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Blackford v. Wal-Mart Stores

April 2, 2008


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


This matter is before the Court on a motion for summary judgment filed by Defendant Wal-Mart Stores, Inc. ("Wal-Mart"). The Court held a hearing on the motion on March 10, 2008. For the reasons set forth on the record and below, the motion is granted.


Plaintiff Christina Blackford is the mother of Plaintiff Dylan Zachery, who was born on January 26, 2003. Around midnight on July 9, 2005, Blackford brought Dylan to a Wal-Mart store where Dylan's father, Charles Zachery, worked (it was near the end of his shift). Blackford also worked for Wal-Mart at this store. While Blackford and Zachery were speaking, Dylan activated and was injured by an unattended floor buffing machine near them in the lay-away area of the store.

Blackford brings a two-count suit: the first count seeks judgment against Wal-Mart in the amount of Dylan's medical bills for which she became liable as a result of his injuries under the Illinois Family Expense Act; the second seeks, on behalf of Dylan, judgment against Wal-Mart for his pain and suffering, disability, loss of normal life, and disfigurement. This first count is derivative of the second, so the negative resolution of the liability issue resolves the medical expenses issue. Cullotta v. Cullotta, 678 N.E.2d 717, 722 (Ill. App. 1st Dist. 1997) ("If a defendant cannot be held liable in tort to the minor, neither can the defendant be liable for his medical expenses.")

Wal-Mart moved for summary judgment under Federal Rule of Procedure 56, arguing that, under Illinois law, it had no duty of care to warn of or take precautions against the danger posed to Dylan by the buffer. Blackford responded, arguing that genuine issues of material fact exist as to whether the buffer presented an obvious danger, how the court should assess the relative culpability of the Blackford and Wal-Mart,*fn1 and what the effect of Blackford's distraction from Dylan at the time of the injury is under Illinois negligence law.

This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332(a). Wal-Mart is a citizen of Delaware and Arkansas, and Blackford and Dylan Zachery are citizens of Illinois (see Doc. 2). Moreover, it is apparent from the allegations of the complaint and the notice of removal that the amount in controversy in this case exceeds $75,000, exclusive of interest and costs.


Summary judgment is governed by Federal Rule of Procedure 56, explained by the Seventh Circuit as follows:

Summary judgment is proper when 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. In determining whether a genuine issue of material fact exists, [the court] must view the record in a light most favorable to the nonmoving party. Because the primary purpose of summary judgment is to isolate and dispose of factually unsupported claims, the non-movant may not rest on the pleadings but must respond, with affidavits or otherwise, setting forth specific facts showing that there is a genuine issue for trial. The evidence must create more than some metaphysical doubt as to the material facts. A mere scintilla of evidence in support of the non-movant's position is insufficient; a party will be successful in opposing summary judgment only when it presents definite, competent evidence to rebut the motion.

Albiero v. City of Kankakee, 246 F.3d 927, 931-32 (7th Cir.2001) (internal citations and quotations omitted).

The events described above are largely undisputed; Blackford's response in opposition to summary judgment did not set out any disagreement over the course of events that night. The only question is one of law. In Illinois, the "essential elements of a cause of action based on common law negligence [are]: the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by that breach." Ward v. K Mart Corp., 554 N.E.2d 223, 226 (Ill. 1990). Under Illinois law, landowners have a duty of reasonable care under the circumstances toward entrants. Premises Liability Act, 740 ILCS 130/2 (also abrogated the common-law distinction between licensees and invitees), Ward, 554 N.E.2d at 229, Restatement (Second) of Torts § 343 (1965) (Illinois' endorsement of Restatement view noted in Ward, 554 N.E.2d at 229).

What a landowner's duty is under the circumstances and what constitutes reasonable care is analyzed in Illinois as a question of law by a four-part test: (1) the reasonable foreseeability of the injury, (2) the likelihood of injury, (3) the magnitude of the burden on the defendant in guarding against injury, and (4) the consequences of placing that burden on defendant. Ward, 554 N.E.2d at 291-92, Harlin v. Sears Roebuck and Co., 860 N.E.2d 479, 484 (Ill. App. 1st Dist. 2006).

Another way of stating this is that what constitutes reasonable care is determined by a comparison between the cost of the precaution that would have prevented it and the cost of the accident that occurred as a result of the absence of the precaution, discounted by the probability of an accident if the precaution was not taken. If an accident if it occurs would cause on average a $10,000 loss, and the probability that the accident would occur unless a particular precaution was taken was 1 percent, and the precaution would have cost only $50, then the ...

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