Bernard v. Supervalu, Inc. d/b/a Jewel-Osco et al

Filing 45

MEMORANDUM Opinion and Order Signed by the Honorable Arlander Keys on 11/14/2013. Mailed notice(ac, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KATHERINE BERNARD,
Plaintiff,

)
)
)
v.
)
)
SUPERVALU, INC., a Delaware
)
Corporation d/b/a Jewel-Osco; )
Defendant.
)
)
)

12-CV-1482

Magistrate Judge
Arlander Keys

Memorandum Opinion and Order
Currently before the Court is Defendant’s motion for summary
judgment [dkt #33] in a slip and fall case. Plaintiff Katherine
Bernard, a customer of Defendant Jewel-Osco grocery store, sued
Jewel-Osco for negligence, claiming that it created a hazard, and
did not remedy it, which caused her to fall and resulted in
injury. Jewel-Osco argues that the undisputed facts fall within
the natural accumulation rule, and thus summary judgment should
be granted in its favor. For the reasons set forth below,
Defendant’s motion is granted.
Procedural History
On March 2, 2012, Plaintiff filed a two-count complaint
against Supervalu d/b/a Jewel-Osco (“Jewel-Osco”) and New
Albertson’s, Inc., alleging negligence. Plaintiff has voluntarily
dismissed her claim as to New Albertson’s, Inc. [dkt #14].
Supervalu has answered Plaintiff’s Complaint and pled affirmative

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defenses, including comparative negligence and the natural
accumulation rule. [dkt #10]. Defendant Jewel-Osco now moves this
Court to enter an order granting summary judgment in its favor,
arguing that the natural accumulation rule precludes Plaintiff
from recovering because “the water upon which Ms. Bernard fell
was introduced onto the premises due to rainy conditions present
at the time.” (S.J. Reply at p. 1). The instant motion is
dispositive in nature as to the remaining claim against JewelOsco. The parties have consented to proceed before this Court
pursuant to 28 U.S.C. § 636(c)(1). [dkt #16].
Factual Background
The facts underlying the summary judgment proceeding are
drawn from the parties’ Local Rule 56.1 submissions. [dkt #34,
41, 43]. Each paragraph of the Local Rule 56.1 submissions must
refer to the “affidavits, parts of the record, and other
supporting materials” that substantiate the asserted facts. Local
Rule 56.1(a)(3); F.T.C. v. Bay Area Business Council, Inc., 423
F.3d 627, 633 (7th Cir.2005). Most of the facts in this case are
agreed to and undisputed. It is noted when the parties disagree.
On June 8, 2010, Ms. Bernard was injured at the Jewel-Osco
store in Westmont, Illinois. (Defendant’s Local Rule 56.1 Filing
(“Def. St.”), ¶ 1). It was raining at the time of Ms. Bernard’s
injury. (Id. at ¶ 5). Employees of the Jewel-Osco placed mats and
cones in the entranceway of the store on days that it rains.
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(Plaintiff’s Local Rule 56.1 Add'l Facts (“Pl. Add’l. St.”), ¶
1). Employees of the Jewel-Osco store gathered shopping carts and
corralled them inside the store’s vestibule and to the left for
use by store customers. (Def. St. at ¶ 6). The shopping carts
were not dried of excess water by Jewel-Osco employees when they
were brought into the store. (Id. at ¶ 8). Jewel-Osco had in
place a procedure to mop up the water dripping off the carts that
its employees brought inside from outside in the rain.
(Plaintiff’s Response to Defendant’s Local Rule 56.1 Filing (“Pl.
Resp”), ¶ 9). The water by the carts had not been mopped up at
the time of the occurrence. (Id.) Ms. Bernard fell on water that
was on the floor in the area where the shopping carts were
parked. (Defendant’s Response to Plaintiff’s Local Rule 56.1
Add'l Facts (“Def. Rsp.”), ¶ 4).
Prior to her injury, Ms. Bernard was dropped off at the
front door of the Jewel-Osco store by her caregiver, Ms. Cynthia
Toler. (Def. St. at ¶ 12). Ms. Bernard was wearing a walking boot
on her left foot and ankle, which had sustained a prior injury.
(Id. at ¶ 13). Ms. Bernard entered the store vestibule, where
customers can obtain a shopping cart and gain access to the
Jewel-Osco store. (Id. at ¶ 14). Ms. Bernard walked in the door
and to the left to obtain a shopping cart. (Id. at ¶ 15). She
walked between twelve and fifteen feet past the threshold of the
entryway door towards the shopping carts to her left. (Id. at ¶
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16). The carts were positioned in the area where customers would
typically come in to get a shopping cart. (Id. at ¶ 17). Ms.
Bernard fell prior to making contact with or obtaining a cart.
(Id. at ¶ 18). Plaintiff was not looking at the ground at the
time, but instead was focused upon looking for a shopping cart.
(Id. at ¶ 19).
Ms. Bernard did not observe any water on the floor of the
store in question before she sustained her injury. (Id. at ¶ 20).
Ms. Bernard slipped on water from rain and fell forward onto her
knees. (Id. at ¶ 21). As she was on the floor, she noticed that
water was dripping from the shopping carts onto the floor. (Id.
at ¶ 22). Ms. Bernard’s caregiver, Ms. Toler, observed a puddle
of water in the area where Ms. Bernard fell, and she assumed that
it was from the carts. (Id. at ¶ 23). Ms. Bernard acknowledges
that she fell in a regular customer traffic area to get to the
shopping carts. (Id. at ¶ 25). Ms. Bernard purportedly sustained
a torn ligament in her left knee as a result of her fall. (Id. at
¶ 26).
The parties agree that Ms. Bernard fell on rain water that
was on the floor in the area where the shopping carts were
parked, within the front entrance of Jewel-Osco. However, they
disagree as to where the water she slipped on originated from.
(Def. St. at ¶ 30). Ms. Bernard does not agree with Jewel-Osco’s
assertion that the water was “tracked in” by customers,
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employees, or the wheels of the shopping carts. (Plaintiff’s
Response to Defendant’s Local Rule 56.1 Filing (“Pl. Resp.”), ¶
10). Instead, she states, that when the wet carts are brought
inside by Jewel-Osco’s employees, “water would drip off of them
and onto the floor,” and that she slipped in this water. (Pl.
Resp. at ¶ 10). Ms. Bernard argues that there is an ample amount
of evidence which shows the water that caused her to fall was not
tracked in on the wheels of the carts nor by foot. (Pl. Resp. at
¶ 30).
Analysis
At the summary judgment stage, the facts must be viewed in
the light most favorable to the nonmoving party only if there is
a “genuine” dispute as to those facts. Fed. Rule Civ. Pro. 56(c);
Scott v. Harris, 550 U.S. 372, 380 (2007). Once the moving party
has made a properly supported motion for summary judgment, “its
opponent must do more than simply show that there is some
metaphysical doubt as to the material facts.... Where the record
taken as a whole could not lead a rational trier of fact to find
for the nonmoving party, there is no ‘genuine issue for trial.’”
Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S.
574, 586–87 (1986). “[T]he mere existence of some alleged factual
dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that

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there be no genuine issue of material fact.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247–48 (1986).
Natural Accumulation Rule
Jewel-Osco argues that the natural accumulation rule applies
in this case. Under the natural accumulation rule, a principle of
Illinois common law, a landowner or possessor of real property
has no duty to remove natural accumulations of ice, snow, or
water from its property. Krywin v. Chicago Transit Authority, 238
Ill.2d 215, 222 (2010); Reed v. Galaxy Holdings, Inc., 394
Ill.App.3d 39, 43 (1st Dist.2009). This includes “tracks or
residue left by customers who have walked through natural
accumulations of water, slush, or snow.” Pytlewski v. United
States, 991 F.Supp. 1043, 1047 (N.D.Ill.1998) (collecting cases).
Under Illinois law, in 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.” Bloom v.
Bistro Restaurant Ltd. Partnership, 304 Ill.App.3d 707, 710 (1st
Dist. 1999). Where, as here, the nonmoving party will bear the
burden of proof at trial on a dispositive issue, Rule 56(e)
requires the nonmoving party to go beyond the pleadings and by
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her own affidavits, or by the “depositions, answers to
interrogatories, and admissions on file,” designate “specific
facts showing that there is a genuine issue for trial.” Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986).
Jewel-Osco argues that, since the water that Ms. Bernard
slipped on was a natural accumulation, it had no duty under
Illinois law to ensure its removal or to warn Plaintiff as to its
presence. And as Ms. Bernard’s claims against Jewel-Osco are that
of negligence, Plaintiff’s inability to demonstrate any duty owed
should result in the granting of summary judgment on behalf of
Jewel-Osco.
Plaintiff responds that the water she slipped on was an
unnatural accumulation and so the natural accumulation rule does
not apply. While a landowner is not liable for injuries resulting
from natural accumulations of ice and snow, it may be liable for
unnatural or artificial accumulations or where the owner
aggravates a natural condition. Bernard v. Sears, Roebuck & Co.,
166 Ill.App.3d 533, 535 (1st Dist. 1988). In order to withstand a
motion for summary judgment, plaintiff must establish that an
unnatural accumulation of ice and snow existed, and that
defendant was responsible for the condition. Id. Ms. Bernard
argues that, since the water she slipped on was not tracked in by
customers, employees, or the wheels of the cart, but was more
likely the result of the dripping rain off the carts brought in
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by the Jewel-Osco employees, the accumulation of water was
created by Jewel-Osco and unnatural. Defendant argues that there
is no evidence in the record to support Ms. Bernard’s theory, and
nothing creating a genuine issue of material fact.
In support of her position that the accumulation in this
case was caused by Jewel-Osco and does not fall under the natural
accumulation rule, Plaintiff cites Johnson v. Sears, Roebuck &
Co., 542 N.E.2d 841, 843 (1st Dist. 1989). In Johnson, plaintiff
slipped in the entranceway of defendant's store on a mixture of
water tracked in by customers and a bag of garden soil which
defendant had stacked near the entrance. The Court in Johnson
found that the plaintiff had met her burden to withstand a motion
for summary judgment by offering an affidavit offered by the
plaintiff stating that an open bag of garden soil had spread
across the sidewalk and created a layer of mud in the area where
plaintiff fell.
Ms. Bernard did testify that she observed water dripping off
of the shopping carts, and her belief that it was that particular
source of water that caused her fall. Pl. Dep. Tr. at p. 47: 1522. In addition, Ms. Bernard’s caregiver testified that she
thought the water on the floor was from the shopping carts as “it
was by the shopping carts, and they were all wet.” Cindy Toler
Dep. Tr. at p. 22: 4-12.

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In response to Ms. Bernard’s argument that the water she
slipped on was not “tracked in,” but entered the building on the
carts brought in by Jewel-Osco employees, Defendant argues that
even so, the water is still considered a natural accumulation. In
Choi v. Commonwealth Edison Co., 217 Ill.App.3d 952 (1st Dist.
1991), the plaintiff was an employee of an independent contractor
engaged by the defendant landowner. The plaintiff was carrying
ice covered pipes, which had been stored outside, into
defendant's building. He was injured when he slipped on a puddle
of water which accumulated after the ice and snow on the pipes
melted. The Court in Choi rejected plaintiff's argument that
defendant's acts, storing the pipes outdoors and then requiring
that they be brought directly indoors without deicing them,
precluded the application of the general rule that a landowner is
not liable for injuries resulting from “tracked-in” water. In
ruling, the Court found that the puddles which resulted from
transporting the ice-covered pipes were a “continuation of a
natural accumulation” and that plaintiff would have had to “make
an affirmative showing of an unnatural accumulation or an
aggravation of a natural condition” to establish a duty. Choi,
217 Ill.App.3d at 957. The Choi Court specifically rejected an
argument similar to Ms. Bernard’s argument that the rule of nonliability was limited to the instances of water “tracked-in” by
pedestrian traffic. Choi, 217 Ill.App.3d at 956-57. Rather, the
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Court in Choi looked at the defendant's conduct to see whether
defendant created an unnatural accumulation or aggravated a
natural condition.
Under the natural accumulation rule, Jewel-Osco’s duty did
not extend to taking precautions against water tracked in from a
natural accumulation outside. To establish a duty, plaintiff must
make an affirmative showing of an unnatural accumulation or an
aggravation of a natural accumulation. Ms. Bernard made no such
showing in this case. The water Ms. Bernard slipped on, if it
originated on the carts as she argues, was a continuation of a
natural accumulation. There is no evidence that Jewel-Osco
aggravated this condition. Ms. Bernard has not shown that there
is a genuine issue of material fact.
Voluntary Undertaking Exception
Plaintiff also argues that “even if Defendant did not create
the hazard, it is still liable because it undertook a duty to
remedy it.” (S.J. Response, p. 11). Although there is no duty to
remove natural accumulations of water, ice, or snow, a voluntary
undertaking may subject a defendant to liability if it is
performed negligently. Tzakis v. Dominick’s Finer Foods, Inc.,
356 Ill.App.3d 740, 746 (1st Dist. 2005). Plaintiff argues that,
since Jewel-Osco had a procedure of mopping up water on rainy
days in the area that Ms. Bernard fell, and because the employees
did not mop up the water falling from the carts that day, Jewel10

Osco was negligent in performing its voluntary undertaking of
removing a natural accumulation.
In response to this argument, Jewel-Osco argues that the
Court in Pytlewski v. U.S., 991 F. Supp. 1043 (N.D. Ill. 1998)
makes clear that the voluntary undertaking argument is limited
and does not apply to cases such as this. In Pytlewski, the
plaintiff made a similar argument that the defendant voluntarily
undertook a duty to mop up natural accumulations, because it had
a policy in place to do so. The Court in Pytlewski squarely
rejected the argument, reasoning that if a policy of mopping up
naturally accumulated water led to a duty to do so, “such a
finding would also create a new exception to Illinois' natural
accumulation rule, an exception which has the potential to
swallow the rule almost whole. It is not this court's role to
create such a broad exception.” Pytlewski, 991 F. Supp. at 1050.
Therefore, as in Pytlewski, the Court rejects Ms. Bernard’s
argument that the policy of mopping up and not doing so qualifies
as a voluntary undertaking negligently performed.
“Under a voluntary undertaking theory, to establish
proximate cause of the injury, the cause-in-fact component
requires a showing that a plaintiff relied on the defendant's
conduct.” Mann v. Producer’s Chemical Co., 356 Ill.App.3d 967,
973 (1st Dist. 2005). Ms. Bernard has not presented evidence that
she relied on Jewel-Osco’s supposed voluntary undertaking to
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continuously mop the floor, a necessary element where a plaintiff
attempts to employ the voluntary undertaking theory. Accordingly,
Plaintiff’s voluntary undertaking argument fails and Jewel-Osco
is entitled to summary judgment.
Conclusion
Defendant Jewel-Osco’s motion for summary judgment is
granted.

Date: November 14, 2013

E N T E R E D:

------------------------------MAGISTRATE JUDGE ARLANDER KEYS
UNITED STATES DISTRICT COURT

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