Suzanne Stimac v. J. C. Penney Corporation, Inc.
Filing
63
MEMORANDUM Opinion and Order Signed by the Honorable Mary M. Rowland on 10/10/2018. Mailed notice. (dm, )
Case: 1:16-cv-03581 Document #: 63 Filed: 10/10/18 Page 1 of 18 PageID #:693
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
SUZANNE STIMAC,
Plaintiff,
v.
J.C. PENNEY CORPORATION,
INC.,
No. 16 CV 03581
Magistrate Mary M. Rowland
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff Suzanne Stimac (“Stimac”) sued Defendant J.C. Penney, Corporation Inc.
(“J.C. Penney”) for injuries she suffered after allegedly slipping and falling at a J.C.
Penney retail store. Stimac filed her complaint in the Circuit Court of Will County,
Illinois and the case was removed to this Court pursuant to 28 U.S.C § 1441(a). The
parties consented to the jurisdiction of the United States Magistrate Judge, pursuant
to 28 U.S.C. § 636(c). On January 22, 2018, with leave of court, Stimac filed an
amended complaint against J.C. Penney alleging common law negligence (Count I),
res ipsa loquitur (Count II), and premises liability under 740 ILCS 130 et seq. (Count
III) (Dkt. 46). J.C. Penney has moved for summary judgment on all three counts. For
the reasons set forth below, J.C. Penney’s motion for summary judgment [53] is
GRANTED.
I.
Factual Background
On October 3, 2014, Stimac and her husband visited a J.C. Penney store located
in a shopping mall in Joliet, Illinois. (Dkt. 55-4 ¶¶ 3, 10, 18). After entering the store
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through the exterior entrance, Stimac and her husband parted ways; Stimac headed
toward the store’s internal exit to leave J.C. Penney and enter the mall. (Id. ¶¶ 18,
19). At approximately 3:30pm, Stimac was in the J.C. Penney jewelry section when
she slipped on a flyer and fell. (Id. ¶ 20; Dkt. 61 ¶ 21). 1 An unidentified male customer
alerted J.C. Penney jewelry department sales associate, Jessica Las, that Stimac had
fallen. (Dkt. 55-4 ¶¶ 5, 29). Las radioed for assistance and jewelry department
supervisor, Diane Mittlestaedt arrived. (Id. ¶¶ 6, 30). Mittlestaedt then called the
store manager, Minette Buchas to the scene. (Id. ¶¶ 7, 34). Stimac was helped to a
seated position on a table nearby. (Id. ¶ 35). Sue Ruberts and her daughter, Kimberly
Montgomery, who happened to be in the store shopping nearby, approached Stimac
where she was seated; Ruberts had known Stimac since the 1970s. (Id. ¶ 37). After
speaking with store manager Buchas, Stimac accompanied her husband to the men’s
department. The couple then left and went home. (Id. ¶¶ 44, 45).
As part of its advertisements, J.C. Penney uses 8 ½ x 11 inch laminated and
unlaminated white paper to call out price points and sale prices. (Dkt. 61 ¶ 8). J.C.
Penney employees are required to keep aisles clear of slip/fall hazards. (Id. ¶ 24).
Before her fall, Stimac did not see any paper, debris or laminate sign on the floor.
(Dkt. 55-4 ¶ 22). She does not know how the flyer came to be on the floor or how long
it had been on the floor before her fall. (Id. ¶¶ 23, 24). J.C. Penney employee Las also
The Court uses the term “flyer” for ease of reference in this opinion even though the parties
disagree about how to describe the object that Stimac allegedly slipped on. In her complaint
Stimac alleges that she “slipped or tripped on an advertisement that was sitting on the aisle
floor.” (Am. Compl. ¶7) and in her deposition described it as a “laminate flyer”, “laminate
piece of paper”, and “piece of paper.” (Stimac Dep. 64:2, 74:11–13, 75:3).
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did not see any paper, debris or laminated sign on the floor near the jewelry counters
and did not know where the flyer came from, how it fell on the floor or how long it
had been there. (Id. ¶¶ 31, 32). The day of Stimac’s fall, at 2:57 pm, jewelry employee
Tahmeena Ali ended her shift. She did not remember seeing a piece of paper where
Stimac fell, but also did not perform an inspection of the area at the end of her shift.
(Id. ¶ 8; Dkt. 61 ¶¶ 13, 18). Around 3:00pm, 2 Buchas and several other J.C. Penney
employees began a daily “midday recovery” or cleanup of the junior’s area. (Dkt. 55-4
¶ 15). As part of this cleanup, Buchas walked past the jewelry counter area. (Id. ¶¶
16). She testified that if a flyer was on the floor, she would have picked it up (Buchas
Dep. 49:3–5) but did not know that any flyer was on the floor before Stimac’s fall and
did not know where it came from or how it came to be on the floor. (Dkt. 55-4 ¶ 42).
Montgomery testified that the store appeared tidy that day. (Id. ¶ 40). Neither her
nor her mother noticed any paper on the floor before Stimac’s fall. (Id. ¶¶ 38, 41).
After Stimac’s fall, Montgomery testified that she saw a J.C. Penney employee pick
up a piece of paper from the floor and write on the “white” back part. (Dkt. 61 ¶ 5).
Mr. Stimac, Montgomery, and Las testified that they did not see the J.C. Penney
advertisement depicted in the photograph at Exhibit K on the floor or jewelry counter
after Stimac’s fall. (Id. ¶ 26).
II.
Summary Judgment Standard
Summary judgment is proper where “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
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Stimac disputes the time this occurred. (Dkt. 55-4 ¶ 15).
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law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A genuine dispute as to any material fact exists if 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). A party asserting that a fact cannot be or is
genuinely disputed “must support the assertion by citing to particular parts of
materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including those made for
purposes of the motion only), admissions, interrogatory answers, or other materials.”
Fed. R. Civ. P. 56(c)(1). Parties must set forth and respond to proposed undisputed
facts and provide support with admissible evidence. See id.; L.R. 56.1.
In construing the evidence and facts supported by the record in favor of the nonmoving party, the Court gives the non-moving party “the benefit of reasonable
inferences from the evidence, but not speculative inferences in [its] favor.” White v.
City of Chi., 829 F.3d 837, 841 (7th Cir. 2016) (internal citations omitted). Summary
judgment is proper against “a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which the
party will bear the burden of proof at trial.” Celotex, 477 U.S. at 323; see also White,
829 F.3d at 841 (summary judgment is warranted where a reasonable juror could not
find in favor of the non-moving “on the evidence submitted in support of and
opposition to the motion for summary judgment.”) (internal citation omitted). 3
Because jurisdiction in this case is based on diversity of citizenship pursuant to 28 U.S.C
§1332(a), Illinois substantive law controls. Protective Life Insurance Co. v. Hansen, 632 F.3d
388, 392 (7th Cir. 2011) (a federal court sitting in diversity applies the substantive law of the
state in which it is sitting).
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III.
Discussion
A. Premises Liability (Count III)
In Illinois, property owners owe a duty to their invitees to maintain the premises
in a reasonably safe condition. Parker v. Four Seasons Hotels, Ltd., 845 F.3d 807, 811
(7th Cir. 2017) (citing Illinois law). To prevail on her premises liability claim, Stimac
must show:
(1) the existence of a condition that presents an unreasonable risk of
harm to persons on the premises; (2) that the defendants knew, or
should have known, that the condition posed an unreasonable risk of
harm; (3) that the defendants should have anticipated that individuals
on the premises would fail to discover or recognize the danger or
otherwise fail to protect themselves against it; (4) a negligent act or
omission on the part of the defendant; (5) an injury suffered by the
plaintiff; and (6) that the condition of the property was a proximate
cause of the injury to the plaintiff.
Id. (internal citations omitted). Focusing on the second element, J.C. Penney
argues that there is no evidence that J.C. Penney had actual or constructive notice of
the flyer on the floor before Stimac’s fall. Stimac does not contend that J.C. Penney
had actual notice. Instead she responds that she does not have to establish notice at
all, and if the notice exception does not apply, there is a genuine issue of material fact
about whether J.C. Penney had constructive notice.
1. Notice Exception
Relying on the “notice exception” set forth in Donoho v. O’Connell’s, 148 N.E.2d
434 (Ill. 1958) and Reed v. Walmart Stores, Inc., 700 N.E.2d 212 (Ill. App. Ct. 1998),
Stimac seeks to have her claim submitted to a jury without showing that J.C. Penney
knew or should have known about the flyer on the floor. In Donoho, the court stated,
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[w]here [] in addition to the fact that the substance on the floor was a
product sold or related to defendant’s operations, the plaintiff offers
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, courts have generally allowed the negligence issue to go to the
jury, without requiring defendant’s knowledge or constructive notice.
Donoho, 148 N.E.2d at 439. In Reed, the court explained that the exception applies
when a plaintiff (1) shows that the object is related to the defendant’s business and
(2) offers some slight evidence that the defendant or his employees, rather than a
customer, placed the object on the floor. 700 N.E.2d at 214. Stimac has not satisfied
either part of the test.
Stimac argues that the “instrumentality at issue was a component part of [J.C.
Penney’s] ‘topper’ and therefore related to [J.C. Penney’s] business.” (Dkt. 55 at 3).
But the testimony Stimac relies on does not link the flyer to J.C. Penney. No witness
testified that the flyer she allegedly slipped on was part of a J.C. Penney advertisement.
Instead, witnesses testified generally about how J.C. Penney advertisements are used
and displayed, speculated about how part of a such an advertisement could have
ended up on the floor, and some said they saw a piece of paper in the area after
Stimac’s fall. 4 Stimac offers no evidence that the flyer had any feature identifying it
Stimac cites her testimony that she slipped on a white paper with black lettering on it
that was in a clear laminate plastic (Stimac Dep. 103:7-13); Montgomery’s testimony that
she saw an employee pick up the paper and “writ[e] on the back of it which would be the
white part.” (Montgomery Dep. 32:16-20); Rubert’s testimony that the paper was 8.5 by 11
inches in size (Ruberts Dep. 48:6-18); Buchas’s speculative testimony, in response to
counsel’s hypothetical question, that the flyer “must have fallen out of the sign holder”
(Buchas Dep. p. 76); Stimac’s husband’s testimony that he saw a white piece of paper with
black lettering on the counter and it might have said something about a sale or “20 to 40
percent, something like that.” (Dean Stimac Dep. 47:15; 63:9-18); and Blackmon’s testimony
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as related to J.C. Penney’s business. And witnesses expressly denied that Exhibit K
(a photograph of a J.C. Penney advertisement) was what they saw that day. 5
The Illinois Supreme Court’s decision in Olinger v. Great Atl. & Pac. Tea Co., 21
Ill. 2d 469 (1961) is instructive. There, the Court held that the “Donoho rule” did not
apply because the evidence “failed to establish that the substance was related to
defendants’ operations.” Id. at 476. The plaintiff testified that after falling in
defendants’ store, he noticed a substance on the floor where he slipped and described
its size (small) and color (light red). Other witnesses testified that they observed a
substance of similar size and color near where plaintiff had fallen. There was also
evidence that on that day, bottles of Coldene, a red liquid cough medicine, were on
display on the counter at the store. However, the Court found that there was no direct
evidence about how the substance came to be on defendants’ floor or what that
substance was, and no one testified that the substance was Coldene. “The best that
that J.C. Penney generally uses signs for sales events (Blackmon Dep. pp. 25, 27). The
Court notes that Stimac left out Mr. Stimac’s testimony that after he said it could have said
“20 to 40 percent”, he testified “I don’t know, you know. I am really not looking at those
things anyways.” (Dean Stimac Dep. 63:17-18). In addition, Stimac relies on one answer by
Mittlestaedt in her deposition where Plaintiff’s counsel asked, “You would agree that
Suzanne Stimac informed you that she slipped on a piece of paper?” and Mittlestaedt
responded, “Yes. That’s what was in the report that I wrote.” (Mittlestaedt Dep. 25:22-25).
In the question before and throughout her testimony, Mittlestaedt insisted that she did not
remember anything from that day. At best, this testimony would only show that Stimac
slipped on a piece of paper.
Although it is undisputed that Ms. Buchas testified that she saved the “actual sign” that
day (Dkt. 61 ¶27), when asked how she knew that it was involved in the occurrence, she
responded that it was because Stimac “told Diane [Mittlestaedt], that she slipped on that
sign. She pointed to it.” Mittlestaedt, at her deposition, did not testify to this. Buchas’
testimony about what Stimac told Mittlestaedt is hearsay. Eisenstadt v. Centel Corp., 113
F.3d 738, 742 (7th Cir. 1997) (“hearsay is inadmissible in summary judgment proceedings
to the same extent that it is inadmissible in a trial.”).
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can be said of plaintiff's evidence is that plaintiff slipped on a reddish substance and
defendant sold red cough medicine called Coldene. Only by the wildest speculation
could it be concluded from these facts that the substance on which plaintiff slipped
was Coldene.” Id. at 476. Likewise, the best that can be said is that Stimac slipped
on a paper and J.C. Penney displayed advertisements which contained paper
resembling the one Stimac slipped on. Therefore Stimac has not satisfied the first
part of the Donoho/Reed exception.
J.C. Penney argues that even if Stimac was able to meet the first part of the test,
she has not provided sufficient evidence that J.C. Penney or it employees, rather than
a customer, caused the flyer to be on the floor. The Court agrees. In Zuppardi v. WalMart Stores, Inc., the Seventh Circuit rejected plaintiff’s argument that she provided
sufficient circumstantial evidence to make Wal-Mart’s notice of the spilled water
irrelevant, explaining, “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.” 770 F.3d 644, 649–50 (7th Cir. 2014)
(quoting Olinger, 21 Ill.2d 469, 173 N.E.2d 443, 446 (“even where there is proof that
the foreign substance was related to defendant’s business, but no further evidence is
offered other than the presence of the substance and the occurrence of the
injury,...such evidence [is] insufficient to support the necessary inference.”)).
Similarly here, Stimac’s arguments are speculative and unsupported. 6 There is no
Stimac’s reliance on Las’s testimony that Las did not recall helping any customers
between 2:30 and 3:30pm as proof that there were no customers in the area during that
time is unconvincing.
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evidence that a J.C. Penney employee handled a J.C. Penney advertisement before
Stimac’s fall. Cf. Barnum v. Home Depot U.S.A., Inc., No. 15 cv 11087, 2017 U.S. Dist.
LEXIS 166979, at *6–7 (N.D. Ill. Oct. 10, 2017) (where plaintiff claimed to have
slipped on pallet jack at Home Depot, plaintiff pointed to sufficient evidence including
manager’s written statement that defendant employees were using pallet jacks the
morning of plaintiff’s fall and may have left the pallet jack in the aisle).
2. Constructive Notice
Because Stimac is not exempt from providing evidence of notice, she must
establish constructive notice by “presenting evidence that (1) the dangerous condition
existed for a sufficient amount of time so that it would have been discovered by the
exercise of ordinary care or (2) the dangerous condition was part of a pattern of
conduct or recurring incident.” Zuppardi, 770 F.3d at 651 (internal citations omitted).
Stimac does not argue pattern or recurring incident so the question is whether there
is a genuine issue of material fact that the flyer was on the floor for an amount of
time such that J.C. Penney should have discovered it with ordinary care.
J.C. Penney argues that there is no evidence of how long the flyer was on the floor.
Stimac responds that the “combined testimony of [Las, Buchas and Montgomery]
establish that the [flyer] could have been on the aisle floor at various times before
Plaintiff’s fall.” This assertion is far too vague. 7 The testimony Stimac relies on does
In her response brief, Stimac theorizes that the flyer fell on the floor between 3:15 and
3:25pm (so approximately 5 to 15 minutes before Stimac’s fall) or alternatively that it was
on the floor “the entire time.” These alternate theories confuse the issue and highlight that
Stimac has provided no evidence of how long the flyer was on the floor. See F.T.C. v. Bay
Area Bus. Council, Inc., 423 F.3d 627, 633 (7th Cir. 2005) (a court ruling on summary
judgment need not search record “looking for factual disputes”).
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not provide any evidence from which an inference can be made about timing. The
individuals’ statements consist of what they observed after Stimac’s fall or what they
thought could have happened that day. No one testified that they saw or handled any
flyer before her fall. “Absent any evidence demonstrating the length of time that the
substance was on the floor, a plaintiff cannot establish constructive notice.” Reid v.
Kohl's Dep't Stores, Inc., 545 F.3d 479, 482 (7th Cir. 2008) (citing Illinois law). In Reid,
the Seventh Circuit affirmed summary judgment for defendant retail store, stressing
that the length of time the substance was present is “of critical importance” to
establishing constructive notice. Id. at 481–82 (internal citations and quotations
omitted). Where the plaintiff failed to “indicate with any degree of certainty how long
the milkshake had been on the floor,” the Court found her contention that a factfinder could infer that it had been on the floor for an extended period of time to be
“far too speculative.” Id. at 482.
Assuming for sake of argument that there was evidence that the flyer was on the
floor for thirty minutes (or longer), Stimac does not explain how that length of time
demonstrates that J.C. Penney had constructive notice. Moreover Stimac admits in
her brief, consistent with the testimony, that the flyer was inconspicuous. See Dkt.
55 at 6 (describing the flyer as “inconspicuous”); Stimac Dep. pp. 66, 71 (the flyer “just
kind of blended in with the floor”; it was “clear plastic” and the floor was “white”). 8
Considering that it is undisputed that the flyer was inconspicuous and that Stimac
Although Stimac disputed this fact in J.C. Penney’s statement (Dkt. 55-4 ¶21), her
response did not comply with Local Rule 56.1 (requiring response, in the case of any
disagreement, to contain specific references to the affidavits, parts of the record, and other
supporting materials relied upon).
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offered no evidence about the time the flyer was on the floor beyond mere speculation,
there is no genuine issue of material fact about constructive notice in this case. See
Salata v. Coca-Cola Refreshments USA, Inc., No. 15-cv-248, 2016 U.S. Dist. LEXIS
54508 at *11 (N.D. Ill. Apr. 25, 2016) (on summary judgment, declining to make an
inference about time where there was no direct evidence about time in the record and
the “uncontested evidence reflects that the loose tile was not a conspicuous
condition.”).
In sum, summary judgment is proper on the premises liability claim because
Stimac failed to show that the notice exception applies or provide evidence to create
a genuine issue of material fact about J.C. Penney’ constructive notice of the flyer.
B. Negligence (Count I)
A plaintiff alleging common law negligence must prove that defendant owed a
duty to plaintiff, defendant breached that duty, and the breach proximately caused
plaintiff’s injury. Ward v. K Mart Corp., 136 Ill. 2d 132, 140 (1990). Businesses in
Illinois owe a duty to exercise reasonable care to maintain their premises in a
reasonably safe condition for invitees. Id. at 141. J.C. Penney concedes it owed Stimac
a duty of care but argues that Stimac has failed to provide evidence of breach or
proximate cause in order to survive summary judgment.
J.C. Penney argues that Stimac cannot prove that the flyer she allegedly slipped
on was on the floor because of J.C. Penney’s negligence. As discussed, Stimac does
not offer any evidence that a J.C. Penney employee caused the flyer to be on the floor
or that anyone knew how it came to be on the floor. Instead, Stimac contends that
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J.C. Penney’s violation of its own policies is evidence of negligence. Specifically, she
asserts that J.C. Penney’s “deviation from its policies, procedures and/or rules forms
an evidentiary basis for a finding of negligence” and that deviation “resulted in an
unreasonable risk of harm to Plaintiff.”
J.C. Penney objects to Stimac raising a new claim charging it with violating its
own policies and procedures. Stimac has waived this argument. See Warren v. Solo
Cup Co., 516 F.3d 627, 629 n.3 (7th Cir. 2008) (where plaintiff attempted to pursue
new claim in response to defendant’s motion for summary judgment, claim was
waived because plaintiff failed to raise it in her complaint). Even if the Court accepted
Stimac’s argument that J.C. Penney’s violation of its policies is evidence of negligence,
her negligence claim still would not survive summary judgment.
J.C. Penney’s alleged violation of its own policy, practice, or custom is not evidence
that it was negligent in this case. A business policy does not impose a new or
heightened legal duty of care beyond what Illinois law requires. In Zuppardi, WalMart’s policy required continuous monitoring of certain areas of the store. 770 F.3d
at 652. But the Seventh Circuit held that the policy did not “create a new legal
standard of ordinary care” and plaintiff’s argument would “require the continuous
monitoring and patrolling of a store’s safety conditions that we and Illinois courts
have summarily rejected.” Id. (collecting cases).
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The fact that Stimac fell, that J.C. Penney allegedly violated its own policy or that
an employee did not believe that she had duty to keep the aisle clean 9 is not evidence
that J.C. Penney did not exercise reasonable care to maintain its premises in a
reasonably safe condition. “The mere happening of an accident does not entitle a
plaintiff to recover. A plaintiff must come forward with evidence of negligence on the
part of defendant and with evidence that the defendant's negligence was a proximate
cause of the plaintiff's injuries.” Wash v. Benchmark Constr. Co., 2014 IL App (1st)
132771-U, ¶ 23 (internal citations and quotations omitted) (emphasis in original).
Thus summary judgment is granted in favor of J.C. Penney on Stimac’s common law
negligence claim.
C. Res ipsa loquitur (Count II)
In Illinois, the purpose of the res ipsa loquitor doctrine 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.” Metz v. Cent.
Ill. Elec. & Gas Co., 32 Ill. 2d 446, 449 (1965). The doctrine applies “only when the
facts proved by the plaintiff admit of the single inference that the accident would not
have happened unless the defendant had been negligent.” Britton v. Univ. of Chi.
Hosps., 382 Ill. App. 3d 1009, 1012 (1st Dist. 2008). A plaintiff claiming negligence
based on res ipsa loquitur must provide evidence that she was injured “in an
occurrence that ordinarily does not happen in the absence of negligence” and “by an
Las testified that she did not believe it was her duty to keep the aisles clean but would
pick something up if she saw it on the floor, but did not remember seeing any flyer on the
floor the day of Stimac’s fall. Las Dep. pp. 70–74.
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agency or instrumentality within the defendant’s exclusive control.” Heastie v.
Roberts, 877 N.E.2d 1064, 1076 (Ill. 2007). The term “exclusive 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.” Id. Here, summary judgment in favor of J.C. Penney
is warranted on Count II.
As an initial matter, Stimac makes the unsupported argument that J.C. Penney
waived its right to challenge her res ipsa loquitur claim because it did not move to
dismiss that claim. Res ipsa loquitur is a rule of evidence that allows for an inference
or presumption of negligence based on circumstantial evidence. Wilson v. Michel, 224
Ill. App. 3d 380, 386 (1st Dist. 1991). Courts have decided its application on summary
judgment without considering whether it had been challenged in a motion to dismiss.
See e.g., Salata, 2016 U.S. Dist. LEXIS 54508 (granting summary judgment because
res ipsa loquitor did not apply to case as matter of law); Daleus v. Target Corp., No.
10 C 4100, 2012 U.S. Dist. LEXIS 125202 (N.D. Ill. Sep. 4, 2012) (granting summary
judgment in favor of defendant on plaintiff’s res ipsa claim). The only case Stimac
cites, Cobb v. Marshall Field & Co., 22 Ill. App. 2d 143 (1st Dist. 1959), was decided
on a post-trial motion, and does not stand for the proposition that a party can only
challenge the application of res ipsa as a matter of law in a motion to dismiss.
As to the merits, J.C. Penney argues that Stimac has not established the single
inference that she would not have fallen unless J.C. Penney was negligent. J.C.
Penney submits that Stimac has not provided any evidence that J.C. Penney had
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exclusive control over the flyer or that an employee caused it to be on the floor, and
the facts show that it is just as likely that a customer caused it to be on the floor.
With regard to J.C. Penney’s control, Stimac says that the facts show that J.C.
Penney had a duty to “maintain and/or supervise the instrumentality in question”
because its employees, not customers, were in charge of placing it in the store. Stimac
cites deposition testimony that certain J.C. Penney employees were responsible for
placing sale signage in the store (Buchas Dep. pp. 12–13; 16–17; 64) and that it is J.C.
Penney’s responsibility, not a customer’s, to make sure that a flyer is properly placed.
(Blackmon Dep. pp. 47–48). But Stimac fails to connect this testimony to the flyer she
claims to have slipped on. Without any evidence that the flyer was part of a J.C.
Penney advertisement or a J.C. Penney employee caused the flyer to be on the floor
(regardless of whether it belonged to J.C. Penney or not), Stimac has failed to show
that the flyer was under J.C. Penney’s control or that the probable cause of her injury
was one which J.C. Penney was under a duty to anticipate or guard against. See
Daleus, 2012 U.S. Dist. LEXIS 125202, at *11 (granting summary judgment on
plaintiff’s negligence claim based on res ipsa loquitur because the undisputed record
showed there was “no evidence that the liquid [on the floor of the aisle] was caused
by an employee of Target or even a product sold at the Store.”).
Stimac further argues that that it was more probable that J.C. Penney caused the
flyer to be on the floor because the circumstance of a customer removing a J.C. Penney
flyer from a sign holder and dropping it has never occurred before at the store. Stimac
cites testimony of employees that customers do not regularly handle flyers at J.C.
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Penney and they had not observed a customer take a flyer out of a table topper before.
Again, this general testimony does not show that the flyer Stimac slipped on was
within J.C. Penney’s control or that her fall ordinarily would not happen in the
absence of negligence.
In Salata, plaintiff sued Coca-Cola after she slipped on a loose or broken tile in a
Coca-Cola distribution facility. 2016 U.S. Dist. LEXIS 54508, at *1. Granting
summary judgment in favor of Coca-Cola, the Court rejected plaintiff’s res ipsa theory
because the record showed that a reasonable inspection may not have revealed the
loose tile and in addition, defendant provided other plausible explanations for the tile
loosening other than defendant’s negligence. Id. at *18–19. Here, as discussed, J.C.
Penney’s duty was to maintain its premises in a reasonably safe condition for invitees,
not to continuously monitor its floors for objects that were indisputably inconspicuous.
J.C. Penney has also pointed to other plausible explanations, including that a
customer could have dropped a flyer on the floor. Although customers do not regularly
handle J.C. Penney advertisements (Dkt. 61 ¶ 11), the evidence in the record shows
that employees and other individuals have equal access to J.C. Penney
advertisements. Accordingly even drawing all inferences in Stimac’s favor, it was
equally plausible that an employee or another individual was the reason the flyer was
on the floor.
“Clearly if two reasonable inferences are deducible from the same facts,
one of which comports with defendant's responsibility and the other is
directly contra thereto, neither should be indulged to permit recovery by
use of the doctrine of res ipsa loquitur for the apparent reason that, if
such a practice is permissible, a jury is called upon to enter the field of
speculation and engage in a guessing contest.”
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Britton, 382 Ill. App. 3d at 1012. To support her argument that it was more likely
a J.C. Penney employee, Stimac argues that J.C. Penney has not shown how busy the
store was on October 3, 2014. At a minimum, however, it is undisputed that Stimac’s
fall occurred on a Friday in the afternoon, in the area of J.C. Penney’s jewelry
department, which is on the first floor, and the store has entrance/exists to the mall.
(Dkt. 55-4 ¶¶11–12; Las Dep. pp. 34, 49). It is also undisputed that at least three
other customers were in the area: an “unidentified” customer, Montgomery and her
mother. Las also testified that Friday afternoons are busy and the jewelry
department is in a high traffic area purposely located near the mall entrance. (Las
Dep. p. 49).
Moreover, because no other witness saw Stimac fall and she has not established
what the object was that she slipped on, the Court cannot rule out that her fall was
purely an accident not due to any negligence. “Res ipsa loquitur does not apply if the
injury can be as readily attributed to pure accident as to the defendant’s negligence.”
Cosgrove v. Commonwealth Edison Co., 315 Ill. App. 3d 651, 655 (2d Dist. 2000); see
also Harvey v. Aguirre Bldg. Maint., Inc., 2016 IL App (1st) 143169-U, ¶ 23 (“Slipping
and falling on a floor happens quite commonly in the absence of negligence.”).
Nevertheless, Stimac contends that summary judgment should be denied because
there is a “genuine issue of material fact [] as to the instrumentality at issue.” (Dkt.
55 at 15). But Stimac waived any argument that J.C. Penney failed to preserve or
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produce evidence in discovery. 10 In addition, her argument that there is an issue of
fact about the “instrumentality at issue” contradicts her assertion that the
“instrumentality at issue was a component part of [J.C. Penney’s] ‘topper’.” These
arguments underscore why there is no genuine issue of material fact to submit to a
jury and granting summary judgment is warranted. “We do not allow parties to send
every speculation that they have to the jury despite an absence of evidence.” Steen v.
Myers, 486 F.3d 1017, 1022 (7th Cir. 2007).
IV.
Conclusion
For the reasons discussed, Defendant J.C. Penney’s Motion for Summary
Judgment [53] is GRANTED.
E N T E R:
Dated: October 10, 2018
MARY M. ROWLAND
United States Magistrate Judge
If Stimac’s argument is intended to raise a negligent spoliation claim, it is waived. See
Warren, 516 F.3d at 629 n.3 (plaintiff’s new claim raised in response to defendant’s motion
for summary judgment was waived). If the argument is that summary judgment should be
denied because of deficiencies in discovery, it is similarly improper since Stimac never filed
a motion during discovery arguing that J.C. Penney had failed to produce or preserve this
evidence. See Brill v. Lante Corp., 119 F.3d 1266, 1269, 1275 (7th Cir. 1997) (entering
summary judgment for defendant proper despite defendant’s alleged lack of response to
discovery requests).
10
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