Fultz v. Target Corporation
Filing
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MEMORANDUM Opinion and Order Signed by the Honorable Daniel G. Martin on 2/1/2016. Mailed notice(lxs, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MONIQUE FULTZ,
Plaintiff,
v.
TARGET CORPORATION,
Defendant/Third-Party Plaintiff,
v.
PRESTIGE MAINTENANCE USA, LTD.,
Third-Party Defendant.
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Case No. 14 C 4871
Magistrate Judge Daniel G. Martin
MEMORANDUM OPINION AND ORDER
After Plaintiff Monique Fultz (“Fultz”) slipped and fell while shopping at a Target store, she
filed this lawsuit against Defendant Target Corporation (“Target”) alleging negligence under Illinois
common law. In turn, Target filed a third-party complaint against Prestige Maintenance USA, Ltd.
(“Prestige”), which provided overnight housekeeping services at that particular store under a
contract with Target. The parties consented to this Court’s jurisdiction pursuant to 28 U.S.C. §
636(c), and Target has moved for summary judgment against Fultz. Because there is no genuine
issue of material fact and Target is entitled to judgment as a matter of law on Fultz’s negligence
claim, the Court grants Target’s Motion for Summary Judgment [59].
BACKGROUND1
On May 3, 2012, Fultz arrived at the Target Broadview store at about 8 a.m. to do some
shopping. The store was not very busy or crowded. That day Fultz was wearing platform shoes
with high heels. The platform of the soles of the shoes was about 1 inch high and the heels were
1
The facts are taken from the parties’ Local Rule 56.1 statements and responses and are
undisputed unless otherwise noted.
about 2 to 3 inches high. After shopping for about ten minutes, Fultz slipped and fell. Prior to
falling, Fultz was walking through an aisle of the store, carrying her purse and an item of clothing
in her right hand and a cell phone in her left hand which she was holding up to her left ear. When
she fell, Fultz was talking on her cell phone with her sister. Video from the day of the incident
shows that at about 8:38 a.m., Fultz’s left foot slipped and she fell to the floor, landing on her
buttocks and left hand. 2 Fultz does not know what caused her foot to slip or what caused her to
fall.
Geneva Martin, a store employee, came to Fultz’s assistance seconds after the fall. Martin
did not see Fultz fall nor ask her how she fell. Martin observed Fultz standing and in an upright
position. Martin testified that she “scooted” her feet across the floor and found the floor to be dry
and “not slippery at all.” Doc. 65 at 18, ¶ 20. Fultz disputes, however, whether the floor that Martin
“scooted” her feet across was the precise area where Fultz actually fell. But it is undisputed that
Fultz did not see or feel any liquid, solid material, debris, or anything else on the floor that could
have caused her to fall. Martin visually inspected the floor after Fultz’s fall and found it to be dry,
not slippery, and without the presence of anything that could have posed a hazard, although Martin
did not feel the area of the floor where Fultz fell with her hands.3
That morning Martin arrived at the store between 7:30 a.m. and 7:45 a.m., before the
store’s 8:00 a.m. opening. Between the time of her arrival and the store’s opening, Martin walked
2
It is undisputed that all portions of the video in which Fultz is shown are a true and
accurate depiction of the events of May 3, 2012. Doc. 65 at 17, ¶¶ 10-14.
3
In her Local Rule 56.1(b)(3) response, Fultz purports to dispute the fact that Martin visually
inspected the floor. Her response, however, states only that “it is disputed whether the floor that
Ms. Martin ‘scooted’ her feet across was not the precise area where Ms. Martin [sic] fell and it is
disputed whether the floor was slippery.” Doc. 65 at 19, ¶ 21. Because Fultz’s response does not
address whether Martin visually inspected the floor, the Court deems that fact admitted. Cracco
v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009) (where plaintiff fails to adequately dispute facts
set forth in defendant’s Local Rule 56.1(a) paragraph, those facts are deemed admitted for purposes
of resolving the summary judgment motion).
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through the front end of the store, including the area where Fultz later fell. Martin’s pre-opening
walk-through included checking to make sure the floors were clean, dry, and generally safe for
customers to shop. Martin testified that she specifically recalls walking through the front end of the
store before it opened on May 3, 2012 and at that time, the particular aisle where Fultz would later
fall had no obstructions, liquid, or slippery substances on the floor.
A Guest Incident Report filled out by another store employee when Fultz returned to the
store later that day, indicates that the floor was clean and dry at the time of Fultz’s fall, that her
clothes were not wet or damaged, and that no object was involved in the fall. Fultz signed the Guest
Incident Report and testified that the information contained on the report is true and accurate. Fultz
did not tell any store employee that any foreign substance or object caused her to fall. Fultz claims
that she was told by a cashier after the incident that the store “had multiple complaints that the
floors were slippery after they bluff [sic] the floors” and that “our customers do complain a lot that
our floors are very slippery” and that “they are even slippery for them.” Doc. 65 at 21, ¶ 2; Doc. 602 at 32:15-18; 33:4-6.4
The store’s surveillance video shows that in the approximately fourteen minutes immediately
proceeding Fultz’s fall, over a dozen customers walked through the same area without slipping and
without any other apparent difficulty. The store’s video also shows that in the seconds immediately
following Fultz’s fall, two customers and a store employee came to Fultz’s aid or spoke to her and,
in doing so, stepped on or near the same area of the floor on which Fultz had fallen. None of those
people appeared to slip or to have any other type of difficulty. Additionally, in the approximately
4
Target disputes that the cashier made any of these statements claimed by Fultz. Doc. 66
at ¶ 2; doc. 66-2. At the summary judgment stage, the Court accepts as true Fultz’s testimony that
the cashier made the statements claimed by Fultz. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (court must accept as true all facts set forth by the nonmovant and draw all reasonable inferences in that party’s favor when resolving a motion for
summary judgment).
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eleven minutes after Fultz fell and after she had left the area, at least ten other customers walked
through the same area without slipping or having any other apparent difficulty.
LEGAL STANDARD
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 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).
ANALYSIS
The parties agree that Illinois law governs the extent of Target’s liability in this diversity
action. Reid v. Kohl’s Dept. Stores, Inc., 545 F.3d 479, 481 (7th Cir. 2008). Fultz’s negligence claim
is based on Illinois premises liability law. “In Illinois, businesses owe their invitees a duty to
maintain the premises in a reasonably safe condition to avoid injuring them.” Id. The parties
dispute whether Fultz can establish that Target breached its duty. “Liability can be imposed when
a business’s invitee is injured by slipping on a foreign substance 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). It is not enough for a plaintiff to show that she fell on the defendant’s
flooring; rather, she must “go further and prove that some condition caused the fall and that this
condition was caused by the defendant.” Kimbrough v. Jewel Companies, Inc., 416 N.E.2d 328,
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332 (Ill. App. 1981).
Here, Fultz’s theory of liability is that the floor was unreasonably slippery because Target
buffed the floor and left behind a foreign substance, which it knew or should have known would
create a hazard. Target argues that Fultz cannot present sufficient evidence to create a genuine
issue of material fact as to whether a foreign substance was on the floor or whether the floor was
negligently treated or maintained.
A.
Target’s Responsibility for a Foreign Substance on the Floor
Target first argues that there is no evidence that there was any foreign substance or object
on the floor where Fultz fell. The Court agrees with Target that there is no evidence demonstrating
that there actually was any liquid, debris, foreign object, or other substance on the floor where Fultz
fell. It is undisputed that Fultz does not know what caused her to slip or what caused her to fall.
Fultz “neither saw nor felt any substance or object on the floor that could have caused her to fall.”
Doc. 65 at 4 and 18, ¶ 19. Fultz admitted that the floor was clean and dry, her clothes were not
wet after the fall, and no object caused to her fall.
Additionally, Fultz did not tell any Target
employee that any foreign substance or object caused her to fall.
It is further undisputed that prior to the store’s opening on the day Fultz fell, Target
employee Geneva Martin walked through the particular aisle where Fultz would later fall and found
no obstructions, liquid, or slippery substances on the floor. Martin visually inspected the floor after
Fultz’s fall and found it to be clean, dry, not slippery, and without the presence of anything that
could have posed a hazard. Finally, the store’s video surveillance shows over a dozen people
walking through the same area in the fourteen minutes before Fultz’s fall without slipping or having
any apparent difficulty; two customers and a store employee stepping on or near that area in the
seconds immediately following Fultz’s fall, again without slipping or having any apparent difficulty;
and at least ten other people walking through the same area in the eleven minutes following Fultz’s
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fall, again without slipping or having any apparent difficulty. Fultz, therefore, has failed to create
an issue of material fact that Target, or one of its employees, was responsible for a foreign
substance on the floor.
Fultz argues that an issue of fact exists as to whether the floor was slippery because Target
had buffed it. Fultz asserts that “there is evidence of a foreign substance on the floor that, after
being applied, could have made the floor unreasonably slippery.” Doc. 65 at 9. “In Illinois, the mere
waxing or oiling of a floor is not negligence per se.” Lucker v. Arlington Park Race Track Corp., 492
N.E.2d 536, 538 (Ill. App. 1986). Rather, “in order to demonstrate negligence, the evidence must
show that the waxing or oiling was not properly performed.” Id. “[A] store owner may treat his floors
with wax or oil or other substance in the customary manner without incurring liability unless he is
shown to be negligent in the materials he uses or in the manner of applying them. Id. (quoting
Dixon v. Hart, 101 N.E.2d 282 (Ill. App. 1951)). Examples of acts by a defendant which might give
rise to negligence in a case involving a slippery floor include using an excessive amount of wax,
applying the wax unevenly, treating a part of the floor with wax and leaving a part untreated, or
polishing a floor where people would unexpectedly step on the freshly treated surface.” Id.
Testimony that a floor is “slippery,” “slick,” “polished,” or “shiny”, however, is insufficient to establish
an owner’s negligence. Id.
Courts have held that plaintiffs cannot prevail on a negligence claim against defendants
where they fail to put forth any evidence that the floors were excessively slippery, other than
subjective characterizations about the appearance of the floor. Erkol v. Marshall Field & Co., 1989
WL 18248 (N.D. Ill. March 1, 1989); Magallon v. The Limited Stores, 1988 WL 92695 (N.D. Ill. Aug.
31, 1988); Lucker v. Arlington Park Race Track Corp.,492 N.E.2d 536 (Ill. App. 1986); see also
Redenbaugh v. Residence Inn By Marriott, 2013 WL 1986382, *4 (N.D. Ill. May 10, 2013) (holding
that the testimony of the plaintiff and her husband that the floor was slippery, or even “super slick,”
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did not create a genuine issue of material fact that there was a foreign substance on the floor).
In Lucker, the plaintiff was a carpenter performing work at Arlington Park horse racing track
when he slipped and fell and injured his back. Lucker, 492 N.E.2d at 537. The plaintiff testified that
the floor “looked freshly painted,” had a “high gloss,” and was “slippery under foot.” Id. A co-worker
testified that he noticed that the floor was “slippery.” Id. At trial, the court directed a verdict in favor
of defendant on the issue of liability. The appellate court affirmed, finding that the only evidence
concerning the defendant’s negligence was the plaintiff’s and his co-worker’s “subjective verbal
characterizations of the floor as slippery.” Id. at 538. Because the plaintiff failed to present any
evidence of some positive negligent acts by defendant in the way it maintained its floors or of the
presence of a foreign substance, there was no negligence by the defendant. Id.
Likewise, in Erkol, the only evidence the plaintiff presented was her own testimony that the
floor appeared “overly waxed” and the statement of her daughter, who worked at the store, that she
also thought the floor to be slippery. Erkol, 1989 WL 18248, at *1. In Magallon, the plaintiff
characterized the floor on which she slipped as “highly waxed” and “shiny.” Magallon, 1988 WL
92695, *1. The Erkol and Magallon courts granted summary judgment in favor of the defendants
because other than subjective characterizations about the appearance of the floors, the plaintiffs
failed to produce any specific evidence that the floors were negligently treated or maintained. Erkol,
1989 WL 18248, at *2; Magallon, 1988 WL 92695, *3. The Magallon court noted that the plaintiff
had not “presented any evidence to show that the defendant either applied the wrong type of wax,
misapplied the wax, or took, or failed to take, any other actions that resulted in a dangerous
condition on the floor.” Magallon, 1988 WL 92695, *3.
Here, other than her current subjective characterization of the floor as slippery, the only
evidence to support Fultz’s theory of an unreasonably slippery floor is her deposition testimony that
a Target cashier told her that Target had previously received multiple complaints of slippery floors
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after the floors had been buffed. Assuming this fact to be true, it is not enough to avoid summary
judgment on the issue of Target’s alleged responsibility for a dangerous condition on the floor.
Fultz has provided no evidence that the particular area of the floor on which she fell had been
buffed or treated shortly before she fell. Moreover, as the plaintiffs in Lucker, Erkol, and Magallon,
Fultz additionally presented no evidence that Target negligently buffed or treated the floor.5
B.
Target’s Actual or Constructive Knowledge of the Alleged Slippery Condition
Although there is no evidence that Target negligently created the allegedly slippery condition
of the floor, Target may still be liable if its employees knew of a dangerous condition or if Target’s
employees should have discovered a dangerous condition in the exercise of reasonable care but
did not. Carlson v. Wal-Mart Stores, Inc., 2007 WL 4569867, at *5 (N.D. Ill. Dec. 21, 2007). Fultz
argues that she has presented sufficient evidence from which a trier of fact could determine that
Target knew or should have known that the floor on which she slipped and fell was unreasonably
slippery.
Fultz has presented no evidence that Target employees knew that the particular area where
Fultz fell was slippery prior to her fall or that Target should have known that the precise area where
Fultz fell was slippery. Target employee Geneva Martin performed a walk-through of the particular
area where Fultz would fall prior to the store’s opening and found that the aisle where Fultz would
later fall had no obstructions, liquid, or slippery substances on the floor. Fultz, herself, admitted that
she does not know what caused her to slip and fall and did not see or feel any liquid, solid material,
5
Fultz attempts to distinguish Redenbaugh and Magallon on the ground that here she is
relying on a store employee’s testimony that there were multiple complaints of the floor being
slippery, not solely her own subjective characterization of the floor as slippery. This distinction is
inconsequential because Lucker and Erkol found store employee testimony that the floor was
slippery in addition to the plaintiff’s similar characterization insufficient evidence to create a genuine
issue of material fact as to the presence of a foreign substance or as to whether the floor was
negligently treated or maintained. See also Carlson v. Wal-Mart Stores, Inc., 2007 WL 4569867,
*4 (N.D. Ill. Dec. 21 2007) (holding that testimony by plaintiff, her husband, and three store
employees that the floor was “slippery” was insufficient as a matter of law to support a finding of
negligence).
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debris, or anything else on the floor that could have caused her to fall. Fultz also signed a Guest
Incident Report the day she fell acknowledging that the floor was clean and dry at the time of her
fall, that her clothes were not wet or damaged, and that no object was involved in the fall. Finally,
a review of the store surveillance video indicates that the particular area where Fultz fell was not
slippery. The video shows over twenty people walking through the area of Fultz’s fall in the minutes
before and after the fall without slipping and without any apparent difficulty. Faced with this
evidence, a reasonable trier of fact could not conclude that Target knew or should have known of
the alleged slippery floor.
Once again, the only evidence Fultz cites in support of her position that Target knew or
should have known that the floor was slippery comes from a Target cashier who Fultz says told her
that the store “had multiple complaints that the floors were slippery” after it buffed the floors. Doc.
65 at 21, ¶ 2. As noted above, Fultz presents no evidence that the precise area of the floor where
she fell had been waxed, polished, buffed or had undergone any other type of treatment close to
the time of her fall. Fultz provides no evidence that there was a prior complaint of slipperiness in
the particular area of the floor where she slipped or that anyone had slipped in that area before.
As Target notes, there is also no evidence indicating that the cashier who told Fultz there had been
complaints of slipperiness after buffing had any idea what area of the store Fultz fell or that the
cashier was even referring to the area where Fultz fell as opposed to a completely different area
of the store.
In Carlson v. Wal-Mart Stores, Inc., 2007 WL 4569867 (N.D. Ill. Dec. 21, 2007), the plaintiff
slipped and fell while shopping in the automotive aisle of a retail store. The plaintiff admitted that
the area of the floor on which she fell was dry but claimed it was slippery. Id. at *1. Three
employees testified that the area of the floor on which the plaintiff had fallen was “slippery.” Id. at
*3. One employee suggested that the slippery condition was caused by the floor being buffed or
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waxed by the overnight cleaning crew. Id. at *1. The plaintiff and the employees testified
consistently that there was no substance on the floor that they could see or feel. Id. at *3. The only
way to detect that the floor was slippery was by physically sliding a hand or foot across it. Id. at *5.
Even though it was undisputed that the particular area of the floor on which the plaintiff had fallen
in Calson was slippery, the court held that slipperiness alone cannot support a finding of
negligence. Id. at *4. The court noted that “[s]ubjective verbal characterizations that a floor is
slippery, without more, continue to remain insufficient proof that a floor was negligently maintained.’
This is because ‘[s]uch statements are ‘hopelessly lacking in precision of meaning’ and do not
provide a basis for balancing the owner or occupier’s conduct against the applicable standard of
care.’” Id. at *4. Because there was no evidence that there was any substance on the floor, that
the floor was waxed negligently, or that it was waxed or buffed at all, the Carlson court found that
the plaintiff’s and employees’ testimony that the floor was “slippery” was insufficient to support a
verdict for the plaintiff on the negligence issue.
The facts in this case are even stronger than Carlson in showing no actual or constructive
notice of a slippery floor. Unlike the three employees in Carlson who testified that the floor was
slippery, here no Target employee testified that the particular area where Fultz fell was slippery.
Notwithstanding the undisputed slipperiness of the precise area of the floor in Carlson, the court
granted the defendant’s summary judgment motion. In Carlson, “there [was] no competent
evidence that the floor was improperly waxed or buffed, or that it was waxed or buffed at all.” Id.
at *6. There was also no evidence that Wal-Mart knew or should have known that the area where
the plaintiff slipped was slippery prior to her fall. Id.
Similarly, there is no evidence here that the particular area of the floor on which Fultz
slipped and fell had been negligently buffed or buffed at all. There is no evidence that Target knew
or should have known that the particular area where Fultz fell was slippery before she fell. Fultz’s
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attempt to distinguish Carlson on the ground that Target’s employees knew about the slippery
condition of the floor because one cashier told Fultz that there were “multiple complaints that the
floors were slippery” after buffing is unpersuasive. Absent some indication that the particular floor
area at issue had, in fact, been buffed or treated shortly before Fultz’s accident and that the buffing
was done negligently, no reasonable trier of fact could conclude that Target knew or should have
known that the particular area of the floor on which she slipped and fell was slippery. Again, the
cashier’s alleged statement does not indicate that the cashier had any idea what area of the store
Fultz fell or that the cashier was referring to the area where Fultz fell.
In the end, Fultz’s theory of a slippery floor due to buffing is nothing more than a guess.
Fultz concedes that “it is true that one can only guess whether the Defendant is at fault.” Doc. 65
at 5. Nevertheless, Fultz opposes summary judgment because “it is possible that the floor was
unreasonably slippery.” Id. at 5. In Fultz’s view, “something must have caused [her] to slip on the
floor.” Id. at 12. As long as she identifies a possible theory of what caused her to slip and fall, Fultz
believes that “this guess . . . is one for the jury to make.” Id. at 5. That is, however, not the law.
Rather, Fultz must provide specific evidence beyond mere speculation to survive summary
judgment. Good v. University of Chicago Medical Center, 673 F.3d 670, 675 (7th Cir. 2012) (stating
“guesswork and speculation are not enough to avoid summary judgment.”); Bell v. Duperrault, 367
F.3d 703, 707 (7th Cir. 2004) (noting that “[i]nferences that are supported only by conjecture or
speculation will not defeat a summary judgment motion”). To defeat summary judgment, Fultz must
present some evidence from which a reasonable jury could conclude that Target caused a foreign
substance to be on the floor, knew of its presence there and did nothing about it or in the exercise
of ordinary care should have discovered it, or improperly maintained, cleaned, or treated the floor,
causing her to slip and fall. Harris N.A. v. Hershey, 711 F.3d 794, 798 (7th Cir. 2012) (explaining
that non-movant must produce more than “a mere scintilla of evidence” and come forward with
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“specific facts showing that there is a genuine issue for trial” to defeat summary judgment.). No
such evidence exists in the record here. Because the evidence viewed in the light most favorable
to Fultz demonstrates that there is no genuine issue of material fact as to Target’s negligence,
Target is entitled to summary judgment.
CONCLUSION
For these reasons, Target’s motion for summary judgment is granted. Pursuant to Federal
Rule of Civil Procedure 54(b), the Court finds that there is no just reason to delay the entry of final
judgment as to Fultz’s negligence claim asserted against Target. The Clerk is directed to enter
judgment in favor of Defendant Target Corporation and against Plaintiff Monique Fultz. Target’s
claim against Prestige remains pending. A status hearing is set for March 10, 2016 at 9:30 a.m.
E N T E R:
Daniel G. Martin
United States Magistrate Judge
Dated: 2/1/2016
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