The opinion of the court was delivered by: Hon. Maria Valdez United States Magistrate Judge
Magistrate Judge Maria Valdez Foreign
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Target Corporation's ("Target") Motion for Summary Judgment [Doc. No.43]. This Court has jurisdiction over this matter pursuant to 28 U.S.C. 1332(a), as the parties are diverse and the amount in controversy is greater than $75,000. On June 1, 2007, the parties consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(a). Through a one-count complaint, Plaintiff sued Target for negligence based on injuries she allegedly suffered at Defendant's store. The Court finds that there is a genuine issue of material fact in this case and Target's motion for summary judgment is denied.
On July 1, 2006, Abigail Herrera ("Herrera" or "Plaintiff") was shopping with her husband at the Target store located at 2901 South Cicero Avenue, Cicero, Illinois. (Def.'s LR 56.1 Stmt., ¶¶ 2,3.) Herrera turned and walked down an aisle when she observed two men to the right of her facing a set of shelves approximately ten feet in front of her. (Id. ¶¶¶ 7,10,14.) She testified that at the time of the accident she was carrying a blouse. (Id. ¶ 8.)
Prior to Herrera walking down the aisle, another Target customer, Thomas Fernandez ("Fernandez"), asked Target employee Jerry Dickinson to help him find Lipton Diet Green Tea. (Id. ¶¶ 16, 20.) Fernandez testified that Dickinson's leg was in the aisle when Herrera turned to walk down the aisle. (Id. ¶ 23.) Fernandez further testified that Dickinson's leg was extended out when Herrera started to go over Dickinson to pass. Plaintiff disagrees with this characterization of the testimony and states that Fernandez never testified that Dickinson's leg was in the aisle. (Pl.'s LR 56.1 Resp., ¶ 23.) But, Fernandez did testify that "[a]s [Herrera] was coming around, she was going over him because his leg was extended out." (Def.'s LR 56.1 Stmt., ¶¶ 23,24, Ex. C, Fernandez Dep. at 17.) And Plaintiff agreed with the Defendant's fact statement that Mr. Fernandez saw Herrera attempt to step over the employee's extended leg. (Pl.'s LR 56.1 Resp., ¶ 24.) Although, Plaintiff disagreed with Defendant's fact statement that the employee's leg was extended out in the aisle as Herrera came around the corner, Plaintiff fails to cite to anything in the record to support its disagreement. (Pl.'s LR 56.1 Resp., ¶ 23.) Id. As a result, Defendant's articulation of this fact is undisputed.*fn1
A major bone of contention among the parties is whether Herrera noticed Dickinson's leg in the aisle prior to tripping over it. As stated above, Plaintiff has implicitly acknowledged that the Target employee's leg was extended out into the aisle as he was kneeling as she came around the corner. But, she had also testified that she did not see the employee until she was ten feet away and when she was about to pass, the employee stuck out his foot and she tripped. (Pl.'s Statement of Add. Facts, ¶2) In a slightly different variation, Plaintiff testified that when she was close to Dickinson he bent down and she fell. (Pl.'s LR 56.1 Resp., ¶ 11; Stmt. of Add. Facts ¶ 2.) Dickinson was not aware that Herrera was in his vicinity until after the fall. (Id. ¶ 42.) Thus, this Court has before it inconsistent positions taken by the plaintiff: 1) that, by application of N.D. Ill. R. 56.1(b)(3)(B), the Target employee's leg was already out as Herrera turned the corner; and 2) that the Target employee's leg was not sticking out until Herrera was about to pass the employee. Even with this inconsistency, all facts are construed in the light most favorable to Herrera. See, e.g., Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006).
In response, Plaintiff relies upon opposing materials filed pursuant to Rule 56(b)(1). Plaintiff's reliance on a tape-recorded statement of witness Fernandez, (Pl.'s LR 56.1(b)(1), Ex. E), and a one-page handwritten statement of witness Dickinson, (Pl.'s LR 56.1(b)(1), Ex. F) is disallowed. To defeat Target's motion for summary judgment, Herrera may rely only on admissible evidence. See Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 704 (7th Cir.2009); Schindler v. Seiler, 474 F.3d 1008, 1010 (7th Cir.2007). Both Exhibit E and F lack an adequate foundation, authentication and are on the face of the documents, hearsay. Because the exhibits lack foundation, the court cannot consider it on summary judgment. Stinnett v. Iron Works Gym/Executive Health Spa, Inc., 301 F.3d 610, 613 (7th Cir. 2002) ("In granting summary judgment, the court may consider any evidence that would be admissible at trial.") And, if evidence is inadmissible hearsay, it may not be considered. Schindler v. Seiler, 474 F.3d 1008, 1012 (7th Cir. 2007).
Summary Judgment Standard
Summary judgment is appropriate where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed R. Civ. P. 56(c). The moving party is responsible for demonstrating to the Court why there is no genuine issue of material fact, the non-moving party must go beyond the face of the pleadings to demonstrate, through specific evidence, that a genuine issue of material fact exists and to show that a rational jury could return a verdict in the non-moving party's favor. Celotex Corp. v. Catrett, 477 U.S. 317, 322-27 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S., 242, 254-56 (1986).
A disputed fact is material if the fact might affect the outcome of the case. First Ind. Bank v. Baker, 957 F.2d 506, 507-08 (7th Cir. 1992). When reviewing a motion for summary judgment, a court must view all inferences to be drawn from the facts in the light most favorable to the opposing party. Ezell v. Potter, 400 F.3d 1041, 1046 (7th Cir. 2005). "Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether she is ruling on a motion for summary judgment or for a directed verdict." Freeman v. Madison Metro. Sch. Dist., 231 F. 3d 374, 379 (7th Cir. 2000) (quoting Anderson, 477 U.S. at 255). If the evidence is merely colorable or is not significantly probative or is no more than a mere scintilla, summary judgment may be granted. Anderson, 477 U.S. at 249-50. It is not the duty of the court to scour the record in search of evidence to defeat a motion for summary judgment; rather, the non-moving party bears the responsibility of identifying the evidence upon which they rely. See Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996).
It is the responsibility of the Court, with or without a motion to strike, to review statements of material fact and to eliminate from consideration any arguments, conclusions, and assertions that are unsupported by the documented evidence on record yet offered in support of fact statements. See, e.g., Sullivan v. Henry Smid Plumbing & Heating Co., Inc., 2006 WL 980740, at *2 n.2 (N.D.Ill. Apr. 10, 2006); Tibbetts v. RadioShack Corp., 2004 WL 2203418, at *16 (N.D.Ill. Sept. 29, 2004).
Target, as the party seeking summary judgment always bears the initial responsibility of informing the Court of the basis for its motion, identifying those portions of the "pleadings, depositions, answers to interrogatories, and affidavits, if any," which it believes demonstrates the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Only if the motion is supported by a prima facie showing that the moving party is entitled to judgment as a matter of law, does the party opposing the motion have to show that there is a genuine issue for trial. Anderson, 477 U.S. at 248; Celotex, 477 U.S. at 323; Patrick v. Jasper County, 901 F.2d 561, 564-566 (7th Cir.1990).
Rule 56.1 requires that a party moving for summary judgment file and serve on the nonmoving party several documents, including "a statement of material facts as to which the moving party contends there is no genuine issue and that entitles the moving party to a judgment as a matter of law." N.D. Ill. R. 56.1(a)(3). With respect to the alleged hearsay objections, the Court notes that in ruling on a motion for summary judgment, the Court considers only evidence that would be admissible at trial. See Woods v. City of Chicago, 234 F.3d 979, 988 (7th Cir. 2000). Also, the Court may disregard statements and responses that do not properly cite to the record. See Cichon v. Exelon Generation Co., L.L.C., 401 F.3d 803, 809-810 (7th Cir. 2005); Brasic v. ...