United States District Court, S.D. Illinois
May 12, 2005.
BRENDA SHELTON, Plaintiff,
SHOP `N SAVE, Defendant.
The opinion of the court was delivered by: WILLIAM STIEHL, Senior District Judge
MEMORANDUM & ORDER
This matter is before the Court on defendant's motion for
summary judgment (Doc. 24), to which plaintiff has filed a
response (Doc. 26), the defendant a reply (Doc. 29), and a
supplement to the reply (Doc. 30).
The plaintiff filed her amended complaint against defendant
alleging that she was injured when she slipped and fell on
spilled dry spaghetti at defendant's store in Wood River,
Illinois in December of 2001. Plaintiff apparently did not see
the spilled spaghetti before she fell and was not sure how long
the spaghetti was there before she fell.
The defendant asserts it is entitled to summary judgment on the
grounds that plaintiff has admitted that she did not know how
long the spaghetti was on the floor, and that there has been no
evidence adduced that the spaghetti was placed or allowed to be
placed on the floor as a result of negligence by defendant's
agents, servants or employees, or that they even knew of the
existence of the spaghetti. Plaintiff asserts that defendant did
not complete an inspection/sweep every hour, as required by Shop
`N Save written guidelines, that an incident report was not
filled out until more than three months after the incident, and that the
grocery cart log was not filled out in accordance with store
Summary judgment is appropriate when "if 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 a judgment as a matter of law." Fed.R.Civ.P.
56(c). The moving party has the initial burden of demonstrating
that no evidence exists to support the non-moving party's
contentions. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). If the moving party meets this burden, then the
non-moving party must set forth specific facts showing that there
is a genuine issue of material fact requiring a jury trial. Id.
at 324. In reviewing a motion for summary judgment, the Court
must view the record and draw all inferences in the light most
favorable to the non-moving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247 (1986). However, "this standard provides
that the mere existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be no
genuine issue of material fact." Id. at 247-48 (emphasis in
original); Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236
(7th Cir. 1991) (noting that court is required to draw "only
those inferences that are reasonable").
Under Illinois law, "[t]o recover on a negligence claim, the
plaintiff must establish the existence of a duty owed by the
defendant, a breach of that duty, and an injury proximately
resulting from that breach." Pavlik v. Wal-Mart Stores, Inc.,
753 N.E.2d 1007, 1010 (Ill App. Ct. 2001) (citing Miller v. National Ass'n of Realtors,
648 N.E.2d 98 (Ill. 1994).) Further, "[i]f the plaintiff cannot
establish an element of her cause of action, summary judgment for
the defendant is proper." 753 N.E.2d at 1010 (citing Pyne v.
Witmer, 543 N.E.2d 1304 (Ill. 1989)).
Defendant owed plaintiff, its invitee, a duty to exercise
ordinary care in maintaining its premises in a reasonably safe
condition. Pavlik, 573 N.E.2d at 1010 (citing Ward v. K Mart
Corp., 554 N.E.2d 223 (Ill. 1990)). Here, plaintiff must
establish that defendant breached this duty.
A business owner breaches its duty to an invitee who
slips on a foreign substance if "(1) the substance
was placed there by the negligence of the proprietor
or (2)[its] servant knew of its presence, or (3) the
substance 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 substance."
Pavlik, 573 N.E.2d at 1010 (quoting Hayes v. Bailey,
400 N.E.2d 544
, 546 (Ill.App.Ct. 980)); see also Olinger v. Great
Atlantic & Pacific Tea Co., 173 N.E.2d 443
Initially, the Court rejects plaintiff's assertions that the
lack of a timely filled-out incident report and the lack of
grocery cart logs are relevant to the issue of liability in this
case. The grocery logs are not related to this slip and fall
action. The alleged failure of the store manager to complete an
incident report is also not relevant to whether the defendant's
agents caused the plaintiff to slip and fall.
Plaintiff asserts that the floor sweeping was not completed in
accordance with company guidelines, that is, within an hour of
the previous floor sweeping, and thereby this fact establishes a
question of fact as to whether defendant should have known of the
existence of the dry spaghetti on the floor. The record before
the Court reveals the floors were swept at 7:00 A.M., 9:20 A.M.,
11:01 A.M., 1:15 P.M. and later in the afternoon not relevant to
the incident, because the plaintiff asserts in her deposition
that she fell around 11:30 AM. (Shelton depo. at 19) (Sweep Log, Ex. A to Doc. 29). Therefore, taking plaintiff's
statement as correct, her fall on the dry spaghetti occurred
within 30 minutes of the prior sweep of the floor.
Moreover, there was a retail inspection performed at 7:11 A.M.,
8:15 A.M., 9:20 A.M., 10:15 A.M., 11:10 A.M., 12:01 P.M. and
later times in the afternoon. Given that the floor had been swept
at 11:01 A.M. and inspected at 11:10 A.M. and plaintiff fell at
approximately 11:30 A.M., the record reveals that the substance
was not present "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
substance." Hayes, 400 N.E.2d at 546. The record simply does
not support a claim for negligence under these facts. There is
nothing before the Court to establish that there was a breach of
ordinary care by the defendant in that the time between the last
sweep and inspection and the plaintiff's fall was not
sufficiently long enough to put defendant on constructive notice
of the existence of the spilled spaghetti.
Accordingly, the Court FINDS that it is appropriate to enter
judgment in favor of defendant Shop `N Save Warehouse Foods, Inc.
and against plaintiff Brenda Shelton on all claims. Defendant's
motion for summary judgment is GRANTED, and the Clerk of the
Court is directed to enter judgment accordingly. Each party shall
bear its own costs.
IT IS SO ORDERED.
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