Alexander v. Supervalu Inc.
Filing
57
MEMORANDUM Opinion and Order Signed by the Honorable Daniel G. Martin on 11/20/2015. Mailed notice(lxs, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DEBORAH ALEXANDER,
Plaintiff,
v.
SUPERVALU INC. d/b/a SAVE-A-LOT,
Defendant.
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Case No. 14 C 3555
Magistrate Judge Daniel G. Martin
MEMORANDUM OPINION AND ORDER
This case arises from a slip at a Save-a-Lot store located at 10700 South Halsted Street in
Chicago, Illinois. Plaintiff Deborah Alexander (“Alexander”) filed a single count complaint against
Defendant Supervalu Inc. d/b/a Save-a-Lot alleging that Defendant was negligent under Illinois
common law. The parties consented to this Court’s jurisdiction pursuant to 28 U.S.C. § 636(c), and
Defendant has moved for summary judgment. Because there is no evidence upon which a
reasonable juror could find that Defendant created the dangerous condition leading to the slip or
had actual or constructive notice of the dangerous condition, Defendant’s Motion for Summary
Judgment [41] is granted.
FACTUAL BACKGROUND
The following facts are deemed admitted and undisputed as Alexander failed to respond to
Defendant’s Local Rule 56.1 Statement of Undisputed Material Facts.1
1
On May 26, 2012,
Local Rule 56.1(b)(3)(B) requires the nonmovant to file a “concise response to the
movant’s statement that shall contain . . . a response to each numbered paragraph in the moving
party’s statement, including, in the case of any disagreement, specific references to the affidavits,
parts of the record, and other supporting materials relied upon.” LR 56.1(b)(3)(B). The failure of
a nonmoving to comply with the requirements of Local 56.1(b)(3)(B) results in the moving party’s
facts being admitted. “All material facts set forth in the statement required of the moving party will
be deemed admitted unless controverted by the statement of the opposing part.” Local Rule
56.1(b)(3)(C); see also Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003) (noting that the Seventh
Circuit has “consistently held that a failure to respond by the nonmovant as mandated by the local
rules results in an admission.”). The Court therefore deems admitted all of the facts set forth in
Defendant’s Local Rule 56.1 Statement of Undisputed Material Facts (Doc.36). Local Rule
56.1(b)(3)(C) also “requires specifically that a litigant seeking to oppose a motion for summary
judgment file a response that contains a separate ‘statement . . . of any additional facts that require
Alexander went to the subject store with Brittany Cribbs (“Cribbs”) and Alexander’s great-grandson,
Darien Mathis. (Doc. 36 at ¶ 9). Alexander testified that approximately 30 minutes passed between
the time she entered the store and the time when she slipped on liquid on the store floor. Id. at ¶
10. Alexander slipped, but did not fall, after she had checked out and paid for her groceries. Id.
at ¶ 11. Alexander was pushing her shopping cart at the time she slipped but her view of the floor
was not obstructed just prior to the incident. Id. at ¶ 12. The lighting in the store was good and
there were no defects with the tile floor. Id. at ¶ 15. At the time of the incident, Alexander was
wearing flip-flops. Id. at ¶ 14. Alexander did not see any liquid on the floor before she slipped. Id.
at ¶ 13. After she slipped, Alexander saw liquid on the floor that was approximately 12 inches
across in a generally roundish shape. Id. at ¶ 16. The liquid was clear, was not dirty, and there
were no footprints or cart tracks leading out from it. Id. at ¶ 17.
Alexander does not know how the liquid came to be on the floor and did not see anything
fall from somebody’s cart or drip from somebody’s ice bag. Id. at ¶ 18; Doc. 36-6 at 30:17-20.
Alexander does not know how long the liquid was on the floor before she slipped. (Doc. 36 at t ¶
19). After the occurrence, Alexander spoke with store employees about the occurrence and no one
told her that they caused the liquid to be on the floor, no one knew that the liquid was on the floor
before she fell, and no one told her where the liquid may have come from. Id. at ¶ 20. There was
no wet floor sign near where the liquid was found. Id. at ¶ 21.
Cribbs accompanied Alexander to the subject store on May 26, 2012. Id. at ¶ 22. Cribbs
shared a shopping cart with Alexander during the shopping trip and purchased some items for
herself during the shopping trip. Id. at ¶¶ 23, 24. Cribbs testified that it was approximately 30-45
the denial of summary judgment.’” Cichon v. Exelon Generation Co., LLC, 401 F.3d F.3d 803, 809
(7th Cir. 2005) (quoting Local Rule 56.1). Alexander failed to file a statement of additional facts in
opposing Defendant’s motion for summary judgment. Notwithstanding Alexander’s failure to comply
with Local Rule 56.1(b)(3)(C), the Court has reviewed the material Alexander submitted in
opposition to summary judgment. (Docs. 48-1– 48-7)/
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minutes between the time she and Alexander entered the store and when Alexander slipped. Id.
at ¶ 25. Cribbs testified that she witnessed the occurrence and was walking a couple of inches in
front of Alexander. Id. at ¶ 26. Cribbs did not see any liquid on the floor before Alexander slipped
in the checkout area. Id. at ¶ 27. Cribbs stated she had just turned around to look over her left
shoulder when the incident occurred. Id. at ¶ 28. Cribbs testified that she was pushing the
shopping cart at the time of the occurrence. Id. at ¶ 29. After Alexander slipped and fell, Cribbs
saw a circle of clear liquid on the floor, about the size of a dinner plate. Id. at ¶ 30.
Cribbs
does not know where the liquid came from and did not see any ice on the floor. Id. at ¶ 31. Cribbs
did not hear any employee state that they were aware of the liquid on the floor before the
occurrence or that they caused the liquid to be on the floor. Id. at ¶ 32. Cribbs does not know how
long the liquid was on the floor before Alexander slipped. Id. at ¶ 33. Cribbs testified that the
lighting was good in the area of the occurrence and there were no issues with the flooring. Id. at
¶ 34. The liquid on the floor was clear and was not dirty. Id. at ¶ 35. No liquid was dripping from
the ceiling. Id. at ¶ 36. There were no warning cones posted in the area prior to the occurrence.
Id. at ¶ 37. Cribbs testified that there was nothing else on the floor, other than the liquid, that could
have caused Alexander to slip. Id. at ¶ 38.
Rickey Patterson was working as a cashier at the subject store on the date of Alexander’s
slip incident. Id. at ¶ 39. Alexander slipped after Paterson had completed his transaction with her
as she was walking away from him near the end of the check out lane. Id. at ¶ 40. The incident
occurred behind Patterson to his left. Id. at ¶ 41. Patterson had inspected the area where
Alexander slipped between five to ten minutes prior to the occurrence and did not find any liquid
on the floor. Id. at ¶¶ 42, 43. If Patterson had found liquid on the floor prior to the occurrence, he
would have immediately cleaned it up and posted a wet floor cone in the area. Id. at ¶ 44.
Patterson testified that there were no defects with the floor tile in the area where the incident
occurred. Id. at ¶ 45. No one had notified Patterson that there was liquid on the floor in the area
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of Alexander’s slip before it occurred. Id. at ¶¶ 47, 48. Patterson testified that if he encounters an
item at checkout that seems wet to the touch, he puts the item in a bag before putting it in the
customer’s shopping cart. Id. at ¶ 49. Finally, Patterson testified that there were no leaking pipes
above the area where the incident occurred. Id. at ¶ 50.
DISCUSSION
The parties agree that Illinois law governs in this diversity action. Alexander’s negligence
claim is based on premises liability. “In Illinois, businesses owe their invitees a duty to maintain the
premises in a reasonably safe condition to avoid injuring them.” Reid v. Kohl’s Dept. Stores, Inc.,
545 F.3d 479, 481 (7th Cir. 2008). “Liability can be imposed when a business’s invitee is injured by
slipping on a foreign substances on its premises if the invitee establishes that (1) the substance
was placed there by the negligence of the business; (2) the business had actual notice of the
substance; or (3) the substance was there a sufficient length of time so that, in the exercise of
ordinary care, its presence should have been discovered, i.e., the business had constructive notice
of the substance.” Zuppardi v. Wal-Mart Stores, Inc., 770 F.3d 644, 649 (7th Cir. 2014).
Defendant argues that Alexander cannot present sufficient evidence to create a genuine
issue of material fact as to whether the liquid on which she slipped was caused to be there by
Defendant, that Defendant knew of its presence, or that the liquid was on the floor long enough to
have been discovered by Defendant. Alexander responds that a question of fact exists as to
whether the liquid on the floor was caused by the negligence of the Defendant thereby not requiring
notice and if notice is required, whether Defendant had constructive notice of the liquid on the floor
based on the length of time the liquid had been present on the floor prior to the accident and the
store’s own policies regarding inspections and sweeps of the floor. The Court addresses each
argument in turn below.
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A.
Defendant’s Responsibility for Dangerous Condition
Alexander first argues that she has presented sufficient evidence from which a trier of fact
could determine that the liquid was placed on the floor through Defendant’s negligence. “To prove
that the defendant business, as opposed to a third person, created the dangerous condition, Illinois
courts have required the plaintiff to (1) show that the foreign substance was related to defendant’s
business and (2) ‘offer [] some further evidence, direct or circumstantial, however slight, such as
the location of the substance or the business practices of the defendant from which it could be
inferred that it was more likely that defendant or his servants, rather than a customer, dropped the
substance on the premises . . . .’” Zuppardi, 770 F.3d at 649-50 (quoting Donoho v. O’Connell’s,
Inc., 148 N.E.2d 434, 439 (Ill. S.Ct. 1958)).
In this case, there is no dispute that the clear liquid was related to Defendant’s grocery store
business.
As to the second element, Alexander argues that she has presented sufficient
circumstantial evidence that Defendant’s negligence caused the liquid to be on the floor, making
Defendant’s notice of the condition irrelevant. Thompson v. Economy Super Marts, Inc., 581
N.E.2d 885, 888 (Ill. App. 1991) (stating “where the foreign substance is on the premises due to the
negligence of the proprietor or his servants, it is not necessary to establish their knowledge, actual
or constructive.”). The relevant question is “whether the evidence makes it more probable that
defendant or his servants” are responsible. Donoho, 148 N.E.2d at 441; Lane v. Hardee’s Food
Sys., Inc., 184 F.3d 705, 707 (7th Cir. 1999) (stating plaintiff must “produce some evidence that
makes it more likely than not that the defendant was responsible for its existence.”).
Alexander argues that Defendant’s procedure for bagging groceries and Defendant’s failure
to follow its own ice purchasing and/or bagging policies shows that it is more likely that Defendant
was responsible for the liquid on the floor. At the subject store, Defendant’s cashier does not bag
groceries for the customers. Instead, the cashier scans the items and places them back into a
shopping cart near the end of the checkout line. After paying for the items, the customer moves
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the shopping cart to another area where the customer bags the groceries.
Alexander theorizes that the liquid she slipped on must have leaked from a bag of ice that
had been carried by a customer from the ice machine to the same register where Alexander later
checked out. The video of the day of the incident shows that approximately 20 minutes before
Alexander slipped, another customer brought two large bags of ice from the ice machine in the front
of the store to the same register where Alexander checked out. Patterson placed the two bags of
ice in a cart at the front of the register in the same general area where Alexander later slipped.
Patterson did not bag the ice bags before placing them in the customer’s cart, which Alexander
claims was a violation of Defendant’s policy of bagging wet items before placing them in a
customer’s cart. Alexander concludes that Patterson’s failure to follow Defendant’s bagging policy
caused the liquid on the floor. Alexander also points out that she and Cribbs testified that none of
the items in Alexander’s cart were dripping or leaking. (Doc. 36-6 at 42:20-23; Doc 36-7. at 43:4-7).
Cribbs and Patterson testified that nothing was leaking from the ceiling above the area where the
liquid was on the floor. (Doc. 36 at ¶¶ 36, 50). Alexander claims that this evidence shows that the
liquid “could not have come from any other source” besides one of the ice bags. (Doc. 48 at 10).
There are several problems with Alexander’s theory. First, Alexander has failed to show that
there is a genuine issue of material fact as to whether an ice bag in the same checkout area 20
minutes before the incident was the source of the liquid on the floor. Alexander and Cribbs did not
see the liquid on the floor before Alexander slipped nor did they know how the liquid came to be
on the floor. (Doc. 36 at ¶¶ 13, 18, 27, 31).2 The liquid was clear, was not dirty, and there were no
footprints or cart tracks leading from the puddle. Id. at ¶¶ 17, 35. The fact that two ice bags were
2
Alexander relies on testimony from Cribbs when she was asked where the water came
from and answered: “I’m not sure. I believe ice, but I’m not sure.” (Doc. 36-7 at 19:11-3). Cribbs
admitted, however, that she was just “guessing because the ice machine was right there.” Id. at
20:12-16. “[G]uesswork and speculation are not enough to avoid summary judgment.” Good v.
University of Chicago Medical Center, 673 F.3d 670, 675 (7th Cir. 2012).
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in a cart in the same checkout area approximately 20 minutes before Alexander slipped does not
alone imply that it is more likely that the liquid came from an ice bag because there is absolutely
no evidence in the record indicating that either ice bag had a hole and leaked water or ice or
otherwise caused the liquid on the floor. The undisputed record suggests that the ice bags
purchased by the customer approximately 20 minutes before the incident were not the source of
the liquid on the floor. Patterson inspected the area where Alexander slipped between five to ten
minutes before the occurrence and did not discover any liquid on the floor. Patterson also testified
that at checkout he places items that feel wet or like they might drip in a plastic bag. (Doc. 36-8 at
35:12:-19). Patterson’s failure to place the ice bags which he handled into separate plastic bags
suggests that ice bags were not leaking or wet.
The surveillance video shows that beginning about 10 minutes before Alexander slipped,
several customers with carts containing various items used the same checkout line. The liquid on
the floor could have leaked or spilled from a liquid or frozen item purchased at the same checkout
area by a different customer. Alexander concedes that other possible sources for the liquid in the
checkout area where Alexander slipped exist: “maybe somebody brought some ice over there and
didn’t notice that it dripped or somebody’s cart, some frozen food, maybe it came from their cart.”
(Doc. 36-6 at 30:11-14). When asked whether she actually saw anything falling from somebody’s
cart or dripping from somebody’s ice bag, Alexander replied, “No.” Id. at 30:17-20. Alexander
admitted that her possible explanations for the source of the liquid were only a “guess.” Id. at 30:2124. To survive summary judgment, Alexander must provide evidence beyond mere speculation that
20 minutes before the incident, the other customer’s ice bag leaked ice or water on the floor where
she slipped. Zuppardi, 770 F.3d at 650 (holding plaintiff cannot avoid summary judgment by merely
identifying a “potential source” of the spill). To find that the liquid was caused by a leaking ice bag
20 minutes before the occurrence rather than finding that the liquid came from any number of other
sources would be pure speculation. Based on these facts, a reasonable jury could not find the
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evidence Alexander presents supports a finding that it is more probable that the ice bags caused
the liquid upon which Alexander slipped.
The second problem with Alexander’s theory is that she has not set forth sufficient evidence
to create an inference that Defendant caused the liquid on the floor. No employee told Alexander
or Cribbs that they caused the liquid to be on the floor, that they knew where the liquid came from,
or that they knew the liquid was on the floor before Alexander slipped. (Doc. 36 at ¶¶ 20, 32). No
one had notified Patterson that there was liquid on the floor in the area where Alexander slipped.
Id. at ¶¶ 47, 48. Alexander and Cribbs testified that the liquid Alexander slipped on was clear and
Defendant does not dispute that it sells water, other clear liquids, ice, and frozen items, but
Alexander has not offered any further evidence tending to show that it was more likely that
Defendant was responsible for the liquid on the floor. See Zuppardi, 770 F.3d at 650 (concluding
that fact that puddle plaintiff slipped on was clear and odorless and it was undisputed that
defendant Wal-Mart sells water bottles and other related products did not “tend[] to show that it was
more likely that Wal-Mart was responsible for spilling it on the ground.”).
Alexander asserts that “Defendant instructed its employees as to store policy regarding the
bagging procedure and as to not bringing ice to the register and it was their failure to follow store
policy that caused the plaintiff to be injured.” (Doc. 48 at 11). This argument is based entirely on
the testimony of Patterson, who stated:
Q:
What about like bags of ice? I know there is an ice machine in the
front.
A:
We usually say, if you want ice, don’t come up here first and get your
ice. Buy your ice last so, as soon as you get your ice, you can pick
it up and walk out the door.
Q:
Do they have to come up to the register?
A:
No we just got a PLU for the ice.
Q:
The ice machine itself does have some carpets around it though, right?
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A:
Yes.
Q:
And the reason for that?
A:
If anything does drip onto the carpets, it’s not dripping on the floor.
It’s dripping onto the carpets. The carpets absorb the water.
(Doc. 36-8 at 35:20-24, 36:1-12). While Patterson’s testimony suggests the Defendant preferred
customers not to put bags of ice in their carts at the beginning of their shopping trips and that
customers need not bring ice bags to the register to buy them because cashiers can use a PLU
code to look up the price and allow customers to pick up ice bags on the way out of the store, it
does not demonstrate a policy of prohibiting customers from bringing ice to the register. Even if
the other customer’s bringing of the two ice bags to the same register 20 minutes before the
incident indicated that Defendant deviated from its ice purchasing policy, Alexander presents no
evidence from which a reasonable juror could conclude that it is more likely than not that the ice
bags caused the liquid on the floor. A reasonable jury could therefore not conclude that the
customer’s bringing of the ice bags to the register demonstrates that Defendant was responsible
for liquid on the floor.
Alexander’s asserts that Defendant’s negligence is also shown by Patterson’s failure to bag
the ice bags, which amounts to a violation of Defendant’s policy of bagging wet items. Again,
insufficient evidence exists to infer that the ice bags caused the liquid on the floor. Further,
Alexander presents no evidence that Patterson violated Defendant’s policy by failing to place the
ice bags into separate plastic bags. Patterson testified that if an item at checkout feels wet or like
it might drip, he puts it in a plastic bag before he puts the item in the customer’s cart. (Doc. 36 at
¶ 49). Patterson further explained that he does not place all frozen items in a plastic bag; only
items that feel wet. Patterson Dep. at 35:12:-19. The flaw in Alexander’s argument is that there
is no evidence that the ice bags were wet to the touch or dripping when Patterson handled them.
There is therefore no evidence in the record from which a jury reasonably could find that it is more
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likely that Defendant’s employee caused the liquid on the floor.
B.
Defendant’s Actual or Constructive Notice of Dangerous Condition
Alexander presents no facts showing that Defendant had actual knowledge that there was
liquid on the floor before she slipped. Alexander argues that she has presented sufficient evidence
from which a trier of fact could determine that Defendant had constructive knowledge of the liquid
on the floor. “Constructive notice can be established under Illinois law by either presenting
evidence that (1) the dangerous condition existed for a sufficient amount of time so that it would
have been discovered by the exercise of ordinary care, or (2) the dangerous condition was part of
a pattern of conduct or a recurring incident.” Zuppardi, 770 F.3d at 651. Where constructive notice
is asserted, “[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.”
Id. (quoting Tomczak v. Planetsphere, Inc., 735 N.E.2d 662, 668 (Ill. App. 2000)).
Alexander has presented no evidence from which a trier of fact could determine that
Defendant had constructive knowledge of the liquid on the floor. “Illinois law recognizes that there
is no bright-line rule indicating the requisite time to establish notice, though periods in excess of ten
minutes have failed the test.” Reid, 545 F.3d at 483. Courts “look to the circumstances of the
particular case to determine if the length of time gave rise to notice.” Id. “Absent any evidence
demonstrating the length of time that the substance was on the floor, a plaintiff cannot establish
constructive notice.” Id. at 482.
In Reid, the plaintiff was walking from a carpeted section of a Kohl’s store to a tiled section
of the store when she slipped on a spilled milkshake. Reid, 545 F.3d at 480. The store manager
testified that she has passed the aisle where the plaintiff had fallen at most ten minutes prior to the
fall and had not seen the spilled pink milkshake. Id. at 481. The store manager further testified that
no employees or customers reported the spill prior to the incident. Id. In affirming the district
court’s grant of summary judgment to the defendant, the Seventh Circuit stated a store’s duty to
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inspect decreases as customer traffic decreases. Id. at 483. The store manager testified that on
the afternoon of the accident, there were very few customers in the store. The Seventh Circuit
concluded that under the circumstance of that case, “no reasonable person could conclude that ten
minutes was not enough time to give [the defendant] constructive notice of the spilled substance.”
Id. at 482-83; see also Hresil v. Sears, Roebuck & Co., 403 N.E.2d 678, 680 (Ill. App. 1980)
(holding as a matter of law that ten minutes was an insufficient period of time to give constructive
notice to defendant self-service store of foreign substance on the floor where store was uncrowded
and there was no evidence than any other customer or store employee had discovered or walked
through the foreign substance).
In this case, Alexander has no evidence as to how the liquid accumulated on the floor or
how long the liquid was on the floor before she slipped. (Doc. 36 at ¶¶ 18, 19, 31, 33). An
employee of Defendant was expected to inspect or sweep store areas for debris, liquids,
obstructions and any hazards “starting before store opening and every two (2) hours thereafter, or
as often as needed throughout the day.” (Doc. 48-7). Patterson testified that the store was not
crowded at the time of the incident. (Doc. 36-8 at 31:22-24, 32:1). It is undisputed that Patterson
inspected the area where Alexander slipped five to ten minutes prior to the occurrence, and he did
not find any liquid on the floor. Doc. 36 at ¶¶ 42-43. Based upon Patterson’s uncontradicted
statement, ten minutes is the outside limit of time the liquid was on the floor. The remaining
evidence in this case suggests that the liquid was present on the floor for a very short period of time
before Alexander slipped. Despite the liquid being located near the end of a checkout line, the
liquid was clear, clean, and there were no footprints or cart tracks leading from the liquid. Id. at ¶¶
17, 35. The surveillance video shows other customers walking through the same checkout area
prior to Alexander’s slip and none of the customers appear to have slipped, fallen, or otherwise
indicated that there was liquid on the floor. There is no evidence that any other customer or
employee had discovered or walked through the liquid. Id. at ¶¶ 47, 48. Based on these
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circumstances, no reasonable jury could conclude that ten minutes was enough time to give
Defendant constructive notice of the liquid on the floor.
Alexander makes much of the fact that Defendant failed to follow its “Clean Sweep Standard
Operating Procedure and Policy,” which states that “Clean Sweeps must be performed and
documented – starting before store opening and every two (2) hours thereafter, or as often as
needed throughout the day.” (Doc. 48-7). Alexander points out that Defendant’s Clean Sweep Log
shows there was no Clean Sweep performed between 5:10 p.m and 9:00 p.m. on the date of the
incident. Id. Alexander argues that Defendant’s failure creates a question of fact as to whether the
liquid on the floor should have been discovered and thus, Defendant should be deemed to have
constructive notice of the substance. (Doc. 49 at 14).
As discussed above, the undisputed record reflects that Patterson inspected the area where
Alexander slipped between five to ten minutes prior to the incident and did not discover any liquid
on the floor. Further, Patterson testified that the store was not crowded at the time of the incident.
(Doc. 36-8 at 31:22-24, 32:1). Demanding further monitoring under these circumstances would
“require the continuous monitoring and patrolling of a store’s safety conditions that [the Seventh
Circuit] and Illinois courts have summarily rejected.” Zuppardi, 770 F.3d at 652; Peterson v. WalMart Stores, Inc., 241 F.3d 603, 604 (7th Cir. 2001) (stating “the duty of inspection and clean up
does not require continuous patrolling of the aisles.”); Howard v. Wal-Mart Stores, Inc., 160 F.3d
358, 359 (7th Cir. 1998) (noting a business “is not required to patrol the aisles continuously, but only
at reasonable intervals.”). Even under Alexander’s theory that liquid leaked from an ice bag in the
same checkout area approximately 20 minutes before she slipped, sweeps done every two hours
would not have uncovered the liquid and prevented this incident. The last sweep done prior to the
occurrence was completed at 5:10 pm. (Doc. 48-7). If Defendant had done a sweep two hours later
at 7:10 p.m., such sweep would have occurred before the transaction where the bags of ice were
put in the cart, seen at approximately 7:29 p.m. on the video. Similarly, the liquid would not have
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been discovered even if the store had done sweeps every two hours after the first sweep done at
9 a.m.3
CONCLUSION
For these reasons, Defendant Supervalu Inc.’s Motion for Summary Judgment [41] is
granted. Defendant’s Motion to Strike and Bar Expert Opinion Testimony [32] is denied as moot.
The Clerk is directed to enter judgment in favor of Defendant Supervalu Inc. d/b/a Save-a-Lot and
against Plaintiff Deborah Alexander. Civil case terminated.
E N T E R:
Daniel G. Martin
United States Magistrate Judge
Dated: November 20, 2015
3
As to a pattern of conduct, Alexander asserts that Patterson “stated that there had been
incidents in the past, prior to Ms. Alexander’s accident, where there were problems with items
leaking though the shopping carts onto the floor at the end of the register.” (Doc. 48 at 7-8).
Patterson testified that between 2006 and the date of the incident on May 26, 2012, he “very
seldom” encountered items leaking through the cart and dripping on the floor at the end of the
register. (Doc. 36-8 at 34:15-22). Patterson further testified that he could not recall any slip and
fall incident at the store between 2006 and January 2015. Id. at 36:14-24, 37:1-5. Patterson’s
testimony does not establish that Alexander’s slip is part of a pattern of conduct or recurring
incident which would constitute constructive notice of a dangerous condition.
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