The opinion of the court was delivered by: Magistrate Judge Susan E. Cox
MEMORANDUM OPINION AND ORDER
Plaintiff, Pablo Cedillo ("plaintiff"), has sued defendant J.C. Penney ("Penney's") in this diversity case, alleging that Penney's acted negligently in its response to an altercation which led to plaintiff's stabbing outside of Penney's at the North Riverside Mall. Penney's has moved for summary judgment, arguing that the undisputed facts show that it had no duty to protect plaintiff from a criminal act which occurred outside its premises [dkt 70]. For the reasons stated below, we enter judgment for Penney's.
The facts are taken from Penney's Rule 56.1 Statement of Facts, except where noted.*fn1 On April 23, 2004, plaintiff and his wife, Carmen, and young daughter traveled by car to the North Riverside Mall after dinner.*fn2 After parking their car near the Penney's store entrance, they walked inside the store.*fn3 They then waited in line at a cashier's station together in order to exchange a pair of jeans.*fn4 There were several customers ahead of them in line and they waited for approximately ten minutes before they were assisted.*fn5 While they were waiting in line, Juan Maldonado and Michael Denson entered the Penney's store, using the same entrance that plaintiff and his family had used.*fn6 Plaintiff made eye contact with these men at which time Michael Denson flashed a gang sign at plaintiff and asked him "what the f*** are you looking at?"*fn7 Plaintiff's wife did not hear this remark, but after her husband told her about it, she urged him to ignore Denson and Maldonado. Denson and Maldonado walked away from plaintiff.*fn8
A few minutes later, plaintiff left his wife and daughter so that his wife could return the jeans and walked away to browse the store.*fn9 He testified at his deposition he was about 100 feet away from his wife at this point.*fn10 Almost immediately, he came across Maldonado and Denson. Denson asked plaintiff what his gang affiliation was to which plaintiff responded that he was not involved in a gang.*fn11 Plaintiff admitted in his deposition that this was not a loud exchange (no one was shouting) and that he did not notice anyone watching the encounter.*fn12 Carmen Padilla did not hear this exchange, nor did she see what occurred next.*fn13 Denson then bumped plaintiff in the shoulder and shoved his face with his right hand. Cedillo told him to "take it outside" and walked away from them towards the store entrance/exit.*fn14 He passed his wife on the way out of the store and told her to get the car as there was trouble.*fn15 Carmen Padilla left the store with the couple's daughter and plaintiff followed her out, trailed by Maldonado and Denson.*fn16
Prior to leaving the store, neither plaintiff nor his wife alerted anyone from Penney's that there was a problem, although plaintiff clearly anticipated that there would be one when he asked Maldonado and Denson to "take it outside."*fn17 After leaving the store, plaintiff was punched in the nose by Denson and, after the two exchanged some more blows, stabbed twice.*fn18 Plaintiff's wife screamed for mall security and security guards came to the scene and secured the attackers who were later arrested by North Riverside police.*fn19
Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.*fn20 To prevail on a motion for summary judgment, then, a party must present evidence that demonstrates the absence of a genuine issue of material fact.*fn21 A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party."*fn22 The party seeking summary judgment must identify the portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes shows an absence of a genuine issue of material fact.*fn23
The evidence presented by the non-movant is to be believed and all justifiable references are to be drawn in his or her favor.*fn24
Two preliminary issues must be resolved prior to reaching the merits of Penney's summary judgment motion. First, Penney's has moved to strike plaintiff's affidavit which was filed as an exhibit to his response to Penney's motion for summary judgment. In this affidavit, plaintiff attempts to add facts which contradict or attempt to supplement his deposition testimony. For example, he stated in his deposition that he was in the store approximately ten to fifteen minutes before the attack occurred outside the store. In his affidavit, however, plaintiff stated that he was in the store about thirty minutes. In his affidavit, plaintiff emphasized how crowded and well-lit the store was and that the shoves by his assailants inside the store (prior to the stabbing outside the store) occurred within close proximity of the service desk. In his deposition, however, he stated he was about one hundred feet from the counter when then shoving began and that he did not think anyone noticed the encounter.
Any conflict between plaintiff's affidavit and his deposition testimony must be resolved in favor of the deposition testimony unless it can be demonstrated that plaintiff was mistaken.*fn25
Plaintiff has made no attempt to demonstrate why his testimony regarding the circumstances of his attack at his deposition differ from his affidavit. "[A]ffidavits, though signed under oath by the affiant, are typically written by the affiant's lawyer, and when offered to contradict the affiant's deposition are so lacking in credibility as to be entitled to zero weight in summary judgment proceedings unless the affiant gives a plausible explanation for the discrepancy."*fn26 As that explanation is lacking here, the court strikes the affidavit.
The second matter is Penney's motion to strike plaintiff's response to its Rule 56.1 statement. Plaintiff originally did not respond at all to the statement in contravention of Local Rule 56.1. The court ordered him to do so. Unfortunately, his response still failed to comply with the Rule because it denied those facts asserted by Penney's without any citation to the record to support the denial. (Plaintiff instead denied those facts and demanded "strict proof thereof" as a response.) The Court ordered him again to comply with the Rule.*fn27 Plaintiff's second response to the Rule 56.1 Statement still does not comply with Rule 56.1 as plaintiff continues to deny several facts, but his citations to the record do not support those denials. However, the Court does not need to strike plaintiff's response in its entirety to resolve this motion.
Penney's argument is that it owed no duty to protect plaintiff from a criminal attack on him which occurred outside its store. Illinois law imposes no duty to protect others from the criminal conduct of a third party unless: (1) a special relationship exists between the parties; and (2) the criminal attack was reasonably foreseeable to Penney's.*fn28 Under Illinois law, a relationship between a business and its invitee is such a special relationship.*fn29 Illinois courts have held that the attack on plaintiff could be reasonably foreseeable to Penney's if Penney's had knowledge of previous similar acts sufficient to put it on notice that such an attack might occur again.*fn30 Although plaintiff asserts that other similar incidents occurred, the undisputed evidence in the case is to the contrary. Penney's witness, Len Hermanson, testified that he did not have any knowledge of prior similar instances. His testimony is corroborated by both police officers who testified that they ...