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Cole v. Kroger Co.

March 9, 2010

DORIS COLE, PLAINTIFF,
v.
THE KROGER CO., AND BROMONT PROPERTY MANAGEMENT, LLC, DEFENDANTS, AND THE KROGER CO., THIRD PARTY PLAINTIFF,
v.
BROMONT DEVELOPMENTS, LLC; BROMONT DEVELOPMENT GROUP, LLC; BROMONT INVESTMENTS, INC.; BP CARBONDALE, LLC; AND THE PHILLIP M. KIMMEL TRUST, THIRD PARTY DEFENDANTS.



The opinion of the court was delivered by: Frazier, Magistrate Judge

MEMORANDUM AND OPINION

Before the Court is Third Party Defendant The Philip M. Kimmel Trust's ("The Kimmel Trust") Motion for Summary Judgment (Doc. 95) as to Counts I and II of Third Party Plaintiff The Kroger Company's ("Kroger") Amended Third Party Complaint (Doc. 93). The Motion for Summary Judgment is opposed (Doc. 99), and The Kimmel Trust has filed a Reply to Kroger's Response (Doc. 100). For the reasons set forth below, the Court GRANTS IN PART AND DENIES IN PART The Kimmel Trust's Motion for Summary Judgment

FACTS

This action arises out of a June 3, 2006 incident in Carbondale, Illinois when Doris Cole allegedly exited a Kroger Grocery Store located in the West Park Plaza strip mall carrying bags of groceries, and subsequently stepped on a slick, sloping, uneven area, and fell. She claims that the area was painted with a yellow "slippery paint." Plaintiff's Complaint ¶ 11(h). This area was painted in September, 2005, approximately 9 months prior to the alleged incident. Cole alleges, generally, that Kroger and Bromont Property Management, LLC ("Bromont") owned, operated and controlled or had a duty to own, operate and control the property where the accident occurred. She further alleges that Kroger's and Bromont's breach of duty proximately caused her to sustain injuries.

Kroger, in its Amended Third Party Complaint alleges that while it continues to deny liability for the alleged accident, if Kroger is found liable to Cole for the accident, Kroger is nonetheless entitled to contractual indemnification by The Kimmel Trust, among others, for any damages Cole is awarded (Count I). Further, Kroger alleges that it is entitled to contribution from The Kimmel Trust, among others, under a common law theory of premises liability (Count II).

The two counts in Kroger's Amended Third Party Complaint arise out of a July 16, 1979 lease agreement whereby The Kimmel Trust leased over 11 acres of unimproved land to the Carbondale Plaza Development Company on which it was given the right to operate a shopping center for a term of 35 years. In 1982, the Carbondale Plaza Development Company assigned the remainder of its 35 year lease to K & E Development Co ("K & E"). In 1983 K & E developed the West Park Plaza property by constructing a strip shopping center and a parking lot for use by K & E's tenants. In April, 1983, Kroger entered into a sublease with K & E. In December, 1984, K & E's lease with The Kimmel Trust was amended with a provision granting K & E the right to assign to third parties its interest in the shopping center. Since February, 2006, BP Carbondale, LLC has been the assignee of the portion of the West Park Plaza property where Cole claims to have been injured.

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate where "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." 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); Spath, 211 F.3d at 396. In order to defeat summary judgment, the nonmoving party must do more than raise a metaphysical doubt as to the material facts. Instead, he "must come forward with specific facts showing that there is a genuine issue for trial." Keri v. Board of Trustees of Purdue Univ., 458 F.3d 620, 628 (7th Cir.2006), cert. denied, 549 U.S. 1210, 127 (2007), citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

ANALYSIS

I.Indemnification Claim

Kroger does not object to The Kimmel Trust's Motion for Summary Judgment on Count I of the Third Party Complaint. Therefore, Count I of Kroger's Amended Complaint will be dismissed with respect to The Kimmel Trust.

II.Contribution Claim

The Kimmel Trust seeks summary judgment in its favor on Count II of Kroger's Amended Complaint based on the argument that it did not have any control over the property at the time of the incident.

Under traditional common law, where "a landlord retains control of a portion of the premises leased to the tenant it has the duty, as the party in control, to use ordinary care in maintaining that part of the premises in a reasonably safe condition. Conversely, a landlord is not liable for injuries caused by a defective condition on the premises leased to a tenant and under the tenant's control." Vesey v. Chicago Housing ...


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