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Breheny v. Fox's On Wolf

April 7, 2011

BREHENY
v.
FOX'S ON WOLF



Name of Assigned Judge Sitting Judge if Other or Magistrate Judge Blanche M. Manning than Assigned Judge

CASE TITLE

DOCKET ENTRY TEXT:

The motion for summary judgment filed by defendant Fox's on Wolf [#44] is granted. The clerk is directed to enter a Rule 58 judgment and terminate this case from the court's docket.

# [ For further details see text below.]

STATEMENT

Background

The facts in this diversity case are straightforward. On the evening of February 9, 2008, plaintiff Bridget Breheny braved the snow to dine with friends at Fox's on Wolf, a casual restaurant in Mokena, Illinois. On her way out, she slipped and fell on an "unknown and invisible substance" (Complaint at ¶ 5), which she later described as "something" (Breheny Dep. at 31). The area where Ms. Breheny fell had a tiled floor, no mat, and no handrails, and was a heavily trafficked location leading to the kitchen and dining room. A bus person who was also required to clear tables and maintain the restrooms was responsible for cleaning the floor, so Fox's staff did not continuously man the floor.

Ms. Breheny testified that she did not see anything on the floor before she fell or during the five to ten minutes she remained on the floor waiting for paramedics to arrive. Her dining companions, who were with her when she fell, did not identify the reason for the fall, and Ms. Breheny could not recall after the fall whether her clothing became wet due to the fall. The supervisor working at Fox's on the evening of the fall rushed over after being told a customer had fallen and saw Ms. Breheny lying on the floor waiting for help, but did not see any substance or spill on the floor. The fall caused Ms. Breheny to tear her rotator cuff, which led to surgery and extensive rehabilitation.

Standard for A Motion For Summary Judgment

Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Valenti v. Qualex, Inc., 970 F.2d 363, 365 (7th Cir. 1992). A court should grant a motion for summary judgment only when the record shows that a reasonable jury could not find for the nonmoving party. Id.

Discussion

Ms. Breheny's fall occurred in Illinois, and the parties have both cited Illinois law. Accordingly, the court will apply Illinois law. The parties agree that no witness identified a specific substance on the floor or otherwise pointed to anything about the floor that caused the fall. From there, their positions diverge. Fox's stresses that to survive summary judgment, Ms. Breheny must "prove that some condition caused the fall and that this condition was caused by the defendant." Kimbrough v. Jewel Companies, Inc., 416 N.E.2d 328, 332

(Ill. App. Ct. 1981). Because she has not pointed to any evidence explaining why she fell, Fox's concludes that it is entitled to summary judgment.

On the other hand, Ms. Breheny contends that a reasonable jury could conclude that Fox's was negligent because no one was assigned to continuously maintain the hallway, there was no handrail, and "[o]rdinary experience tells us that a heavily trafficked hallway covered with tile will be ...


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