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Crews v. Platolene 500

July 19, 2006


The opinion of the court was delivered by: Gilbert, District Judge


This matter is before the Court on defendant Platolene 500, Inc.'s (Platolene) motion for summary judgment (Doc. 14). Plaintiff Diana Crews (Crews) has responded to Platolene's motion (Doc. 34) and moved to strike its affidavit in support thereof (Doc. 32). Platolene has replied to Crews's response (Doc. 35) and responded to her motion to strike (Doc. 33). For the following reasons, Crews's motion to strike will be DENIED and Platolene's motion for summary judgment will be GRANTED.


Platolene operates a gas station and convenience store in Olney, Illinois. On February 7, 2003, Crews slipped and fell on some ice on Platolene's property. She claims Platolene negligently failed to remove the ice upon which she fell and that her fall caused her serious injuries. Crews's general account of the incident is not disputed. On the date she fell, Crews filled her car with gas at Platolene's gas station and walked inside to pay. While walking back to her car after paying for her gas, she slipped on some ice as she walked between gas pumps. Though the ice was "rough in spots," the ice she slipped on was "smooth." (Doc. 14, Ex. A at 5). Whatever snow was on the ground was "over to the side. It was scooted." (Id.). When asked if the ice was there "from melting snow," she said she did not know. (Id. at 5-6). When asked if she had "any idea" how the ice got there, she said, "it had snowed the day before." (Id. at 6). Though she could not say whether the snow had been shoveled, she did say that it "looked like it had been scraped in places." (Id. at 7). She came to this conclusion because the "snow was bunched up a little bit." (Id.).


Platolene claims it is entitled to summary judgment because the ice Crews slipped on was the product of natural accumulation. Under Illinois law, applicable here as this is a diversity action, a property owner has no duty to remove a natural accumulation of ice from his property. Russell v. Village of Lake Villa, 782 N.E.2d 906, 909 (Ill. App. Ct. 2d Dist. 2002); Nowak v. Coghill, 695 N.E.2d 532, 537 (Ill. App. Ct. 2d Dist. 1998). Crews agrees that the natural accumulation rule, if applicable, would bar her suit. She claims, however, that summary judgment on the application of the rule is inappropriate because the origin of the ice is a disputed issue of material fact. Crews has also moved the Court to strike the affidavit of Kelly Gottfried (Gottfried), the manager of Platolene's gas station and convenience store, claiming it is both conclusory and irrelevant.

I. Motion to Strike

In her one-page affidavit, Gottfried made two statements relevant here: "Any snow or ice in front of the store, under the canopy and between the pumps would be naturally occurring[,]" and "Platolene . . . did nothing to put snow or ice between the pumps." (Id.). Crews claims Gottfried's failure to provide the basis for her statements (e.g., that she did not witness any employee shoveling the snow) is a critical error requiring the striking of the affidavit. Additionally, she believes Gottfried's assertion that the ice was "naturally occurring" is an impermissible legal conclusion that has no bearing on the relevant issue of fact, whether the ice was the product of natural accumulation. For its part, Platolene defends the simplicity of Gottfried's affidavit by emphasizing its simple purpose: someone in a position to know whether Platolene (or its agents) changed the status quo after the snowstorm says that it did not. It claims Gottfried's affidavit was based on her personal knowledge because she was the manager the day of Crews's fall. Similarly, Platolene claims her statement on the origins of the ice was not a legal conclusion, but a factual statement supported by her position as manager, which gave her the opportunity to see what contributed to the formation of the ice at issue.

Federal Rule of Civil Procedure 56(e) requires affidavits in support of motions for summary judgment to be based on personal knowledge. As Gottfried was the manager on duty on the day of Crews's fall, she had personal knowledge of the events described in her affidavit. Though brief and somewhat conclusory, her position as manager that day put her in the position to know whether any Platolene employee shoveled or cleared the snow and ice that accumulated on the premises. Her failure specifically to identify which activities did not take place that day does not make her affidavit impermissible. Her description of the snow and ice as "naturally occurring" does indeed sound similar to "natural accumulation." This choice of words was unfortunate, but the Court sees no reason why she was not in a position to, or incapable of, speaking to the source of the ice. Accordingly, Crews's motion to strike is DENIED.

II. Summary Judgment Motion

A. Standard

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 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). In determining the existence of a genuine dispute of material fact, the Court construes all facts in the light most favorable to the nonmoving party and draws all reasonable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Spath, 211 F.3d at 396. The moving party has the burden of establishing that there is no genuine issue of material fact. Celotex Corp., 477 U.S. at 323.

If the moving party meets its burden, the nonmoving party has the burden "to go beyond the pleadings and affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact which requires trial." Borello v. Allison, 446 F.3d 742, 748 (7th Cir. 2006) (internal quotations and citations omitted); Celotex, 477 U.S. at 322-26; Johnson v. City of Fort Wayne, 91 F.3d 922, 931 (7th Cir. 1996). A genuine issue of material fact is not demonstrated 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 (1986). Rather, a genuine issue of material fact exists ...

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