Heisey v. Meijer, Inc., Inc.
Filing
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MEMORANDUM Opinion and Order Signed by the Honorable Michael T. Mason on 5/14/2018.(rbf, )
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LOIS HEISEY,
Plaintiff,
v.
MEIJER STORES LIMITED
PARTNERSHIP, ET AL,
Defendant.
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No. 17-CV-1768
Magistrate Judge Michael T. Mason
MEMORANDUM OPINION AND ORDER
Michael T. Mason, United States Magistrate Judge:
On February 9, 2017, plaintiff Lois Heisey filed this action [3, Ex A] against
defendant Meijers Stores Limited Partnership and Meijers, Inc. (collectively, defendants
or “Meijers”) for premises liability. Heisey claims she slipped and fell on a wet floor
while grocery shopping at one of defendants’ stores. The case was filed in Illinois state
court in the Circuit Court of Cook County. Meijers filed a timely Notice of Removal [3]
on March 6, 2017 pursuant to 28 U.S.C. § 1441 and 1332. On June 13, 2017, the
parties consented to the jurisdiction of this Court for all proceedings pursuant to 28
U.S.C. § 636(c) [19].
Meijers now moves for summary judgment [39]. For the reasons set forth below,
Meijers motion for summary judgment is denied.1
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This Court has jurisdiction pursuant to 28 U.S.C. § 1331. Venue is proper under 28 U.S.C. §
1391(b).
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I.
Relevant Facts
The following facts are taken from the parties’ Local Rule 56.1 statements and
the exhibits attached thereto.
Defendant Meijers is a large store, about half of which is dedicated to selling
groceries. (Defs Statement of Facts “SOF” [40] ¶ 12.) On September 4, 2015, plaintiff
was shopping at the Meijers store in St. Charles, Illinois, along with her friend Connie
Wortman. (Defs SOF ¶¶ 6, 13) Richard Dunnett, a Meijers employee, was working at
the Meijers in St. Charles on this date. (Defs SOF ¶ 8.) At approximately 2:30 pm,
while plaintiff was in the store shopping, Dunnett observed a large area in the main aisle
of the store that required mopping. (Defs SOF ¶ 14.) Video footage from the store
shows that Dunnett retrieved the mop and then cleaned up the area. (Defs SOF ¶ 15.)
The parties dispute the reason for the mopping. Defendants state that there was
Gatorade leaking from a pyramid display. (Pls Resp SOF [42] ¶ 14.) Plaintiff disputes
this fact because there is no Gatorade display in the video footage and no evidence of
colored liquid. (Pls Resp SOF ¶ 14.) In addition, Meijers characterizes Dunnett’s
mopping as “spot mopping” with a “light moist mop.” (Defs SOF ¶¶ 11, 17.) Plaintiff
denies that Dunnett’s mop was only “lightly moist.” (Pls Resp SOF ¶¶ 16-17.) The
parties agree (and the video demonstrates) that while he was mopping, Dunnett placed
three wet floor/warning cones in the main aisle, and then left the main aisle to retrieve
paper towels in order to continue cleaning up the area. (Defs SOF ¶ 20.)
At approximately 2:32 pm, before Dunnett had returned, plaintiff and her friend
were walking down the main aisle of the store. (Defs SOF ¶ 29-32.) As they reached
the area where the warning cones had been placed, plaintiff slipped and fell. (Defs SOF
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¶ 32) Moments later, Dunnett returned to the area with paper towels and kneepads and
found plaintiff on the ground. (Pls Resp SOF ¶ 38.)
Fernando Corral was a Meijers store manager and he was working at the time
that plaintiff was at the store. (Def’s SOF ¶ 7). After plaintiff’s fall, Corral filled out a
Customer Incident report, in which he stated that Dunnett had “spot mopped” the floor,
which was “a bit wet.” (Pls Resp SOF ¶ 37.) The report also noted that Dunnett had
“placed three wet floor signs [and] went to [get] towels to dry it better [and] when he
returned Lois [Heisey] had fallen...” (Id.)
Plaintiff, her friend, Dunnett, and Corral were all deposed during discovery. In
plaintiff’s deposition, she admitted that, prior to her fall, she understood that the wet
floor/caution signs were used to warn of a hazard or wet floor in the area of the signs.
(Pls Resp. SOF ¶ 40.) She also testified that there was nothing obstructing her view of
the signs, and that she was aware of the signs before her fall. (Id.) She stated that
before she fell, she had glanced up at the aisle signs hanging from the ceiling because
she was looking for the aisle with the baking pans. (Id.) She also stated that after she
fell, her hands and her clothes were wet from the water on the ground. (Id.) Plaintiff’s
friend also testified that plaintiff’s clothes were wet after the fall. (Pls Resp SOF ¶ 41.)
She characterized the water on the floor as “black ice” because it was difficult to see.
(Id.) Both plaintiff and her friend testified that after plaintiff’s fall, Dunnett was the first
person to arrive and he apologized and said he should have dried the area better. (Pls.
Resp SOF ¶¶ 40-41.)
At his deposition, Corral was shown the video and asked about the placement of
the cones in relation to where plaintiff fell. (Pls Resp SOF ¶ 39.) Corral testified that “It
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does seem like there is a bit of a distance.” (Id.) However, he also testified that he was
confident that Dunnett’s actions here and the placement of the cones were adequate
and completely in line with what is expected at Meijers and in the retail industry in
general. (Defs Resp SOF [46] pp14-15.)
As part of her complaint, plaintiff alleged that as a result of her fall at Meijers, she
suffered serious personal injury and damages, including medical treatment costs
exceeding $52,000, loss of earning capacity, pain and suffering, as well as future
medical expenses. (Compl, ¶ 8.)
II.
Analysis
A.
Summary Judgment Standard
Summary judgment is appropriate where the evidence of record shows that there
is "no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law." Fed. R. Civ. P. 56(a). There is no genuine dispute of material fact
when "no reasonable jury could find in favor of the nonmoving party." Van Antwerp v.
City of Peoria, 627 F.3d 295, 297 (7th Cir. 2010) (quoting Brewer v. Bd. of Trs. of the
Univ. of Ill., 479 F.3d 908, 915 (7th Cir. 2007)). The movant bears the initial burden of
demonstrating the absence of a genuine issue of material fact by specific citation to the
record; if the party succeeds in doing so, the burden shifts to the non-movant to set forth
specific facts showing that there is a genuine issue of fact for trial. Fed. R. Civ. P.
56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
At this stage, the Court must construe all facts and draw all inferences from the
record in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
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255 (1986). The plaintiff is not required to prove her case at the summary judgment
stage. Helms v. Chicago Park District, 258 Ill.App.3d 675, 679, 196 Ill.Dec. 851, 630
N.E.2d 1016 (1994). Summary judgment is a drastic measure that should only be
allowed when the right of the moving party is clear and free from doubt. Qureshi v.
Ahmed, 394 Ill. App. 3d 883, 886, 916 N.E.2d 1153, 1156 (2009)
Illinois law governs the extent of Meijers’ liability in this diversity action. Dunn v
Menard, Inc., 880 F.3d 899, 905 (7th Cir. 2018). In Illinois, businesses owe their
invitees a duty to exercise ordinary care in maintaining the premises in a reasonably
safe condition to avoid injury. Marshall v. Burger King Corp., 222 Ill.2d 422, 305 Ill.Dec.
897, 856 N.E.2d 1048, 1057–58 (2006); Thompson v. Economy Super Marts, Inc., 221
Ill.App.3d 263, 163 Ill.Dec. 731, 581 N.E.2d 885, 888 (1991); Peterson v. Wal–Mart
Stores, Inc., 241 F.3d 603, 604 (7th Cir.2001) (applying Illinois law); Restatement
(Second) of Torts §§ 343, 344 (1965). In order to state a claim for premises liability, a
plaintiff must establish a cause of action for negligence, which requires: 1) a duty owed
to the plaintiff by the defendant, 2) a breach of that duty, and 3) an injury proximately
caused by the breach. Dunn, 880 F.3d at 906. The owner of a business owes its
invitee the duty of reasonable care under the circumstances. Id.
The first element is whether Meijers owed plaintiff a duty. “Whether a duty exists
is a question of law to be determined by the court.” Dunn, 880 F.3d at 906. “Put
broadly, ‘duty is determined by asking 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.” Id.at 906 (quoting Bucheleres v. Chi
Park Dist., 171 Ill.2d 435, 665 N.E.2d 826, 831 (1996)).
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In a “slip and fall” case,
such as this, liability can be imposed when a business's invitee is injured by slipping on
a foreign substance on its premises if the invitee establishes that the business had
actual or constructive notice of the dangerous condition that caused the fall. Pavlik v.
Wal–Mart Stores, Inc., 323 Ill.App.3d 1060, 257 Ill.Dec. 381, 753 N.E.2d 1007, 1010
(2001); Tomczak v. Planetsphere, Inc., 315 Ill.App.3d 1033, 249 Ill.Dec. 58, 735 N.E.2d
662, 666 (2000). However, a business owner is not liable for harm to an invitee that is
caused by an “open and obvious” condition on the premises, which is a condition that
the invitee is aware of or is very obvious. Reid v. Kohl's Dep't Stores, Inc., 545 F.3d
479, 481 (7th Cir. 2008).
Here, Meijers’ primary argument in support of summary judgment is that it did not
owe plaintiff a duty under the circumstances because the three wet floor/caution signs
created an open and obvious condition. In response, plaintiff does not dispute that her
fall occurred near the three warning signs. She does dispute that the open and obvious
doctrine relieves Meijers of liability here. She claims that although the signs were
placed in the aisle, they were not adequately placed to sufficiently indicate where the
hazardous condition was on the floor. In other words, she claims that although the
cones were placed in the aisle, they were not positioned around the perimeter of the wet
area so that she was not adequately warned of the hazard. As a result, she asserts, the
Court cannot grant summary judgment because it cannot conclude that Meijers had, as
a matter of law, discharged its duty to warn of a dangerous condition.
In Illinois,
“the open and obvious doctrine is an exception to the general duty of care.” Dunn, 880
F.3d at 906. Under this doctrine, a person or business is “not ordinarily required to
foresee and protect against injuries from potentially dangerous conditions that are open
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and obvious.” Id. (citing Bucherles v. Chicago Park Dist.,171 Ill.2d 435, 665 N.E.2d
826, 831 (1996)). A condition is considered “open and obvious where a reasonable
person in the plaintiff's position exercising ordinary perception, intelligence and
judgment would recognize both the condition and the risk involved.” Alqadhi v.
Standard Parking, Inc., 405 Ill.App.3d 14, 17, 938 N.E.2d 584 (2010). The determination
of whether a condition is open and obvious is generally a question of fact, but can be
decided as a matter of law where there is no dispute about the physical nature of the
condition. Wilfong v. L.J. Dodd Construction, 401 Ill.App.3d 1044, 1053, 930 N.E.2d
511 (2010).
Here, Meijers argues that there is no dispute about the physical nature of the
hazardous condition, and as a result, the open and obvious doctrine renders judgment
appropriate here as a matter of law. We disagree. Instead, we find that the issue of
whether this was an open and obvious hazard is a question of fact that should be
decided by a jury. As the parties’ briefing demonstrates, there is a dispute as to the
physical nature of the condition. For example, although plaintiff acknowledged that she
was aware of the warning cones, she asserts that the cones did not adequately mark
the area on the floor that was wet. She claims that although Dunnett placed the
warning cones in the main aisle, she fell on a spot that was adjacent to the cones.
Directing the Court to the video of the incident, plaintiff points out that she was to the left
of the cones when she fell. She argues that to adequately warn of the danger, the
cones should have been placed around the perimeter of the wet area, and not just
placed in a row down the aisle. In contrast, Meijers argues that the distance between
the cones and the spot on which plaintiff fell is minimal and therefore the warning cones
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did adequately warn her. However, even Meijers’ store manager noted that there was a
“bit of a distance” between plaintiff and the cones when he viewed the store video at his
deposition. And because we are required to view these facts in the light most favorable
to plaintiff, we find that this is an issue of fact that cannot be resolved at the summary
judgment. Compare Dunn, 880 F.3d at 907 (finding summary judgment was
appropriate when there was no meaningful difference in witnesses versions of the
nature of the dangerous condition).
The parties also dispute just how wet the floor was. Plaintiff claims the floor must
have been very wet because her pants and her hands were wet after she hit the floor,
and this statement is corroborated by the fact that Dunnett returned to the area with
paper towels and knee pads, planning to continue to clean up the area. Plaintiff’s friend
also stated that plaintiff’s pants were wet after she fell. In contrast, Meijers asserts that
the mop Dunnett had used was only “lightly moist” and that there could not have been
much water because there was no bucket in the vicinity and no water visibly dripping
from the mop. Again, based on these disputed facts about the condition of the hazard,
we do not find that summary judgment is appropriate here. See, e.g., Wiegman v.
Hitch-Inn Post of Libertyville, 208 Ill. App. 3d 789, 802 (Ill. App. Ct. 1999) (question of
fact for the jury exists where plaintiff and defendant have conflicting stories about
plaintiff’s slip and fall and plaintiff’s version was supported by some evidence).
Meijers also argues that the hazard was open and obvious because the video
depicts several other customers walking through the very same area without falling right
before plaintiff slipped. Meijers asserts that this demonstrates that plaintiff was not
using appropriate caution when she walked down the aisle and fell. While this might be
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true, we also find that this fact could demonstrate that Meijers did not adequately mark
the hazardous area so that shoppers did not know to avoid it. “An open and obvious
condition depends on the objective knowledge of a reasonable person confronted with
the same condition.” Dunn, 880 F.3d at 907. In other words, “if a reasonable person
with the plaintiff’s knowledge of the situation would have appreciated and avoided a
hazard created by the defendant’s actions, then from the defendant’s perspective the
plaintiff’s injuries were neither foreseeable nor likely.” Id. But here, several other
customers walked down the same side of the aisle that plaintiff used, and did not avoid
the area, despite the warning cones that were placed in the aisle. As a result, we find
that the open and obvious doctrine does not apply as a matter of law here.
Lastly, Meijers argues that even if the open and obvious doctrine does not apply,
they did not owe any duty to plaintiff because they placed the warning signs, which a
reasonable customer would be expected to see. However, as we explained above, no
one disputes that Meijers placed the warning signs. The issue of fact here is whether
the placement of the signs was adequate in light of the hazardous conditions such that it
adhered to its duty of care. See, e.g., Hendricks v. United States, 2002 WL 215526, at
*2 (N.D. Ill. Feb. 11, 2002) (breach of duty of care can be found when defendant
voluntarily undertakes the repair of a hazardous condition). As a result, summary
judgment is not appropriate here. See Id, 2002 WL 215526, at *3 (summary judgment
motion denied where business painted only a portion of the curb in order to warn
pedestrian of a hazard).
III.
Conclusion
Based on the record before us, a reasonable trier of fact could conclude that
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Meijers’ warnings were insufficient because the placement of the cones did not
adequately warn shoppers of the exact area of the spill. For the foregoing reasons,
Meijers’ motion for summary judgment [39] is denied. It is so ordered.
ENTERED:
__________________________
MICHAEL T. MASON
United States Magistrate Judge
Dated: May 14, 2018
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