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Gentry v. Shop 'N Save Warehouse Foods

April 7, 2010


The opinion of the court was delivered by: Richard Mills, U.S. District Judge


For the following reasons, Defendant's Motion for Summary Judgment [d/e 29] is granted.


On the afternoon of December 18, 2008, Plaintiffs Alice and William Gentry entered a Shop 'n Save grocery store in Springfield, Illinois. Mrs. Gentry, who is 84 years old, was not watching where she was stepping. Mrs. Gentry encountered a black floor mat and fell after her right toe caught on the mat.

Jim and Shirley McDonough witnessed Mrs. Gentry's fall. As Mrs. Gentry lay on the ground, several people came to her assistance including Annet Godiksen and the McDonoughs. Neither the McDonoughs nor Ms. Godiksen noticed a buckle or wrinkle in the floor mat before Mrs. Gentry fell, although Mr. McDonough and Ms. Godiksen noticed one after the fall. Neither Mrs. Gentry nor Mrs. McDonough noticed a wrinkle in the floor mat at any point.

Ms. Godiksen noticed after Mrs. Gentry's fall that the mat was crumpled or buckled and was about one to two inches off of the ground in the place where Mrs. Gentry fell.

The assistant store manager, Shirley Hamilton, spoke with Mrs. Gentry immediately after the fall. Ms. Hamilton also spoke with Mr. McDonough and Ms. Godiksen, and prepared a Confidential Customer Incident Report.

The Plaintiffs filed suit in the Circuit Court of Sangamon County, Illinois, and the case was subsequently removed to this Court. Mrs. Gentry brings a negligence claim against the Defendant, while Mr. Gentry brings a loss of consortium claim.


"Summary judgment is appropriate when the evidence submitted, viewed in the light most favorable to the non-moving party, shows 'no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Smith v. Hope School , 560 F.3d 694, 699 (7th Cir. 2009) (quoting Fed. R. Civ. P. 56(c) and citing Celotex Corp. v. Catrett , 477 U.S. 317, 322-23 (1986)).

In order to survive summary judgment, there must be sufficient evidence that a reasonable jury could find for the nonmoving party. Trade Finance Partners, LLC v. AAR Corp. , 573 F.3d 401, 406-407 (7th Cir. 2009) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 252 (1986)).

"A motion for summary judgment requires the responding party to come forward with the evidence that it has - it is the 'put up or shut up' moment in a lawsuit." Eberts v. Goderstad , 569 F.3d 757, 767 (7th Cir. 2009) (internal quotation marks and citations omitted). Although inferences are drawn in favor of the nonmoving party, inferences relying on speculation or conjecture are insufficient. Stephens v. Erickson , 569 F.3d 779, 786 (7th Cir. 2009).


A. Erie Doctrine

The Court has jurisdiction over this case because of diversity of citizenship; the Plaintiffs are citizens of Illinois and the Defendant is a Missouri corporation. See 28 U.S.C. § 1332. "Under the Erie doctrine, federal courts sitting in diversity apply state substantive law and federal procedural law." Gasperini v. Center for Humanities, Inc. , 518 U.S. 415, 427 (1996); see also Erie R.R. Co. v. Tompkins , 304 U.S. 64, 78 (1938). Therefore, we will apply the substantive law of Illinois and federal procedural law.

B. Confusion Regarding Claim

There is a decided lack of clarity regarding the Plaintiffs' claim. Initially, it appeared to be a premises liability claim, but the Plaintiffs now argue it is based upon a negligence theory, not premises liability.

The Plaintiffs initially made the following assertions in their Amended Complaint:

Defendant negligently violated its duty to Plaintiff at said time and place in that Defendant carelessly and negligently failed to maintain its premises in one or more of the following ways:

a. allowed the floor mat to be flipped and crumpled up in an area of the store where the Defendant knew or should have known that it would pose a danger to its customers; and/or

b. failed to smooth out the floor mat or otherwise maintain the entryway in an area of the store where it knew or should have known that defects on a heavily traveled walkway would endanger distracted customers; and/or

c. failed to properly and adequately monitor and oversee the grocery store and the floors therein so as to protect its customers from trip hazards at times and places where it should have known its customers would be unable to protect themselves.

Defendant knew or should have known that the floor mat had been crumpled and flipped up, and that the floor mat was thereby ...

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