Sepulveda v. Target Corporation et al
OPINION AND ORDER. Signed by the Honorable Sara L. Ellis on 2/6/2017:Mailed notice(rj, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
No. 14 C 6437
Judge Sara L. Ellis
OPINION AND ORDER
After slipping and falling at one of Defendant Target Corporation’s (“Target”) stores in
Cicero, Illinois, Plaintiff Maria Sepulveda filed this action against Target, alleging that Target
negligently failed to maintain its floors free of slippery substances, causing her injury. Target
has filed a motion for summary judgment . Because Sepulveda has not presented a genuine
issue of fact concerning whether Target breached any duty it owed her, Sepulveda cannot
establish her negligence claim and so the Court grants Target’s motion for summary judgment.
On July 23, 2012, Sepulveda and her daughter, Clarisa, went to the Target store in
Cicero, Illinois, to purchase bread and other items. After spending approximately twenty to
twenty-five minutes in the store, Sepulveda slipped and fell on some liquid located on the floor
of the juice aisle. Sepulveda described the liquid as pink colored, contrasted against a lightcolored floor in an area with adequate lighting. Clarisa described the liquid as red and assumed
it was juice because they were in the juice aisle. Clarisa estimated the puddle of juice to be over
a foot wide. Sepulveda does not know how long the liquid had been on the floor before she fell
The facts in this section are derived from the Joint Statement of Undisputed Material Facts. All facts are
taken in the light most favorable to Sepulveda, the non-movant.
or how it got to the floor. Clarisa thought the spill was recent because the liquid was still wet
and not sticky. Both Sepulveda and Clarisa noticed a track mark through the liquid. Sepulveda
also observed dirt mixed with the liquid a little further from where she fell, which extended
about three feet and looked comparable to the track mark. Sepulveda did not see employees
moving pallets through the area of her fall right before the fall, although Clarisa testified that she
had seen workers in the area moving pallets. Sepulveda believes the track marks were wheel
tracks, not footprints. She testified they could have come from a shopping cart but also testified
that the liquid mixed with dirt could have been from employees working nearby. Many people,
including Target employees, had been in the area before Sepulveda fell.
Before her fall, Sepulveda did not see the liquid, nor did she notice any cleaning around
the area or liquids or products leaking in that area. At the time Sepulveda fell, nothing distracted
her or kept her from seeing what was in front of her, but her attention was focused on the shelves
and items she was looking to buy. Clarisa also did not notice anything on the floor before her
mother fell nor did she see anything leaking in that area.
Summary judgment obviates the need for a trial where there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56.
To determine whether a genuine issue of fact exists, the Court must pierce the pleadings and
assess the proof as presented in depositions, answers to interrogatories, admissions, and
affidavits that are part of the record. Fed. R. Civ. P. 56 & advisory committee’s notes. The party
seeking summary judgment bears the initial burden of proving that no genuine issue of material
fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265
(1986). In response, the non-moving party cannot rest on mere pleadings alone but must use the
evidentiary tools listed above to identify specific material facts that demonstrate a genuine issue
for trial. Id. at 324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). Although a
bare contention that an issue of fact exists is insufficient to create a factual dispute, Bellaver v.
Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000), the Court must construe all facts in a light
most favorable to the non-moving party and draw all reasonable inferences in that party’s favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
To succeed on her negligence claim, Sepulveda must establish that (1) Target owed her a
duty, (2) Target breached that duty, and (3) Target’s breach proximately caused her injury.
Rhodes v. Ill. Cent. Gulf R.R., 665 N.E.2d 1260, 1267, 172 Ill. 2d 213, 216 Ill. Dec. 703 (1996).
Target argues that Sepulveda cannot prevail on her negligence claim because she cannot
establish that Target owed her any duty because the substance on which she slipped constituted
an open and obvious condition. Alternatively, Target argues that Sepulveda cannot establish that
Target breached a duty to her because she has not produced any evidence that the substance was
placed on the floor by Target’s negligence, that Target knew of the substance, or that the
substance remained on the floor a sufficient length of time before Sepulveda fell such that Target
should have discovered it. Finally, Target argues that even if Sepulveda can establish duty and
breach, she cannot recover because her comparative fault is over fifty percent. The Court
addresses these arguments in turn.
Open and Obvious Condition
In determining whether a duty exists, the Court considers “(1) the reasonable
foreseeability of the injury, (2) the likelihood of the injury, (3) the magnitude of the burden of
guarding against the injury, and (4) the consequences of placing that burden on the defendant.”
Bruns v. City of Centralia, 21 N.E.3d 684, 689, 2014 IL 116998, 386 Ill. Dec. 765 (2014). An
open and obvious danger does not automatically negate a finding of a legal duty but instead
renders the first two factors in the legal duty inquiry slight and weighs against the imposition of
such a duty. Id. at 690; see also Bujnowski v. Birchland, Inc., 37 N.E.3d 385, 397, 2015 IL App
(2d) 140578, 394 Ill. Dec. 906 (2015) (“No published premises-liability negligence case that we
have found held both (1) that the open-and-obvious rule applied without exception and (2) that
the defendant nonetheless owed the plaintiff a duty.”). Under the open and obvious rule, “a party
who owns or controls land is not required to foresee and protect against an injury if the
potentially dangerous condition is open and obvious.” Rexroad v. City of Springfield, 796
N.E.2d 1040, 1046, 207 Ill. 2d 33, 277 Ill. Dec. 674 (2003). “Whether a condition is open and
obvious depends not on the subjective knowledge but on the objective knowledge of a person
confronted with the same condition.” Perez v. Heffron, 63 N.E.3d 998, 1002, 2016 IL App (2d)
160015, 407 Ill. Dec. 566 (2016). Where the parties do not dispute the physical nature of the
condition, the issue is a question of law. Bruns, 21 N.E.3d at 690.
Here, the parties do not dispute the presence of a large amount of pink or red colored
liquid on a light colored floor in the juice aisle. They also agree that the store had adequate
lighting. Although Sepulveda testified she did not see the liquid because she was looking at the
shelves and not the ground, the Court’s analysis is not controlled by her subjective knowledge
but rather the objective knowledge of a reasonable person. See Wade v. Wal-Mart Stores, Inc.,
39 N.E.3d 1141, 1145–46, 2015 IL App (4th) 141067, 396 Ill. Dec. 315 (2015) (evidence
demonstrated that “no reason existed why [plaintiff] could not have seen the pothole and thus,
could have avoided the hazard if she had been looking where she was going” where plaintiff
stepped into a pothole in well-lit parking lot that “was a couple of feet long and a few inches
deep”). Sepulveda does not meaningfully argue that the liquid did not constitute an open and
obvious condition, instead arguing that the distraction exception to the doctrine should apply.
The distraction exception applies only “where evidence exists from which a court can
infer that plaintiff was actually distracted.” Bruns, 21 N.E.3d at 691. The parties submitted
seemingly contradictory statements of fact on the issue, with one indicating that nothing
distracted Sepulveda from her ability “to see what was in front of her prior to her fall,” Doc. 51
¶ 7, and another indicating her attention was focused on the shelves, looking for what she
needed, id. ¶¶ 48–49. But taking these statements together and drawing all inferences in
Sepulveda’s favor, the statements can be harmonized to suggest that Sepulveda was focused on
the products on the shelves—i.e., she was not distracted from the products in front of her—but
that as a result she was not necessarily focused on the ground, which she may not have
considered to be “in front of her.”
Indeed, Sepulveda makes this very argument—that looking at the shelves for what she
needed distracted her from seeing the liquid on which she slipped. But “the mere fact of looking
elsewhere does not constitute a distraction.” Bruns, 21 N.E.3d at 692. That said, “[t]he issue . . .
is not whether plaintiff was looking elsewhere, but why she was looking elsewhere.” Id. at 693.
Sepulveda has at least created a question of fact as to whether the distraction exception applies;
one could argue that Target should have reasonably foreseen that customers like Sepulveda
would be distracted by looking at items on the store shelves and consequently not notice the open
and obvious hazards on the ground. See Fetzer v. Wal-Mart Stores, Inc., No. 13 C 9312, 2016
WL 792296, at *17 (N.D. Ill. Mar. 1, 2016) (declining to find “as a matter of law, that Wal-Mart
did not expect customers to focus on its merchandise displays while shopping,” noting that
instead “it appears likely that Wal-Mart designed its displays to achieve this very result”); Geleta
v. Meijer, Inc., No. 11 CV 6567, 2013 WL 6797111, at *6 (N.D. Ill. Dec. 23, 2013) (distraction
exception applied because “[i]t’s not a stretch to say that a customer at a grocery store may not
be canvassing the ground for spills, but instead might be distracted by finding the items on her
grocery list”). Thus, the Court cannot conclude at this stage that Target did not owe Sepulveda a
duty of care.
Breach of Duty of Care
Target argues that even if it owed Sepulveda a duty of care, she cannot demonstrate that
Target breached that duty. Sepulveda can show that Target breached its duty by establishing “(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
To prevail on the first theory, Sepulveda must “(1) show that the foreign substance was
related to the 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.’” Id. at 649–50
(quoting Donoho v. O’Connell’s, Inc., 148 N.E.2d 434, 441, 13 Ill. 2d 113 (1958)). Sepulveda
suggests that the spill could have been caused by an employee because employees worked in the
vicinity before she fell and the possibility exists that employee carts caused the tracks in the juice
puddle. But this only provides “a possible way in which a [Target] employee could have caused
the spill” and does not allow the inference that the spill was more likely caused by Target
employees than customers, particularly where Sepulveda’s record citations do not fully support
her statements and other testimony suggests that it is equally likely that a customer caused the
spill. See id. at 650 (“Zuppardi has simply offered evidence that she slipped on something that
happens to be sold by Wal-Mart, and such evidence fails to support an inference that Wal-Mart
caused the spill.”). Thus, Sepulveda has failed to create a material issue of fact on this basis.
Alternatively, Sepulveda argues that Target had actual or constructive notice of the spill.
First, Sepulveda maintains that “[i]f an employee accidentally broke open a bottle of juice while
working in the [a]isle, Target had actual notice of the spill and a duty to warn of it and clean it up
immediately.” Doc. 53 at 7. But Sepulveda provides no evidence of an employee breaking open
a bottle of juice, with such a theory resting on mere speculation. With discovery complete and
no evidence in the record suggesting that Target had actual notice of the spill prior to
Sepulveda’s fall, Sepulveda cannot rely on mere speculation at this late stage to create a disputed
issue of fact. See Good v. Univ. of Chicago Med. Ctr., 673 F.3d 670, 675 (7th Cir. 2012)
(“[G]uesswork and speculation are not enough to avoid summary judgment.”), overruled on
other grounds by Ortiz v. Werner Enters., Inc., 673 F.3d 670 (7th Cir. 2016); Johnson v.
Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003) (“Summary judgment ‘is the put up or
shut up moment in a lawsuit, when a party must show what evidence it has that would convince a
trier of fact to accept its version of events.’” (quoting Schacht v. Wis. Dep’t of Corr., 175 F.3d
497, 504 (7th Cir. 1999))).
As for constructive notice, Sepulveda states that, if a customer caused the spill, “Target’s
employees who were working in the [a]isle had constructive notice of the spill.” Doc. 53 at 8.
Again, however, Sepulveda provides no support for this argument, citing to no case law or
supporting facts. The Court will not construct arguments for Sepulveda in an attempt to find a
genuine issue of material fact. See Nelson v. Napolitano, 657 F.3d 586, 590 (7th Cir. 2011) (the
court is not “obliged to research and construct legal arguments for parties, especially when they
are represented by counsel”). Indeed, the Court could treat Sepulveda’s failure to meaningfully
respond to the argument concerning constructive notice as a waiver on the issue. See United
States v. Elst, 579 F.3d 740, 747 (7th Cir. 2009) (“Perfunctory and undeveloped arguments as
well as arguments unsupported by pertinent authority are waived.”). Even considering
Sepulveda’s bare assertion that employees’ presence in the area provided Target with
constructive notice, such speculation would not be enough to allow her claim to proceed. See
Berg v. Target Corp., No. 10 CV 6386, 2013 WL 6114790, at *3 (N.D. Ill. Nov. 18, 2013)
(plaintiff’s “sighting” of someone she thought was an employee in area of fall was too
speculative to demonstrate constructive notice). Because Sepulveda has failed to create a
genuine issue of fact on the breach element—an element essential to her negligence claim and on
which she bears the burden of proof—the Court grants summary judgment to Target.2 See
Celotex, 477 U.S. at 323–24.
For the foregoing reasons, the Court grants Target’s motion for summary judgment .
The Court enters judgment for Target on Sepulveda’s complaint. This case is terminated.
Dated: February 6, 2017
SARA L. ELLIS
United States District Judge
Because the Court finds that Sepulveda has not demonstrated a genuine issue of material fact on the
breach issue, the Court need not address Target’s argument concerning comparative fault.
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