The opinion of the court was delivered by: Hon. J. Phil Gilbert United States District Judge
This matter comes before the Court on the motion for summary judgment filed by defendant Casey's Retail Company, Inc. d/b/a Casey's General Stores, Inc. (misnamed in the complaint as Casey's General Stores, Inc.) ("Casey's") (Doc. 23). Plaintiff Cynthia Hancock Holbrook has responded to the motion (Doc. 25).
I. Summary Judgment Standard
Summary judgment is appropriate where "the pleadings, the discovery and disclosed materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant 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). The reviewing court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Chelios v. Heavener, 520 F.3d 678, 685 (7th Cir. 2008); Spath, 211 F.3d at 396.Where the moving party fails to meet its strict burden of proof, a court cannot enter summary judgment for the moving party even if the opposing party fails to present relevant evidence in response to the motion. Cooper v. Lane, 969 F.2d 368, 371 (7th Cir. 1992). In responding to a summary judgment motion, the nonmoving party may not simply rest upon the allegations contained in the pleadings but must present specific facts to show that a genuine issue of material fact exists. Fed. R. Civ. P. 56(e)(2); Celotex, 477 U.S. at 322-26; Johnson v. City of Fort Wayne, 91 F.3d 922, 931 (7th Cir. 1996).
Construing all evidence and drawing all reasonable inferences in Holbrook's favor, the evidence establishes the following facts.
On August 14, 2008, Cynthia Parkinson served herself a drink at the self-service soda fountain of a Casey's convenience store owned by defendant Casey's. In doing so, she spilled ice on the floor but neglected to tell a Casey's employee. Approximately 15 minutes later, plaintiff Holbrook slipped on the partially melted ice, fell and injured herself.
The Casey's store manager Deborah Mitchell had inspected the floor around the soda fountain in the hour prior to Holbrook's fall but, of course, she had not discovered the spill because Parkinson had caused the spill only 15 minutes before the plaintiff's fall. Neither Mitchell nor Holbrook learned of the spilled ice until after Holbrook's fall.
This particular Casey's store was a typical convenience store with shelves, wall coolers, a self-service kitchen area where the soda fountain was located, and a cash register area. The soda fountain and the cash register area were on the same side of the store. Although the self-service soda fountain was generally busy in the summer, it was not common to have ice spilled on the floor nor to have customers slip and fall.
To prevail in a cause of action for negligence, the plaintiff must show the defendant owed her a duty of care, the defendant breached that duty and the breach proximately caused injury. See Marshall v. Burger King Corp., 856 N.E.2d 1048, 1053 (Ill. 2006). With respect to the duty element, a special relationship exists between a business and those it invites onto its property for business purposes, and that special relationship may give rise to "an affirmative duty to aid or protect another against unreasonable risk of physical harm." Id. at 1058; accord Reid v. Kohl's Dep't Stores, Inc., 545 F.3d 479, 481 (7th Cir. 2008); Peterson v. Wal-Mart Stores, Inc., 241 F.3d 603, 604 (7th Cir. 2001). That duty is summarized in § 343 of the Restatement (Second) of Torts:
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect ...