016, Defendant removed the case to this Court pursuant to 28
U.S.C. §§ 1441 and 1446. (Doc. 1). The Court has diversity jurisdiction over the claims
pursuant to 28 U.S.C. § 1332. Plaintiff is a resident of Illinois. (Doc. 1). Defendant is
a Michigan corporation with its principal place of business in Michigan. (Doc. 1). The
amount in controversy includes total billed charges of medical care in the amount of
$207,045.95 and total benefits provided of $87,108, which exceeds the $75,000
amount in controversy requirement. (Doc. 1).
On March 2, 2017, Defendant filed this Motion for Summary Judgment. (Doc.
12). Defendant presents two arguments. First, Defendant argues that under Illinois
law the “natural accumulation” law applies, which states that property owners and
business operators are not liable for injuries resulting from the natural accumulation

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of ice, snow, or water tracked inside from the outside. Second, Defendant argues that
even if the natural accumulation rules does not apply, Plaintiff cannot establish that
Defendant had either actual or constructive notice of the moisture.
On March 23, 2017, Plaintiff filed her Response to the Motion for Summary
Judgment. (Doc. 13). In addition to presenting her arguments in her Response,
Plaintiff disputed one fact—asserting there was more than one moisture spot in the
aisle—and presented two more material facts—one, that there were twenty to
twenty-five customers in the store, in addition to employees, and two, that there were
only 7 aisles in the store. (Doc. 13 at 1). Defendant filed its Response to Plaintiff’s
Reply on March 31, 2017. (Doc. 14). Therefore, the matter is fully briefed and ready
for decision.
LEGAL STANDARDS
Summary judgment shall be granted where “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). In ruling on a motion for summary judgment,
the Court must view the evidence in the light most favorable to the non-moving party.
SMS Demag Aktiengesellschaft v. Material Scis. Corp., 565 F.3d 365, 368 (7th Cir.
2009). All inferences drawn from the facts must be construed in favor of the nonmovant. Moore v. Vital Prods., Inc., 641 F.3d 253, 256 (7th Cir. 2011). However, the
Court is “not required to draw every conceivable inference from the record”; the Court
draws only reasonable inferences. Smith v. Hope Sch., 560 F.3d 694, 699 (7th Cir.
2009) (quotations omitted).

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To survive summary judgment, the “nonmovant must show through specific
evidence that a triable issue of fact remains on issues on which he bears the burden
of proof at trial.” Warsco v. Preferred Tech. Grp., 258 F.3d 557, 563 (7th Cir. 2001)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). If the evidence on record
could not lead a reasonable jury to find for the non-movant, then no genuine issue of
material fact exists and the movant is entitled to judgment as a matter of law. See
McClendon v. Ind. Sugars, 108 F.3d 789, 796 (7th Cir. 1997). At the summary
judgment stage, the court may not resolve issues of fact; disputed material facts must
be left for resolution at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50
(1986).
A federal court sitting in diversity will look to the law of the state in which the
district court sits to determine the applicable governing law. Erie R.R. Co. v.
Tompkins, 304 U.S. 64, 79-80 (1938). The accident took place in Illinois and parties
agree that Illinois law governs.
Under Illinois law, which is unchallenged by Plaintiff, property owners and
business operators are not liable for injuries resulting from the natural accumulation
of ice, snow, or water that is tracked inside the premise from the outside. Reed v.
Galaxy Holdings, Inc., 914 N.E.2d 632, 636 (Ill. App. Ct. 2009) (citing Branson v. R
& L Inv., Inc., 554 N.E.2d 624, 628 (Ill. App. Ct. 1990)). Additionally, property owners
and business operator do not have a duty to remove the tracks or residue left inside
the building by customers who have walked through natural accumulations outside
the building; likewise, they do not have duty to warn of such conditions. Id. (citing
Roberson v. J.C. Penney Co., 623 N.E.2d 364, 367 (Ill. App. Ct. 1993) and Walker v.

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Chi. Transit Auth., 416 N.E.2d 10, 13 (Ill. App. Ct. 1980)). “It is irrelevant whether
the natural accumulation remains on the property for an ‘unreasonable’ length of
time.” Id. (citing Kellermann v. Car City Chevrolet-Nissan, Inc., 713 N.E.2d 1285,
1288 (Ill. App. Ct. 1999)).3
Under Illinois law, “[i]n cases involving injuries resulting from accumulations
of ice, snow, or water, ‘in order to withstand a motion for summary judgment, a
plaintiff must come forward with sufficient evidentiary materials to permit the trier
of fact to find that defendant was responsible for an unnatural accumulation of water,
ice or snow that caused plaintiff’s injuries.’” Id. (quoting Bloom v. Bistro Rest. Ltd.
P’ship, 710 N.E.2d 121, 123 (Ill. App. Ct. 1999)).
DISCUSSION
Plaintiff has failed to come forward with sufficient evidentiary material to
permit the trier of fact to find that moisture was anything other than a natural
accumulation of melted snow or that defendant was responsible for an unnatural

Property owners and business operators can be liable for injuries resulting from an
accumulation of ice, water, or snow, if the plaintiff establishes that the means of
ingress or egress was unsafe for any reason other than a natural accumulation. Reed,
914 N.E.2d at 636. However, Plaintiff has not asserted any facts arguing that
Defendant’s ingress or egress was unsafe.

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Additionally, Illinois Courts have also found an exception to the natural accumulation
rule in cases where the plaintiff alleged the existence of a defect in the defendant’s
building or an underlying hazard or condition that caused the accumulation of the ice
or snow. Radovanovic v. Wal-Mart Stores East, Inc., No. 04-C-0014, 2006 U.S. Dist.
LEXIS 4383, at *10-11 (N.D. Ill. Feb. 2, 2006) (citing Bloom, 710 N.E.2d at 123-124).
Likewise, Illinois Courts have found liability for aggravating a natural condition.
Bernard v. Supervalu, Inc., No. 12-Cv-1482, 2013 U.S. Dist. LEXIS 162516, at * 8
N.D. Ill. Nov. 14, 2013) (citing Bernard v. Sears, Roebuck & Co., 519 N.E.2d 1160,
1161 (Ill. App. Ct. 1988)). However, Plaintiff has not asserted any facts pertaining to
either of these exceptions.
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accumulation of water that caused Plaintiff’s injuries; therefore, summary judgment
for Defendant must be granted. Plaintiff admits that it had snowed several inches
the day before; that Plaintiff and her husband walked through two to three inches of
snow in the parking lot; and that although they cleared their footwear in the
vestibule, neither of them checked the bottoms of their footwear to insure that they
were clear. Additionally, Plaintiff admitted to observe moisture from tracked-in snow
as she entered the store. Plaintiff admitted that the moisture she slipped in was a
clear liquid, although she could not say with certainty what kind of liquid. Plaintiff’s
husband stated that it appeared that it was water that had melted off of snow on
patrons’ footwear as they stood in the aisle to grab things off the shelf. Therefore, the
only facts asserted conclude that Plaintiff fell on the natural accumulation of melted
snow that had been tracked into the store.
Plaintiff has provided no facts to support that there is a genuine issue over
whether the slip was caused by moisture from melted snow. In order to survive
summary judgment, Plaintiff must go beyond her pleadings and designate “specific
facts showing there is a genuine issue for trial,” because she will bear the burden of
proof at trial. Fed. R. Civ. P. 56(e); Celotex Corp., 477 U.S. at 324. However, Plaintiff
has not offered any facts that to support her allegation that the moisture on the
ground was anything other than snow melted off of boots. See, e.g., Reed, 914 N.E.2d
at 637 (affirming summary judgment for the defendant because “plaintiff failed to
offer any evidence allowing a fact-finder to find that the puddle of water was anything
other than a natural accumulation” for a fall at a laundromat on a rainy day). Rather
than offer facts, Plaintiff has only offered the argument that “[t]here is nothing in the

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record that suggest[s] that this was not a spill which the defendant failed to clean
up.” (Doc. 13 at 2). Plaintiff has offered no facts to support that assertion. Rather, an
undisputed fact is that Plaintiff’s husband stated that he “did not observe any other
possible source of the water and has no reason to believe it came from anything other
than snow melting off of people’s shoes and boots.” (Doc. 12 at 4).
Additionally, Plaintiff argues that because she describes the puddle being a
solid, unbroken puddle the size of a sheet of paper, that that supports an inference
that it must be a spill. However, this is speculation and Plaintiff has not offered
factual evidence to support the inference of a spill. Speculation about the cause of the
accumulation is insufficient to avoid summary judgment. Domkiene v. Menards, Inc.,
No. 15-C-5732, 2016 U.S. Dist. LEXIS 119773, *8-9 (N.D. Ill. Sept. 6, 2016) (citing
Good v. Univ. of Chi. Med. Ctr., 673 F.3d 670, 675 (7th Cir. 2012); Ciciora v. CCAA,
Inc., 581 F.3d 480, 483 (7th Cir. 2009); Choi v. Commonwealth Edison Co., 578 N.E.2d
33, 37 (Ill. App. Ct. 1991) (“To establish a duty, the plaintiff must make an affirmative
showing of an unnatural accumulation or an aggravation of a natural condition before
recovery will be allowed.”) (citation omitted) (emphasis added); Frederick v. Prof’l
Truck Driver Training Sch., Inc., 765 N.E.2d 1143, 1149 (Ill. App. Ct. 2002) (“An
assertion based solely on speculation is not enough to raise a genuine issue of
material fact.”) (citation omitted). Plaintiff’s husband saw snow melting off of shoes
and did not observe any other source for the water. In order to survive summary

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judgment, Plaintiff must bring forth specific facts showing that there is a genuine
issue for trial. Plaintiff has not done so.4
Plaintiff also argues that direct evidence is not required to survive a motion for
summary judgment because direct evidence is impossible to obtain. (Doc. 13 at 3). In
support of her argument, Plaintiff cites to Olinger v. Great Atlantic and Pacific Tea
Co., 173 N.E.2d 443 (Ill. 1961). However, Plaintiff misinterprets her burden. Plaintiff
is not required to provide direct evidence, but she must provide some factual evidence,
direct or circumstantial, to support that there was a genuine issue of fact. Plaintiff,
however, has offered none.
Olinger actually supports Defendant’s position, not Plaintiff’s. In Olinger, the
plaintiff slipped and fell on a reddish substance at defendants’ store. Id. at 472
Defendant sold a cold medicine (Coldene) that was red in color. Id. at 472-73. In order
for the defendant to be liable, plaintiff needed to show that defendant was responsible
for spilling the substance. Id. at 475. The Illinois District Court denied the
defendants’ motion for a direct verdict. Id. at 473. The Illinois Appellate Court
overturned the Plaintiff’s verdict. Id. In affirming the Illinois Appellate Court, the
Illinois Supreme Court stated:
“In the instant case, there is no direct evidence as to how the foreign
substance came to be on defendants’ floor. Moreover, there is not even
any evidence as to what that substance was. No one testified that the
substance was Coldene. The best that can be said of plaintiff’s evidence
is that plaintiff slipped on a reddish substance and defendant sold red
cough medicine called Coldene. Only by the wildest speculation could it
Plaintiff only disputed Defendant’s proposed fact that the only spot of moisture was
at Plaintiff’s feet. (Doc. 13 at 1). Plaintiff argued that her husband testified that he
spotted several spots of moisture. (Doc. 13 at 1). While this is a disputed fact, it is not
material to the determination of whether the moisture was the natural accumulation
of tracked-in snow. Therefore, it is not sufficient to preclude summary judgment.

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be concluded from these facts that the substance on which plaintiff
slipped was Coldene. Since the evidence failed to establish that the
substance was related to defendants’ operations, no inference could be
drawn that the substance was more likely to have been dropped by
defendants’ servants . . . .”
Id. at 476 (emphasis added). Like in Olinger, Plaintiff has provided no evidence of
any sort that that the source of the moisture was something other than melted snow.
Plaintiff is asking the Court to infer that because the puddle was bigger than a piece
of paper it must have been a spill is a speculation that is wilder than that in Olinger.
Plaintiff also asserts, correctly, that circumstantial evidence may be sufficient
when an inference may be reasonably drawn from it. Majetich v. P.T. Ferro Constr.
Co., 906 N.E.2d 713, 718 (Ill. Ct. App. 2009). “Facts, however, will not be established
from circumstantial evidence where more than one conclusion can be drawn.” Id.
(citing Mort v. Walter, 457 N.E.2d 18 (Ill. 1983)). Plaintiff argues that the size of the
moisture spot must yield the inference that it was a spill; however, that is untrue. It
could also yield the inference that a lot of snow had melted there. Especially, when
considered with Plaintiff’s husband’s statement that he saw snow melting off of
individuals’ shoes while they helped his wife, that he saw a number of spots of
moisture in the aisle, and that there was twenty to twenty-five customers in the store.
Furthermore, circumstantial evidence is only sufficient if it is “of such a nature and
so related as to make the conclusion more probably as opposed to merely possible.”
Id. Plaintiff’s circumstantial evidence about the size of the moisture spot does not
make the conclusions that it was a spill more probable; rather, at most, it would be a
slight possibility compared to the inference that it was from melted snow. This
insufficient to prevent summary judgment.

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Plaintiff has failed to come forward with sufficient evidentiary material to
permit the trier of fact to find that moisture was anything other than a natural
accumulation of melted snow or that defendant was responsible for an unnatural
accumulation of water that caused Plaintiff’s injuries. Therefore, Defendant’s Motion
for Summary Judgment must be granted because Defendant owed no duty to remove
the natural accumulation of residue from melted snow that is tracked into a building
and Plaintiff has failed to allege that Defendant owed her a duty. Because the natural
accumulation rule applies and Plaintiff has failed to allege that Defendant owed her
a duty, the Court will not address Defendant’s second argument that Defendant did
not have actual or constructive notice of the moisture. See Bilek v. Wal-Mart Stores,
Inc., No. 1-16-3110, 2017 IL App (1st) 163110-U , ¶ 21 (explaining that constructive
knowledge was “irrelevant in light of our conclusion that plaintiff presented no
evidence that she slipped on anything other than a natural accumulation of water”)
(citing Walker, 416 N.E.2d at 10).
CONCLUSION
Plaintiff has failed to come forward with sufficient evidentiary material to
permit the trier of fact to find that moisture was anything other than a natural
accumulation of melted snow or that defendant was responsible for an unnatural
accumulation of water that caused Plaintiff’s injuries; therefore, summary judgment
for Defendant must be granted.
IT IS THEREFORE ORDERED that Defendant’s Motion for Summary
Judgment (Doc. 12) is GRANTED.
CASE TERMINATED.

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Entered this __22nd___ day of August, 2017.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge

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