Daniels v. Menard, Inc.

Filing 57

MEMORANDUM Opinion and Order Signed by the Honorable Daniel G. Martin on 4/29/2015.Mailed notice(lxs, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOHN DANIELS,
Plaintiff,
v.
MENARD, INC.,
a Wisconsin Corporation,
Defendant.

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Case No. 13 C 6959
Magistrate Judge Daniel G. Martin

MEMORANDUM OPINION AND ORDER
This is a personal injury action in which Plaintiff John Daniels (“Daniels”) alleges that on
September 21, 2011 and October 13, 2011, he struck his head on a staircase located in the
Menard, Inc. (“Menard”) store in Melrose Park, Illinois. Daniels asserts claims based on state law
negligence and voluntary undertaking theories against Menard. The Court has jurisdiction based
on diversity of citizenship, and the parties have consented to the jurisdiction of the United States
Magistrate Judge pursuant to 28 U.S.C. § 636(c). Menard has moved for summary judgment. For
the reasons that follow, Menard’s motion is granted in part and denied in part.
FACTUAL BACKGROUD
The following facts are primarily taken from Defendant’s Local Rule 56.1(a) Statement (doc.
46) and are undisputed. Additional facts are taken from Daniels’ deposition testimony and include
a citation to that testimony. Daniels’ date of birth is March 8, 1923, making him eighty-eight years
(88) old at the time of incidents. At his deposition, Daniels testified that he is visually impaired. He
has glaucoma and can only see straight ahead. Daniels has no peripheral vision.
On September 21, 2011, Daniels went to the Menard store to buy braces for railings in his
front and back door. Daniels was driven to the Menard store on September 21, 2011 by his wife.
Daniels’ wife dropped him at the front door of the store and he entered the store alone. Daniels
then located and walked up to a Menard employee without assistance. Although Daniels could not

remember exactly what he told the Menard employee, he testified that he “walked over to the young
lady and said, young lady, I need someone to escort me. I’m visually impaired and I need some
things in the store, and she called someone.” Daniels Dep. at 50. When asked why he wanted
someone to escort him on September 21, 2011, Daniels testified that his vision is impaired and he
needed help finding the product that he came to buy. Id. at 51-52.
Shortly thereafter, Menard employee John Malone (“Malone”) approached Daniels. Daniels
testified that he told Malone what he needed and asked Malone to take him to find the item. Id. at
57-58. In his deposition, Daniels stated what happened next:
A.

We were down there, then he left and went somewhere; and when I looked
for him again, he was way some other place.

Q.

So the young man walks away from you, right?

A.

As far as I known he went away.

Q.

You stayed where you were?

A.

I was walking around where I was there.

Q.

So you were walking around an area –

A.

I was moving around. That’s all.

Q.

And you look up, and you see that the young man is a distance away from
you?

A.

No, I did not look up. I just happened -- when I was looking around, I
wanted to know something, I looked for him, he wasn’t around. So I
spotted him. I said, where are you at. He was way over there someplace.

Id. at 58-59. Daniels then described the first accident: “So I was going toward him; and somehow
I went across the floor; and I hit a low spot in the store; and I hit my head in a spot in the store.”
Id. at 59.
Daniels claims he was involved in a second similar incident on October 13, 2011 at the
same Menard store. On October 13, 2011, Daniels’ wife dropped him off in the front of the Menard
store. Daniels entered the store alone and approached Menard employee Barbara Daniszewski
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(“Daniszewski”). Daniels testified that he told Daniszewski that he “needed someone to help [him]
with something that [he] needed to buy.” Daniels Dep. at 95. Daniszewski testified that Daniels
“came up to me asking for assistance with reading tags, the little bin tags that we have on the
items. He said he was having trouble reading since they are smaller.” Daniszewski Dep. at 13.
Besides not being able to read the bin tag, Daniels did not express to Daniszewski that he had
problems with his eyesight or vision. At no point did Daniels indicate to Daniszewski that he was
visually impaired and needed help walking throughout the store. Daniels did not tell Daniszewski
that he was visually impaired.
Daniszewski asked Menard employee Nina Gryniewicz to assist Daniels and take him to
the hardware desk to find some nuts and bolts. Daniels did not tell Gryniewicz that he had a vision
impairment. Gryniewicz was taking Daniels to the hardware department when the second incident
occurred. Daniels testified:
A.

After that I was left alone; and I looked around; and I said, where are you at,
where did the young lady go; and she was way over by the stairwell case
over there; and I went over there.

Q.

Okay.

A.

That’s when I hit my head on the stairwell case. I didn’t see it.

Daniels Dep. at 96. Gryniewicz did not witness the incident as her back was turned at the time, and
Daniels was walking behind Gryniewicz when he bumped his head on the staircase.
DISCUSSION
Summary judgment is appropriate when there is no genuine issue of fact and the moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In determining whether a
genuine issue of material fact exists that precludes summary judgment, the Court construes all
facts and inferences in the light most favorable to the nonmoving party. Love v. JP Cullen & Sons,
Inc., 779 F.3d 697, 701 (7th Cir. 2015). A genuine issue of material fact exists when “the evidence

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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 parties agree that Illinois tort law applies in this diversity action. “To establish a claim
for negligence under Illinois law, a plaintiff must prove the existence of a duty of care owed by the
defendant to the plaintiff, a breach of that duty, and an injury proximately caused by that breach.”
Swearingen v. Momentive Speciality Chemicals, Inc., 662 F.3d 969, 972 (7th Cir. 2011). “Whether
a duty exists in a particular case is a question of law to be determined by the court.” Ward v. K
Mart Corp., 554 N.E.2d 223, 226 (Ill. S. Ct. 1990). “In determining whether a duty exists, four
factors are typically considered: ‘(1) the reasonable foreseeability of injury; (2) the likelihood of
injury; (3) the magnitude of the burden of guarding against injury; (4) the consequences of placing
that burden on the defendant.’” Garest v. Booth, 12 N.E.3d 661, 672 (Ill. App. 2014); Ward, 554
N.E.2d at 226-27.
It is undisputed that Daniels was an invitee at Menard’s store on September 21, 2011 and
October 13, 2011. “As a general rule, a landowner owes a business invitee ‘the duty of exercising
ordinary and reasonable care to see that the premises are reasonably safe for use.’” Swearingen,
662 F.3d at 972; Reid v. Kohl’s Dept. Stores, Inc., 545 F.3d 479, 481 (7th Cir. 2008) (stating “[i]n
Illinois, businesses owe their invitees a duty to maintain the premises in a reasonably safe condition
to avoid injuring them.”). The general rule does not apply when the danger at issue is open and
obvious. “Under the open-and-obvious doctrine, a landowner is not liable for physical harm caused
to invitees by an condition on the land whose danger is known or obvious to them, unless the
landowner should anticipate the harm despite such knowledge or obviousness.” Swearingen, 662
F.3d at 972; Buchaklian v. Lake County Family YMCA, 732 N.E.2d 596, 600 (Ill. App. 2000) (noting
“persons who own, occupy, or control and maintain land are not ordinarily required to foresee and
protect against injuries from potentially dangerous conditions that are open and obvious.”).

A

dangerous condition is open and obvious when “‘both the condition and the risk are apparent to and
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would be recognized by a reasonable [person], in the position of the visitor, exercising ordinary
perception, intelligence, and judgment.’” Menough v. Woodfield Gardens, 694 N.E.2d 1038, 1042
(Ill. App. 1998) (quoting Deibert v. Bauer Brothers Construction Co., 566 N.E.2d 239, 241 (Ill. S.Ct.
1990)).
Menard argues that it owed no duty to warn or protect Daniels due to the “open and
obvious” nature of the staircase. Daniels does not dispute that the staircase is an open and
obvious danger. Instead, Daniels makes three arguments in support of his contention that Menard
is not entitled to summary judgment. First, Daniels argues that Menard owed a duty of care to him
because it was reasonably foreseeable that he would become distracted by his search for the item
he needed as well as the employee that had been escorting him through the store. Alternatively,
Daniels argues that Menard’s employees voluntarily undertook to escort him through the store.
Finally, Daniels contends that the safer alternative route theory is inapplicable here.
A.

Distraction Exception
Daniels first contends that the “distraction exception” to the “open and obvious” rule applies

in this case. “Under the distraction exception, a possessor of land can be held liable for injuries
caused by an open and obvious hazard if the possessor should have anticipated the harm despite
the condition’s obviousness.” Savage v. Ritchie Bros. Auctioneers (Am), Inc., 2012 WL 1520710,
at *3 (N.D. Ill. Apr. 30, 2012). A possessor of land may anticipate harm where there is “reason to
expect that the invitee’s attention will be distracted, as by goods on display, or that after a lapse
of time he may forget the existence of the condition, even though he has discovered it or been
warned.” Bucheleres v. Chicago Park Dist., 665 N.E.2d 826, 834 (Ill. S.Ct. 1996).
Daniels likens this case to Erne v. Peace, 517 N.E.2d 1203 (Ill. App. 1987). In that case,
a duty was imposed pursuant to the distraction exception where the plaintiff was injured when she
fell off a step/stoop while exiting defendants’ premises. The plaintiff alleged that she was legally

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blind and incapable of seeing the area in front of her, that defendants knew of the condition, yet
they did not warn or assist her with regard to the change of elevation during her exit from the
building.

The Erne court held that the “defendants had reason to expect that despite the

obviousness of the condition and the fact that the plaintiff had encountered the step/stoop when
she entered the premises, she would likely fail to protect herself against it.” Id. at 1206. The court
concluded “under the Restatement (Second) of Torts, that if an invitee is likely to fail to protect
herself from harm, the defendant is aware of this fact, and the defendant’s burden to warn or
protect is minimal, a duty exists as a matter of law.” Id. at 1207. The court held that it was a jury
question whether the defendant property owners exercised the care required under those
circumstances. Id.
Erne compels the Court to conclude that even if the staircase was an open and obvious
condition, a genuine issue of material fact exists as to whether Menard exercised the care required
with regard to the September 21, 2011 visit. Here, as in Erne, it was reasonably foreseeable or
likely that despite the obviousness of the staircase a visually impaired customer would likely fail to
protect himself against walking into the staircase where Menard was aware of the customer’s visual
impairment. Having found the foreseeability and likelihood of injury factors weigh in favor of a duty
of care, the remaining factors of the duty analysis–the burden of guarding against the injury and
the consequences of placing that burden on Menard-- also weigh in favor of finding a duty. The
burden on Menard in guarding against injury to a customer who requested assistance because of
his visual impairment was slight. It would be a minimal burden on Menard to warn or assist known
visually impaired customers around the staircase. Having agreed to escort Daniels around the
store because of his visual impairment, Menard had the burden of guarding against an
unreasonable risk of injury in navigating the store. Whether Menard breached that duty by failing
to exercise a reasonable degree of care is a question of fact. Accordingly, as to the September
21, 2011 visit, Menard is not entitled to summary judgment on Daniels’ negligence claim as a
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matter of law.1
There is a key factual difference between the September 21, 2011 visit and the October 13,
2011 visit which precludes application of the Erne case to the second incident. There is no
evidence in the record that Daniels requested assistance from Menard to guide him through the
store due to his vision impairment on his second visit. On October 13, 2011, Daniels entered the
Menard store, approached a Menard employee and told the employee he “needed someone to help
[him] with something that [he] needed to buy.” Daniel Dep. at 95. It is undisputed that on October
13, 2011, Daniels did not notify Menard that he was visually impaired. Given this key factual
distinction between the Erne case and the October 13, 2011 incident, Daniels cannot rely on the
distraction exception to the open and obvious rule. To the extent Daniels suggests that the
distraction exception applies to the October 13, 2011 incident because he became “distracted by
the merchandise and momentarily for[got] or fail[ed] to discover the existence of” the staircase
(doc. 51 at 7), the Court rejects that argument. Daniels testified otherwise in his deposition–that
he was not distracted at the time he struck his forehead on the staircase on October 11, 2011.
Daniels Dep. at 102. Because Menard had no duty to warn or protect against the danger presented
by the open and obvious staircase and it could not have anticipated harm despite the staircase’s
obviousness, Menard it is entitled to judgment as a matter of law on the negligence claims as to
the October 13, 2011 incident.

1

Contrary to Menard’s suggestion, the notes to Section 342 of the Restatement (Second)
of Torts the Erne court relied on are not limited to cases where the plaintiff is blind and the
defendant knew that the plaintiff was blind at the time of the incident. See Nelsen v. Nelsen, 23
P.3d 424, 429 (Or. App. 2001) (applying section 342 where plaintiff was not blind but had peripheral
vision only in her left eye and diminished vision in her right eye). The issue is whether “the
possessor has knowledge of facts from which he should realize that an ordinary warning will not
be sufficient to notify the licensee of the danger, or to enable him to protect himself against it.”
Erne, 517 N.E.2d at 1206 (quoting Restatement (Second) of Torts, section 342, comment k).
Comment K to Section 342 of the Restatement gives an example of an “extreme case” as in the
“case of a blind man, he may even be required to give physical assistance to enable the licensee
to avoid the danger.” Id. at 1206-07.
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The case of Prostran v. the City of Chicago, 811 N.E.2d 364 (Ill. App. 2004), relied upon
by Menard, does not compel a different result as to the September 21, 2011 incident. In Prostran,
a visually impaired pedestrian brought a negligence action against the City of Chicago for injuries
she sustained when she fell while crossing a dug-up section of sidewalk that was under
construction and contained no barricades or warning signs. The trial court granted summary
judgment for the defendant and found that it owed no duty to plaintiff as the defect in the sidewalk
was open and obvious. Id. at 366. On appeal, the plaintiff argued that due to her visual handicap
the “defect of the sidewalk was not open and obvious and that the City should have anticipated that
visually disabled people might not notice the condition, appreciate the risk, and avoid the area.”
Id. The appellate court affirmed, finding plaintiff’s testimony confirmed that she had knowledge of
the condition of the sidewalk notwithstanding her visual impairment and the condition of the
sidewalk was open and obvious. As to the distraction exception to the open and obvious rule, the
plaintiff asserted that she was “looking at areas of the alley sidewalk filled with mud, rocks and dug
out areas, but she did not see the specific rock that caused her to fall until afterwards.” Id. at 370.
The court declined to extend the distraction exception to a situation where the plaintiff claimed that
“she was distracted from a specific aspect of the sidewalk by the general condition of the sidewalk.”
Id. at 371.
Unlike Prostran, Daniels does not claim he was distracted by the general condition of the
staircase. Rather, Daniels testified that on September 21,2011, he sought assistance from a
Menard employee in navigating the store due to his visual impairment, another Menard employee
agreed to escort him through store, but then left Daniels alone. Daniels was distracted by his
search for the Menard employee when he struck his head on the staircase. Daniels Dep. at 59.
Additionally, the plaintiff in Postran was aware of the dangerous condition of the sidewalk before
she fell, yet she chose to walk through the construction. Postran, 811 N.E.2d at 88. Here, Daniels
did not observe the staircase and then, choose a dangerous path. Daniels testified that he did not
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see the low-hanging area prior to striking his head. Daniels Dep. at 67.
Menard cites Carroll v. Chicago, B & Q. Ry. Co., 142 Ill.App. 195, 197 (Ill. App. 1908), for
the proposition that the “misfortune of being blind or deaf does not relieve the afflicted person from
the duty to exercise ordinary care, but rather imposes upon him the duty of greater precaution to
avoid injury, since strangers have no notice of the infirmity.” Carroll is also distinguishable. The
plaintiff in Carroll was killed while trespassing on a railroad track and there was no evidence that
the railroad had knowledge that the plaintiff was deaf. Id. at 197. As a trespasser, the Carroll
plaintiff was protected only from willful and wanton conduct by the railroad. Id. The court held that
“employees of a railroad company are under no obligation to keep a lookout for trespassers upon
the right of way of a railroad, and are not guilty of wilful or wanton negligence, as against such
trespassers, for failing to do so.” Id. at 197-98. The court found that the plaintiff was killed
because of his own negligence. In the present, Daniels was an invitee, not a trespasser, of
Menard’s store. Additionally, the record reveals that on September 21, 2011, Daniels informed
Menard that he was visually impaired and needed assistance in navigating the store, whereas the
railroad in Carroll had no knowledge that the plaintiff was deaf.
B.

Voluntary Undertaking
Daniels next asserts that the voluntary undertaking doctrine is applicable here and

precludes the entry of summary judgment in favor of Menard. Daniels contends that even if a duty
does not exist to warn or protect him from the staircase, Menard’s employees voluntarily assumed
the duty. “Under the voluntary undertaking theory, a duty, limited to the extent of the undertaking,
may be imposed on a person who voluntarily agrees to perform a service necessary for the
protection of another person or their property.” Day v. Menard, 899 N.E.2d 501, 504 (Ill. App.
2008). “One who voluntarily undertakes to render services to another is liable for bodily harm
caused by his failure to perform such services with due care or with such competence and skill as

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he possesses.” Siklas v. Ecker Center for Mental Health, Inc., 617 N.E.2d 507, 512 (Ill. App. 1993);
see also Section 323 of the Restatement (Second) of Torts. “The scope of an assumed duty is
limited by the extent of the undertaking.” Id.
Daniels contends that on September 21, 2011, Menard’s employee voluntarily undertook
to lead him throughout the store after Daniels asked for such assistance due to his visual
impairment, but then failed to carry through with that assistance when he left Daniels alone without
assistance.

According to Menard, if a customer requests specific assistance, or needs

accommodations, Menard employees will help them. Doc. 46 at ¶ 34. Daniels testified that,
although he did not remember specifically what he said to the Menard employee when he entered
the store on September 21, 2011, he told the employee that he needed an escort, he was visually
impaired, and he needed some things in the store. Daniels Dep. 50, 52. This evidence, taken in
the light most favorable to Daniels, sufficiently demonstrates a voluntary undertaking to escort
Daniels throughout the store because of his visual impairment. Menard had a duty to exercise
reasonable care in performing the services which made up its undertaking on behalf of Daniels.
The Court rejects Menard’s argument that it is nevertheless entitled to summary judgment
because Daniels cannot establish reliance on its undertaking or that he suffered harm because of
that reliance. In the Day case cited by Menard, the plaintiff requested defendant’s employee’s
assistance in loading landscaping materials into her truck. Defendant’s employee “voluntarily
accepted the task to lower the tailgate of the plaintiff’s truck and load merchandise but failed to
perform the undertaking within 15 minutes of plaintiff’s arrival to the secured area.” Day, 899
N.E.2d at 505. The plaintiff decided not to wait longer for defendant’s employee’s help, loaded the
merchandise into the truck herself, and injured herself in the process.

Id.

Under these

circumstances, the court held that the plaintiff could not show that defendant’s failure caused her
injury. Id.

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In this case, on September 21, 2011, Daniels requested Menard’s assistance because of
his visual impairment, waited for an employee to escort him through the store, was met by an
employee who began leading him through the store, and was then left alone by the employee.
Daniels testified that he was trying to locate the Menard employee who agreed to escort him and
was walking toward the employee when he struck his head on the staircase on September 11,
2011. Daniel Dep. at 59. Therefore, unlike the plaintiff in Day, Daniels did not decide not to utilize
Menard’s assistance. Viewing the evidence most favorably to Daniels, a reasonable jury could find
that Daniels relied on Menard’s undertaking and suffered harm because of that reliance.
As to the October 13, 2011 incident, Menard is entitled to judgment as a matter of law on
Daniels’ claim pursuant to a voluntary undertaking theory. Daniels has not offered evidence from
which a reasonable trier of fact could find that Menard voluntarily undertook a duty to escort him
through the store because of his visual impairment. The extent of Menard’s undertaking was
limited to helping Daniels find the item he wanted to buy. Menard cannot be found to have
assumed a duty to guide Daniels through the store due to his vision impairment where there is no
evidence that Daniels told any Menard employee that he had a visual impairment that prevented
him from walking through the store without assistance. Because there is no evidence that Menard
voluntarily undertook to escort Daniels through the store on October 13, 2011 because of a visual
deficiency, Menard is entitled to judgment as a matter of law on this voluntary undertaking claim.
C.

Contributory Negligence
Finally, Menard argues that Daniels was contributorily negligent in failing to take a safe

alternative route through the store. Menard maintains that a “safer alternative existed if [Daniels]
chose to walk around the staircase.” (Doc. 47 at 11). According to Menard, in both instances, “a
Menard employee walked past the staircase and did not hit the staircase, thereby demonstrating
that a safer alternative means existed.” Id. Daniels responds that the safer alternative route theory

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is inapplicable to this case because he did not consciously choose a more dangerous path as he
did not see the staircase prior to striking his head.
“If a person has available to him two different ways of proceeding, one dangerous or
hazardous and the other safe, and he consciously chooses the former and is injured as a
consequence of his choice, he is contributorily negligent.” Blacconeri v. Aguayo, 478 N.E.2d 546,
550 (Ill. App. 1985). Illinois courts “have consistently recognized that evidence of the existence of
a safer alternative, known to but not chosen by the plaintiff, is properly admissible to show
contributory negligence.” Id. A plaintiff can be held contributorily negligent as a matter of law “‘only
in those cases in which all of the evidence viewed in its aspect most favorable to the opponent, so
overwhelmingly favors [the] movant that no contrary verdict on that evidence could ever stand.’”
Cook v. Hoppin, 783 F.2d 684, 692 (7th Cir. 1986) (quoting Pedrick v. Peoria & Eastern Railroad
Co., 229 N.E.2d 504 (Ill. S.Ct. 1967)).
The evidence does not so overwhelmingly favor Menard that it is entitled to judgment in its
favor on the issue of contributory negligence as a matter of law. Menard points out that Daniels
testified that at the time of the first incident, he was “moving around” in the store, he was not
headed to a particular destination, no one told him a path to follow, and he was not following a
Menard employee. Daniels Dep. at 70-71. While that is true, Menard neglects to recognize that
Daniels also testified that he was walking towards the employee who left him alone in the store at
the time he struck his head. Daniels testified that after looking for the employee who had been
assisting him but left him alone, he saw the employee “way over there someplace” and was then
“going toward [the employee]” when he struck his head. Id. at 59. Daniels argues that he was
unaware that he was choosing a dangerous path. According to Daniels, he is visually impaired and
did not see the staircase prior to striking his head on September 21, 2011. Id. at 67. Under these
circumstances, the issue of Daniels’ contributory negligence on September 21, 2011 is a question
of fact.
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CONCLUSION
For the reasons stated above, Defendant’s Motion for Summary Judgment [45] is granted
in part and denied in part. This case is set for a status hearing on May 21, 2015 at 9:30 a.m.

E N T E R:

Daniel G. Martin
United States Magistrate Judge

Dated: April 29, 2015

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