Catalano v. Menard, Inc.
Filing
94
MEMORANDUM Opinion and Order. Defendant Menards' Motion for Summary Judgment 73 is granted on Plaintiff's claims of premises liability (Count II), negligence (Count I) and res ipsa loquitur (Count III). Signed by the Honorable Virginia M. Kendall on 6/23/2017:Mailed notice(dl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Alice Catalano,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
Menard Inc., d/b/a Menards
Defendant.
No. 16 C 3367
Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Plaintiff, Alice Catalano, visited Defendant, Menard Inc.’s (d/b/a Menards) retail store
located in Mount Prospect, Illinois, and on her way out of the store she was struck by the
automatic sliding doors. She filed a Complaint in the Circuit Court of Cook County 1 and
Menards removed the matter to this Court. Plaintiff then filed an Amended Complaint (Dkt. 15)
alleging that Menards was liable for injury based on negligence (Count I), premises liability
(Count II), and negligence based on res ipsa loquitor (Count III). Menards moves for summary
judgment [73] on all three counts. For the following reasons, Menards’ motion is granted.
I.
Undisputed Material Facts
Counsel for Plaintiff failed to respond to Menards’ Statement of Facts in compliance with
the Northern District of Illinois’ Local Rule 56.1. Instead of filing a Response to Menards’ Rule
56 statement, counsel filed “Plaintiff’s Memorandum of Law In Support of Response to Motion
For Summary Judgment,” which included a “Summary of Facts.” In the summary, Plaintiff’s
counsel only states that “Defendant adequately summarized the facts until the last paragraph of
1
Case No. 16-063013
1
its Facts section.” 2 Plaintiff also submitted a statement of additional facts—none of which create
a material dispute.
In accordance with the rules, in opposing a summary judgment motion a party must
provide:
(3) a concise response to the movant’s statement that shall contain:
(A) numbered paragraphs, each corresponding to and stating a concise
summary of the paragraph to which it is directed, and
(B) 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, and
(C) a statement, consisting of short numbered paragraphs, of any
additional facts that require the denial of summary judgment, including
references to the affidavits, parts of the record, and other supporting
materials relied upon. Absent prior leave of Court, a respondent to a
summary judgment motion shall not file more than 40 separatelynumbered statements of additional facts. All material facts set forth in the
statement required of the moving party will be deemed to be admitted
unless controverted by the statement of the opposing party.
See LR 56.1(3). Plaintiff’s counsel failed to follow this rule and failed to support any
objections she may have had with documented evidence that the Court could review. Because
district courts are entitled to enforce strict compliance with Rule 56.1, Plaintiff’s statement of
additional facts and her response to Menards’s statement of facts will be disregarded and
Menards’ Statement of Facts is deemed admitted. See Ammons v. Aramark Unif. Servs., Inc.,
368 F.3d 809, 818 (7th Cir. 2004) (district court did not abuse its discretion when it struck
responses to statement of facts that were not compliant with Rule 56.1); Smith v. Lamz, 321 F.3d
680, 683 (7th Cir. 2003) (“We have consistently held that a failure to respond by the nonmovant
as mandated by the local rules results in an admission.”); Curtis v. Costco Wholesale Corp., 807
2
Also, under “introduction” and “Standard for Rule 56 Motion for Summary Judgment,” Plaintiff merely
adopts these sections of Menard’s brief. (Dkt. 79-1 at 1.)
2
F.3d 215, 219 (7th Cir. 2015) (noting that the Seventh Circuit has “routinely upheld the district
court’s discretion in requiring parties to comply strictly with local rule requirements.”).
The following facts, therefore, are taken from Menard’s Statement of Facts and the
record and are not disputed. On October 4, 2015, Plaintiff and her mother went to the Menards
in Mount Prospect, Illinois, to shop for lava rock. (Def.’s SOF ¶ 1.) At Menards’ entrance, there
are automatic sliding doors (“entrance doors”) which are triggered to slide when customers pass
by a sensor on either side of the doors. (Def.’s SOF ¶ 2.) While exiting the store, Plaintiff
claims that the sensor on the sliding panel of the doors did not register her presence and so she
was struck on her left side. (Def.’s SOF ¶ 4, 5); (see also Dkt. 15 ¶ 8) (“It was unclear why the
sensors did not ‘see’ Catalano and stop the doors from closing.”). After she was struck, Plaintiff
experienced difficulty seeing and pain on the left side of her body. (Dkt. 15 ¶ 9.)
The entrance doors have two parts, a stationary emergency breakaway panel and adjacent
sliding panels with sensors. (Dkt. 83, Exhibit A p. 78.) There are two different types of sensors
on both sides of the sliding panels which ensure that the doors properly open and close: (1)
eagles – these are the activation or “motion only” sensors that make sure that the door opens
(Andrew Gerard Christopher Dep. 39:1–16); and (2) beams – or “presence sensors” which hold
the door open if an individual is standing in the door path (Id. 39:17-19).
One month before Plaintiff visited Menards, on September 8, 2015, there was a
windstorm that blew open the emergency breakaway panel of Menards’ entrance doors.
(Richard Gerke Dep. 17:22-18:2.) Menards called its service technician, Nabco, and Nabco
ultimately serviced the doors three times in September 2015. None of the visits or repairs related
to issues with the doors’ sensors on the sliding panels. (Def.’s SOF ¶ 11.) On each visit, the
Nabco technician, Richard Gerke, checked and confirmed to Menards that the doors were
3
functioning appropriately – opening and closing when the sensor was activated. (Def.’s SOF ¶¶
10, 12.) When Gerke first visited the store on September 8, 2015, he made emergency repairs to
secure the emergency breakaway panel back to the door frame. Although the doors were
functioning when he left that day, Gerke needed to come back to replace the hinge pivot, a part
of the breakaway panel that does not pertain to the sliding door, that had been damaged by the
wind. (Dkt. 84 at 3; Dkt. 79-2 at ¶ 4.) On September 18, 2015, when Gerke returned, he
encountered issues fitting the new pivot and determined he would need to return with a different
pivot. (Dkt. 79-2 at ¶ 5; Gerke Dep. 23:8-10.) Although the repair work regarding the pivot
pertained to the stationary breakaway panel part of the door, Gerke made certain that the doors
were function in properly when he left the store on September 18. (Id.) During his third visit on
September 21, he installed the proper pivot, (Dkt. 79-2 at ¶ 5.), and also repaired a “ball detent”
which “holds the door in place once it’s in the closed position” – again a repair on the breakout
panel (Dkt. 79-2 at ¶ 7). In the September 21, 2015 report, Gerke specifically noted, “all
functions and safety check OK.” (Def.’s SOF ¶ 14.)
Menards also called Nabco technicians to the store for a new issue a few weeks after the
incident. On October 23, 2015, Menards called Gerke because although the doors were working
they were “not rolling smoothly.” Gerke determined that a carriage assembly needed work but
he did not have the correct part to make the repair with him. (Gerke Dep. 31:3-5.) On October
26, 2015, when Christopher returned to the store to finish the repair, Christopher checked both
sides of the doors and found that the sensors worked. (Christopher Dep. 40:22-41:2.) In order to
check the sensors, Christopher walked up to the door “from 45 degree angles from the sides dead
on and do the same thing on both sides.” (Christopher Dep. 11:1-12:15.); (see also Gerke Dep.
25:16-22).
4
In summary, neither Nabco technician ever reported any issues with the sensors when
they left the store each time in 2015 both prior to and after the incident. 3 (Dkt. 84 at 4; Dkt. 79-7
at 37-45.) There is no evidence in the record that supports that the windstorm impacted either
the sliding panels of the entrance or the sensors on those panels. 4 Menards never received any
complaints regarding their entrance doors before or after Plaintiff’s October 4th visit nor were
there any incidents involving the doors. (Def.’s SOF ¶ 7.) Menards’ managers Jacob Frosch and
Charles Leveritte gave deposition testimony that they had never received any complaints from
customers or other employees, nor had they themselves witnessed the doors fail to open and
close as intended. (Def.’s SOF ¶ 8, 9.) Nabco’s reports and invoices from 2013 to 2016 also
show no problems with the automatic doors’ sensors. (Def.’s SOF ¶ 10.)
Plaintiff’s Additional Facts
Even if the Court were to consider Plaintiff’s additional facts, they would be of no
consequence to the decision. First, Plaintiff attempts to create a fact dispute by alleging that not
all of the assistant store managers were deposed and as such she claims the two managers who
were deposed are insufficient. (Dkt. 79-2 ¶1.) Plaintiff, however, could have deposed any
additional Menard employees or agents if she wanted and chose not to do so. (Dkt. 84 at 1.)
Suggesting that two is not enough does not create a fact dispute. Conclusory opinions and
suspicions are inadmissible in summary judgment proceedings to the same extent that they are
inadmissible at trial. Tindle v. Pulte Home Corp., 607 F.3d 494, 497 (7th Cir. 2010). Also in
response, Plaintiff attempts to create a fact dispute by alleging that she only received documents
relating to service calls for the doors in September 2015. Yet, Plaintiff attached exhibits to her
3
Menard actually says 2005, but this is presumably a typo.
There is evidence that in 2016, there were updates to the eagle sensors. (Christopher Dep. 58:3-5.) The
upgraded eagles were not available in 2015. (Id. 58:6-9). Nevertheless, there is no evidence that these
updates were necessitated by any sort of defect and none of the invoices from 2015 show that there were
any issues with the eagles or the beams. (See Dkt. 79-4 at 40-43.)
4
5
opposition to summary judgment showing service calls on April 24, 2015 and May 13, 2015.
(Dkt. 79-4 at 47.) Attaching exhibits that contradict her own argument belies her discovery
allegation and does not explain why she never asked any questions about these visits during
Christopher and Gerke’s depositions. Regardless, nothing in those exhibits creates a fact dispute
about the repairs to the doors since neither pertained to the sensors and the moveable doors.
Plaintiff attempts to show negligence on the part of Menards due to the fact that Menards
allegedly did not have a regular six month maintenance schedule. (Dkt. 79-2 ¶ 8.) According to
Nabco technician Christopher, Nabco recommends service on electronic doors every six months.
(Id.) (citing Christopher Dep. 20:13-21:19.) Menards disputes that this was the recommended
maintenance schedule and disputes that they were ever told about such a recommendation. (Dkt.
84 ¶ 8.) No document supports Christopher’s assertion; but even if the Court were to treat his
statement as factually true, it is of no import because Menards had in fact had the doors serviced
during the six months prior to the incident. In both April and May 2015, Nabco serviced the
doors. (Dkt. 79-4 at 47.) Plaintiff’s counsel chose not to inquire about those service calls during
depositions. This service was above and beyond the service in September 2015 during which the
Nabco technician made certain that the doors were working properly. (Dkt. 84 at 4.)
Finally, Plaintiff asserts that Gerke once described the sensors as “Eagle,Beam” in his
September 8 report and then in the reports on September 18 and 21 as “I-One.” Plaintiff further
asserts that the sensors on the inside of the door were different from the outside of the door. (729 ¶ 11.) Nowhere does Plaintiff explain the significance of the distinction in its memorandum of
law or otherwise, and Menards further states that the technician found all sensors working on the
three September visits. (Dkt. 84 at 4.) Even if Plaintiff had complied with the local rules, these
additional facts would not change the decision.
6
II.
The Standard of Review
Summary judgment is appropriate where the admissible evidence shows that no genuine
dispute exists as to any material fact and the movant is entitled to judgment as a matter of law.
See Fed. R. Civ. P. 56(a). “A ‘material fact’ is one identified by the substantive law as affecting
the outcome of the suit.” Bunn v. Khoury Enters., Inc., 753 F.3d 676, 681 (7th Cir. 2014) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “A ‘genuine issue’ exists with
respect to any such material fact, and summary judgment is therefore inappropriate, when ‘the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.’” Id. at
681–82 (citing Anderson, 477 U.S. at 248). On the other hand, “where the factual record taken
as a whole could not lead a rational trier of fact to find for the nonmoving party, there is nothing
for a jury to do.” Bunn, 753 F.3d at 682 (citing Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (emphasis in original)). In determining whether a genuine issue
of material fact exists, the Court construes the evidence and all inferences that reasonably can be
drawn in the light most favorable to the nonmoving party. See id. at 682 (citing Anderson, 477
U.S. at 255); see also Kvapil v. Chippewa County, Wis., 752 F.3d 708, 712 (7th Cir. 2014).
III.
Discussion
There are no disputed issues of material fact requiring the case to go to a jury. First, with
regard to the premises liability claim, there are no facts to support that Menards had any
knowledge of an unreasonable risk of harm. See Parker v. Four Seasons Hotels, Ltd., 845 F.3d
807, 811 (7th Cir. 2017). Second, with regard to the negligence claim, there are no facts that
Menards breached a duty of care because the injury here was not foreseeable to Menards. See
Cunis v. Brennan, 56 Ill.2d 372, 376 (1974).
Finally, there are not facts to support that
Plaintiff’s res ipsa loquitur claim should prevail because Plaintiff’s injury is not the type of
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injury unlikely to occur without negligence and the doors were not in Menards’ exclusive
control. Britton v. University of Chicago Hospitals, 382 IIl.App.3d 1009, 1010-11 (2008) (citing
Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill.2d 90,131 (1992)).
A. Premises Liability
“Under Illinois law, property owners owe to their invitees a duty to maintain the premises
in a reasonably safe condition.” Parker, 845 F.3d at 811 (citing Ward v. K Mart Corp., 136
Ill.2d 132, 143 (1990)). To recover in a premises-liability case, a plaintiff must prove that: (1)
there was a condition on the property that presented an unreasonable risk of harm; (2) defendants
knew, or in the exercise or ordinary care should have known, that the condition of the property
involved an unreasonable risk of harm; (3) defendants should have anticipated that persons on
the premises would not discover or realize the danger or would otherwise fail to protect
themselves against it; (4) defendants performed some negligent act or omission; (5) plaintiff was
injured; and (6) the condition of the property was a proximate cause of the injury to plaintiff.
Jordan v. Nat’l Steel Corp., 183 Ill.2d 448, 454 (1998); see also Illinois Pattern Jury Instructions,
Civil, No. 120.08 (2005). 5 Constructive or actual knowledge is a fundamental element of a
premises liability claim. Mueller v. Phar-Mor, Inc., 336 Ill. App.3d 659, 665 (Ill. 2d. 2000); see
also Jordan, 183 Ill. at 457-458 (the Illinois Supreme Court analyzed whether defendant had
notice under the second element of the six-part test).
5
Illinois courts also analyze premises liability under Section 343 of the Restatement. Under that section,
a defendant is liable if the possessor of land “(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.” See Genaust v. Ill.
Power Co., 62 Ill.2d 456, 468 (1976) (quoting Restatement (Second) of Torts (1965)). There is no
meaningful distinction between Section 343 from those six factors cited in other Illinois cases for
purposes of this analysis.
8
Plaintiff asserts that Menards is liable for premises liability because “management took
no action to prevent the customers from being harmed – no thorough inspection of the door, no
replacement of the door, no added warnings to those of the manufacturer on or around the door
which might have notified the customers of the increased risk.” (Dkt. 79-1 at 5.) After months
of fact discovery, however, Plaintiff’s claims are not supported by the facts.
First, there is no
evidence of a condition on the property that caused an unreasonable risk of harm. Although
Plaintiff attempts to conflate the condition issue by alleging that the windstorm caused some
damage to the emergency breakaway panel, and therefore Menards was put on notice of a
condition that would cause harm, nothing in the record supports such a conclusion. In fact,
Plaintiff’s own theory of liability is that the sensors that open and close the doors failed and
therefore her injury was proximately caused from the failed sensors that did not open the doors.
By simply alleging that the breakaway panels had been serviced due to wind damage fails to link
the breakaway panels with the sensors and the moving part of the doors. There is no evidence in
the record at all that the breakaway panels somehow impacted an entirely different panel of the
door, the sensors, or the functioning of the entrance doors. Even if the Court were to credit
Plaintiff’s improper statement of additional facts, which are not admitted, in which she claims
that there was not a “thorough inspection of the door,” the evidence negates the assertion. The
record shows that Nabco visited to inspect the doors in April and May of 2015 and nothing
indicates that these were not thorough inspections. (See Dkt. 79-4 at 47.) Plaintiff also does not
even bother to speculate, let alone set forth evidence, as to how Menards could have prevented
her injury through “added warnings.” (Dkt. 79-1 at 5.)
Most importantly, Plaintiff fails to show that Menards knew or could have known of a
dangerous condition. There had been no complaints, reports, and no employee had seen any
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malfunctioning of the automatic doors.
And even though Plaintiff’s allegations concern
specifically the sensors in the side panels, Menards also had no reason to believe that the
condition of the breakaway panel posed any danger because Nabco made temporary fixes and
determined the doors were functioning after leaving Menards upon each site visit and the
breakaway panels were fully repaired by September 21, a few weeks before Plaintiff arrived at
Menards. Again, however, there is nothing in the record to show that the breakaway panels had
anything to do with the proper functioning of the doors that were opened by the sensors.
Therefore, rather than notice of a dangerous condition, Menards had the opposite: affirmative
confirmation from its service technician that the doors were properly functioning and that all
safety checks had been made just two weeks prior to the incident. (See September 21, 2015
Nabco Service Report at Dkt. 79-7 at 30) (“ALL FUNCTIONS AND SAFETY CHECK OK[.]”)
(emphasis in original).
Not only does Plaintiff not have the evidence to oppose Menards’ Motion, she also does
not provide any sort of analysis of relevant case law to demonstrate that other courts applying
Illinois law would find an issue for the trier of fact under similar circumstances. Based on the
Court’s own review, the cases support judgment for Menards. For example, in Mueller v. PharMor, Inc., the plaintiff had a similar injury resulting from sliding doors at a retail store and an
Illinois Appellate Court affirmed the trial court’s grant of defendant’s motion for a directed
verdict on the issue of premises liability. In Mueller, the relevant sliding doors consisted of two
automatic glass doors and two adjacent glass side panels which were stationary and only to be
opened in the case of emergencies. Although there was no emergency, at the time the plaintiff
entered the store one of the side panels had been removed. 336 Ill. App.3d at 663-664. When
the plaintiff attempted to pass through, the sliding doors activated and struck her in the right side,
10
pushed her into the side panel, and then struck her again. Id. at 662. Similar to the facts in this
case, just prior to the incident, the store had called a service technician. Id. at 664-665. The
technician confirmed the doors were working and there was no evidence any of the store
employees had seen a similar incident occur, no past reports from customers, and no evidence
that the store had done anything to ignore prior notice because they never received prior notice.
Id.
Although the store knew that the sliding panel had been removed, the store had no
knowledge that this would be a condition to trigger the automatic doors to strike a person
walking through the entrance; therefore, there was no triable issue of fact on the premises
liability claim. Just as the store in Mueller had no reason to anticipate that the absence of the
side panel would trigger a problem with the automatic doors, Menards had no reason to
anticipate that the damage from the windstorm to the emergency breakaway panel would impact
the automatic doors.
In contrast, in Parker v. Four Seasons, a hotel was liable under a theory of premises
liability because there was a clear record that the hotel was on notice of a defect in the sliding
glass doors of the showers in the hotel rooms; the plaintiff, a hotel guest, slid the sliding glass
door of the shower when it “exploded suddenly, raining shards of glass to her naked body and
causing injuries.” 845 F.3d 807, 810 (7th Cir. 2017). At summary judgment, the hotel guest
submitted an affidavit stating that the engineer employed by the hotel told her that the hotel had
recently undergone renovations and “that a ‘bunch’ of the newly installed sliding glass doors had
exploded because the overhead track stoppers were not working properly.” Id. at 810. The hotel
guest also uncovered an email suggesting that several doors had broken in a similar manner and
that the glass door in her very room had previously exploded and been replaced. Id. Despite
being on a “do not sell list” the hotel room was rented to the guest anyway. Id. In Parker, a
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factfinder could infer that the hotel was aware that there was a problem that could cause injuries,
the problem had not been fixed, but the hotel still rented the room to the guest. Plaintiff has not
presented any analogous facts showing that Menards was on notice of a condition relating to the
automatic doors that could cause an injury to its customers and therefore summary judgment is
granted on that count.
B. Negligence
“The necessary elements of proof in a cause of action for negligence are: the existence of
a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately
resulting from that breach.” Mueller, 336 Ill. App. 3d at 667 (quoting Arroyo v. Chicago Transit
Authority, 268 Ill.App.3d 317, 325 (1994)) 6.
Plaintiff argues that Menards had a duty of care that it breached based on the following
factors: (1) the foreseeability of the injury; (2) the likelihood of the injury; (3) the magnitude of
the burden on the defendant of guarding against the injury; and (4) the consequences of placing
the burden on the defendant. Deibert v. Bauer Brothers Construction Co., 141 Ill.2d 430 (1990
141 Ill.2d 430 (1990).). Plaintiff claims that the injury here was foreseeable because if electronic
doors fail and “hit a customer,” an injury will result. (Dkt. 79-1 at 3.) However, this is the
wrong inquiry. It is not disputed that if a door fails and “hits” a customer, an injury may result.
Instead, the question is “[n]ot what actually happened, but what the reasonably prudent person
would then have foreseen as likely to happen[.]” Cunis, 56 Ill.2d at 376 (quoting Restatement
(Second of Torts (1965).). Put another way, it’s not what would happen if the door hits a person;
instead, it is whether it was reasonably foreseeable that the door would hit a person in the first
place. Given the reports from Nabco that the doors were functioning properly and that there
6
Plaintiff incorrectly cites to the Section 343 factors which are relevant to her premises liability
argument, not her simple negligence argument. See Dkt. 80 at ¶6 (quoting Deibert v. Bauer Brothers
Construction Co., 141 Ill.2d 430 (1990).).
12
were no prior complaints, the failure of the automatic door and resulting injury here was not
reasonably foreseeable. Second, Plaintiff contends the windstorm made the injury likely, but
Menards called its service technician as soon as the storm hit. Nabco never found any issues
with the sensors after the storm and by September 21, 2015, even the breakaway panel, which
had been damaged by the storm and was unrelated to the sensors, had been completely repaired.
(Dkt. 79-7 at 30.) As to the third and fourth factors, Plaintiff concedes that “[t]he burden on
Menards to prevent such an injury is not insignificant,” because Menards had to pay Nabco, but
Plaintiff further notes that this amount was small. (Dkt. 79-1.) In fact, there’s no evidence to
support a calculation of such a burden on Menards. Nabco technicians told Menards that the
doors were fine prior to Plaintiff’s visit. If their own vendor could not find an issue with the
sensors, then it is unclear what lengths Menards should have taken and at what costs. Plaintiff
eludes to the cost of a more “thorough inspection” of the doors, Dkt. 79-1 at 4, but there is no
evidence that the inspections done by Menards were not sufficient. Applying these factors,
Plaintiff has failed to show that Menards owed a duty of care.
In Mueller, the court expanded the negligence analysis and found that notice is not
always necessary: “[w]here plaintiff has offered some slight additional evidence, either direct or
circumstantial, from which a jury could infer that it was more likely that the defendant or its
employees, rather than a customer, created the condition leading to the plaintiff’s injury, the
negligence issue may go to the jury without evidence showing defendant’s knowledge or
constructive notice of the condition.” 336 Ill. App.3d at 669 (collecting cases). There was
ultimately a finding of negligence because the store had removed the side panel which was to be
done only when there was an emergency and there was no emergency; there was also evidence
that the side panels had been found opened a number of times in the six months previous to the
13
incident on other non-emergency occasions. Id. Because the side panel was opened at times that
the store knew it should not be, the court held that there was an issue of fact as to whether the
plaintiff “created the condition leading to the plaintiff’s injury.” Id. Here there is no similar
affirmative act by Menards that could be construed as creating the condition that led to Plaintiff’s
injury.
C. Count III – Res Ipsa Loquitor
“The doctrine of res ipsa loquitur requires that (1) the occurrence is one that ordinarily
does not occur in the absence of negligence; and (2) the defendant had exclusive control of the
instrumentality that caused the injury.” Britton v. University of Chicago Hospitals, 382
IIl.App.3d 1009, 1011 (2008) (citing Dyback v. Weber, 114 Ill.2d 232, 242 (1986)) (emphasis
added). Therefore, if negligence is found, the assessment of res ipsa is not needed. It is a
principle used primarily to find for a conclusion of negligence when evidence of such is wanting.
Mueller v. Phar-Mor, Inc., 336 Ill.App.3d 659, 670 (2000) (quoting Metz v. Cent. Ill. Elec. &
Gas Co., 32 Ill.2d 446, 448–49, 207 N.E.2d 305 (1965)) (“[The] purpose [of the doctrine of res
ipsa loquitur] is to allow proof of negligence by circumstantial evidence when the direct
evidence concerning cause of injury is primarily within the knowledge and control of the
defendant.”). Here, Plaintiff has not demonstrated Menards’ negligence, so the Court now turns
to the res ipsa loquitur analysis.
To support her theory that her injury was an occurrence that would not ordinarily happen
absent negligence, Plaintiff cites to a New Jersey Supreme Court decision holding that “common
knowledge will justify a res ipsa inference when automatic doors cause injury to blameless
victims.” Jerista v. Murray, 883 A.2d 350, 362-363 (N.J. 2005). Illinois has not weighed in on
this inference in the context of automatic doors, but other courts are not persuaded by New
14
Jersey’s analysis. In Kmart Corp. v. Bassett, the Alabama Supreme Court held that the theory
amounts to an improper inference based on an inference and, even if there was a malfunction, “a
mere malfunction would be insufficient to invoke the doctrine of res ipsa.” 769 So.2d 282 (Ala.
2000). For example, “the malfunction could have occurred because the doors were defective or
because the company that serviced the doors had been negligent.” Id. The same is true here that
Menards’ service technician could have been negligent precluding a finding of res ipsa. Nabco
repeatedly affirmed to Menards that the door was properly functioning, making it difficult to
automatically infer that the injury was the result of Menards’ negligence. There is no evidence,
therefore, indicating an issue of fact as to the first prong of the res ipsa analysis.
Plaintiff contests that the second prong is required and asserts that she does not need to
show Menards exercised exclusive control over the doors. Plaintiff relies on Massa v. Michaels
Stores, Inc., an unreported decision on a motion to dismiss, the Central District of Illinois, noted,
in dicta, that exclusive control is not required, but the district court provided no further analysis
on that point. 2013 WL 5951306, *2 (C.D. Ill. 2013). Unlike here, in Massa it was premature to
assess the issue of control without the development of a factual record. Plaintiff also cites to
Aguirre v. Turner Const. Co., a case with extensive analysis quite helpful to the Court’s decision
here. 582 F.3d 808 (7th Cir. 2009). Although Plaintiff seems to rely on this case for the same
proposition, that exclusivity is not a requirement for res ipsa, the court reviewed an extensive
history of confused litigants wrestling with issues of control and ultimately held that the
inference of res ipsa was not appropriate when the accident in which plaintiff was injured was
possibly caused by a nonparty subcontractor, not attributable to any duty of the defendant
employer of plaintiff. While the defendant employer assumed a duty to supervise measures
taken by the subcontractors for the protection of their workers, the duty “did not require
15
continuous or repetitive inspections.” Id. at 813. Similarly, here, Menards had a duty to ensure
customer safety by maintaining the automatic doors, but Menards did so through its redundant
safety system of sensors and by having its doors serviced by its technicians at Nabco. Just as
there was evidence that a nonparty may have been negligent in Aguirre prohibiting an inference
of res ipsa, there are nonparties who may have also contributed to Plaintiff’s injury. Defendant’s
Motion for Summary Judgment, therefore, is granted on Plaintiff’s claim for res ipsa.
CONCLUSION
For the foregoing reasons, Defendant, Menards’ Motion for Summary Judgment is
granted on Plaintiff’s claims of premises liability (Count II), negligence (Count I) and res ipsa
loquitur (Count III).
____________________________________
Hon, Virginia M. Kendall
United States District Judge
Date: June 23, 2017
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