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Barbara Galbreath v. Wal-Mart Stores

April 25, 2011

BARBARA GALBREATH, PLAINTIFF,
v.
WAL-MART STORES, INC., DOING BUSINESS AS WAL-MART, DEFENDANT.



The opinion of the court was delivered by: David G. Bernthal U.S. Magistrate Judge

E-FILED

Monday, 25 April, 2011 04:21:14 PM

Clerk, U.S. District Court, ILCD

ORDER

In October 2009, Plaintiff Barbara Galbreath filed a complaint (#1) in Coles County against Defendant Wal-Mart Stores, Inc., seeking compensation for personal injuries and pain and suffering resulting from her fall in a Wal-Mart store. Defendant removed the case to the United States District Court for the Central District of Illinois, pursuant to 28 U.S.C. § 1446. Federal jurisdiction is based on diversity pursuant to 28 U.S.C. §1332. The parties have consented to the exercise of jurisdiction by a United States Magistrate Judge. Both parties agree that this Court, as a federal court sitting in diversity, should apply Illinois substantive law. Camp v. TNT Logistics Corp., 553 F.3d 502, 505 (7th Cir. 2009).

In October 2010, Defendant filed Defendant Wal-Mart Stores, Inc.'s Motion for Summary Judgment (#9). Plaintiff filed Plaintiff's Response to Defendant Wal-Mart Stores, Inc.'s Motion for Summary Judgment (#12), and Defendant filed Defendant Wal-Mart Stores, Inc.'s Motion to Strike Plaintiff's Response to Defendant's Motion for Summary Judgment, or, In the Alternative, Defendant's Reply (#13). After reviewing the parties' pleadings, memoranda, and evidence, this Court GRANTS Defendant Wal-Mart Stores, Inc.'s Motion for Summary Judgment (#9).

I. Factual Background

The following discussion summarizes Plaintiff's allegations and the evidence presented by both parties in the light most favorable to Plaintiff. Defendant, Wal-Mart Stores, Inc., (hereinafter "Wal-Mart"), a Delaware corporation, owns and operates a store in Charleston, Coles County, Illinois. (#1-4, p. 1, ¶ 2.) Plaintiff, Barbara Galbreath, alleges at the time she visited Wal-Mart, on the evening of March 8, 2008, there was a deposit on the floor of a yellow, fatty, oily substance, which appeared to be butter, oleo, margarine, or butter flavored Crisco. (#1-4, p. 1, ¶ 3, 5.) Plaintiff slipped and fell on the substance on the floor of the store. (Pl. Dep. #10-1, p. 4.) At her deposition, she testified that she entered the store alone, retrieved a shopping cart and began walking down the aisle near the cash registers. (Pl. Dep. #10-1, p. 2-3.) Plaintiff testified that she was not in the store more than five minutes before the fall and she did not see anything on the floor prior to slipping. (Pl. Dep. #10-1, p. 3-4.) The first person Plaintiff spoke with after her fall was "the person at the ten or less checkout"; she explained to that person that there was butter on the floor and she did not want anyone else to fall. (Pl. Dep. #10-1, p. 6.)

Plaintiff claims that as a result of her fall, she was severely injured and sought the care and treatment of physicians and surgeons, and lost time from her normal pursuits, was disabled and disfigured. (#1-4, p. 2, ¶ 11.) She admitted, during her deposition, that she had no knowledge regarding where the margarine came from, how long it had been on the store's floor prior to the fall, or whether any Wal-Mart employee was aware of its alleged presence on the floor. (Pl. Dep. #10-1, p. 6.) She testified that she did not know of anyone who saw her slip. (Pl. Dep. #10-1, p. 6.) She did not disclose any other witnesses. Associate Joshua Fulk, who was working at the cash register nearest to the alleged substance, testified that he had no knowledge of any Wal-Mart employees that knew there was any butter on the ground prior to the fall. ( #10-2, p. 2-3.)

II. Legal Standard

The Court will grant summary judgment "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). In ruling on a motion for summary judgment, the Court must decide, based on admissible evidence, whether any material factual dispute exists that requires trial. Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party . . . . If the evidence is merely colorable . . . or is not significantly probative, . . . summary judgment may be granted." Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986)(citations omitted). The party seeking summary judgment bears the initial burden of showing that no such issue of material fact exists. Celotex Corp., v. Catrett, 477 U.S. 317, 323 (1986).

The Court must draw all inferences in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, the nonmoving party may not rest upon mere allegations in the pleadings or upon conclusory statements in the affidavits; rather, he must go beyond the pleadings and support his contentions with proper documentary evidence. Celotex, 477 U.S. at 322-23. Because the purpose of summary judgment is to isolate and dispose of factually unsupported claims, the nonmoving party must respond to the motion with evidence setting forth specific facts showing that there is a genuine issue for trial. See FED. R. CIV. P. 56(a); Albiero v. City of Kankakee, 246 F.3d 927, 932 (7th Cir. 2001). To successfully oppose a motion for summary judgment, the nonmoving party must do more than raise a "metaphysical doubt" as to the material facts, and instead must present definite, competent evidence to rebut the motion. Wolf v. Nw. Ind. Symphony Soc'y, 205 F.3d 1136, 1141 (7th Cir. 2001); Albiero, 246 F.3d at 932.

The Seventh Circuit has often stated that summary judgment is "not a dress rehearsal or practice run; it is the put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of the events." Hammel v. Eau Calle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005). Plaintiff's speculations and conclusions are not enough to survive a motion for summary judgment. Weeks v. Samsung Heavy Inds., 126 F.3d 926, 934 (7th Cir. 1997). If, after discovery has closed, plaintiff has failed to establish an ...


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