Zuppardi v. Wal-Mart Stores Inc

Filing 67

OPINION entered by Judge Michael P. McCuskey on 9/17/2013. Plaintiff's Motion to Strike Reply 54 and Motion to Stay Ruling 55 are DENIED. Defendant's Motion for Summary Judgment 40 is GRANTED. Judgment is entered in favor of the Defendant and against Plaintiff. Plaintiff's Motion for Partial Summary Judgment 46 is DENIED. This case is terminated. The settlement conference scheduled for 10/3/2013 at 9:30 a.m., is VACATED. See written opinion. (DS, ilcd)

E-FILED

Tuesday, 17 September, 2013 01:07:58 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
URBANA DIVISION
KRISTEN ZUPP ARDI,
Plaintiff,

v.
W AL-MART STORES, INC.,
Defendant.

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Case No. 12-CV-2183

OPINION

This case is before the court for ruling on the Motion for Summary Judgment (#40)
filed by Defendant, Wal-Mart Stores, Inc., and the Motion for Partial Summary Judgment
( #46) filed by Plaintiff, Kristen Zuppardi. This court has carefully reviewed the arguments
of the parties and the documents provided by the parties. Foil owing this thorough review,
Defendants' Motion for Summary Judgment (#40) is GRANTED and Plaintiff's Motion for
Pmiial Summary Judgment (#46) is DENIED. In addition, Plaintiii's Motion to Strike Reply
(#54) and Motion to Stay Ruling (#55) are DENIED.
FACTS'

1

The facts are taken from the Statements of Undisputed Facts provided by the parties
and the docmnents provided by the parties. This court notes that its task of determining the
undisputed facts was complicated by Plaintiff's failure to follow the Local Rules of the Central
District of Illinois in responding to Defendant's Undisputed Material Facts. Local Rule
7.1(D)(2)(b) states that a pmiy responding to a motion for summary judgment is to list "by
number" each fact "which is conceded to be undisputed and material," each fact "which is
conceded to be material but is claimed to be disputed," as well as each fact "which is undisputed
but is claimed to be immaterial." Plaintiff did not respond to Defendant's Undisputed Material
Facts "by number." Instead, she listed her own undisputed material facts, disputed material facts
and undisputed immaterial facts, using numbers different from those used by Defendant.
Plaintiff also failed to follow Rule 7.1 (D)(2)(b )( 4) because, as far as facts claimed to be
immaterial, she did not "[s]tate the reason the fact is immaterial." To the extent this court has
not been able to discern whether Plaintiff has responded to facts included by Defendant, those

Plaintiff is a resident of Columbia, Missouri. On June 15, 2010, Plaintiff lived in
Champaign, Illinois. She was shopping at Defendant's retail store in Champaign at around
4:00p.m. Plaintiff testified that she retrieved a cart at the front of the store and proceeded
down a main aisle straight to the back of the store to buy milk. Plaintiff testified that she did
not see any other customers or any employees of the store as she walked to the back of the
store. While Plaintiff was walking toward the back of the store and talking to her brother,
she slipped and fell. Prior to falling, she did not see any substance on the ground. After she
fell, Plaintiff saw a puddle of what she believed to be water. Plaintiff testified that the
puddle was "big," around two feet in diameter. There were no track marks or footprints in
the liquid on the ground, and there were no trails leading from the water to any display or
freezer. Plaintiff did not know where the liquid on the floor came from. Plaintiff testified
that she knew the substance she slipped on was water because it was clear and odorless. She
also testified that she would not have seen the puddle if she had been looking at the ground
prior to the fall because "it was really blended in with the floor." It is undisputed that the
puddle that caused Plaintiffs fall was on a concrete floor.
At her deposition, Plaintiff drew a diagram depicting the location of the fall in the
store. Plaintiff also identified the location of her fall on a photograph of the area where the
fall occurred. According to both the diagram and photograph, the fall did not occur near any

facts have been deemed admitted by this court. See Waldridge v. Am. Hoechst Corp., 24 F.3d
918,921-24 (7'h Cir. 1994).
2

of the store displays or freezers containing milk, eggs and frozen foods. A display containing
eggs is visible in the photograph but is some distance away from the place Plaintiff marked
as the location of the fall. Plaintiff testified that the area where she fell was not close to a
display.
Plaintiff testified that, when she fell, there were no Wal-Mart associates in the area.
There were no other customers in the immediate vicinity and there were no adult witnesses
to the fall. Plaintifftestificd that she had to go find a Wai-Mart employee after her fall. She
testified that the first employee she found was restocking shelves in grocery. Plaintiff
testified that she found the employee over in the food section, "[ m]aybe by like the cookies
and stuff." She also indicated that an employee took her report at the end of an aisle where
"there's more frozen food over here or cold foods," which she described as "hot dogs and
stuff." Plaintiff testified that "it might have been like the pop and water aisle."
Defendant provided the affidavit of Robert Zenneno, dated July 2, 2013. Zermeno
stated that he is the Asset Protection Manager of the Champaign store at issue. He stated that
the floor plan of the store, which was attached to the affidavit, was an accurate depiction of
the layout of the store on June 15,2010. Zermeno stated that he marked the location of the
hot dogs, soda products and cookies in the store on June 15, 2010.
At his deposition, George Steward testified that he was an assistant manager at the
store on June 15, 20 l 0. Steward testified that he had no personal recollection of the
investigation conducted with respect to Plaintiffs accident, including the incident file.

3

Steward highlighted a copy of the floor plan of the store to illustrate various areas of the store
and the relation to the location of Plaintiffs incident. Steward also marked the area where
water bottles were sold in the store. The area where the water bottles were sold was
approximately six aisles away from the location of Plaintiffs fall, as depicted on the floor
plan. It was a different aisle than the aisles where hot dogs, soda products and cookies are
sold. The floor plan showed that Plaintiffs fall occurred in an action alley, which is a highly
trafficked area of the store. It is undisputed that Defendant's employees use the action alley
in order to restock items for grocery, paper goods, pets, chemicals and dairy. Steward
testified at length about Defendant's policies and procedures. Steward testified that all
associates and managers are required to monitor action alleys and make sure they are safe.
He testified that all associates are required to stay with a spill until they see it removed and
that all associates and managers carry a "towel in pocket" to clean up any discovered spill.
Steward stated that Defendant's associates and managers are required to clean up spills in a
timely manner.
Steward testified that Plaintiffs accident occurred near a door that led to a back area
in the store that contained overstock merchandise, the break room, the time clock and various
management offices. Steward testified that the back door was frequently entered and exited
by Defendant's associates and managers. Steward testified that, based upon the proximity
of the location of the spill to those back doors, the spill would have been cleaned up
immediately. Steward testified that all of Defendant's employees were required to follow

4

Defendant's policies and procedures, without exception. Steward testified that Defendant's
associates and managers perform regular safety sweeps of the store and are "constantly" on
alert for possible unsafe conditions while performing their daily activities. Steward testified
that Defendant had a "duty to warn and guard about spills" and that it is Defendant's
responsibility "to ensure that its store is safe for associates and customers."
Unfortunately, the customer incident file related to Plaintiffs accident has not been
located by Defendant. Defendant was able to locate five photographs taken after Plaintiff's
fall which Plaintiff testified depicted the area where she fell. Plaintiff testified that she was
present when some of the photographs were taken. It is undisputed that the investigation
photographs show the area of Plaintiffs fall and reflect the size and type of the spill.
Plaintiffs accident was reported to Claims Management, Inc. (CMI) 2 and Defendant has
provided a copy ofCMI's claim report. This report includes the date and time ofthe incident
and states that the claim involves a customer "that alleges slip, fall, or trip." The report also
states that the customer slipped on water by the eggs. The report did not list any witnesses
to the incident. Zermeno stated in his affidavit that the surveillance cameras at the store are
positioned in such a way that the area of Plaintiffs accident would not have been captured
on the cameras.
Defendant disclosed to Plaintiff a list of incidents at the Champaign store. This
documentation showed that a customer fell on a "wet area of floor" in the grocery area/action

2

CMI is the casualty claims administrator for Defendant and its insurance carriers.
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alley of the store on May 8, 2010. In addition, on June 12, 2010, a customer reported
slipping on a wet spot in the action ailey of the store. The documentation showed that there
had been no other incidents involving slipping in clear liquid for over a year prior to the May
8, 2010 incident.
PROCEDURAL HISTORY
On June 8, 2012, Plaintiff filed a Complaint against Defendant in the circuit court of
Champaign County. Plaintiff aiieged that, on June 15, 20 I 0, liquid accumulated on the floor
around or near the dairy section of Defendant's retail store in Champaign. She alleged that
agents and/or employees of Defendant knew or should have known that this liquid had
accumulated and committed one or more of the foiiowing negligent acts or omissions:
a.

Failed to take adequate preventative measures to prevent the
accumulation of liquid on the floor;

b.

Failed to remedy the liquid accumulation in a reasonable amount
of time;

c.

Failed to warn the customers, including, but not limited to, the
Plaintiff, KRISTEN ZUPPARDI, of the hazard associated with
the accumulation of liquid on the floor;

d.

Failed to exercise reasonable care in providing a safe environment
for customers, including, but not limited to, Plaintiff, KRISTEN
ZUPPARDI.

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Plaintiff alleged that, as a direct and proximate result of one or more of these negligent acts
or omissions, she slipped on the accumulated liquid and fell to the floor, sustaining injuries.
On July 19,2012, Defendant filed a Notice of Removal (#1) and removed the case to
this court based upon diversity jurisdiction. The allegations in the Notice ofRemoval (#!)
were sufficient to establish that the parties in the Complaint had diverse citizenship and that
the amount in controversy had been satisfied.
On May 29, 2013, Defendant filed a Motion for Summary Judgment (#40), with
attached exhibits. Defendant argued that it was entitled to summary judgment on Plaintiffs
claims because it is undisputed that Defendant had no actual or constructive notice of the
water on the t1oor. Defendant argued that, because of this lack of notice, it did not breach
any duty to Plaintiff under Illinois law. On June 19,2013, Plaintiff filed a Response (#45)
to Defendant's Motion, with attached exhibits, and also filed a Motion for Partial Summary
Judgment (#46), with attached exhibits. Plaintiff argued that the "lack of employees in and
around the pertinent area clearly indicates that Defendant was not following its own
policies." Plaintiff argued that based on this fact, plus the missing investigation file, this
court should find, as a matter oflaw, "that Defendant had notice (constructive and/or actual)
of the liquid accumulation which caused [Plaintiffs] fall."
On July 9, 2013, Plaintiff filed a Motion to Strike Reply (#54) and asked this court to
strike Defendant's Reply (#53) in support of its Motion for Summary Judgment. Plaintiff
also filed a Motion to Stay Ruling (#55), arguing that she needed additional discovery prior

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to this court's ruling on Defendant's Motion for Summary Judgment.
ANALYSIS
I. PLAINTIFF'S PROCEDURAL MOTIONS

A. MOTION TO STRIKE
On July 9, 2013, Plaintiff filed a Motion to Strike Reply (#54) and asked this court to
strike Defendant's Reply (#53) in support of its Motion for Summary Judgment. Plaintiff
argued that Defendant's Reply violated Rule 7.1 (D)(3) of the Local Rules of the Central
District of lllinois. 3 Plaintiff also argued that Defendant's statement that Plaintiffs fall
occurred at the end of an action alley and Defendant's dispute with Plaintiffs statement that
continuous monitoring of the action alley was "mandated" were made in bad faith. Plaintiff
further argued that some of Defendant's statements contradicted Steward's deposition
testimony. On July 16, 2013, Defendant filed its Response in Opposition to Plaintiffs
Motion to Strike (#57).
Motions to strike are disfavored. See Nuzzi v. St. George Cmty. Canso/. Sch. Dist.
No. 258, 688 F. Supp. 2d 815, 830 (C.D. Ill. 201 0). The Seventh Circuit has expressed the

opinion that motions to strike "are not only unnecessary (from the parties' perspective) but
also pointless (from the judiciary's)." Custom Vehicles, Inc. v. River Forest, Inc., 464 F.3d
725, 727-28 (7'h Cir. 2006). This court has noted that, as a general matter, it "relies on its
ability to consider only arguments and facts which are properly presented and rarely grants
3

This court finds this argument somewhat ironic because, as noted previously, Plaintiff
failed to comply with the Local Rules in responding to the Motion for Summary Judgment.
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motions to strike." Nuzzi, 688 F. Supp. 2d at 830.
After careful consideration, this court agrees with Defendant that it did not violate
Rule 7.l(D)(3) when it provided a brief explanation when it believed that an undisputed
material fact was unclear or incomplete. This court also agrees that Defendant did not act
in bad faith when it stated that the fall occurred at the end of an action alley and disputed
whether continuous monitoring of the action alley was "mandated." In addition, this court
agrees with Defendant that its response to Plaintiffs additional material facts did not
contradict Steward's testimony but, instead, took issue with Plaintiffs interpretation of the
testimony. In any case, this court concludes that it is well able to determine which arguments
and facts are properly presented and supported.

Therefore, this court concludes that

Plaintiffs Motion to Strike Reply (#54) must be DENIED.
B. MOTION TO STAY
On July 9, 2013, Plaintiff filed a Motion to Stay Ruling (#55). Plaintiff argued that
this court should stay ruling on Defendant's Motion for Summary Judgment pursuant to Rule
56( d) of the Federal Rules of Civil Procedure. Plaintiff argued that this court should allow
Plaintiff to conduct further discovery and allow PlaintitT to file a Surreply. Plaintiff took
issue with an exhibit attached to Defendant's Reply, the copy of CMI's claim report.
Plaintiff stated that her counsel had never seen this exhibit prior to the receipt ofDefendant' s
Reply. Plaintiff attached her counsel's at1idavit in which she stated that she had never seen
this document and that, if Plaintiffs former counsel had a copy of the document, he did not

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provide it to her. Plaintiff argued that she should be allowed time to conduct further
discovery based upon the claim report. Plaintiff also argued that she should be allowed to
depose Zermeno, whose affidavit was attached to Defendant's Reply. In addition, Plaintiff
argued that she should be allowed to file a Surreply because of the numerous paragraphs in
Defendant's Reply wherein Defendant stated that the fact was "undisputed" and nonetheless
asserted additional factual allegations.
On July 16, 2013, Defendant filed its Response in Opposition to Plaintiffs Motion
to Stay Ruling (#58). Defendant argued that Plaintiff failed to provide a sufficient basis for
staying the court's ruling to conduct further discovery or file a Surreply. Defendant noted
that, in her affidavit, Plaintiffs counsel did not dispute that the CMI claim report was in
Plaintiffs possession prior to the filing of Defendant's Reply. Defendant attached a copy
of a letter sent to Plaintiffs counsel, dated January 25, 2013, which referred to the CMI
claim report and advised that it had been produced and was in Plaintiffs file. Defendant
noted that, at no time after the January 25, 2013 letter did Plaintiffs counsel contact
Defendant's counsel and advise that the report was not in her file or request a copy of the
report. Defendant argued that Plaintiffs counsel was aware of the CMI claim report at least
six months prior to the filing of Defendant's Reply and had ample opportunity to conduct
discovery regarding the report prior to the filing of Defendant's Motion for Summary
Judgment. Defendant argued that this court's ruling on the pending motion should not be
stayed or delayed because of Plaintiffs failure to timely conduct discovery.

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Defendant also argued that Plaintiff failed to offer any reason why additional
discovery regarding the report is necessary. Defendant argued that further discovery on the
report would have no bearing on the pending Motion for Summary Judgment as the CMI
claim report offered no new facts or evidence and, rather, confirmed Plaintiffs testimony
that there were no associates or customers in the area prior to the fall. Defendant further
noted that Plaintiff did not specifY what discovery of Zermeno was needed or what she
intended to address in a Surreply. Defendant pointed out that Zem1eno stated in his affidavit
that he had no independent knowledge of Plaintiffs accident. Defendant stated that it
submitted the affidavit of Zermeno to respond to Plaintiffs attempt to make an issue of the
fact that video of the accident was not secured. As noted, Zermeno stated in his affidavit that
the area where Plaintiff fell is not in an area that is captured by surveillance video.
Zermeno's affidavit was also submitted to show that the cookies, hot dogs, soda and water
are all located in different aisles of the store. Defendant also argued that Zermeno was
identified on February 7, 2013 in Defendant's Answers to Plaintiffs First Supplemental
Interrogatories but Plaintiff did not request his deposition.
In addition, Defendant argued that Plaintiffs request to file a Surreply to address
Defendant's responses to her additional material facts is meritless. Defendant argued that
it did not raise new arguments, but merely responded to the issues raised in Plaintiffs
Response, which is allowed by Local Rule 7.1(D)(3). Defendant argued that all of the
relevant facts are before the court and Plaintiffs Motion to Stay Ruling should be denied.

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Rule 56(d) provides, regarding motions for summary judgment:
If a nonmovant shows by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justifY its opposition, the
court may:
(I) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.
Fed. R. Civ. P. 56( d). Rule 56(d) 4 "requires a party to state the reasons why it cannot
adequately respond to the summary judgment motion without further discovery and must
support those reasons by affidavit." Waterloo Furniture Components, Ltd. v. Haworth, Inc.,
467 F.3d 641, 648 (7th Cir. 2006). The affidavit must outline the reasons for needing further
discovery. See Woods v. City ofChicago, 234 F.3d 979, 990 (7th Cir. 2000); Young v. Netzel,
2012 WL 266883, at *I (C.D. Ill. 20 12). A district court may, in the exercise of its
discretion, deny a motion under Rule 56( d) when the nonmoving party docs not adequately
specifY the reasons why additional discovery is necessary.

See Waterloo Furniture

Components, Ltd., 467 F.3d at 648. The failure to file an affidavit outlining the reasons for

needing further discovery alone justifies a district court decision to deny postponing ruling
on the motion for summary judgment. See Woods, 234 F.3d at 990.
In this case, Defendant is correct that Plaintiff has not provided this court with any

4

Formerly Rule 56( f).
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reasons why the additional discovery she has requested is necessary for responding to the
Motion for Summary Judgment. Plaintiffs counsel's affidavit does not include a single
reason why the additional discovery requested is needed. This court therefore concludes that
Plaintiffhas not shown that ruling on the Motion for Summary Judgment should be deferred
under Rule 56( d). Moreover, this court agrees with Defendant that the relevant facts have
been presented to this court and there is no need to delay ruling on the Motion for Summary
Judgment. Plaintiffs Motion to Stay Ruling (#55) is DENIED.
II. SUMMARY JUDGMENT MOTIONS
A. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate "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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In
ruling on a motion for summary judgment, a district court "has one task and one task only:
to decide, based on the evidence of record, whether there is any material dispute of fact that
requires a trial." Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7'h Cir. 1994).

In

making this determination, the court must construe the evidence in the light most favorable
to the nonmoving party and draw all reasonable inferences in favor of that party. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,255 (1986); Gordon v. FedEx Freight, Inc.,

674 F.3d 769, 772 (7'h Cir. 2012). However, a court's favor toward the nonmoving party
does not extend to drawing inferences supported by only speculation or conjecture. Harper

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v. C.R. England, Inc., 687 F.3d 297, 306 (7'h Cir. 2012). To show that there is a "genuine"
issue and therefore successfully oppose a motion for summary judgment, the nonmoving
party "must do more than simply show that there is some metaphysical doubt as to the
material facts." Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 951 (7' 11 Cir. 20 13), quoting

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, the
nonmoving party must present "definite, competent evidence to rebut the motion."

Vukadinovich v. Ed ofSch. Trs., 278 F.3d 693, 699 (7'h Cir. 2002), quoting EEOC v. Sears,
Roebuck & Co., 233 F.3d 432, 437 (7'11 Cir. 2000).
B. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Defendant argues that it is entitled to summary judgment on Plaintiffs claim because
Plaintiff has presented no evidence that Defendant had actual or constructive notice of the
water which caused Plaintiff to fall. This court agrees.
There is no dispute that Illinois law governs the extent ofDefendant's liability in this
diversity action. See Reid v. Kohl's Dep 't Stores, Inc., 545 F .3d 479, 481 (7'11 Cir. 2008). In
negligence cases, a plaintiff must demonstrate the existence of a duty owed by the defendant
to the plaintiff, a breach of that duty, and an injury proximately caused by that breach.

Marshall v. Burger King Corp., 856 N.E.2d 1048, 1053 (Ill. 2006). Whether a duty exists
in a particular case is a question of law. Marshall, 856 N.E.2d at 1053-54. "In Illinois,
businesses owe their invitees a duty to maintain the premises in a reasonably safe condition
to avoid injuring them." Reid, 545 F.3d at 481, citing Marshall, 856 N.E. 2d at 1057-58.

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However, "Defendant is not an insurer of the safety of plaintiff simply because she was on
[its] premises as a business invitee." Dunlap v. Marshall Field & Co., 327 N.E.2d 16, 21 (Ill.
App. Ct. 1975), citing Olinger v. Great Alt. & Pac. Tea Co., 173 N.E.2d 443, 446 (Ill. 1961 ).
"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; (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." Newsom-Bogan v. Wendy's Old Fashioned Hamburgers of New
York, Inc., 953 N.E.2d 427, 431 (Ill. App. Ct. 2011); see also Daleus v. Target Corp., 2012

WL 3835836, at *2 (N.D. Ill. 2012).
Plaintiff has argued that Defendant must have caused the spill, so she does not need
to show that Defendant had constructive notice. Plaintiff argued that the evidence shows that
one ofDefendant's employees was actively restocking shelves at the time of her fall and was
"possibly" restocking water. Plaintiff contends that this court should therefore conclude that
the employee, who was at least several aisles away from the location of the spill, spilled the
water on the floor. Plaintiff has also argued that this court should conclude that the egg
cooler may have leaked and caused the puddle on the floor.

This court agrees with

Defendant that there is absolutely no evidence that the substance on the floor was caused by
Defendant. This court concludes that both of the scenarios suggested by Plaintiff are based
on pure speculation. See Acosta v. Target Corp., Inc., 2012 WL 88235, at *2 (N.D. Ill. 2012)

15

(it is insufficient for the plaintiff to merely provide a possible way in which a store employee
could have spilled the liquid). There is no evidence which would support an inference that
one of Defendant's employees spilled water on the floor. And, based on Plaintiffs own
testimony that there were no trails leading from the water to any display or freezer, there is
absolutely no basis for concluding that the egg cooler, which the photograph shows was some
distance away from the location of Plaintiffs fall, leaked and caused the water on the floor.
"In order to create a triable issue of fact with respect to her ordinary negligence claim
(whereby a showing of constructive notice in not required), Plaintiff must provide at least
some evidence tending to show that the substance was more likely placed on the premises
through the Defendant's negligence rather than a customer's." Galbreath v. Wal-Mart

Stores, Inc., 2011 WL 1560669, at *6 (C.D. Ill. 2011); see also Thompson v. Economy Super
Marts, Inc., 581 N.E.2d 885, 888 (Ill. App. Ct. 1991 ). In Galbreath, the plaintiff slipped and
fell on a substance which appeared to be butter and, even though the plaintiff argued that
butter was a substance related to Defendant's business, the court found that the plaintiff had
not offered any evidence demonstrating that it was more likely Defendant's agents who
placed the butter on the floor, rather than a customer. Galbreath, 20 II WL 1560669, at *6,

citing Olinger, 173 N.E.2d at 446 (defendant entitled to prevail "even where there is proof
that the foreign substance was related to defendant's business, but no further evidence is
offered other than the presence of the substance and the occurrence of the injury"); see also

Thompson, 581 N.E.2d at 888-89 (no direct or circumstantial evidence indicating that it was

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more likely that the defendant's servant dropped the lettuce leaf and water, rather than a
customer). As in Galbreath and Thompson, this court concludes that there is no evidence
"however slight" from which it could be inferred that it was more likely that Defendant,
rather than a customer, caused the substance to be on the floor. See Olinger, 173 N.E.2d at
446.
In another instructive case, the plaintiff fell on a clear liquid that spanned
approximately eighteen inches and did not see the liquid on the floor prior to slipping.
Daleus, 2012 WL 3835836, at *2. In granting summary judgment in favor of Target, the

district court found that the plaintiff could not show that Target was responsible for the
presence of the liquid on the floor. Daleus, 2012 WL 3835836, at *2. The court stated that
the plaintiff bears the burden of proving the elements of her claim and could not rely on
Target's failure "to show that the liquid was not put on the floor" by the store's employee.
Daleus, 2012 WL 3835836, at *3. In this case, as in Daleus, "there is no evidence that the

liquid was caused by an employee of [Defendant] or even a product sold at the Store."
Dale us, 2012 WL 3835836, at *4. Defendant has correctly pointed out that there is no

evidence that a water bottle was found near the accident location. Based upon the case law
cited, this court concludes that Plaintiff has not shown negligence on the part of Defendant
and must show actual or constructive notice in order to defeat summary judgment in favor
of Defendant.
"Liability can be imposed when a business's invitee is injured by slipping on a foreign

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substance on its premises if the invitee establishes that the business had actual or constructive
notice of the dangerous condition that caused the fall." Reid, 545 F.3d at 481, citing Pavlik

v. Wal-Mart Stores, Inc., 753 N.E.2d 1007, 1010 (Ill. App. Ct. 2001). Where constructive
knowledge is alleged, "[o]f critical importance is whether the substance [that caused the
accident] was there a length of time so that in the exercise of ordinary care its presence
should have been discovered." Reid, 545 F .3d at 481-82, quoting Torrez v. TGI Friday's,

Inc., 509 F.3d 808, 811 (7'h Cir. 2007). "Absent any evidence demonstrating the length of
time that the substance was on the floor, a plaintiff cannot establish constructive notice."

Reid, 545 F. 3d at 482, citing Tomczak v. Plane/sphere, Inc., 735 N.E.2d 662, 668 (Ill. App.
Ct. 2000).
In Reid, the plaintiff slipped and fell while shopping at a Kohl's department store.
After she fell, she saw a pink milkshake spilled from a large cup in a pool on the tile floor.

Reid, 545 F .3d at 480. The manager on duty at the store arrived on the scene to assist the
plaintiff and also saw the pink substance on the floor. Reid, 545 F.3d at 480. The manager
stated that she did not see the spilled milkshake on the floor during an inspection of the aisle
shortly before the fall. Reid, 545 F.3d at 480-81. According to the manager, Kohl's had a
routine procedure for inspecting the premises which "involved a continuous walk-through
by the manager on duty to ensure that the store was clean and safe." Reid, 545 F.3d at 481.
The manager stated that, during her walk-through, she passed the aisle where the plaintiiThad
fallen at the most ten minutes prior to the fall and had not seen the spilled milkshake. Reid,

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545 F .3d at 481. The plaintiff presented photographs of the partially melted milkshake taken
shortly after the accident and argued that the photographs suggested that it had been on the
floor for an extended period of time. Reid, 545 F.3d at 482. The Seventh Circuit affinned
the district comi' s grant of summary judgment to Kohl's, however, finding that the plaintiff
failed to meet her burden to establish constructive notice. Reid, 545 F .3d at 483. The
Seventh Circuit agreed with the district court that ten minutes was the outside limit of time
the milkshake was on the floor, based upon the uncontradicted statement of the manager.
Reid, 545 F .3d at 482. The Seventh Circuit stated:

Under the circumstances of this case, no reasonable person could
conclude that ten minutes was enough time to give Kohl's constructive
notice of the spilled substance. Illinois law recognizes that there is no
bright-line rule indicating the requisite time to establish notice, though
periods in excess often minutes have failed the test. See, e.g., Hayes [v.
Bailey, 400 N .E.2d 544, 546-4 7 (Ill. App. Ct. 1980)]. Rather we look to

the circumstances of the particular case to determine if the length of time
gave rise to notice. Peterson [v. Wal-Mart Stores, Inc., 241 F.3d 603,
605 (7'h Cir. 2001)]. Here, [the manager] testified that on the afternoon
of the accident, very few customers were in the store, which lessened the
likelihood of the hazardous condition. See Hresil v. Sears, Roebuck &
Co., [403 N.E.2d 678, 680 (Ill. App. Ct. 1980)]. Were customer traffic

19

heavy, the onus would have been on Kohl's to provide frequent and
careful patrolling. Peterson, 241 F.3d at 604-05. The store was almost
empty, so the duty to inspect the premises accordingly decreased. In
addition, the Kohl's store's internal procedure for monitoring spills and
other dangerous conditions appropriately addressed the threat of such
issues. Hresil, 38 Ill. Dec. 447, 403 N.E.2d at 680; see also Peterson,
241 F.3d at 604-05. Considering these conditions as a whole, ten
minutes was not enough to give Kohl's constructive notice of the spill.
Reid, 545 F.3d at 482-83.
In this case, Plaintiff testified that she saw no other customers as she walked to the
back of the store down a large aisle, thus establishing that the store was not experiencing
heavy customer traffic. In addition, Plaintiff has argued that, based upon the evidence, the
puddle of water had to have been on the ground for at least a few minutes. Plaintiff has
presented no evidence that the puddle of water was on the ground longer than that. This
court concludes that, based on the circumstances here, a few minutes was not enough time
to give Defendant constructive notice of the spill. See Reid, 545 F.3d at 482-83.
Plaintiff has argued, at length, that Defendant could not have followed its own
policies, including its policy that action alleys were to be monitored "continuously." Plaintiff
argued that Defendant failed to follow its own policies and that, if Defendant had followed

20

its policies, Defendant would have discovered the puddle. 5 Plaintiff argued that she has
therefore shown that Defendant had constructive notice of the puddle. In her Response to
Defendant's Motion for Summary Judgment, Plaintiff cited no case law to support this
argument 6 In fact, under Illinois law, Defendant has "no duty of continuous inspection."
Peterson, 241 F.3d at 605; Porges v. Wal-Mart Stores, Inc., 2011 WL 939922, at *7 (N.D.

Ill. 20 II). This court therefore agrees with Defendant that, under Illinois law, Defendant was
not required to "stand guard every I 0 feet in every single action alley throughout its store."
Plaintiff has argued that Reid is distinguishable because she "has demonstrated that
the puddle occurred in a location where the Defendant's own policies require constant
monitoring, regular safety sweeps, high aleti because of the flooring, and more." Plaintiff
further argued that she "testified that she did not see anyone in the area during her walk to
the back of the store; thereby demonstrating that the puddle was on the floor before she
started down the main aisle." As noted previously, Plaintiff argued that this showed that the

5

This court notes that, in her Reply to Defendant's Response to her Motion for Partial
Summary Judgment (#62), Plaintiff argued, without citing any authority, that the "doctrine of res
ipsa loquitur indicates that Defendant failed to follow its own policies and procedures." This
court does not find this argument persuasive. "The doctrine of res ipsa loquitur requires that (I)
the occurrence is one that ordinarily does not occur in the absence of negligence; and (2) the
defendant had exclusive control of the instrumentality that caused the injury." Britton v. Univ. of
Chicago Hosps., 889 N.E.2d 706, 709 (Ill. App. Ct. 2008). This court concludes that the doctrine
of res ipsa loquitur has no application to this case. See Daleus, 2012 WL 3835836, at *4
(doctrine inapplicable because the plaintiff could not show that the liquid was under Target's
exclusive control).
6

Plaintiff did cite case law in her above-mentioned Reply (#62). This court has
reviewed the cases cited and concludes that none of the cases involved a situation similar to the
facts here. This court has found the case law involving similar slip and fall claims to be
applicable and persuasive.
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puddle was on the floor for at least a few minutes.
This court concludes that Plaintiffhas not shown that Reid is distinguishable. In Reid,
the manager testified that Kohl's had a routine procedure which "involved a continuous
walk-through by the manager on duty to ensure that the store was clean and safe." Reid, 545
F.3d at 481. Even so, the Seventh Circuit concluded that the plaintiff failed to show that
Kohl's had constructive notice of the milkshake spill.

See Reid, 545 F.3d at 483. 7

In Daleus, which involved very similar facts, the district court concluded that, because
the undisputed evidence showed that Target had internal policies in place for monitoring and
responding to hazards on the floor, "no reasonable trier of fact could find that Target had
actual or constructive notice of the spill." Daleus, 2012 3835836, at *3; see also McCarthy

v. Target Corp., 2012 WL 967853, at *4-5 (N.D. Ill. 2012) (plaintiff failed to create a triable
issue of material fact regarding constructive notice where the liquid was "clear" and "very
difficult to see," there were no track marks in the liquid and no evidence that any other
customers noticed the liquid); Shimkus v. Target Corp., 2012 WL 619500, at *3 (N.D. II.
2012) (summary judgment appropriate where the plaintiff could present no evidence as to
how long the liquid was on the floor and there was no evidence that the store was so busy at
the time of the accident that close patrolling was necessary). This court concludes that the
same is true here.

7

This court notes that the spill in Reid was much more visible than the clear liquid spill
involved here. Plaintiff testified that she would not have seen the puddle if she had been looking
at the ground prior to the fall because "it was really blended in with the floor."

22

Plaintiffhas also argued that, because Defendant has not located the investigation file,
this court must conclude that the file contained evidence favorable to her. Plaintiff pointed
out that Steward testified that Defendant's policies regarding an investigation were followed.
Plaintiff therefore insists that a determination regarding the cause ofthe accident must have
been made. This court cannot agree. On this record, there is no reason to believe that the
missing investigative file contained any information which would be helpful to Plaintiffs
case. Plaintiff herself testified that there were no adult witnesses to her fall. Also, the
evidence shows that the associate Plaintiff found after the fall was at least several aisles
away. A conclusion that the investigation determined that Defendant was the source of the
puddle of water on the floor could only be based on speculation. Plaintiff has also made an
issue of the fact that no video ofthe fall has been produced. However, generally, there is no
duty to preserve evidence, but "such a duty may arise through an agreement, a contract, a
statute, a 'special circumstance,' or by affirmative conduct." Daleus, 2012 WL 3835836, at
*4, quoting Cosgrove v. Commonwealth Edison Co., 734 N.E.2d 155, 161 (Ill. App. Ct.
2000). Plaintiff has not shown that any such circumstances existed in this case.
In addition, Defendant filed the affidavit of Robert Zermeno which stated that the
surveillance cameras at the store are positioned in such a way that the area of Plaintiffs
accident would not have been captured on the cameras. This court concludes that Plaintiffs
argument regarding the missing investigation file does not provide any basis for denying
Defendant's Motion for Summary Judgment.

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Plaintiff has also argued that she can demonstrate constructive notice if her injury
"was caused by a regular and recurring condition which the defendant was bound to foresee,"
citing Dunlap, 327 N.E.2d at 19. Plaintiff argued that evidence of prior accidents occurring
at the same place or with the same instrumentality is admissible as tending to raise the
presumption of knowledge of the part of Defendant, citing Grewe v. W. Washington Cnty.
Unit Dist. No. 10, 707 N.E2d 739, 743 (Ill. App. Ct. 1999). Plaintiff argued that she has

shown that, within the month and a half prior to the incident at issue, there were two
incidents involving a slip and fall on clear liquid in the action alley at Defendant's store. She
argued that there had been no other incidents involving slipping in clear liquid for over a year
prior to the May 8, 2010 incident so the "sudden increase in incidents should have indicated
to the Defendant that it had developed a problem with clear liquid accumulations on the
action alley floors."
In response, Defendant argued that Plaintiffhas not shown that either ofthe two prior
accidents involved the same location or the same substance, noting that the store has many
action alleys. Defendant argued that, under these circumstances, Plaintiffs claim of a
foreseeable condition of danger is without merit and constructive notice cannot be inferred.
This court concludes that neither Dunlap nor Grewe support Plaintiffs position in this
case. In Dunlap, the court concluded that the plaintiff, who fell on a discarded lollipop stick
near the store's candy aisle, did not present any evidence to show any regular and recurring
dangerous condition. Dunlap, 327 N.E.2d at 19-20. Grewe involved a very different

24

situation, the plaintiff fell on a slick spot on the floor of a lobby and the evidence showed that
two other people fell on the same spot within an hour before her fall. Grewe, 707 N.E.2d at
743.
The Seventh Circuit has explained that, in cases where the plaintiff relics on "pattern
or practice" constructive notice,"[ wjhat is needed is a pattern of dangerous conditions which
were not attended to within a reasonable period oftime." Culli v. Marathon Petroleum Co.,
862 F.2d 119, 126 (7'h Cir. 1988). In this case, Plaintiff has provided evidence that two
similar spills occurred within a short time prior to her fall. She has not provided any other
evidence and any inference that there was an inadequate response to the earlier spills could
only be based on speculation. In fact, Plaintiff has discussed, at great length, Defendant's
detailed and specific policies to reduce the risk of spills at its store.
In Shimkus, the district court considered a similar argument based upon evidence that
spills were fairly common. Shimkus, 2012 WL 619500, at *4. The court stated:
IIowever, the fact that spills are common at Target is both
unsurprising (in light of its business) and insufficient to demonstrate
notice under Culli. Culli requires a pattern or practice of inadequate

responses to such spills. Acknowledging this disconnect, Plaintiff argues
that Target's awareness that spills would frequently occur, in conjunction
with the number of slip and fall incidents at the Tinley Park Target in the
three years before this incident, demonstrates "a recurrent condition that

25

Target took no measures to rectify or prevent. Under the case law this
is sufficient to establish constructive notice."
Shimkus, 2012 WL 619500, at *4 (emphasis in original). The district court rejected this
argument, noting that, although Plaintiffhad pointed to more than 25 incident reports of slips
or falls at the store in the three years before her accident, the incident reports were
"extremely spare, and offer[ cd] little insight into the surrounding circumstances of the falls."
Shimkus, 2012 WL 619500, at *4. The court noted the absence of"any information to
determine how many (if any) of those falls resulted from negligence" and stated that "[a]n
indeterminate number of arguably negligent slips on other liquids and in other parts of the
store cannot, in this Court's estimation, bring this case within the ambit of the repeatedincident theory of constructive notice." Shimkus, 2012 WL 619500, at *4.
In this case, Plaintiff has also provided no evidence regarding the surrounding
circumstances of the two previous spills. This court has no trouble concluding that if"spare"
evidence regarding 25 prior incidents was not enough to show constructive notice under a
repeated-incident theory in Shimkus, Plaintiff's spare evidence regarding two prior incidents
is insufficient to show constructive notice in this case.
For all the reasons stated, this court concludes that Defendant is entitled to summary
judgment on Plaintiff's claim.
C. PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT
Because this court has concluded that Defendant is entitled to summary judgment on

26

Plaintiffs claim, Plaintiffs Motion for Partial Summary Judgment (#46) must be DENIED.
IT IS THEREFORE ORDERED THAT:
(!)Plaintiffs Motion to Strike Reply (#54) and Motion to Stay Ruling (#55) are
DENIED.
(2) Defendant's Motion for Summary Judgment (#40) is GRANTED. Judgment is
entered in favor of Defendant and against Plaintiff.
(3) Plaintiffs Motion for Partial Summary Judgment (#46) is DENIED.
(4) This case is terminated. Therefore, the settlement conference scheduled for
October 3, 2013 at 9:30a.m. is VACATED.
ENTERED this

J1~day of_-".S.,""""1pF-'~'-=-'-"k..=----' 2013.
s/Michael P. McCuskey

_
U.S. DISTRICT JUDGE

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