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February 23, 1998

SUPERVALU, INC., d/b/a CUB FOODS, Defendant.

The opinion of the court was delivered by: LEVIN

 This is a diversity action, involving the tort of negligence, arising under Illinois law. Pending is a summary judgment motion by Defendant Supervalu, Inc., d/b/a Cub Foods. For the reasons set forth below, this court denies the motion.


 On January 22, 1994, Plaintiff Dorothy Smith worked for Actmedia, a corporation involved in the advertisement of various household products at various grocery stores. (Def. 12(m) P 5.) Plaintiff worked as an "ad changer," replacing ad machines and coupon dispensers on the premises, and as a "field representative," standing in the doorway of the premises, greeting customers and handing out coupons and/or samples of products. (Id. P 6.) Plaintiff used and handled some products in her work at the grocery stores. When these products were heavy, Actmedia distributed the products to the individual grocery stores' receiving department. (Id. PP 14, 16; Pl. 12(n) Add. Facts P 14; Def. 12(n) Resp. P 14.)

 On January 22, 1994, Plaintiff was to hand out remaining samples of Hair Repair by St. Ives to the customers of a Cub Foods grocery store. (Def. 12(m) P 21.) Part of Plaintiff's job was to go to back room of Cub Foods -- a task she had performed about eight to ten times a month for the past two to three years -- and search for the heavy products she was to distribute on any particular day (which would be put anywhere in the storage area). (Id. PP 18-20.) Plaintiff asserts that no one at Cub Foods assisted Plaintiff in her work and that, prior to her injury, she complained about the lack of assistance to Cub Foods employees. (Pl. 12(n) Add. Facts PP 13, 17.)

 So, after setting up a display stand to hold the hair product on January 22, 1994, Plaintiff took a grocery cart and proceeded to Cub Food's storage area to pick up two boxes of the product. (Def. 12(m) PP 23, 26.) The receiving room at the Cub Foods store is a large, open area consisting of pallets filled with various products, forklifts and hand pallet movers. (Id. P 17.) *fn2" When Plaintiff arrived to Cub Food's receiving room, the lights were on. (Id. P 25.) Plaintiff knew the location of the hair product because she had retrieved it the day earlier from the same area; therefore, she proceeded towards the location of the two boxes containing the hair products (about thirty-five feet away). (Id. PP 25, 27.) The two boxes were on a bottom shelf stacked on top of each other. (Pl. 12(n) Add. Facts P 2; Def. 12(n) Resp. P 2.)

 Attempting to retrieve the boxes, Plaintiff's way was obstructed by an empty wooden pallet next to the shelf with the boxes of product. (Def. 12(m) PP 29-30; Pl. 12(n) Add. Facts P 3; Def. 12(n) Resp. P 3.) The pallet forced Plaintiff to stop the grocery cart near the shelf on the opposite side of the pallet. (Id.) Plaintiff stepped onto the pallet and then over the pallet onto a thin space of ground (about a foot and a half) between the pallet and the shelving unit. (Id. P 35; Pl. 12(n) Add. Facts PP 7-8; Def. 12(n) Resp. PP 7-8.) The reason Plaintiff had to step onto the pallet (instead of around it) is because there were boxes all over, including on either side of the pallet. (Pl. 12(n) Add. Facts P 9; Def. 12(n) Resp. P 9.)

 After Plaintiff walked over the pallet, Plaintiff bent down, picked up the first box and tossed it into her shopping cart. (Def. 12(m) P 37.) In the process of straightening out after bending down to pick up the second box, Plaintiff injured her right shoulder. (Def. 12(m) P 38; Pl. 12(n) Add. Facts P 11; Def. 12(n) Resp. P 11.) The pallet had a pallet jack (a manual forklift-type device) extending from it. (Def. 12(m) P 31; Pl. 12(n) Add. Facts P 5; Def. 12(n) Resp. P 5.) Plaintiff's injury was caused by Plaintiff's shoulder hitting the pallet jack handle as she was straightening up. (Id.)

 The parties dispute whether Plaintiff saw the pallet jack handle before hitting it. Relying on her deposition testimony, Plaintiff states that she did not see the pallet jack handle before she hit it. (Pl. 12(n) Add. Facts P 12.) Relying on other deposition testimony by Plaintiff, Defendant states that Plaintiff did see the jack handle prior to hitting it. (Pl. 12(m) P 32; Def. 12(n) Resp. P 12.) Defendant also asserts that nothing obscured Plaintiff's vision when she approached the boxes of product and when she attempted to load her cart. (Def. 12(m) P 28.)



 Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Once the moving party has produced evidence to show that it is entitled to summary judgment, the party seeking to avoid such judgment must affirmatively demonstrate that a genuine issue of material fact remains for trial. See LINC Fin. Corp. v. Onwuteaka, 129 F.3d 917, 920 (7th Cir. 1997).

 In deciding a motion for summary judgment, a court must construe the evidence in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Nevertheless, the nonmovant may not rest upon mere allegations but "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). See also LINC, 129 F.3d at 920. A genuine issue of material fact is not shown by the mere existence of "some alleged factual dispute between the parties," Anderson, 477 U.S. at 247, or by "some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 ...

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