Calvert v. Office Depot, Inc.

Filing 71

MEMORANDUM Opinion and Order. Signed by the Honorable John W. Darrah on 6/25/2015. Mailed notice (lf, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ANTOINETTE CALVERT,
Plaintiff,
v.
OFFICE DEPOT, INC.,
THYSSENKRUPP ELEVATOR
CORPORATION,
THE SCHINDLER GROUP, LTD., and
SCHINDLER ELEVATOR
CORPORATION,
Defendants.

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Case No. 14-cv-6145
Judge John W. Darrah

MEMORANDUM OPINION AND ORDER
Plaintiff Antoinette Calvert filed a personal injury action in the Circuit Court of Cook
County, Illinois, on June 2, 2014, under theories of negligence, premises liability, and res ipsa
loquitur against Defendant Office Depot, Inc.. (Dkt. No. 1, Ex. A.) Office Depot removed the
action to the Northern District of Illinois on August 11, 2014, pursuant to 28 U.S.C. § 1332(a),
on the basis of complete diversity between the parties. (Dkt. No. 1.) Plaintiff subsequently filed
her Second Amended Complaint on January 14, 2015, asserting additional claims against
Defendant Thyssenkrupp Elevator Corporation (“TKE”), the Schindler Group, and
Schindler Elevator Corporation. (Dkt. No. 30.) TKE moves to dismiss the counts against them,
which allege negligence, premises liability, and res ipsa loquitur, pursuant to Federal Rule of
Civil Procedure 12(b)(6). Defendant’s Motion to Dismiss [40] is denied.

BACKGROUND
The following facts are taken from Plaintiff’s Second Amended Complaint 1, which are
taken as true for purposes of deciding a motion to dismiss. See Indep. Trust Corp. v.
Stewart Info. Servs. Corp., 665 F.3d 930, 934 (7th Cir. 2012). On February 6, 2013, Plaintiff
Antoinette Calvert was in an Office Depot retail store in downtown Chicago. (Compl. ¶¶ 8-10.)
An escalator connected the basement level to the main floor of the store. (Id. ¶ 11.) Plaintiff
rode the escalator from the basement to the main floor, when the escalator suddenly jerked and
came to a halt. (Id. ¶ 32.) As a result, Plaintiff fell and injured herself. (Id.)
Plaintiff does not allege a specific cause of the escalator stoppage, but rather asserts two
theories. First, Plaintiff claims that an employee or agent of Defendant Office Depot manually
caused the escalator to stop. (Id. ¶ 33.) Second, Plaintiff states that a malfunction, defect, or
hazard in the escalator caused the occurrence. (Id. ¶ 34.) Plaintiff asserts that Office Depot
contracted with TKE regarding the escalator within the retail store. (Id. ¶ 23.) According to
Defendant’s Motion, TKE is the maintenance company for the escalator. (Dkt. No. 40, ¶ 10.)
Out of the eight claims alleged by Plaintiff against Defendants, three are against Defendant TKE:
negligence (Count IV); premises liability (Count V); and res ipsa loquitur (Count VI).
LEGAL STANDARD
Pursuant to Rule 12(b)(6), a defendant may move to dismiss a complaint for “failure to
state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To survive a motion to
dismiss, a complaint must allege “enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible
“when the plaintiff pleads factual content that allows the court to draw the reasonable inference

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Plaintiff’s Second Amended Complaint is cited as (Compl. __ ).
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that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). A court must take well-pleaded allegations in the complaint as true and read them in the
light most favorable to the plaintiff. Stewart Info. Servs. Corp., 665 F.3d at 934. This
presumption is “inapplicable to threadbare recitals of a cause of action’s elements, supported by
mere conclusory statements.” Iqbal, 556 U.S. at 663. Instead, the “complaint must provide the
defendant with fair notice of what the claim . . . is and the grounds on which it rests.” Agnew v.
Nat’l Collegiate Athletic Ass’n, 683 F.3d 328, 334 (7th Cir. 2012) (citing Erickson v. Pardus,
551 U.S. 89, 93 (2007)).
ANALYSIS
Negligence
In Count IV, Plaintiff alleges a common-law claim of negligence against TKE. Plaintiff
sets forth two alternative theories of negligence based on the duty of care. First, Plaintiff alleges
that TKE was “under certain duties imposed by law.” (Compl., Count IV, ¶ 36.) Second,
Plaintiff alleges that TKE was held to the high standard of care required of a common carrier.
(Id. at ¶ 37.) Defendant argues that Plaintiff “misstates the duty of care” as “TKE is not a
common carrier.” (Dkt. No. 40, ¶ 10.) Defendant further argues that because TKE was the
escalator maintenance company at the time of Plaintiff’s fall, TKE should not be held to the
heightened standard of care of a common carrier but, instead, to a standard of reasonable care.
(Id. at ¶¶ 10-11.)
To sustain a cause of action for negligence in Illinois, “a plaintiff must plead that the
defendant owed a duty of care to the plaintiff, that the defendant breached that duty, and that the
breach was the proximate cause of the plaintiff’s injuries.” Cowper v. Nyberg, 28 N.E.3d 768,
772 (Ill. 2015). Plaintiff has alleged that TKE “leased, owned, occupied, maintained, possessed,

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and/or controlled the premises.” (Compl., ¶ 7.) “[T]he owner of a building in which an elevator
is operated is a common carrier owing the highest degree of care to its passengers.” Gavoni v.
Dobbs Houses, Inc., No. 95 C 1749, 1996 WL 147920, at *1 (N.D. Ill. Mar. 29, 1996) (citing
Suarez v. Trans World Airlines, 498 F.2d 612, 616 (7th Cir. 1974); Shoemaker v. RushPresbyterian-St. Luke's Medical Center, 543 N.E.2d 1014 (Ill. App. Ct. 1989)). In contrast,
maintainers of elevators and escalators are held to an ordinary standard of due care. See Jardine
v. Rubloff, 382 N.E.2d 232, 236 (Ill. 1978); Tolman v. Wieboldt Stores, Inc., 233 N.E.2d 33, 36
(Ill. 1968); Stach v. Sears, Roebuck and Co., 429 N.E.2d 1242, 1253 (Ill. App. Ct. 1981).
Particularly in the case of escalators, the duty of care is lowered as “a person on an escalator may
actively participate in the transportation . . . and may contribute to his own safety.” Tolman, 233
N.E.2d at 36. If Plaintiff can prove that TKE is the owner of the building, then the common
carrier duty is applicable; if not, then an ordinary standard of due care applies. Defendant’s
Motion to Dismiss Count IV is denied.
Premises Liability
Count V alleges a premises liability claim against TKE. Illinois follows the Restatement
of Torts in its approach to premises liability. See, e.g., Clifford v. Wharton Bus. Group, L.L.C.,
817 N.E.2d 1207, 1211-12 (Ill. App. Ct. 2004). Section 343 of the Restatement provides:
A possessor of land is subject to liability for physical harm caused to his invitees
by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the
condition and should realize that it involves an unreasonable risk of harm
to such invitees, and
(b) should expect that they will not discover or realize the danger, or will
fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.

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Restatement (Second) of Torts § 343 (1965). Additionally, the Illinois Premises Liability Act
abolished the traditional distinction in common law between invitees and licensees, thereby
creating a duty of “reasonable care under the circumstances regarding the state of the premises or
acts done or omitted on them.” 740 Ill. Comp. Stat. 130/2 (2005).
Plaintiff argues that premises liability is applicable to TKE. Plaintiff alleges that her
accident was a result of a malfunction, defect, or hazard in the escalator, which caused it to stop
unexpectedly and that, as a result, she fell and injured herself. (Compl., Count V, ¶ 35.) She
asserts TKE owed her a duty of reasonable care pursuant to the Premises Liability Act, or,
alternatively, TKE was subject to the common carrier standard. (Id. ¶¶ 38-39.) Plaintiff then
puts forth an extensive list of what TKE may have done to act negligently. (Id. ¶ 40.) As
previously discussed, the common carrier standard applies to Defendant only if it is the owner of
the building. Plaintiff has alleged that TKE “leased, owned, occupied, maintained, possessed,
and/or controlled the premises.” (Compl., ¶ 7.) Defendant argues that the Illinois Premises
Liability Act also does not apply, as TKE does not own or possess the real estate on which the
accident occurred. In Kotecki v. Walsh Const. Co., an employee of a subcontractor hired to do
construction work on a Home Depot was injured while completing this work. Kotecki v. Walsh
Const. Co., 776 N.E.2d 774, 775-76 (Ill. App. Ct. 2002). That court found that premises liability
did not apply to the subcontractor, as Home Depot was the possessor and controller of the
property. Id. at 779. “For a duty to arise under the Act, the defendant must possess and control
the real property on which the injury occurred.” Id.
Defendant requests that this Court take judicial notice that TKE is the escalator
maintenance company and not the owner or occupier of the property. (Dkt. No. 40, ¶ 16.)
Plaintiff argues that judicial notice may not be taken as this issue is subject to reasonable dispute,

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as she asserts that TKE did own or occupy the property. (Dkt. No. 53, ¶¶ 19-21.) A court may
take judicial notice of a fact that is not subject to reasonable dispute either because it “is
generally known within the trial court’s territorial jurisdiction” or it “can be accurately and
readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R.
Evid. 201(b)(1)-(2). Whether TKE owns the property in question is not generally known within
the jurisdiction, nor can it be readily determined from accurate sources. A court must take
judicial notice if a party requests it and supplies the court with the necessary information to make
that determination. Fed. R. Evid. 201(c)(1)-(2). Defendant has not supplied the information
needed to take judicial notice. No affidavits or other documents have been filed to confirm that
TKE is not the owner or possessor of the property. As such, judicial notice of this assertion is
improper.
“Under the modern regime of the Federal Rules, the complaint need contain only factual
allegations that give the defendant fair notice of the claim for relief and show the claim has
‘substantive plausibility.’” Runnion ex rel. Runnion v. Girl Scouts of Greater Chicago &
Nw. Indiana, No. 14-1729, 2015 WL 2151851, at *3 (7th Cir. May 8, 2015). Plaintiff has
sufficiently pled a premises liability claim against Defendant. Defendant’s Motion to Dismiss
Count V is denied.
Res Ipsa Loquitur
Count VI asserts negligence against the Defendant under the doctrine of res ipsa
loquitur. 2 This doctrine creates an inference of negligence when the plaintiff cannot trace the

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Defendant TKE moved for judgment on the pleadings pursuant to FRCP 12(c) in
regards to Count VI. However, Defendant TKE has not yet filed an answer to the Complaint.
As the motion is premature, the 12(c) motion will be treated as a 12(b)(6) motion, which are
reviewed under the same standard. See Seber v. Unger, 881 F. Supp. 323, 325 n.2 (N.D. Ill.
1995).
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exact source of his or her injury based on the information available to them. In order for res ipsa
loquitur to apply, the plaintiff must be injured: (1) in an occurrence that does not ordinarily
occur without negligence, (2) by an instrumentality or agency in the control of the defendant, and
(3) the occurrence must not be due to a voluntary act or negligence of the plaintiff. See, e.g.,
Smith v. Eli Lilly & Co., 560 N.E.2d 324, 339 (Ill. 1990). Control “is not a rigid standard, but a
flexible one in which the key question is whether the probable cause of the plaintiff's injury was
one which the defendant was under a duty to the plaintiff to anticipate or guard against.”
Heastie v. Roberts, 877 N.E.2d 1064, 1076 (Ill. 2007). In addition, Defendant need not have had
physical control of the instrumentality, or escalator, at the time of the occurrence, as Plaintiff
may show that Defendant had a non-delegable duty to maintain the escalator as a result of its
dangerousness. See Metz v. Cent. Ill. Elec. & Gas Co., 207 N.E.2d 305, 307 (Ill. 1965).
In her Complaint, Plaintiff sets out the requirements for res ipsa loquitur. Plaintiff argues
that the escalator was within the exclusive control of TKE. (Compl., Count VI, ¶ 39.) Plaintiff
states that the injuries she sustained would not have occurred if TKE had used reasonable care or
the higher degree of care for common carriers. (Id. ¶ 40.) Finally, Plaintiff asserts that her
injuries were not due to any voluntary act on her part. (Id. ¶ 41.) In turn, Defendant argues that
TKE has never had exclusive control of the escalator, as the escalator is open to the public, and
that the building owner is the party who has the capacity to frequently inspect the escalator.
(Dkt. No. 40, ¶ 21.) But, again, control is a flexible standard determined by whether the
defendant was under a duty to the plaintiff. See Heastie, 877 N.E.2d at 1076.
Plaintiff has set out factual allegations giving Defendant fair notice of the claim for relief
and showing the claim has substantive plausibility. Runnion ex rel. Runnion, 2015 WL 2151851,
at *3. Defendant’s Motion to Dismiss Count VI is denied.

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CONCLUSION
For the reasons discussed above, Defendant’s Motion to Dismiss [40] is denied.

Date:

June 25, 2015

______________________________
JOHN W. DARRAH
United States District Court Judge

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