The opinion of the court was delivered by: Michael J. Reagan United States District Judge
A. Introduction and Procedural Background
On April 23, 2010, Marjorie Morgan filed a personal injury lawsuit against the United States of America, pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346 et seq. Morgan alleges that, on May 31, 2007, she went to the Highland Post Office on postal business. She submits that, as she was leaving the premises, she stepped in a crack in the landing, or on a small rock in the crack, and fell down the set of six concrete steps which lead to the main entrance of the post office. In her deposition, Morgan stated that, at the time she fell, she was crossing the crack, which is approximately two feet in length and which runs fairly perpendicular to the building, to reach the handrail. She also stated that she was not looking down but was able to feel the crack with her foot when she started to fall. Morgan alleges that as a result of the fall she sustained severe and permanent injuries to her head, face, ears, neck, back, shoulders, arms, hands, legs, feet and body as a whole. She was required to undergo surgery to her right arm, which consisted of plating and pinning from the elbow to the hand. Morgan seeks $400,000.00 in damages for past and future loss of money which would have otherwise accrued to her, pain and suffering, past and future medical bills, disability, disfigurement and the loss of a normal life.
The case is set for final pretrial conference June 11, 2010, and bench trial June 21, 2010 (Docs. 5, 12). A settlement conference was waived by the parties (Doc. 9). The case comes now before the undersigned District Judge on the Government's fully-briefed motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 (Docs. 10, 11). Analysis begins with the standard governing such motions.
B. Applicable Legal Standards
Summary judgment is appropriate where there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Durable Mfg. Co. v. U.S. Department of Labor, 578 F.3d 497, 501 (7th Cir. 2009) (citing FED.R.CIV.P.56(c)). Accord Levy v. Minnesota Life Ins. Co., 517 F.3d 519 (7th Cir. 2008); Breneisen v. Motorola, Inc., 512 F.3d 972 (7th Cir. 2008) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). "The initial burden is on the moving party ... to demonstrate that there is no material question of fact with respect to an essential element of the non-moving party's case." Delta Consulting Group, Inc. v. R. Randle Const., Inc. 554 F.3d 1133, 1137 (7th Cir. 2009) (quoting Cody v. Harris, 409 F.3d 853, 860 (7th Cir. 2005)).
The non-movant cannot defeat the opponent's summary judgment motion by resting on the pleadings. Rather, the non-movant must provide evidence on which the jury or court could find in her favor. See Maclin v. SBC Ameritech, 520 F.3d 781, 786 (7th Cir. 2008); Delta Consulting, 554 F.3d at 1137 (citing Springer v. Durflinger, 518 F.3d 479, 483-84 (7th Cir. 2008) ("existence of merely a scintilla of evidence in support of the non-moving party's position is insufficient")).
In ruling on a summary judgment motion, this Court must view the evidence plus all inferences reasonably drawn from the evidence in the light most favorable to the non-movant. TAS Distributing Co., Inc. v. Cummins Engine Co., Inc., 491 F.3d 625, 630 (7th Cir. 2007); Reynolds v. Jamison, 488 F.3d 756, 764 (7th Cir. 2007).
Actions brought under the FTCA are governed by the substantive law of the state where the alleged act or omission took place. 28 U.S.C. § 1346(b). In this case, Illinois law applies since the alleged negligent act or omission of the United States occurred in Illinois. The United States is a public entity and, consequently, falls under the protection of the Illinois Local Government Tort Immunity Act.Cooks v. United States, 815 F.2d 34, 35 (7th Cir. 1987).
"The essential elements of common law negligence in Illinois are: (1) the existence of a duty running from the defendant to the plaintiff; (2) a breach of that duty; (3) an injury proximately caused by the breach of duty." Herrera v. Target Corp., 2009 WL 3188054, *3 (N.D.Ill. 2009) (citing Pavlik v. Wal-Mart Stores, Inc., 753 N.E.2d 1007, 1010 (2001) (internal quotes omitted). "The factors for a court to consider in examining the existence of a duty include: the reasonable forseeability of injury; the likelihood of injury; the magnitude of the burden to guard against it; and the consequences of placing blame on the defendant." Id. (citing Grillo v. Yeager Constr., 900 N.E.2d 1249, 1267 (Ill.App.Ct. 2008)).
"In determining forseeability Illinois courts are informed by the § 343 of the Restatement (Second) of Torts." Id. at *4 (citing LaFever v. Kemlite Co., 185 Ill.2d 380, 235 Ill.Dec. 886, 706 N.E.2d 441, 447 (Ill.1998). Section 343 provides:
A possessor of land is subject to liability for the 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 themselves against it, and (c) ...