Williams v. Wal-Mart Stores, Inc.
Filing
40
MEMORANDUM Opinion and Order: Defendant's motion for summary judgment is denied. 29 Signed by the Honorable Thomas M. Durkin on 6/4/2019:Mailed notice(srn, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOYCE WILLIAMS,
Plaintiff,
No. 18 C 1356
v.
Judge Thomas M. Durkin
WALMART INC., formerly known as
WAL-MART STORES, INC., doing business
as WAL-MART 5486 SUPERCENTER,
Defendant.
MEMORANDUM OPINION AND ORDER
Joyce Williams tripped and fell while shopping at Walmart and claims
negligence by Walmart under Illinois law. Walmart has moved for summary
judgment. R. 29. That motion is denied.
Legal Standard
Summary judgment is appropriate “if 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.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). The Court considers the entire evidentiary record and must view all of
the evidence and draw all reasonable inferences from that evidence in the light most
favorable to the nonmovant. Horton v. Pobjecky, 883 F.3d 941, 948 (7th Cir. 2018). To
defeat summary judgment, a nonmovant must produce more than a “mere scintilla of
evidence” and come forward with “specific facts showing that there is a genuine issue
for trial.” Johnson v. Advocate Health and Hosps. Corp., 892 F.3d 887, 894, 896 (7th
Cir. 2018). Ultimately, summary judgment is warranted only if a reasonable jury
could not return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
Background
Williams had shopped at the Walmart in Country Club Hills, Illinois many
times. R. 31 ¶ 11; R. 33 ¶ 11. During her visit on March 2, 2016, she noticed a spinning
merchandise display in a large aisle. R. 31 ¶¶ 5, 15; R. 33 ¶¶ 5, 15. As she approached
the display, she saw a plastic “stack base”—similar to a pallet—on the floor. R. 31 ¶
16; R. 33 ¶ 16. Walmart used such stack bases as temporary displays with
merchandise stacked on top. See R. 30-7 at 5 (15:24–17:20); R. 30-6 at 3-4 (8:13–
11:17). Williams testified that the stack base was empty. R. 30-4 at 13 (47:6-7). Two
Walmart employees also testified that the stack base was empty. R. 36 ¶¶ 20, 27.
However, a third Walmart employee testified that it contained some products but
could not remember what kind of products. R. 30-7 at 7 (24:21–25:5). The stack base
was three feet by three feet square, medium brown in color, and about three or four
inches high. R. 31 ¶¶ 18-19; R. 33 ¶¶ 18-19. A Walmart employee testified that the
stack base is raised off the floor about an inch or two by legs in each corner. R. 30-7
at 6 (18:10–19:4). There were 18 inches between the base of the spinning display and
the stack base. R. 31 ¶ 20; R. 33 ¶ 20. Williams was able to walk in that space in order
to spin the display and look at the merchandise. R. 31 ¶¶ 21-22; R. 33 ¶¶ 21-22.
Williams was at the store with her adult daughter. She testified that when her
daughter called out to her from another part of the store, Williams stopped looking
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at the merchandise and started to move towards her daughter. See R. 30-4 at 14
(50:20-22). Williams’s foot got “hooked on” the stack base and she tripped and fell
backwards onto it. R. 31 ¶¶ 25-26; R. 33 ¶¶ 25-26. Williams testified that she was
paying attention to where she was walking and was not distracted by anything at the
time she fell. R. 30-4 at 16 (60:2-11).
Analysis
I.
Open and Obvious
Under Illinois law, a “possessor of land,” like Walmart in this case, “is not liable
to [its] invitees for physical harm caused to them by any activity or condition on the
land whose danger is known or obvious to them.” Bruns v. City of Centralia, 21 N.E.3d
684, 690 (Ill. 2014). “Known or obvious” means that “both the condition and the risk
are apparent to and would be recognized by a reasonable [person], in the position of
the visitor, exercising ordinary perception, intelligence, and judgment.” Id. “Whether
a dangerous condition is open and obvious may present a question of fact.” Id. “But
where no dispute exists as to the physical nature of the condition, whether the
dangerous condition is open and obvious is a question of law.” Id.
“Fire, height [from which one might fall], and bodies of water” are the
paradigmatic examples of open and obvious physical danger. See Bruns, 21 N.E.3d at
690. Other examples of open and obvious dangers identified by Illinois courts include:
a hole in a parking lot, Rexroad v. City of Springfield, 796 N.E.2d 1040 (Ill. 2003); a
high voltage power line in close proximity to walkway along an elevated billboard,
Am. Nat. Bank & Trust Co. of Chi. v. Nat. Advertising Co., 594 N.E.2d 313 (Ill. 1992);
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a rut in the ground on a construction site directly outside a portable bathroom,
Deibert v. Bauer Bros. Constr. Co. Inc., 566 N.E.2d 239 (Ill. 1990); a five-foot concrete
post outside a retail store entrance, dividing the store from its parking lot, Ward v. K
Mart Corp., 554 N.E.2d 223 (Ill. 1990); a defective sidewalk in front of the plaintiff's
home, Sandoval v. City of Chicago, 830 N.E.2d 722 (Ill. App. Ct. 1st Dist. 2005).
Walmart argues that the stack base was an open and obvious risk, primarily
because Williams admits that she knew the stack base was there. The Court agrees
to the extent that it should be obvious to a reasonable person with knowledge of a
low-lying object that the object poses a tripping hazard. This reasoning comports with
the decisions cited above finding open and obvious risks in cases of: a hole in a parking
lot surface; a concrete post dividing a store from a parking lot; and rut in the ground
outside a portable bathroom on a construction site.
However, in this case there is a dispute as to whether there was merchandise
on the stack base. The risk of a stack base filled with merchandise is not as obvious
as an empty stack base because the merchandise effectively increases the height of
the object in question. A person backing into a full stack base might be supported
against the merchandise and prevented from falling. An empty stack base would more
obviously undercut a person who tripped on it.
Additionally, Williams testified that she did not simply trip on the stack base
as she turned around, but that her foot became “hooked” on the stack base. This
testimony comports with the testimony of a Walmart employee that the stack base
was raised one or two inches off the floor by small legs in each corner. Presumably,
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this created a lip which a person’s foot could slip under. Such a lip could materially
increase the tripping risk posed by the stack base because a person might not simply
bump against the stack base but could become entangled under the stack base. If this
space under the stack base is not obvious, the increased risk it poses would also not
be “open and obvious” as a matter of law.
The record is insufficient for the Court to make a finding on this issue as a
matter of law. There is no photo of the stack base in the record, nor testimony about
how visible the lip is other than its general dimensions. Perhaps the lip is as obvious
as the stack base itself. But perhaps the lighting and coloring of the stack base and
floor concealed the lip. Since the record is deficient in this regard, and a dispute exists
regarding the amount of merchandise on the stack base, a jury must decide whether
the danger in this case was open and obvious. 1
II.
Distraction Exception
Even if the jury finds that the danger posed by the stack base was open and
obvious, the jury will also consider Walmart’s liability under an exception to the open
and obvious rule. “Exceptions to the rule make provision for cases in which the
[defendant] can and should anticipate that the dangerous condition will cause
physical harm to the invitee notwithstanding its known or obvious danger.” Bruns,
The Court notes that the Seventh Circuit recently decided a case in which the
plaintiff tripped on a wooden sign posted in a retail store in front of the construction
materials the plaintiff intended to purchase. See McCarty v. Menard, Inc., 2019 WL
2171464 (7th Cir. May 20, 2019). In McCarty, the court affirmed the district court’s
finding that the sign was open and obvious. In McCarty, however, there were not
material disputes regarding the physical nature of the dangerous condition, as there
are in this case.
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21 N.E.3d at 691. “The ‘distraction exception’ applies where the [defendant] has
reason to expect that the invitee’s 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. “In general, whether the distraction exception applies turns
on whether the defendant or plaintiff created the distraction.” Savage v. Ritchie Bros.
Auctioneers (Am.), 2012 WL 1520710, at *4 (N.D. Ill. Apr. 30, 2012). Such distractions
can include “goods on display.” Ward, 554 N.E.2d at 230 (quoting W. Keeton, Prosser
& Keeton on Torts § 61, at 427 (5th ed. 1984)). 2
Each of the Illinois court decisions cited above finding open and obvious
conditions also found the distraction exception applicable. In Ward, the plaintiff who
collided with a concrete post was carrying a large mirror he had just purchased at the
store. See also Scott v. Menard, Inc., 2017 WL 3421553, at *5 (N.D. Ill. Aug. 9, 2017)
(relying on Ward to apply distraction exception to plaintiff who tripped in a store
while carrying a package). In Deibert, the plaintiff was looking up to avoid debris that
was known to be thrown from the upper levels of the construction site when he
stepped in the rut outside the portable toilet. In American National Bank, a billboard
painter was focusing on the narrow walkway along the elevated billboard when he
was electrocuted by a high-voltage power line that hung only 4.5 to 5 feet above the
Illinois law also recognizes the “deliberate encounter exception” which “applies
where the [defendant] has reason to expect that the invitee will proceed to encounter
the known or obvious danger because to a reasonable man in his position the
advantages of doing so would outweigh the apparent risk.” Bruns, 21 N.E.3d at 691.
Williams does not raise this exception, presumably because she does not contend she
deliberately encountered the stack base.
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walkway. Finally, in Rexroad, the plaintiff was focused on retrieving equipment for
the high school football team when he stepped in a hole in the school’s parking lot.
In arguing that the distraction exception does not apply here, Walmart relies
on Williams’s testimony that she was not “distracted” when she tripped on the stack
base. But this testimony is insufficient to eliminate this exception as a matter of law
because it is ambiguous:
Q: But at the time you fell, were you looking at the items,
or were you making your way back to your daughter?
A: I was making my way back to turn out of there. I had
put the stuff back and turning around to come out.
Q: So would it be fair to say that you were no longer looking
at the merchandise when you fell?
A: No.
Q: What I said was correct?
A: Yes, yes.
Q: Were you paying attention to where you were walking?
A: Mm-hmm.
Q: So you weren’t distracted by anything?
A: No.
R. 30-4 at 16 (59:20–60:11). Walmart’s argument assumes this testimony means that
the products in the store did not distract Williams from awareness of the stack base.
But neither the question nor Williams’s answer references the object of Williams’s
attention or potential distraction. Because of this ambiguity, her testimony could
reasonably be understood to mean that as she turned away from the merchandise she
was focused on beginning to walk towards her daughter. This ambiguity also means
that a reasonable jury could find that Williams’s perusal of the merchandise caused
her to forget the stack base’s placement as she started to walk. Since forgetting the
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existence of an open and obvious hazard is a circumstance in which the distraction
exception can apply, Williams’s testimony does not preclude its application.
The undisputed facts are sufficient for a reasonable jury to find that Williams
was distracted for a time while she viewed the merchandise after she first noticed the
stack base such that she forgot to take account of its presence when she began to walk
away. The stack base was placed 18 inches from a display of clearance merchandise.
Presumably, Walmart intended to attract customers like Williams to examine this
merchandise. In order to examine this merchandise, Williams moved between the
display and the stack base. A reasonable jury could find that Williams’s focus on the
merchandise distracted her from the stack base’s presence, and that Walmart caused
this distraction by placing the merchandise display near the stack base. A number of
courts (including at least two in which Walmart was the defendant) have found that
whether goods in a retail store distracted a customer is a question for the jury. See
Minnick v. Sam’s W., Inc., 2018 WL 6101025, at *2 (N.D. Ill. Nov. 21, 2018)
(“Immediately before tripping over the detergent container, Minnick was looking at
and handling products on display on racks, which is precisely why those products are
there on display. A reasonable jury could find that Sam’s West had every reason to
expect that a shopper’s attention might be distracted by displayed products so that
she would forget a dangerous condition right next to her, even if she had seen it just
before.”); Wilson v. Wal-Mart Stores, Inc., 2017 WL 1425598, at *5 (N.D. Ill. Apr. 20,
2017) (“defendant had duty to protect customer from large cleaning machine on store
floor, even if it is an open and obvious danger because ‘her focus on finding the
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cosmetic items she wanted to purchase distracted her from noticing the danger the
machine posed’” (quoting Bulduk v. Walgreen Co., 63 N.E.3d 975, 981 (Ill. App. Ct.
1st Dist.)); Sepulveda v. Target Corp., 2017 WL 474418, at *3 (N.D. Ill. Feb. 6, 2017)
(“[O]ne could argue that Target should have reasonably foreseen that customers like
Sepulveda would be distracted by looking at items on the store shelves and
consequently not notice the open and obvious hazards on the ground.”); Fetzer v. WalMart Stores, Inc., 2016 WL 792296, at *17 (N.D. Ill. Mar. 1, 2016) (“Given this
authority, the court declines to find, as a matter of law, that Wal-Mart did not expect
customers to focus on its merchandise displays while shopping. Indeed, it appears
likely that Wal-Mart designed its displays to achieve this very result.”); Geleta v.
Meijer, Inc., 2013 WL 6797111, at *6 (N.D. Ill. Dec. 23, 2013) (“Plaintiff was at Meijer
to shop and was headed toward the chicken products when she fell. It’s not a stretch
to say that a customer at a grocery store may not be canvassing the ground for spills,
but instead might be distracted by finding the items on her grocery list.”); Savage,
2012 WL 1520710, at *4 (“In the context of a store and its invitees, a defendant store
has a duty to protect its customers who are likely to be distracted in the aisles against
even open and obvious hazards.”); Herrera v. Target Corp., 2009 WL 3188054, at *6
(N.D. Ill. Sept. 30, 2009) (“This Court finds, as a matter of law, that Defendant had a
duty, as in Ward, to protect its customers who are likely to be distracted in the aisles
against even open and obvious hazards or forgetful of the condition after momentarily
encountering it.”); Buchanan v. Whole Foods Mkt. Grp., Inc., 2009 WL 1514655, at *7
(N.D. Ill. May 27, 2009) (“In this case, the plaintiff was carrying two grocery items,
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looking for fish batter, and following one of Defendant’s employees to the batter’s
location. All of these facts distracted Buchanan’s attention from the [tripping
hazard].”). Accordingly, even if the jury finds that danger to be open and obvious, the
jury will consider whether Walmart should have known that its merchandise would
have distracted shoppers like Williams from recognizing the tripping danger posed
by the stack base.
This case is different from cases involving injuries in retail stores where courts
have declined to apply the distraction exception. In Rosenberg v. Home Depot, the
plaintiff stepped between a parked forklift and a merchandise display. 2019 WL
670262 (N.D. Ill. Feb. 19, 2019). Once in that position, the plaintiff saw the item he
wanted. As he moved to grab the item, plaintiff also noticed the forklift blades and
attempted to step over them. Plaintiff tripped on the blades. The court held that the
distraction exception did not apply because the plaintiff’s “attention was fixed on the
very item he sought to [avoid] as he attempted to step over the fork.” Id. at *7.
In a similar case, the Illinois Appellate Court held that the distraction
exception did not apply to a plaintiff who had to step on a wooden pallet in order to
retrieve a bag of soil she wanted to purchase. The plaintiff stepped in between the
pallet’s boards when stepping back after picking up the bag of soil and injured her
foot. The court held that the distraction exception did not apply because “[p]laintiff
simply was not looking where she was going.” Kleiber v. Freeport Farm & Fleet, Inc.,
942 N.E.2d 640, 649 (Ill. App. Ct. 3d Dist. 2010).
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In Dunn v. Menard, the plaintiff was injured in a section of a retail store
provided for customers to load their vehicles with large items they had purchased.
880 F.3d 899 (7th Cir. 2018). The plaintiff purchased rolls of insulation which were
each approximately 16 feet tall and stored vertically. The plaintiff parked his car next
to a roll that was leaning precariously. He proceeded to load his vehicle for 10-15
minutes at which point the leaning roll fell on him. The Seventh Circuit affirmed the
district court’s decision not to apply the distraction exception, because “the mere fact
of looking elsewhere does not constitute a distraction.” Id. at 909.
These decisions might be interpreted to mean that a plaintiff focused on
merchandise is not “distracted” and the exception to “open and obvious” danger does
not apply. But in all three cases, the plaintiffs injured themselves while deliberately
encountering the dangerous condition. The plaintiff in Rosenberg saw the forklift
blades and stepped over them to reach for the merchandise anyway. The plaintiff in
Kleiber saw the pallet and stepped on it to retrieve merchandise anyway. The plaintiff
in Dunn saw the precariously leaning roll of insulation and loaded his vehicle in its
shadow anyway. By contrast, Williams did not take an inherently dangerous action
by standing between the display and the stack base in order to view the merchandise.
She noticed the stack base, but, taking the facts in the light most favorable to
Williams, she believed she had avoided the stack base. A reasonable jury could find
that Walmart had “reason to expect” that customers would move into the space
between the display and the stack base and be at least momentarily distracted by the
merchandise. Indeed, Walmart wanted Williams to look at the merchandise between
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the display and the stack base. This case is unlike Dunn, Kleiber, and Rosenberg, the
defendant-retailers did not have reason to expect that the plaintiffs would take the
risky actions they did. Because a reasonable jury could find that Walmart should
have anticipated Williams action and distraction, summary judgment on the
application of the distraction exception is denied.
III.
Contribution
Walmart also argues that it “is entitled to summary judgment because
Plaintiff’s contributory negligence is greater than 50%, thereby barring her recovery.”
R. 30 at 7. Walmart contends that Williams was more than 50% contributorily
negligent because she walked between the spinning display and stack base when she
could have simply spun the display. See id. at 6. But this is simply a fact for the jury
to weigh against Walmart’s decision to leave space between the spinning display and
the stack base for customers to access. For the reasons discussed with respect to the
open and obvious nature of the risk, and Walmart’s potential responsibility for the
distraction presented by its merchandise, the Court also rejects Walmart’s argument
about contribution as a matter of law. As the Illinois Supreme Court explained in
Ward:
Our holding does not impose on defendant the impossible
burden of rendering its premises injury-proof. Defendant
can still expect that its customers will exercise reasonable
care for their own safety. We merely recognize that there
may be certain conditions which, although they may be
loosely characterized as “known” or “obvious” to customers,
may not in themselves satisfy defendant’s duty of
reasonable care. If the defendant may reasonably be
expected to anticipate that even those customers in the
general exercise of ordinary care will fail to avoid the risk
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because they are distracted or momentarily forgetful, then
his duty may extend to the risk posed by the condition.
Whether in fact the condition itself served as adequate
notice of its presence or whether additional precautions
were required to satisfy the defendant’s duty are questions
properly left to the trier of fact. The trier of fact may also
consider whether the plaintiff was in fact guilty of
negligence contributing in whole or in part to his injury,
and adjust the verdict accordingly.
554 N.E.2d at 234 (emphasis added).
Conclusion
Therefore, Walmart’s motion for summary judgment, R. 29, is denied.
ENTERED:
______________________________
Honorable Thomas M. Durkin
United States District Judge
Dated: June 4, 2019
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