Ochoa v. Menard, Inc.

Filing 41

OPINION AND ORDER: Signed by the Honorable Charles R. Norgle, Sr on 10/27/2017. Mailed notice(ks, )

IN THE UNITED STATES DISTRICT COURT FOR
THE NORTHERI\ DTSTRICT OF ILLINOIS
EASTERN DIVISION
ROGELIO OCHOA,

Plaintiff,
Case

No. l6-cv-6922

V.

Judge Charles R. Norgle

MENARD, [NC., a Wisconsin Corporation
Defendant.

OPINION AND ORDER
Plaintiff Rogelio Ochoa ("Plaintiff') sues Defendant Menard, Inc. ("Defendant") under
the theory of premises

liability for injuries sustained when Plaintiff slipped and fell at

Defendant's place of business. Before the Court is Defendant's motion for summary judgment.
For the following reasons, Defendant's motion is granted.

I. BACKGROUND
On September 21,2009, Plaintiff was a customer at Defendant's place of business
located at 4501 W. North Avenue, Chicago, Illinois (the "Menard's store") and was accompanied
by his girlfriend, his girlfriend's sister, and his daughter. While shopping, Plaintiff made his way
to the restroom and encountered Defendant's employee, Mark Franklin ("Franklin"), restocking
an aisle leading the restroom. Franklin was removing pieces of particle board from a flatbed cart,

approximately waste high, and placing the boards onto shelves on the right hand side of the aisle.
Franklin had positioned the flatbed cart so that it spanned from the right side of the aisle into the
center of the aisle. There was also a shopping cart loaded with merchandise in the center of the

aisle and another flatbed cart loaded with merchandise on the left side of the aisle. Obstructions

related to the Franklin's stocking activity spanned the entire width of the aisle. The area was well
lighted.

Upon encountering the stocking activity, Plaintiff entered the aisle while the group
accompanying him stayed behind. He did not proceed slowly, but walked at what he
charucterized as an "average" speed. Defendant's Statement of Material Facts ("Def.'s SOMF"),

Ex. A, Plaintifls Deposition ("P1.'s Dep.") at 50.20-23. Plaintiff maneuvered himself between
the flatbed cart which Franklin was unloading and the shoppingcart filed with merchandise in
the middle of the aisle. Plaintiff turned sideways in order to slide between the two obstacles, as

there was insufficient space for Plaintiff to proceed facing forward. Upon clearing the two
obstacles, Plaintiff took two large steps forward and stepped on a piece of plastic on the floor, at

which point he lost his balance and fell. Plaintiff caught himself with his hands and his body did
not make contact with the floor. Plaintiff stated at his deposition that he was not distracted when
he stepped on the piece of plastic, but he does not remember precisely which direction he was

looking after he cleared the two obstacles blocking the aisle. Pl.'s Dep. at 48:2-22. Regardless,
he did not see the piece of plastic before he fell. ld. at 49:6-8. Plaintiff further stated that he
proceeded to the restroom after he

fell and then paid for several items

at the register before

driving himself home. Id. at 33:16,34:13.
The Parties dispute the exact size and color of the piece of plastic on which Plaintiff
slipped. According to Plaintiff, the piece of plastic was transparent and "as small as an inch or
less." Plaintiffls Response to Defendant's Statement of Material Facts ("P1.'s Resp. to Def.'s

SOMF) 1129,35. Defendant, however, maintains that the piece of plastic was dark in color and
"approximately 4 inches long by 2 inches wide." Def.'s SOMF tf 35. But, the Parties agree that
the piece of plastic on which

Plaintiff slipped was a "corner protector" for the particle boards that

were being unloaded by Franklin. The Parties also agree that there were multiple other
unobstructed aisles that Plaintiff could have used to access to the restroom.
The Court need not rely exclusively on the Parties' subjective rendition of events, as the

incident in question was captured on video by Defendant's security camera. See Def.'s SOMF,
Ex. B. As depicted below, the video is mostly consistent with the Parties' description of the
incident. However, the video clearly shows several dark colored objects on the floor within a few
feet of the flatbed cartthat Franklin is unpacking. As mentioned above, the Parties agree that the

dark colored objects shown in the video are corner protectors for the particle board. Defendant
states that the video is proof that the corner protectors were dark in color.

Plaintiff, however,

maintains that the video does not accurately depict the color of the corner protectors and asserts
that the comer protectors appear dark in the video because they were "reflecting the darkly
colored concrete floor." Plaintifls Response to Defendant's Motion for Summary Judgment
("P1.'s Resp.") at 5. Notwithstanding this dispute, the video corroborates that Plaintiff entered the
aisle that Franklin was restocking, maneuvered between the flatbed cart and shopping cart, took

two large steps forward, and slipped on one of the corner protectors.

II. DISCUSSION

A. Standard of Review
"Summary judgment is appropriate when '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 law."'

Northfield Ins. Co. v. Cit), of Waukegan, 701 F.3d 1124,ll28 (7thCir.2012) (quoting Fed. R.
Civ. P. 56(a)); see also Celotex Corp. v. Catrett,477IJ.S.3ll,322 (1986). "A genuine issue of
material fact exists when the evidence is such that a reasonable jury could return a verdict for the
nonmoving party." Wells v. Coker,707 F.3d756,760 (7th Cir. 2013) (internal quotation marks
and citation omitted). "On summary judgment a court may not make credibility determinations,

weigh the evidence, or decide which inferences to draw from the facts;these are jobs for a

factfinder." Payne v. Pauley,337 F.3d767,770 (7th Cir. 2003) (citing Anderson v. Liberty
Lobby" Inc.,477 U.5.242,255 (1986)). The Court must view "the record in the light most
favorable to the nonmovant and [avoid] the temptation to decide which party's version of the
facts is more likely true." Id. Finally, "to survive summary judgment, the nonmoving party must
present evidence sufficient to establish a triable issue of fact on all essential elements of its
case." Lewis v. CITGO Petroleum Corp., 561 F.3d 698,702 (7th Cir. 2009).

B. Defendant Did Not Owe Plaintiff a Duty Because the Stocking Activity and Condition of the
Aisle was an Open and Obvious Condition
Defendant argues that it owed no duty to Plaintiff because the flatbed cart and related
stocking activity were an open an obvious condition. Defendant also argues that Plaintiff is

contributorily negligent as a matter of law because he failed to take a safer alternative route to
the restroom. In response, Plaintiff argues that both the flatbed cart and the corner protector were

not open and obvious conditions. Plaintiff further argues that the there is no evidence that he

knew or should have known that the corner protectors would be in the aisle and therefore he
cannot be contributorily negligent for choosing to take the path that he did. The Court

will

address each argument in tum.

Illinois tort law controls this case. See Erie R. Co. v. Tompkins,304 U.S. 64,78 (1938);
see also

Anicich v. Home Depot U.S.A.. Inc., 852 F.3d 643,648 (7th Cir. 2017),

(Apr. 13, 2017). Under Illinois law, "the elements of

a negligence cause

as amended

of action are: a duty

owed by the defendant to the plaintiff; a breach of that duty; and an injury proximately caused by
the breach." Matthews v.

Aganad,394lll. App.3d 591, 598 (2009). The existence of a duty owed

by defendant depends on "whether defendant and plaintiff stood in such a relationship to one
another that the law imposed upon defendant an obligation of reasonable conduct for the benefit

of plaintiff." Bucheleres v. Chicago Park Dist. ,171 lll.2d 435, 445 (1996). "Unless a duty exists,
a

plaintiff cannot recover." Kleiber v. Freeport Farm & Fleet"

Inc.

, 406lll. App. 3d 249,256

(2010). Whether defendant owed plaintiff "a duty of reasonable care under a particular set

of

circumstances is an issue of law for the court." Bucheleres, 17I Ill.2d at 445.
The existence of a duty depends on four factors: the likelihood of injury; the reasonable
foreseeability of such injury; the magnitude of the burden of guarding against injury; and the
consequences of placing that burden on the defendant. Id. at 456; Camp v. TNT Logistics Corp.,

553 F.3d 502, 505 (7th Cir. 2009). Where a

plaintiff alleges that an injury was caused by

a

condition on a defendant's property, and plaintiff was lawfully on the premises, Illinois courts

follow the Restatement (Second) of Torts ("Restatement") in determining whether the injury was
reasonably foreseeable. Kleiber, 406 Ill. App. 3d at256. The Restatement provides that "[a]
possessor of land is subject to

liability for physical harm caused to his invitees by a condition on

the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the

condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect
themselves against it, and (c) fails to exercise reasonable care to protect them against the
danger." Id. (quoting Restatement (Second) of Torts $ 343 (1965)).

In Ward v. K Mart Corporation, the Illinois Supreme Court adopted an exception to the
general rule regarding the reasonable foreseeability of injury, as stated above. See 136

lll.2d 132,

149 (1990). That exception, known as the "open and obvious" rule, is set forth by section

343A

of the Restatement, which provides that "[a] possessor of land is not liable to his invitees for
physical harm caused to them by any activity or condition on the land whose danger is known or
obvious to them, unless the possessor should anticipate the harm despite such knowledge or
obviousness." Id. (quoting Restatement (Second) of Torts, $ 343,4.). Further, Illinois courts have
held that "the determination of whether the condition is open and obvious depends not on

plaintiffs subjective knowledge but, rather, on the objective knowledge of a reasonable person
confronted with the same condition. Sandoval v. City of Chicago,357

lll. App. 3d 1023,1028

(200s).

In Bucheleres, the Illinois Supreme Court reaffirmed the open and obvious rule, stating
that

"[i]n

cases

involving obvious and common conditions, such as fire, height, and bodies of

water, the law generally assumes that persons who encounter these conditions will take care to

avoid any danger inherent in such condition. The open and obvious nature of the condition itself
gives caution and therefore the risk of harm is considered slight; people are expected to
appreciate and avoid obvious risks." Bucheleres, 17t lll.2d at 448. The court also affirmed the

"forgetfulness or distraction" limitation on the open and obvious rule, which provides that a
defendant will still be liable for an injury caused by an open and obvious condition "where the
[defendant] has reason to expect that the [plaintiffls] attention may be distracted, so that he

will

not discover what is obvious, or will forget what he has discovered, or fail to protect himself
against

it." Id. at 453 (quoting Restatement (Second) of Torts $ 3434, Comment f , at 220).

Further, the court clarified that even if a condition is found to be open and obvious, this is not

dispositive of whether defendant owed plaintiff a duty. Id. at456. Rather, the open and obvious
nature of the condition affects the determination of the reasonable foreseeability of such injury,

but a complete analysis of all four factors relevant to the court's imposition of a duty is still
necessary. See id. at 456.

In the instant case, the central issue is whether the stocking activity and condition of the
aisle presented an inherent danger such that a reasonable person, under the same circumstances
as

Plaintifl should have

appreciated the danger and avoided entering the aisle.

If

so, the stocking

activity and condition of the aisle was an open and obvious condition. For the following reasons,
the Court concludes that the stocking activity and condition of the aisle was an open and obvious

condition.
The security video clearly shows that the aisle Plaintiff entered was effectively blocked

off by Franklin's stocking activity. There were numerous carts full of merchandise spanning the
width of the aisle, such that Plaintiff had to squeeze himself between two of the carts in order to

enter the aisle. Further, from

Plaintiff s perspective, Franklin was clearly visible unloading large

boards from a flatbed cart and stacking them on the shelf. Simply put, the aisle was not in a neat
and orderly fashion due to Franklin's stocking activity. The reasonable person, when confronted

with such a scenario, understands that there are certain inherent risks when entering this type of
work in progress

-

including that there could be stray objects, such as the corner protectors,

littering the floor

-

as

this is a common sight during restocking activity at retail stores. Further,

this inherent risk is especially evident when the aisle is blocked off by numerous obstacles
related to the stocking activity, signaling to the reasonable person that he should avoid the area.
Indeed, Plaintiff s three companion shoppers remained about ten feet from the work area.
The open and obvious nature of Franklin's stocking activity is supported by Wilfong v.
L.J. Dodd Const.,401 Ill. App. 3d 1044 (2010). In that case, the plaintiff was injured when he

fell in a rut at a construction site. Id. at 1053. The plaintiff argued that the rut was not open and
obvious because many of the ruts on the construction site were covered with water and therefore
not visible. Id. However, the court held that the rut was open and obvious because the "plaintiff

s

testimony clearly show[ed] that he was aware that he was walking over ruts, stepping from one
to another." Id. Further, the court stated that "the question is not whether one particular rut would
collapse, but rather whether a reasonable person would anticipate the danger of crossing over the

ruts." Id. at 1054.
Here, whether Plaintiff saw the specific corner protector that he slipped on is immaterial
because

it is undisputed that Plaintiff was aware of the ongoing stocking activity and the general

condition of the aisle. Further, similar to Wilfone, the issue is not whether Plaintiff was
subjectively aware of the risk of stepping on the corner protector, but rather whether a reasonable
person would anticipate the danger of walking into the stocking activity. As explained above, a

reasonable person understands that there are certain inherent risks when entering an aisle

in

which an employee is restocking items, especially when the aisle is blocked off.
Finally, while neither party raised the argument, the Court notes that the "forgetfulness or
distraction" limitation on the open and obvious rule is not applicable in this case. Plaintiff
testified that nothing attracted his attention or distracted him immediately before he fell. Pl.'s
Dep. at 48:17-22. Further, Plaintiff was not carrying any merchandise which would have
obstructed his view. Accordingly, the Court concludes that Plaintifls injury was not reasonably
foreseeable, given the open and obvious nature of the stocking activity.

Next, the Court must consider the other factors regarding whether Defendant owed

Plaintiff

a duty.

With respect to the first factor, the likelihood of injury, "the law generally

considers the likelihood of injury slight when the condition in issue is open and obvious because

it is assumed that persons encountering the potentially dangerous condition of the land will
appreciate and avoid the risks." Bucheleres, 171

Ill. 2d at

456. Thus, given the Court's holding

above, this factor does not weigh in favor of finding that Defendant owed Plaintiff a duty.

Consideration of the last two factors also indicates that no duty should be imposed
against Defendant. These factors are the magnitude of the burden of guarding against injury and

the consequences of placing that burden on the defendant. Plaintiff argues that protecting against
his injury would merely involve moving the corner protectors out of the aisle. Plaintiff

s

argument, however, ignores that the he was in the better positon to prevent his injury, given the
open and obvious nature of the stocking activity. In order for Defendant to effectively guard

against such an injury, it would need to be hypervigilant in monitoring areas where stocking

activity is taking place, even in those aisles which are blocked off, such as in this case. This
would be an onerous burden for Defendant to 'oto guard against injuries which result from a

person's voluntary encounter with a known risk." Camp, 553 F.3d at 51 l. Accordingly, the Court
concludes that Defendant did not owe a duty to Plaintiff under

Illinois law. Therefore, absent

a

duty owed to Plaintiff, his claim must fail. In light of aforementioned holding, the Court need not
consider Defendant's argument that Plaintiff was contributorily negligent as a matter of law.

III. CONCLUSION
In sum, the stocking activity conducted by Defendant's employee was an open and
obvious condition and therefore Plaintiff s injury was not reasonably foreseeable. Further, the

likelihood of Plaintiff s injury was slight, given the open and obvious nature of the stocking
activity and condition of the aisle. Finally, preventing Plaintiff s injury would be an onerous
burden on Defendant, as it would require hypervigilance in protecting customers from an open
and obvious danger. Accordingly, Defendant did not owe a duty to Plaintiff under

Defendant's motion for summary judgment is granted.

IT IS SO ORDERED.

CHARLES RONALD NORG
United States District Court

DATE: October 26,2017

10

Illinois law.