Gutterman v. Target Corporation et al
Filing
40
MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 2/2/16Mailed notice(ca, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DONALD and JODI GUTTERMAN,
INDIVIDUALLY and as Parents and Next
Friends of MADISON GUTTERMAN,
Plaintiffs,
v.
TARGET CORPORATION and
BRAVO SPORTS,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
Case No. 15 C 5714
Judge John Z. Lee
MEMORANDUM OPINION AND ORDER
Plaintiffs Donald and Jodi Gutterman, individually and as parents and next friends of
Madison Gutterman (“Minor Plaintiff”), have sued Defendants Target Corporation and Bravo
Sports for ordinary negligence (Count I) and for premises liability in violation of the Premises
Liability Act, 740 Ill. Comp. Stat. 130/1–5 (Count II). Target moves to dismiss Counts I and II of
Plaintiffs’ Complaint pursuant to Federal Rules of Civil Procedure 8(a)(2) and 12(b)(6). For the
reasons stated herein, the Court denies this motion [9].
Factual Background
Plaintiffs allege that on or about May 26, 2013, Plaintiff Madison Gutterman, a minor,
was injured as a result of riding a skateboard in the premises occupied by Target Corporation,
located at 313 East Townline Road, in the Village of Vernon Hills and State of Illinois (the
“store”). Compl. ¶¶ 1, 8. Minor Plaintiff was lawfully on the store’s premises at the time. Id. ¶ 2.
Target controlled, occupied, and maintained the store, and Defendant Bravo Sports
manufactured and distributed the skateboards that were displayed in the store. Id. ¶¶ 3–6, 23–24.
Minor Plaintiff reportedly sustained injuries for which Plaintiffs incurred costs for the
medical support of Minor Plaintiff. Id. ¶¶ 8–10.
Legal Standard
Rule 8(a) instructs that a pleading “must contain . . . a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To prevail on a
motion to dismiss under Rule 12(b)(6), the defendant must plead “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). When
considering a motion to dismiss, the court accepts all well-pleaded allegations in the complaint
as true and construes all reasonable inferences in the non-moving party’s favor. Kubiak v. City of
Chi., No. 14-3074, 2016 WL 106868, at *3 (7th Cir. Jan. 11, 2016).
Analysis
I.
Premises Liability Is a Separate Cause of Action
Target claims that Plaintiffs, in bringing Counts I and II, raise duplicative claims that are
not separate causes of action. Even if the Premises Liability Act itself does not create a cause of
action, Illinois law recognizes a claim for premises liability that is separate from ordinary
negligence. The Act establishes that the owner or occupier of property has a duty to entrants to
exercise “reasonable care under the circumstances regarding the state of the premises or acts
done or omitted on them.” 740 Ill. Comp. Stat. 130/2. Thus, at a minimum the Act codifies the
duty required under a premises liability theory.
Courts have recognized the independence of these two claims and have highlighted the
different elements required to prove each one. See Hickey v. Target Corp., No. 12 CV 4180,
2014 WL 1308350, at *3 (N.D. Ill. Apr. 1, 2014); Galbreath v. Wal-Mart Stores, Inc., No. 102065, 2011 WL 1560669, at *3–6 (C.D. Ill. Apr. 25, 2011); Kotecki v. Walsh Constr. Co., 776
N.E.2d 774, 775 (Ill. App. Ct. 2002). These courts have not indicated that alleging these two
2
counts is duplicative and prohibited. In Kotecki, the court assessed the negligence and premises
liability counts separately and fully. Kotecki, 776 N.E.2d at 777–81. In Hickey, the Court
addressed the dual claims directly, acknowledging and accepting any interconnectedness. Given
that “Hickey alleges that Target breached this duty under both ordinary negligence and premises
liability theories[,] [e]ven though Hickey’s response to Target’s motion focuses on premises
liability, because her complaint can be read to include an ordinary negligence theory, this court
will also review Target’s arguments with respect to that theory.” Hickey, 2014 WL 1308350, at
*3 (citations omitted). While acknowledging the similarities between the two claims, Illinois law
does not support Target’s contention that Plaintiffs’ two similar claims warrant complete
dismissal.
Moreover, the Illinois Pattern Jury Instructions undermine Target’s argument, as they
contain separate instructions for negligence and premises liability claims. Illinois Pattern Jury
Instruction 10.00 relates to “Negligence and Ordinary Care,” whereas Instructions 120.00–11
“deal[] only with the liability of the owner or occupier of land for conditions on his premises.”
Ill. Pattern Jury Instructions, Civil, No. 10.00; Ill. Pattern Jury Instructions, Civil, No. 120.00.
Target’s reply suggests that binding Illinois law supports dismissing duplicative claims;
however, this doctrine is specific to the malpractice context. See Gritters v. Ocwen Loan
Servicing, LLC, No. 14 C 00916, 2014 WL 7451682, at *9–10 (N.D. Ill. Dec. 31, 2014); Kurtz v.
Toepper, No. 11 C 4738, 2012 WL 33012, at *1 (N.D. Ill. Jan. 6, 2012). Because Target has
failed to point to any authority prohibiting Plaintiffs from alleging the two claims together,
Plaintiffs’ alternative pleading is appropriate. The Court accordingly denies Target’s motion to
dismiss Counts I and II given that negligence and premises liability are two separate causes of
action.
3
II.
Pleading Alternative Claims
Target also challenges Plaintiffs’ Complaint on the basis that it contains two overlapping
claims; however, the permissibility of alternative pleading is well-established. Per the Federal
Rules of Civil Procedure, a party can plead alternative claims “either in a single count . . . or in
separate ones.” Fed. R. Civ. P. 8(d)(2); see also Fed. R. Civ. P. 8(a)(3); Cohen v. Am. Sec. Ins.
Co., 735 F.3d 601, 615 (7th Cir. 2013). No specific language is required by the Federal Rules—
“[n]o technical form is required.” Fed. R. Civ. P. 8(d)(1).
Plaintiffs’ Complaint contains two counts against Target, one based on negligence and
the other on premises liability. These two counts are sufficiently and properly plead as
alternative claims for relief. Thus, the Court denies Defendant’s motion to dismiss Counts I and
II based on the sufficiency of Plaintiffs’ alternative pleading.
III.
Dangerous Conditions under the Premises Liability Act
Finally, Target argues that a skateboard does not constitute a dangerous condition that
could give rise to premises liability. Under Illinois law, liability attaches to the occupier of
property “if such a person knows or should know that children frequent the premises and if the
cause of the child’s injury was a dangerous condition on the premises.” Qureshi v. Ahmed, 916
N.E.2d 1153, 1156 (Ill. App. Ct. 2009). A dangerous condition is one that is “inherently
dangerous” or one that a child would not recognize as dangerous and therefore avoid. Page v.
Blank, 634 N.E.2d 1194, 1197 (Ill. App. Ct. 1994).
In particular, Target contends that a condition under the Act is a fixture on the property,
not a moveable object such as a skateboard. The case law on this matter indicates no such
restriction, however. In Page, arising under a premises liability negligence claim, the court
considered whether a hammer and nails given to a twelve-year-old child constituted a dangerous
condition. Page, 634 N.E.2d at 1196–97. While ultimately holding that they were not a
4
dangerous condition, this was because the objects were not “inherently dangerous” and the child
was capable of recognizing risks that might arise from their use. Id. at 1197. The court’s holding
was not based on whether the hammer and nails were fixtures on the premises. Id.
Target does not claim that the skateboard does not constitute a dangerous condition;
rather, Target argues that it is not a relevant condition of the premises at all. Target’s Reply
references Wind as supporting the proposition that installed floor mats did not constitute a
“condition on the premises” which would give rise to negligence under premises liability. Wind
v. Hy-Vee Food Stores, Inc., 650 N.E.2d 258, 263 (Ill. App. Ct. 1995); Target’s Reply to Pls.’
Resp. to Mot. to Dismiss 3. Wind, however, concerns whether the jury received proper
instruction. Wind, 650 N.E.2d at 259. The court held that the jury did not receive proper
instruction because the plaintiffs alleged a negligence cause of action and the jury was instructed
to consider the elements of an action arising under premises liability, instead. Id. at 261, 263–64.
Furthermore, the court held that, because the plaintiff in Wind alleged that the floor mats were
negligently installed and maintained, the complaint did not allege that the floor mats were a
condition of the property. Wind, 650 N.E.2d at 263. In this case, Plaintiffs’ Complaint
specifically alleges the existence of a “dangerous condition.” Compl. ¶ 17(e)–(f).
Indeed, Illinois courts have considered whether a variety of objects, fixed or moveable,
are conditions that would give rise to premises liability. For example, courts have considered
whether spilled laundry detergent, a ditch, a wooden pallet on the ground, a treadmill, and a
swimming pool were dangerous conditions giving rise to liability. Hickey, 2014 WL 1308350, at
*3–4; Corcoran v. Village of Libertyville, 383 N.E.2d 177 (Ill. 1978); Kleiber v. Freeport Farm
and Fleet, Inc., 942 N.E.2d 640 (Ill. App. Ct. 2010); Qureshi, 916 N.E.2d at 1156–60; Duffy v.
Togher, 887 N.E.2d 535, 541–46 (Ill. App. Ct. 2008). Contrary to Target’s argument, there is no
5
requirement that the allegedly dangerous condition must be a fixture of the property. Accepting
all allegations in the Complaint as true and drawing any reasonable inferences in favor of the
Plaintiffs, the Court denies Target’s motion to dismiss because Plaintiffs have alleged a condition
under a premises liability claim.
Conclusion
For the reasons stated herein, Defendant’s motion to dismiss [9] is denied.
IT IS SO ORDERED.
ENTERED 2/2/16
__________________________________
John Z. Lee
United States District Judge
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?