The opinion of the court was delivered by: Byron G. Cudmore United State Magistrate Judge
BYRON G. CUDMORE, U.S. MAGISTRATE JUDGE
This matter is before the Court on Defendant's Motion for Summary Judgment (d/e 23). Defendant Shopko Stores Operating Co. operates a retail store in Jacksonville, Illinois. Count I of Plaintiffs' Complaint alleges that Brenda Beckman was injured when she slipped on a piece of a broken plastic hanger at Defendant's store. See Notice of Removal (d/e 1), Attachment 3, Original Complaint and Summons. In Count II, Plaintiff James Beckman, Brenda's husband, alleges a loss of consortium claim. Defendant moves for summary judgment on both counts of Plaintiffs' Complaint. For the reasons set forth below, Defendant's Motion for Summary Judgment is allowed.
Defendant timely filed the pending Motion for Summary Judgment on July 13, 2010 and served Plaintiffs' counsel with a copy of it through the Court's electronic filing system. See Motion for Summary Judgment, p. 11, Certificate of Service. Defendant's Motion contains a statement of numbered undisputed material facts as required under Local Rule 7.1(D)(1)(b). Plaintiffs failed to respond to Defendant's Motion for Summary Judgment within the time allowed under Local Rule 7.1(D)(2). Under Local Rule, "[a] failure to respond will be deemed an admission of the motion" and "[a] failure to respond to any numbered fact will be deemed an admission of the fact." Local Rule 7.1(D)(2) & (D)(6). Thus, the following facts are deemed admitted. However, the Court notes that each fact is also supported by the undisputed record evidence, as cited below.
Brenda Beckman was deposed on May 13, 2010. Motion for Summary Judgment, Ex. A, Deposition of Brenda Beckman (B. Beckman Dep.). She testified that, on the relevant date at approximately 10:00 a.m., she was walking to get a cart from an open place in Defendant's store, while carrying her purse and a cell phone in her left hand, when her right foot slipped forward and "kind of slung [her] head back . . . ." B. Beckman Dep., p. 17, 23.*fn1 When she slipped, Brenda reached out with her right hand and grabbed hold of the handle of a cart. Id. at 17. Brenda did not fall, but her neck jerked and she heard something pop in her leg. Id. at 17, 21. Brenda determined that she had slipped on a piece of a plastic hanger with a metal clip on it. Id. at 18. Brenda estimated that the piece of the hanger was 2.5 to 3 inches long. Id. Brenda testified that the hanger was clear plastic and the floor at the point where she slipped was a light colored tile. Id. at 19.
After she slipped, Brenda picked up the piece of hanger and walked over to Shopko employees Theresa Howard and Steve.*fn2 B. Beckman Dep., p. 20-21. Brenda held out the hanger and said that she had slipped on it. Howard asked Brenda whether she had fallen. Brenda responded "no, I didn't fall but my leg went forward and I jerked my neck and I heard something pop in my leg." Id. at 21. Howard and Steve took the piece of the hanger and stated that they were glad that Brenda did not fall. According to Brenda, Howard said that "this" had happened "with other employees" and that Howard tried to look around and make sure she kept "them picked up." Id.
Brenda testified that she had no personal knowledge regarding how the hanger came to be on the floor and she did not know how long the piece of hanger had been on the floor. B. Beckman Dep., p. 19-20. Brenda further testified that she had no information that any employee of Shopko was aware that the piece of hanger was on the floor. Id. at 20. According to Brenda, no one witnessed her slip. Id. at 21. Brenda testified that there was no reason why she did not see the piece of hanger prior to slipping on it and, had she been looking down at the floor, she would have been able to see the hanger piece. Id. at 33-34. Brenda agreed that she was not distracted by anything as she entered Defendant's store. Id. at 35.
Brenda Beckman has no information as to how the plastic hanger came to be on the floor. See Text Order, dated June 29, 2010 (deeming admitted facts set out in the Request for Admissions to Plaintiff Brenda Beckman (d/e 20-1)). Brenda Beckman has no information as to when the plastic hanger came to be on the floor. Id.
The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332. Plaintiffs are citizens of Illinois. Defendant is a limited liability corporation organized under the laws of Delaware, with a principal place of business in Wisconsin. None of Defendant's members are citizens of Illinois. Affidavit (d/e 6), ¶ 5. The amount in controversy exceeds $75,000.00. Notice of Removal, p. 2.*fn3
Summary judgment is appropriate when "the pleadings, the discovery and disclosure 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). A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party has the initial burden of demonstrating the absence of a genuine issue of material fact and that judgment as a matter of law is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). When a properly supported motion for summary judgment has been made, the party opposing summary judgment may not merely rest on the pleadings but must "set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e). "A party must present more than mere speculation or conjecture to defeat a summary judgment motion." Liu v. T & H Machine, Inc., 191 F.3d 790, 796 (7th Cir. 1999). The Court must consider the evidence in the light most favorable to the non-moving party, here the Beckmans, and draw all reasonable inferences in their favor. See Anderson, 477 U.S. at 255. The Court addresses each claim under this standard.
In Count I, Brenda Beckman seeks to recover for her injuries. From the allegations of Count I, it is unclear whether Brenda is proceeding under a premises liability or a negligence theory. As set forth below, ...