Oliva v. Menard, Inc.

Filing 119

MEMORANDUM Opinion and Order. Menards' motion for summary judgment 82 is granted in part and denied in part. The Court grants summary judgment in the defendant's favor on spoliation concerning the yellow band. The Court denies the defen dant's motion in all other respects. Status hearing set for September 12, 2024, at 9:30 a.m. The parties should be prepared to address the amount in controversy, the length of trial, and availability for trial in March, April, and May of 2025. Signed by the Honorable Jeremy C. Daniel on 8/29/2024. Mailed notice. (vcf, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RHONDA M. OLIVA,
Plaintiff
v.
MENARD, INC.,
Defendant

No. 22 CV 2512
Judge Jeremy C. Daniel

MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Menard, Inc.’s (“Menards”) motion for summary
judgment under Federal Rule of Civil Procedure 56. (R. 82.) 1 For the following
reasons, the motion is granted in part and denied in part.
BACKGROUND 2
On June 16, 2020, Plaintiff Rhonda M. Oliva, her husband, and her mother
visited a Menards store located at 6851 West 159th Street, Tinley Park, Illinois.
(R. 94, Plaintiff’s Response to Defendant’s Statement of Material Facts (“Pl.’s Resp.
to Def.’s SOF”) ¶¶ 1–2.) Initially, Oliva and her family entered and exited Menards
through the entrance near their garden center without incident. (Id. ¶¶ 3–6.) Shortly
after returning to her car, however, Oliva needed to use the restroom, so she reentered Menards alone, again through the garden center. (Id. ¶¶ 7–8.)

For ECF filings, the Court cites to the page number(s) set forth in the document’s ECF
header unless citing to a particular paragraph or other page designation is more appropriate.
2 The following facts are taken from the parties’ Local Rule 56.1 submissions, the
materials cited therein, and other aspects of the record in this case. All facts are genuinely
undisputed unless otherwise noted.
1

After walking ten to twelve feet inside, Oliva tripped. (Id. ¶ 15.) When she sat
up, Oliva noticed a circular yellow band, which she alleges caused her to fall. (Id. ¶¶
16–17.) According to Oliva, her left foot stepped onto the yellow band, causing it to
flip up and catch her right foot. (Id. ¶ 18.) Afterward, Oliva had a scrape on her hand
and a red mark on her knee. (See R. 93-7 (“Oliva Incident Report”) at 1; R. 83-1 (“Oliva
Dep.”) at 132:13–14.)
Oliva asked a Menards employee to go outside and get her husband and
mother. (Pl.’s Resp. to Def.’s SOF ¶ 24.) Oliva’s husband reentered the store and took
photos of her and the yellow band. (Id. ¶ 27.) A cashier who noticed Oliva’s fall
contacted Menards Manager Katherine Reimer. (Id.) Reimer asked Oliva if she
needed an ambulance, and Oliva declined. (Id.) Oliva asked Reimer to remove the
yellow band before anyone else fell, which Reimer picked up and disposed of. (Pl.’s
Resp. to Def.’s SOF (Id. ¶¶ 28, 31; Oliva Dep. at 89:7–10, 93:13–19; R. 106,
Defendant’s Response to Plaintiff’s Statement Of Additional Material Facts (“Def.’s
Resp. to Pl.’s SOAF”) ¶ 3.) Additionally, Reimer completed an incident report about
the fall. (Def.’s Resp. to Pl.’s SOAF ¶ 12; see Oliva Incident Report at 2.) Afterward,
Oliva walked out of Menards her own, without limping or complaining of pain. (Oliva
Dep. at 98:10–24.)
Menards’ surveillance cameras recorded Oliva’s fall. (Pl.’s Resp. to Def.’s SOF
¶ 34.) Reimer testified that she always saved surveillance video after accidents.
(Def.’s Resp. to Pl.’s SOAF ¶ 4; R. 83-2 (“Reimer Dep.”) at 86:22–23.) Menards then
transmitted copies of the surveillance videos to its risk management consultant,

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Gallagher Bassett Services, Inc. (“Gallagher Bassett”). (Def.’s Resp. to Pl.’s SOAF ¶¶
4, 9.) On June 29, Oliva’s attorney mailed Menards a letter “request[ing] that
Menards, its employees, agents, and third-parties, maintain and preserve any and all
videotapes, recordings, photographs, digital images, or video obtained via any
surveillance, or other camera mounted near the incident from June 16, 2020.” (Id. ¶
5; R. 93-2 at 1.) On July 10, Gallagher, Bassett’s adjuster/resolution manager, wrote
Oliva’s counsel “acknowledging receipt of your correspondence and lien, received by
our office 07/02/2020.” (Def.’s Resp. to Pl.’s SOAF ¶ 6; R. 93-3 at 1.) Menards has
produced surveillance footage beginning seven minutes before Oliva’s fall. (R. 79 ¶¶
23–24.) It is unclear what happened to the additional surveillance footage of the store
that day; Menards maintains that “there is no other video than that already disclosed
to Plaintiff.” (Id. ¶ 25.)
About two days after her fall, Oliva visited her primary care reporting rib or
chest pain. (Oliva Dep. at 99:3–11, 131:15–23.) Her primary care doctor concluded
that she had sustained internal bruising near her right rib cage and a right knee
injury. (Id. at 74:24–75:6, 131:15–132:16.)
In this suit, Oliva charges Menards with negligence regarding her fall
(Count I) and negligent spoilation for failing to produce surveillance video footage
more than seven minutes before her fall. (Count II). (R. 77.) 3 Menards seeks summary
judgment on both claims. (R. 82.)
The Court has subject matter jurisdiction over these state law claims based on diversity
of citizenship. See generally 28 U.S.C. § 1332. Oliva is a citizen of Illinois and Menards is a
citizen of Wisconsin. (Pl.’s Resp. to Def.’s SOF at 1.) The complaint includes two counts, each
of which seeks damages in excess of $50,000. At this point, the record reflects an amount in
3

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LEGAL STANDARD
Summary judgment is proper when there is no genuine dispute as to any
material fact and the moving party is entitled to judgment as a matter of law.
Piotrowski v. Menard, Inc., 842 F.3d 1035, 1038 (7th Cir. 2016) (citing Fed. R. Civ. P.
56(a)). “[A] ‘dispute about a material fact is “genuine,” . . . if the evidence is such that
a reasonable jury could return a verdict for the non-moving party.’” Orozco v. Dart,
64 F.4th 806, 814 (7th Cir. 2023) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986)).
The moving party bears the initial burden of proof. Modrowski v. Pigatto, 712
F.3d 1166, 1168 (7th Cir. 2013) (explaining that Rule 56 “imposes an initial burden
of production on the party moving for summary judgment to inform the district court
why a trial is not necessary”).� After the moving party presents its evidence, the nonmovant must then go beyond the pleadings and “set forth specific facts showing that
there is a genuine issue for trial.” Anderson, 477 U.S. at 255 (quotation and footnotes
omitted). If the non-movant “fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial,” then the movant is entitled to summary judgment.
Celotex Corp. v. Catrett, 477 U.S. 317, 322, (1986). “All facts are construed and all
reasonable inferences are drawn in the light most favorable to the non-moving party.”
Zuppardi v. Wal-Mart Stores, Inc., 770 F.3d 644, 649 (7th Cir. 2014).

controversy in excess of $75,000. (See R. 77 at 4, 10.); Ware v. Best Buy Stores, L.P., 6 F.4th
726, 732 (7th Cir. 2021) (“Normally, a plaintiff can meet this pleading requirement by simply
alleging a plausible amount in controversy.”).

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ANALYSIS
I.

COUNT I: NEGLIGENCE

Illinois law governs this diversity case. Davis v. G.N. Mortg. Corp., 396 F.3d
869, 876 (7th Cir. 2005). “Where, as here, a plaintiff seeks recovery based on a
defendant’s alleged negligence, the plaintiff must establish (1) the existence of a duty
owed by the defendant, (2) a breach of that duty, and (3) an injury proximately caused
by that breach.” Haslett v. United Skates of Am., Inc, 136 N.E.3d 172, 182 (Ill. App.
Ct. 2019). Illinois law imposes a duty upon property owners to exercise ordinary care
in maintaining their property in a reasonably safe condition. Id. Menards agrees that
it owed Oliva a duty to maintain a reasonably safe store and that the yellow band
caused Oliva to fall. (See R. 84 at 4; R. 107 at 3–4, 6.) But Menards disputes that it
breached its duty to Oliva. (Id.)
Liability can be imposed when a business’ invitee is injured by slipping on a
foreign object on its premises if the invitee establishes “(1) that the object was placed
there by the negligence of the proprietor; (2) his servants knew of its presence; or (3)
the object was there a sufficient length of time so that, in the exercise of ordinary
care, its presence should have been discovered (i.e., the proprietor had constructive
notice of the object).” Haslett, 136 N.E.3d at 182; Zuppardi, 770 F.3d at 649. Menards
argues that it is entitled to summary judgment because there is no evidence that the
yellow band was on the floor due to Menards’ or its employees’ negligence or that it
had notice of the condition. (R. 84 at 11.)

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A.

Placement by Menards or its Employees

The Court first considers whether there is a triable issue regarding whether
the yellow band was placed on the floor by Menards or its employees. “In order to
create a triable issue of fact with respect to placement of the substance by [Menards],
[Oliva] need[s] to present some evidence showing that the substance was more likely
placed on the premises through [Menards’] negligence rather than a customer’s.”
Zuppardi, 770 F.3d at 649. Oliva “can establish that the hazardous condition was
created by [Menards] by showing that such a condition ‘is related to [its] business’
and by offering ‘some slight evidence that [Menards] or [its] servants, rather than a
customer, placed the hazardous object/condition on the floor.” Haslett, 136 N.E.3d at
182 (citation omitted).
Even viewing the evidence in a light most favorable Oliva, she has failed to
produce evidence that Menards, as opposed to a third-party, was responsible for the
yellow band being on the floor. Manager Reimer’s testimony that the yellow band
might have come “off of a package, a big box, [or] a lawn and leaf bag,” sold by
Menards is insufficient. (Pl.’s Resp. to Def.’s SOF ¶ 33; Reimer Dep. at 54:13). Oliva
cannot merely “‘identif[y] a potential source’ of the [object] to avoid summary
judgment.” Zuppardi, 770 F.3d at 650 (quoting Ciciora v. CCAA, Inc., 581 F.3d 480,
483 (7th Cir. 2009)). As in Zuppardi, Manager Reimer’s testimony only constitutes
proof that “[Oliva] slipped on something that happens to be sold by [Menards], and
such evidence fails to support an inference that [Menards] caused the spill.” Id.
Likewise, in Piotrowski, the Seventh Circuit concluded that “[i]t is not enough
to say that Menard sold river rocks” on which the plaintiff tripped, or that the object
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was used in the general vicinity of the plaintiff’s fall. 842 F.3d at 1039. The court
reasoned that the plaintiff’s testimony “that a Menard employee’s actions could have
caused the rocks to spill,” was merely speculative and insufficient to survive summary
judgment. Id. As the court explained, “Piotrowski did not see the rocks fall, and
neither she nor anyone else to whom she points knew how the rocks at issue ended
up where they did[.]” Id. Here, too, the evidence indicates, at best, only a possibility
that Menards was responsible for the yellow band’s position on the floor.
B.

Notice

Absent evidence that Menards placed the yellow band on the floor, Oliva must
establish that Menards had actual or constructive notice of its presence. See
Zuppardi, 770 F.3d at 650. Oliva makes no claim that Menards had actual notice;
rather, she disputes constructive notice. (R. 93 at 8.)
Constructive notice can be established under Illinois law
by either 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 a recurring incident.
Zuppardi, 770 F.3d at 651. “[G]enerally whether a defect . . . has existed a sufficient
length of time prior to the injury for [the defendant] to be deemed to have constructive
notice is a question of fact for the jury.” Livings v. City of Chi., 326 N.E.2d 170, 173
(1975).
Oliva concedes the absence of “testimony as to the length of time the yellow
band was present on the premises prior to [Oliva] tripping and falling,” which is
necessary to support a fact dispute on a “sufficient amount of time” theory. (R. 93 at
7

7); Zuppardi, 770 F.3d at 651 (“Absent any evidence demonstrating the length of time
that the substance was on the floor, a plaintiff cannot establish constructive notice.”).
There is a genuine dispute whether the condition was a part of a “pattern or
practice,” however. To make such a showing, “[w]hat is needed is a pattern of
dangerous conditions which were not attended to within a reasonable period of time.”
Culli v. Marathon Petroleum Co., 862 F.2d 119, 126 (7th Cir. 1988) (emphasis added).
Here, Oliva points to an incident report that Manager Reimer completed fourteen
days before her visit to Menards. (R. 93 at 8; Def.’s Resp. to Pl.’s SOAF ¶ 11; R. 93-6
at 1.) This report stated that: “Guest was coming into the store up front and tripped
on a piece of yellow banding strap. He fell and hit his right elbow and left knee.” (Id.)
Menards claims that the Court may not consider this report because it is
hearsay. (Def.’s Resp. to Pl.’s SOAF ¶ 11 n.1; R. 107 at 5 n.3.) The Court disagrees.
“‘Hearsay,’ in its simplest terms, is an out-of-court statement offered for the truth of
the matter asserted.” Jordan v. Binns, 712 F.3d at 1123, 1126 (7th Cir. 2013); see Fed.
R. Evid. 801(c). “As a general rule, hearsay is not admissible.” Id. at 1126–27 (citing
Fed. R. Evid. 802). A party may not rely upon inadmissible hearsay in an attempt to
defeat summary judgment. MMG Fin. Corp. v. Midwest Amusement Park, LLC, 630
F.3d 651, 656 (7th Cir. 2011). “But the Federal Rules of Evidence (“FRE”) contain
numerous exceptions to the rule against hearsay.” Jordan, 712 F.3d at 1127 (citing
Fed. R. Evid. 802, 803). “Additionally, FRE 801(d) exempts or excludes from the
definition of ‘hearsay’ certain statements that otherwise would be hearsay.” Id. Oliva
proffers the incident report under Federal Rule of Evidence 801(d)(2)(A) as a non-

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hearsay statement admission by a party opponent or Rule 803(6), as a record of
regularly conducted activity. (R. 93 at 8.)
“Rule 801(d)(2)(A) provides that a statement is not hearsay if it ‘is offered
against an opposing party and . . . was made by the party in an individual or
representative capacity.’” Jordan, 712 F.3d at 1128 (quoting Fed. R. Evid.
801(d)(2)(A)). “There are only two requirements for admissibility under FRE
801(d)(2)(A): a statement was made by a party, and the statement was offered against
that party.” Id. at 1128–29. The incident report satisfies these requirements because,
one, the statement was made by Manager Reimer, who authored the report as part
of her job duties for Menards, and two, the incident report is offered against Menards.
(Def.’s Resp. to Pl.’s SOAF ¶ 4; Reimer Dep. at 37:11–25; R. 93-6 at 1); see generally
Aliotta v. Nat’l R.R. Passenger Corp., 315 F.3d 756, 762 (7th Cir. 2003) (“To qualify
as an admission, an employee need only be performing the duties of his employment
when he comes in contact with the particular facts at issue.”).
Accordingly, viewing this evidence in a light most favorable to Oliva, the Court
concludes that there is sufficient evidence to put the issue of constructive notice into
genuine dispute. A reasonable jury could conclude that the incident report supplied
Menards with notice that the yellow bands that had fallen off of Menards products
posed a danger to customers, thus obligating Menards to take preventative steps to
ensure no further injuries occurred. And a jury could also conclude that Oliva was
injured due to the failure to put such measures in place.
Therefore, Menards’ motion for summary judgment on Count I is denied.

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II.

COUNT II: SPOILATION

“Under Illinois law, spoliation of evidence is a form of negligence; proof of
spoliation requires a showing that the defendant owed the plaintiff a duty to preserve
evidence, breached that duty, 4 and thereby proximately caused the plaintiff to be
unable to prove the underlying cause of action.” Brian J. Wanca, J.D., P.C. v.
Oppenheim, 226 N.E.3d 732, 745 (Ill. App. Ct. 2023). “A plaintiff must allege that ‘a
reasonable person in the defendant’s position should have known the evidence would
be material to potential civil litigation.’” Id. (quoting Jones v. O’Brien Tire & Battery
Service Center, Inc., 871 N.E.2d 98 (Ill. App. Ct. 2007)). “The plaintiff must also prove
that ‘but for the destruction of these records, she would have had a reasonable
probability of succeeding in her case.’” Id. (citation omitted).
Because Menards has only produced video footage beginning seven minutes
before Oliva’s fall, the plaintiff alleges that Menards violated its duty to preserve
evidence; namely the yellow band and video footage beyond that produced. (R. 79 ¶¶
23–25; R. 93 at 11.) Menards argues summary judgment is proper because it had no
duty to preserve the yellow band or additional video footage and there is no evidence
that such caused Oliva to be unable to prove her case. (R. 84 at 4.)

The parties dispute whether this element requires a showing of “a special circumstance”
warranting preservation. (R. 84 at 7–8; R. 93 at 13; R. 107 at 6–7.) The Court does not fault
the parties for this; “it would be an understatement to say that this [negligent spoilation]
area of Illinois law is not governed by bright-line rules.” Schaefer, 839 F.3d at 609.
Nevertheless, as explained infra II(A), several Illinois Appellate Court decisions hold that a
duty to preserve relevant and material evidence exists for a ‘potential litigant” in possession
or control of relevant or material evidence. See, e.g., Jones v. O’Brien Tire & Battery Serv.
Ctr., Inc.,752 N.E.2d 8, 12–13 (Ill. App. Ct. 2001) (“Jones I”). Because both parties
acknowledge this requirement, it matters little whether the Court characterizes the duty as
a “special circumstance.” (See R. 84 at 7; R. 93 at 13.)
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A.

Duty

“The general rule is that a party has no duty to preserve evidence.” Jones, 871
N.E.2d at 105. But such a duty may arise if “the defendant should have foreseen that
the evidence in question was material to a potential civil action.” Jones I, 752 N.E.2d
at 12–13. “The duty remains as long as the defendant should reasonably foresee that
further evidence material to a potential civil action could be derived from the physical
evidence in the defendant’s possession[.]” Andersen v. Mack Trucks, Inc., 793 N.E.2d
962, 969 (Ill. App. Ct. 2003).
Oliva argues the evidence supports an inference that a reasonable entity in
Menards’ position should have the surveillance video footage would be material to
potential civil litigation. Viewing the evidence in a light most favorable to Oliva, the
Court agrees. It is undisputed that within less than two weeks after the fall, Oliva’s
counsel contacted Menards asking them to preserve relevant surveillance video. (Id.
¶ 5.) Menards has offered no explanation for what happened to the footage that
Manager Reimer ordinarily would have saved and then transmitted to Gallagher
Bassett. (See R. 84 at 7–8; R. 107 at 8; Def.’s Resp. to Pl.’s SOAF ¶ 4.) This case is
thus analogous to Schaefer v. Universal Scaffolding & Equipment, LLC, where “[t]he
foreseeability condition [was] straightforward” because the defendants “knew that
the bar was involved in a serious workplace injury, which is why [the plaintiff] sought
to preserve it in the first place.” 839 F.3d 599, 611 (7th Cir. 2016). Accordingly, there
is a genuine dispute whether Menards should have reasonably foreseen that more

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than seven minutes of video was material to Oliva’s potential civil action regarding
her fall. Therefore, the defendant’s motion is denied with respect to the video footage.
The Court reaches a different conclusion with respect to the yellow band. The
Court is not convinced a reasonable jury could conclude that Menards should have
foreseen the yellow band was material to the civil action or that having such would
improve Oliva’s chances of proving her underlying case. First, following the incident,
Oliva declined an ambulance, did not identify a serious injury, and left an impression
that the yellow band should be thrown away. (Pl.’s Resp. to Def.’s SOF ¶¶ 27, 28.)
Second, concerning the band’s materiality, the parties do not dispute that the yellow
band existed, only whether it caused her to fall. (Id. ¶¶ 16–17.) Oliva captured
photographs of the yellow band the day of the incident, which, if necessary, could
potentially be used at trial to prove it existed or even trace its origins to some product
within Menards. (Id. ¶ 27.) Surveillance footage shows the yellow band near the
plaintiff’s feet. All of this renders the yellow band cumulative of other evidence in the
record. For these reasons the defendant’s motion for summary judgment is granted
with respect to the yellow band.
B.

Causation

“[I]n a negligence action involving the loss or destruction of evidence, a plaintiff
must allege sufficient facts to support a claim that the loss or destruction of the
evidence caused the plaintiff to be unable to prove an underlying lawsuit.” Boyd v.
Travelers Ins. Co., 652 N.E.2d 267, 271 (Ill. 1995), as modified on denial of reh’g (June

12

22, 1995). 5 Oliva must also show that with such evidence, she “would have a
‘reasonable probability’ of winning.” Schaefer, 839 F.3d at 611 (quoting Boyd, 652
N.E.2d at 271 n.2). “But ‘reasonable probability’ is less than proof of success by a
preponderance of the evidence, because that is the standard required to show that
[Oliva] would have won the underlying suit.” Id. “Causation in a negligence case is
generally a question for the trier of fact, unless there is no material dispute or only
one conclusion is clearly evident.” Id.
Here, viewing the evidence in the light most favorable to Oliva, she has
adduced sufficient evidence to put causation into genuine dispute. First, Oliva has
shown a reasonable probability that the loss of evidence caused her to lose the
underlying case. If there were video even mere hours before the incident, there is a
reasonable probability that such could have helped Oliva determine how the yellow
band came to be on the ground and how long it was on the floor. See Zuppardi, 770
F.3d at 651. There is also a reasonable probability that the surveillance video could
have shown that the yellow band on the floor resulted from Menards’ negligence.
None of this would be cumulative of evidence already in the record. Accordingly, it is
reasonably probable that the missing yellow band and video “deprived [Oliva] of the
opportunity to develop . . . important proof” necessary for her underlying case.
Schaefer, 839 F.3d at 612; see also Boyd, 652 N.E.2d at 271. Oliva has therefore raised

Although Oliva brings her spoilation claim concurrently with her underlying negligence
claim, this is permissible under Illinois law: “a single trier of fact may be allowed to hear an
action for negligent spoliation concurrently with the underlying suit on which it is based.”
Boyd, 652 N.E.2d at 272 (citation omitted).
5

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a genuine issue of fact as to whether, with the missing surveillance footage, she would
have had a reasonable probability of success on her negligence claim.
Accordingly, Menards’ motion for summary judgment on Count II is denied.
CONCLUSION
For the reasons stated in this Memorandum Opinion, Menards’ motion for
summary judgment [82] is granted in part and denied in part. The Court grants
summary judgment in the defendant’s favor on spoliation concerning the yellow band.
The Court denies the defendant’s motion in all other respects. Status hearing set for
September 12, 2024, at 9:30 a.m. The parties should be prepared to address the
amount in controversy, the length of trial, and availability for trial in March, April,
and May of 2025.

Date: August 29, 2024

JEREMY C. DANIEL
United States District Judge

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