Lorsbach v. Pioneer Restaurants, LLC et al
Filing
48
ORDER GRANTING Motion for Summary Judgment filed by Pioneer Restaurants, LLC, and Hardee's Restaurants, LLC (Doc. 19 ). Plaintiff's Motion for Leave to File a Supplemental Brief (Doc. 32 ) is GRANTED and Defendants' Motion to Strik e (Doc. 31 ) is DENIED. Defendants Motion for Summary Judgment (Doc. 19) is GRANTED and the case is DISMISSED with prejudice. All other pending motions are DENIED as moot. The Clerk of Court is DIRECTED to enter judgment in favor of Defendants and against Plaintiff and to close the case. Signed by Judge Staci M. Yandle on 2/28/18. (bps)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MARGARET LORSBACH,
Plaintiff,
vs.
PIONEER RESTAURANTS, L.L.C., et al.
Defendants.
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Case No. 17-CV-18-SMY-DGW
MEMORANDUM AND ORDER
Plaintiff Margaret Lorsbach originally filed the instant action in the Seventh Judicial
Circuit Court, Jersey County, Illinois, asserting negligence and premises liability related to her
falling outside a Hardee’s Restaurant owned and operated by Defendants Pioneer Restaurants,
L.L.C. and Hardee’s Restaurants, L.L.C. (Doc. 1-1). 1 The case was subsequently removed to
this Court based on diversity jurisdiction. Now pending before the Court is Defendants’ Motion
for Summary Judgment (Doc. 19).
Plaintiff filed a Response (Doc. 23) and later filed a
supplement to her Response (Doc. 30). 2 For the following reasons, Defendants’ Motion for
Summary Judgment is GRANTED. 3
1
Tony Perry (erroneously named as “Tony Terry”) was also sued in the state court Complaint but was dismissed
from the case prior to removal. (Doc. 1-2).
2
Defendants have filed a Motion to Strike the supplemental pleading (Doc. 31) as having been filed without leave,
and without the justification of new law or facts. Plaintiff subsequently filed a Motion for Leave (Doc. 32). The
supplement pertains to Plaintiff’s expert report (issued after the deadline for responding to summary judgment) and
the deposition of Todd Pahl, corporate representative for Defendant Pioneer (taken after the response deadline).
Although Plaintiff’s filings stretch Local Rule SDIL-LR 7.1(c) to its breaking point, the Court will exercise its
discretion and consider the materials included in the supplemental filing.
3
Plaintiff has also filed for leave to amend her Complaint to add counts regarding failure to adequately train (Doc.
41), which the Court addresses by separate Order.
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Factual Background
On November 3, 2015, Plaintiff and her husband, Charles Lorsbach, visited the Hardee’s
Restaurant located at 528 South State Street in Jerseyville, Illinois. (Deposition of Margaret
Lorsbach, Doc. 19-2 at 13:9-21; 28:9-11). They parked on the south side of the restaurant and
walked across a portion of the parking lot that included the drive-through lane toward the
entrance to the building on that side. (Id. at 18:10-17; 23:8-16; 25:23-26:7). Before the south
entrance, there is a rise (alternately described by the parties as a “lip” and a “curb”) creating a
raised walkway area around the building toward the south entrance.
Todd Pahl, Defendant Pioneer’s corporate designee estimated that between 25,000 and
30,000 customers per year enter through that area. (Deposition of Todd Pahl, Doc. 30 at 24:1425:9). Although Plaintiff’s Complaint alleges that prior to the incident, the parking lot asphalt
and drive-through lane area had been “cut out and new concrete was poured, resulting in a two or
more inch difference in height between the parking lot and the sidewalk adjacent to the south
entrance" (Doc. 1-1 at ¶10), during his deposition, restaurant manager Tony Perry testified that
there had been no construction work on the exterior of the restaurant since he began working at
that location in June 2014. (Deposition of Tony Perry, Doc. 23-2 at 15:8 and 35:14-18). He also
testified that there had been no other falls in that area during that period. (Doc. 19-5 at 56:8-19).
The drive-through lane is a 15-foot wide slab of concrete surrounded by asphalt, and
the curb and sidewalk are cast-in-place concrete. (Affidavit of architect Gregory Wisniewski,
Doc. 19-3 at ¶6). The precise height of the lip is a matter of some dispute, but is at least 1 7/8
inches tall. (Id. at ¶8). The restaurant has handicap-reserve parking spaces, as well as a “barrierfree accessible route” on both sides of the restaurant from those spaces. (Doc. 19-5 at ¶11).
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Plaintiff had a handicap placard and license plate, but she and her husband never used the
handicap parking spaces. (Doc 19-2 at 22:4-23:7).
On the date in question, Plaintiff “stubbed her toe on the little lip of concrete” as she was
attempting to step up from the parking lot surface onto the sidewalk. (Id. at 23:8-16, 29:10-19).
Plaintiff initially testified that she stubbed her left foot, but didn’t recall whether her right foot
had made it up on the sidewalk. (Id. at 31:2-7). Upon reviewing the surveillance video later in
her deposition, she then testified that she put her right foot up on the sidewalk first. (Id. at 98:1323). Plaintiff was carrying a cane in her left (dominant) hand at the time she fell (Id. at 26:8-16;
27:20-28:2). There is a short railing running parallel to the curb, but Plaintiff testified that she
would not have used the railing because it was on her left side where she was carrying her cane.
(Id. at 30:2-17). Plaintiff fell, hitting her head and both knees. (Id. at 36:23-37:17). She
sustained a shattered kneecap and a “bump on the head” as a result of her fall. (Id. at 54:21-23).
Plaintiff testified that she and her husband had visited the restaurant about twice a week
for approximately two years prior to the accident, including several days beforehand. (Id. at
14:3-21). They had walked from the the same area of the south parking lot to the south entrance
at least 20 to 30 times without incident (Doc. 19-2 at 23:20-24:9), and had last parked in that area
and used the south entrance within a month prior to the incident. (Id. at 25:12-22). The area
looked the same to Plaintiff on the date of the incident as it had on the prior occasions. (Doc. 192 at 30:20-31:1).
Plaintiff’s husband, Charles Lorsbach confirmed that they had walked the same path
numerous times and that he was aware of the step-up prior to November 3, 2015. (Deposition of
Charles Lorsbach, Doc. 19-4 at 13:1-18). He recalls that they had last parked on the south side
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of the restaurant and walked the same path into the restaurant approximately three days before
the incident. (Id. at 26:7-27:8).
Plaintiff claims that the difference in height between the sidewalk and the drive-through
lane of the parking lot created a tripping hazard and an unreasonable risk of harm for invitees.
(Doc. 1-1 at ¶12). She also claims that Defendants created the height difference and were
negligent in failing to inspect the premises, failing to warn patrons of the height difference,
failing to extend the handrail, failing to “provide contrast in surface colors for the area in
question,” and failing to repair or remedy the condition. (Id. at ¶¶ 17, 19). 4
Discussion
Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is
warranted if the “movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to a judgment as a matter of law.” The facts and all reasonable inferences are
to be drawn in a light most favorable to the nonmoving party.
Kasten v. Saint-Gobain
Performance Plastics Corp., 703 F.3d 966, 972 (7th Cir. 2012). However, the Court will not
“weigh evidence, make credibility determinations, resolve factual disputes and swearing
contests, or decide which inferences to draw from the facts.” Miller v. Gonzalez, 761 F.3d 822,
827 (7th Cir. 2014). Summary judgment will be denied if a reasonable jury could find in favor
of the nonmoving party. Estate of Simpson v. Gorbett, 863 F.3d 740, 745 (7th Cir. 2017).
In cases based on diversity-jurisdiction and asserting Illinois state law claims, the Court
applies federal procedural law and Illinois substantive law. See, e.g., Reynolds v. CB Sports Bar,
Inc., 623 F.3d 1143, 1148 (7th Cir. 2010). In order to prevail on an ordinary negligence claim
under Illinois law, a plaintiff must prove that: (1) the defendant owed a duty of reasonable care to
4
The Complaint contains multiple paragraphs numbered “17.” This reference pertains to the one on page 6 of Doc.
1-1.
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the plaintiff; (2) the defendant breached that duty; and (3) the breach proximately caused the
plaintiff's injury. Galbreath v. Wal–Mart Stores, Inc., No. 10–2065, 2011 WL 1560669, at *4–5
(C.D.Ill. Apr. 25, 2011). Similarly, the Illinois Premises Liability Act, 740 ILCS 130/2 (1995),
provides that “[t]he duty owed [invitees] is that of reasonable care under the circumstances
regarding the state of the premises or acts done or omitted on them.” In other words, businesses
have a duty to maintain their premises in a reasonably safe condition to avoid injuries to their
customers. Zuppardi v. Wal–Mart Stores, Inc., 770 F.3d 644, 649 (7th Cir. 2014).
Defendants first argue that Plaintiff did not fall due to any acts or omissions on their part,
but because she failed to lift her leg high enough to clear the curb – essentially attacking the
“proximate cause” element of both the premises liability and negligence claims. (Doc. 19 at 7).
Plaintiff contends that she did not lift her foot sufficiently to mount the curb cleanly because she
did not realize the curb was there, due to the allegedly hazardous condition (height and lack of
warning) of the curb.
The parties’ positions present a classic material dispute regarding
proximate causation which is typically question for the jury… not the Court.
Defendants also argue that the height of the curb is sufficiently low to qualify under the
“de minimis rule” which excepts from liability height deviations between sidewalk slabs of less
than two inches.
(Doc. 19 at 9).
Originally, the de minimis rule barred actions against
municipalities for minor defects in sidewalks on the basis that slight defects frequently found in
traversed areas are not actionable as a matter of law. Hartung v. Maple Inv. & Dev. Corp., 612
N.E.2d 885, 888 (1993).
The rule has since been extended to sidewalks and walkways
maintained by private owners or possessors. Id. at 889.
The de minimis rule generally applies to height deviations between sidewalk slabs and is
intended to relieve property owners from the burden of having to maintain sidewalks in a
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pristine, perfectly level condition. “It is common knowledge that sidewalks are constructed in
slabs for the very reason that they must be allowed to expand and contract with changes in
temperature…defects in sidewalks may be avoided by pedestrians more easily than defects in
stairs.” Hartung, 612 N.E.2d at 889, citing Tracy v. Village of Lombard, 451 N.E.2d 992 (1983).
This reasoning, however, does not apply to intentionally constructed height deviations, such as
curbs.
Here, the difference in height between the parking lot and the walkway around the
restaurant did not the result from settling, temperature-related expansion/contraction cycles or
anything similar.
Rather, it was intentionally built into the premises.
Notwithstanding
Defendants’ argument, the de minimis rule does not automatically insulate a property owner from
liability for a less than 2 inch height difference between any walking surfaces, under all
circumstances. See also Bledsoe v. Dredge, 681 N.E.2d 96, 97–98 (1997) (holding that the de
minimis rule did not apply to a marble slab in partially-enclosed entryway, in part because it
could be more easily monitored for defects and repaired than an outdoor sidewalk). Defendants
offer no compelling reason to extend the rule to curbs, and this Court declines to do so.
Defendants’ main contention is that they owed no duty to Plaintiff with regard to the
curb, because it was an open and obvious hazard. Whether a duty exists is a question of law for
the court to decide. Forsythe v. Clark USA, Inc., 864 N.E.2d 227 (2007). In determining
whether a duty exists between an owner and an invitee, “a court should consider the following
factors: (1) the reasonable foreseeability of injury, (2) the reasonable likelihood of injury, (3) the
magnitude of the burden that guarding against injury places on the defendant, and (4) the
consequences of placing that burden on the defendant.” Sollami v. Eaton, 772 N.E.2d 215, 224
(2002).
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“Under the open-and-obvious doctrine, a landowner is not liable for physical harm
caused to invitees by any condition on the land whose danger is known or obvious to them,
unless the landowner should anticipate the harm despite such knowledge or obviousness.” Id. at
223. In this context, obvious means that “both the condition and the risk are apparent to and
would be recognized by a reasonable man, in the position of the visitor, exercising ordinary
perception, intelligence, and judgment.” Bruns v. City of Centralia, 21 N.E.3d 684, 690 (2014),
citing Restatement (Second) of Torts § 343A cmt. b, at 219 (1965).
The open-and-obvious doctrine is not a per se bar to liability; rather it is a general
principle that if a hazard is obvious to those coming onto the property, the first two factors in
determining the existence of a duty (foreseeability of harm and reasonable likelihood of injury)
are significantly reduced. Id. at 224, citing Bucheleres v. Chicago Park Dist., 665 N.E.2d 826
(1996). Whether a hazard is open and obvious is normally a question of fact. But if no dispute
exists as to the physical nature of the allegedly dangerous condition, it is a question of law. Id.
(citations omitted). As there is no dispute as to the physical condition of the lip in this case,
whether it was an open and obvious hazard is a question of law for the Court’s determination.
Based on the totality of the record, the Court finds that, to the extent the curb can be
considered a hazard, it was an open and obvious one. The presence and condition of the curb (a
raise in height of approximately two inches between the drive-through lane of the parking lot and
the elevated sidewalk) and the associated risk (that one might trip if one fails to step up) would
be apparent to and recognized by a reasonable person exercising ordinary perception,
intelligence, and judgment.
Plaintiff’s husband was aware of the curb and he and Plaintiff had both successfully
navigated the step many times (20 to 30 times based on Plaintiff’s estimate). Plaintiff
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acknowledges that the curb looked the same on the date of the incident as it normally did.
Significantly, there is no evidence of any changed condition or foreign substance that would
have rendered the curb any more hazardous or less obvious than the previous 19 or more times
Plaintiff had successfully negotiated the step up. Whether she consciously took note of it or not,
she was able to negotiate the step up as she navigated the parking lot environment numerous
times before November 3, 2015.
The conclusion that a reasonable person would recognize and appreciate the curb is
furthered bolstered by the fact that, according to the testimony of Todd Pahl and Tony Perry,
thousands of other customers previously successfully navigated the same path into the south
entrance of the restaurant for at least fourteen months without a reported incident. The evidence,
taken as a whole, suggests that a reasonable customer of ordinary perception, intelligence, and
judgment would perceive the existence of the step and the need to deal with it by stepping up to
the sidewalk. As such, any hazard posed by the curb is open and obvious.
Plaintiff argues that, even if the curb qualifies as an open and obvious condition, the
distraction exception applies. The distraction exception applies “where the possessor [of land]
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.”
Sollami, 772 N.E.2d 215 (quoting Restatement (Second) of Torts § 343A cmt. f, at 220 (1965)).
Importantly, the exception “will only apply where evidence exists from which a court can infer
that plaintiff was actually distracted.” Bruns, 21 N.E.3d at 691.
While Plaintiff testified that she “imagines [she] was looking in the window” because she
“had to look at something” (Doc 19-2 at 50:1-6), she cites no actual evidence from which one
could reasonably infer that she was in fact distracted. As such, she cannot invoke the distraction
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exception on that basis. See Bruns, 21 N.E.3d at 692 (“Here, the only distraction identified by
plaintiff is that her attention was fixed on the door and steps of the clinic. Although the record
supports that plaintiff was, in fact, looking in that direction, rather than at the defective sidewalk,
we conclude that the mere fact of looking elsewhere does not constitute a distraction.”).
Plaintiff also points out that she had a cane in one hand and an oxygen pack in the other,
and argues that it was foreseeable that “persons using this path may become distracted by things
they were carrying” like a cane and oxygen. (Doc. 23 at 21). Once again, those facts alone do
not constitute an actual distraction. Likewise, Plaintiff’s retained expert engineer Keith Vidal’s
conclusory assertion that a “fast food environment” can “distract patrons” (Doc. 30 at 22) does
not suffice. The distraction exception is therefore inapplicable.
“[A] defendant is ordinarily not required to foresee injury from a dangerous condition
that is open and obvious.” Bruns, 21 N.E.3d at 694. That is because “it is assumed that persons
encountering the potentially dangerous condition of the land will appreciate and avoid the risks,
making the likelihood of injury slight.” Id. at 695 (quotation omitted). Nevertheless, Plaintiff
argues that it is fair to place the burden on Defendants, as they “already had a burden to provide
invitees, such as Plaintiff, a safe means of ingress and egress.” (Id. at 26) (citing Harris v. Old
Kent Bank, 735 N.E.2d 758, 764 (2000) and Hanks v. Mount Prospect Park District, 244 Ill.
App.3d 212, 217 (1993)). The restaurant did provide a safe ingress and egress in the form of a
“barrier-free accessible route” from the handicap parking spaces on both sides of the restaurant.
(Doc. 19-5 at ¶11). Beyond that, Defendants simply owed Plaintiff no duty relative to the curb.
Thus, Plaintiff’s claims fail as a matter of law.
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Conclusion
For the foregoing reasons, Plaintiff’s Motion for Leave to Supplement (Doc. 32) is
GRANTED, and Defendant’s corresponding Motion to Strike (Doc. 31) is DENIED.
Defendants’ Motion for Summary Judgment (Doc. 19) is GRANTED and the case is
DISMISSED with prejudice. All other pending motions are DENIED as moot. The Clerk of
Court is DIRECTED to enter judgment in favor of Defendants and against Plaintiff and to close
the case.
IT IS SO ORDERED.
DATED: February 28, 2018
s/ Staci M. Yandle
STACI M. YANDLE
United States District Judge
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