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Carole Ashtari v. Gfs Marketplace

August 2, 2011

CAROLE ASHTARI, PLAINTIFF,
v.
GFS MARKETPLACE, LLC,
GFS MARKETPLACE NORTH AMERICA, LLC, GFS MARKETPLACE REALTY ONE, LLC, GFS MARKETPLACE REALTY TWO, LLC, GFS MARKETPLACE REALTY THREE, LLC, GORDON FOOD SERVICE, INC., AND GORDON FOOD SERVICE, LLC, DEFENDANTS.



The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

On November 19, 2007, Plaintiff Carole Ashtari slipped and fell upon entering the GFS Marketplace Store located at 4101 Healthway Drive in Aurora, Illinois. Defendant GFS Marketplace, LLC, owned and operated the store, and Defendant GFS Marketplace Realty One, LLC, owned the building and land. It was raining on the afternoon in question, and Plaintiff alleges that Defendants were negligent in failing to remove a puddle of water that had formed on the vestibule floor of the store. On November 4, 2009, Plaintiff filed a negligence action in the Circuit Court of Cook County. Defendants removed this case to federal court pursuant to 28 U.S.C. §§ 1332 and 1441 and now seek summary judgment, citing a well-settled principle of Illinois law that no liability arises from natural accumulations of water tracked onto a business owner's premises. Plaintiff contends that even if the water was the result of a natural accumulation, Defendants remain liable because the tile in the vestibule was excessively slippery. Plaintiff retained Lloyd Sonenthal to render an expert opinion as to the condition of the vestibule tile at the time of her fall, and Defendants have moved to strike Plaintiff's expert report. For the following reasons, Defendants' motions are granted.

FACTUAL BACKGROUND

Plaintiff Carole Ashtari is a 62 year-old woman and a resident of Naperville, Illinois. (Am. Compl. ¶ 1.) Defendant Gordon Food Service, Inc. is a Michigan corporation with its principal place of business in Grand Rapids, Michigan. (Defs.' 56.1 ¶ 3.) Defendants GFS Marketplace, LLC, GFS Marketplace North America, LLC, GFS Marketplace Realty One, LLC, GFS Marketplace Realty Two, LLC, GFS Marketplace Realty Three, LLC, and Gordon Food Service, LLC, are limited liability corporations organized under the laws of Delaware, with their principal places of business also in Grand Rapids, Michigan. The GFS Aurora Marketplace Store is a retail store operated by GFS Marketplace, LLC.*fn1 (Id. ¶ 5.)

Ashtari entered the GFS Marketplace store sometime between 2:00 and 3:00 p.m. on November 19, 2007. (Ashtari Dep. 16, Ex. D to Def.'s 56.1.) The temperature was unusually warm and mild for November, but it was raining that afternoon. (Id. 16-17) At the entrance to the store, there were two sets of automatic sliding glass doors separated by a tile-floored vestibule. (Graf Dep. 12, Ex F to Def.'s 56.1.) At the time Ashtari entered the store, a mat lay flat on the vestibule floor about one foot from the entryway. (Brown Dep. 28, Ex. G to Defs.' 56.1.) As Plaintiff stepped into the vestibule, she slipped and fell hard onto the tile floor, breaking her left arm. (Ashtari Dep. 27, 29.) She does not recall noticing a puddle of water in the vestibule before her fall, but does remember seeing a fan in the vestibule once she was on the ground. (Ashtari Dep. 75; 86-87.)

At the time Plaintiff fell, Ronald Dean Brown, a GFS store employee, was gathering carts in the parking lot. (Ashtari Dep. 21; Brown Dep.14.) When he saw Plaintiff slide and fall, Brown left the carts and went to Plaintiff's assistance. (Brown Dep. 14, 33.) By the time he reached Ashtari, she was lying in the vestibule and was unable to move her left arm. (Id. 17.) Brown observed that the mat on the floor was also pushed away, with the edge rolled up to the point where Plaintiff had slid into it. (Id. 28-29.) Brown summoned another employee to call the store manager to the scene (id. 17), and Store Manager Melinda Graf directed an associate to call an ambulance. (Graf Dep. 43.) The ambulance transported Plaintiff from the Aurora store to Rush Copley Hospital, where she underwent surgery on her arm. (Ashtari Dep. 36, 39-40.)

According to Defendants, customers often track water onto the store floor when it rains or snows during the wintertime, and the GFS store typically uses an electric floor blower to dry any water in the vestibule area. (Defs.' 56.1 ¶ 10; White Dep. 7-17, Ex. E to Defs.' 56.1; Graf Dep. 22-25.) On the day of Plaintiff's accident, Graf and Brown both noticed that the floor in the vestibule was "slightly wet" from the rain (id. at 15), but they could not recall with certainty whether they knew the floor was wet before the incident, or only when they came to Plaintiff's assistance. (Graf Dep. 48; Brown Dep. 19.) Defendants do acknowledge, however, that carpeted mats were placed in the vestibule area at some point on the day of Plaintiff's accident, and a floor blower was set up to dry the mats as they became wet. (Defs.' Answers to Interrogs. 27, Ex. B to Defs.' 56.1.) After Plaintiff's accident, store employees set up a sign warning customers about the wet floor. (Graf Dep. 45, Brown Dep. 19.)

On November 4, 2009, Plaintiff filed a negligence action in the Circuit Court of Cook County, and Defendants removed the case to federal court based on diversity jurisdiction. Plaintiff's amended complaint alleges that Defendants (1) installed flooring in the vestibule area of the store that became dangerous and slippery when wet; (2) operated a fan in the vestibule area that caused water to accumulate unnaturally on the day of the accident; (3) failed to remove the accumulation of water that formed, despite knowing of the danger it posed to customers; and (4) failed to warn customers that the store's flooring became slippery when wet.*fn2 (Am. Compl. ¶ 9.) On October 7, 2010, Defendants moved for summary judgment, arguing that Plaintiff presented no evidence that Defendants had caused or aggravated the natural accumulation of water on the vestibule floor. According to Defendants, the vestibule floor was made of unglazed quarry tile and is not excessively slippery when wet. (Defs.' Answers to Interrogs. 22; Graf Dep. 69; White Dep. 23, Ex. E to Defs.' 56.1.)

In response to Defendants' motion, Plaintiff offered the opinion of Lloyd Sonenthal, a registered professional engineer, to address the composition of the vestibule tile. Sonenthal inspected the Defendants' store floor on October 27, 2010 and reviewed a number of photographs of the vestibule. (Letter from Sonenthal to Zavodnyik of 11/2/10 (hereinafter, "Sonenthal Initial Report"), at 1-2, Ex. B to Pl.'s Mem in Opp. to Def.'s Mot. to Strike.) Sonenthal observed a broken tile in the vestibule "reminiscent of the flaking of flint rock or flaking of strong, thick glass," but noted that the floor was otherwise "without blemish," "smooth" and "stone-like." (Id. at 4.) Sonenthal also measured the "dry coefficient of friction" on four vestibule tiles, which he defined as the "ratio of the horizontal force necessary to pull something along a surface, divided by the weight of the 'something' being pulled." (Letter from Sonenthal to Zavodnyik of 1/14/11 (hereinafter, "Sonenthal Supp. Report"), at 4, Ex. D to Pl.'s Mem. in Opp. to Def.'s Mot. to Strike.) In order to measure the dry coefficient of friction, Sonenthal used a "push-pull gauge and sabot," a method Sonenthal claims is similar to the method set forth in the American Society for Testing and Materials (ASTM) C-1028-26, Standard Test for Determining the Static Coefficient of Friction of Ceramic Tile and Other Like Surfaces by the Horizontal Dynamometer Pull-Meter Method (1996)."*fn3 (Sonenthal Initial Report at 4; Sonenthal Supp. Report at 3.) According to Sonenthal, unglazed quarry tile often has a rough surface with a 0.6 dry coefficient of friction, whereas the tiles he tested in the vestibule of the GFS Marketplace Store were smooth and had a dry coefficient of friction between 0.3 and 0.45, presumably indicating that the surface was more slippery. (Sonenthal Initial Report at 3-4.) After observing and testing the tiles, Sonenthal reviewed various articles on the best practices for treating slippery floors and reviewed the technical literature on the Internet regarding unglazed quarry tile.*fn4

(Id. at 2.) Sonenthal concluded that the vestibule tile is a "more likely [that of] a commercial grade porcelain" rather than unglazed quarry tile, did not appear to be "slip resistant" and will be "unsafe and slippery when wet." (Id. at 4-5; 8.)

In a supplemental report, which purports to clarify the findings in Sonenthal's first letter, Sonenthal explained that he never planned to measure the dry coefficient of friction and did not measure it with precision, but rather used the push-pull gauge to make "rough measurements" and merely to add "one more piece of data to . . . the growing body of data suggesting that [the tile] was not unglazed quarry tile." (Sonenthal Supp. Report at 3, 5.) Sonenthal's supplemental report states, further, that once he believed the tile to be porcelain, "the technical literature told [him] it was slippery when wet." (Id. at 3.)

According to Plaintiff, Sonenthal's report shows that her fall was caused by Defendants' use of "substandard tile" for the vestibule floor that became slippery when wet. (Pl.'s Mem. in Opp. to

Def.'s Mot. to Strike. at 2.) Plaintiff argues that her fall was also caused by Defendants' negligent placement of the mat near the vestibule entryway. (Id. at 2.) Defendants have moved to strike Sonenthal's report on the grounds that it fails to satisfy the standards set forth in Daubert v. Merrell Dow Pharm., 509 U.S. 579, 589 (1993). Defendants argue that Sonenthal's opinions are not reliable because there is no ...


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