The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
This case is before the court for ruling on the Motion for Summary Judgment (#22) filed by Defendant, Wal-Mart Stores, Inc. This court has carefully reviewed Defendants' Motion and Memorandum in Support (#23), with attached supporting exhibits, as well as Memorandum in Response (#28) filed by Plaintiffs, Candy L. Harris, Lynn Harris, and Candy L. Harris, as mother and next friend of Justin C. Harris, with supporting exhibits (#29), and Defendant's Reply (#33). Following this careful and thorough review, Defendant's Motion for Summary Judgment (#14) is DENIED.
On February 20, 2007, Defendant filed a Notice of Removal (#1) and removed the Complaint filed by Plaintiffs in the circuit court of Macon County to this court.*fn1 In Count I of their Complaint, Plaintiffs alleged that, on February 5, 2005, Justin C. Harris (Justin) accompanied his parents and other family members to the Wal-Mart store located in Forsyth, Illinois. Plaintiffs alleged that, as Justin was walking toward a sibling between a clothing rack and a shopping cart, his left eye was punctured on a four-cornered metal prong protruding from the clothing rack that was hidden by clothing hanging above it. Plaintiffs alleged that Defendant was negligent in one or more of the following ways:
(a) The metal prongs protruding from the metal rack should have been rounded at the corners to prevent puncture injuries;
(b) The metal prongs protruding from the metal rack should have been guarded with rubber softener to prevent puncture injuries;
(c) The metal prong stationed above the metal prong that caused the puncture injury should have been placed in a position so that clothing hanging from the prong would not cover and hide the metal prong below it; and
(d) The metal prong [that] caused the injury should not have been at the stationed height level as it was foreseeable a small child would be with his parents and endangered by the protruding metal prong.
Plaintiffs alleged that, as a direct and proximate cause of Defendant's acts of negligence, Justin suffered severe and permanent injuries to the left eye that have greatly reduced his vision. Plaintiffs sought damages in excess of $50,000 for these injuries.*fn2
In Count II, Plaintiffs alleged that Justin's parents, Lynn Harris and Candy Harris, have become liable for large sums of money for medical expenses incurred by Justin on account of his injuries and have had their lives disrupted and have sustained damage. Plaintiffs therefore sought damages in Count II in an amount in excess of $50,000.00.
On February 21, 2007, Defendant filed an Answer and Affirmative Defenses (#4). A Discovery Order (#10) was entered on April 10, 1007, and this case was scheduled for a final pretrial conference on October 10, 2008, and a jury trial on October 20, 2008.
On July 15, 2008, Defendant filed its Motion for Summary Judgment (#22), and a Memorandum in Support (#23), with attached supporting exhibits. Defendant argued that the standard clothing rack on which Justin struck his eye "presented a danger to the minor plaintiff only because he was allowed to run unsupervised through the store." Defendant argued that Illinois courts and federal courts interpreting Illinois law have made it clear that, under these circumstances, Defendant owed no duty to Plaintiffs. On August 13, 2008, Plaintiffs filed their Memorandum in Response to Defendant's Motion for Summary Judgment (#28) and Exhibits in support (#29). Plaintiffs argued that Defendant had mischaracterized the deposition testimony given in the case and contended that, under the facts here, Defendant owed a duty to Justin and breached that duty. Plaintiffs also argued that material facts are in dispute so that summary judgment should not be granted. Defendant filed a Reply (#33) on August 25, 2008, again arguing that it is entitled to summary judgment.
The evidence submitted to this court can be summarized as follows. At her deposition, Candy testified that she was shopping at Wal-Mart on February 5, 2005, with her husband, their four children, including Justin, and her mother and stepfather. Justin was born on March 15, 2000, so he was four years old at that time and was close to his fifth birthday. After completing some other shopping, Candy went to the women's clothing department to shop for jeans. At that time, she was with Justin, her daughter Breanna, her son Jonathan, who was seated in her shopping cart, and her mother, Diana, who also had a shopping cart. Candy testified that Breanna and Justin were running in the clothing department. Candy testified that she yelled at both of them and made them stop running. She made Justin come and stand by her. Candy testified that Breanna was standing near Diana, and was next to the shopping cart where Jonathan was sitting. Candy testified that she was standing near a clothing rack which had clothes hanging on it. Based upon a drawing made by Diana at her deposition, Diana's cart was located next to the clothing rack and was between Candy and the shopping cart Jonathan was sitting in.*fn3
Candy testified that Justin was standing next to her and asked to go by his sister. Candy testified that she "shook [her] head yes." Candy was talking to Diana, and testified that "[o]ut of the corner of my eye I watched him go between the cart and the rack. When he got close to the rack, he covered his face, and hit the floor crying." Candy testified that, when Justin left to go by his sister, he "bent over a little bit when he did to squeeze between the clothing, the edge of the clothing and the rack." Candy testified that his head was a little bit lower than normal. Candy testified that there were blouses hanging on the top part of the rack but no clothing was hanging on the bottom bar of the rack where Justin was hurt. Candy testified that the blouses covered most of the bottom rack so "there was very little showing at the bottom." She testified that she went to comfort Justin and, when she looked at his eye, she saw "a lot of fluid and some blood." Candy testified ...