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Teri Shimkus v. Target Corporation

February 24, 2012

TERI SHIMKUS, PLAINTIFF,
v.
TARGET CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

Plaintiff Teri Shimkus alleges that Defendant Target Corporation (hereinafter, "Target" or "Defendant") is liable for injuries that she sustained when she slipped on a liquid on the floor of the pet aisle in the Tinley Park, Illinois Target store. This Court has jurisdiction over Plaintiff's state-law premises liability claim because the parties are of diverse citizenship and appear to agree in good faith that the amount in controversy exceeds $75,000. 28 U.S.C. § 1332. For the reasons stated herein, Target's motion for summary judgment is granted.

I. BACKGROUND

Most of the facts in this case are undisputed. On September 27, 2008, Plaintiff Teri Shimkus visited the Target store in Tinley Park, Illinois (7300 W. 191st St., Tinley Park, Illinois). She walked straight to the pet department, looking for a dog collar to exchange for one she already had and potentially a dog Halloween costume. In pet aisle E-37, she slipped on an unidentified liquid on the floor, which may have been glass cleaner. She did not fall to the ground, but slipped such that her left foot went sole-up behind her and her right shin struck her cart in front of her. The liquid was either light blue or clear, but neither party makes much of the color at this stage.

Target Team Member Trevor Miroslaw ("Miroslaw") testified at deposition that he walked by aisle E-37 on his way to the rear of the store, and noticed no spills or misplaced items as he walked. (As described below, Plaintiff endeavors to dispute this fact.) Miroslaw testified that when he emerged from the rear of the store five to 10 minutes after walking by, Plaintiff hailed him for assistance, having already slipped. He testified that he was able to easily see the spill on his return trip. Miroslaw radioed for assistance, and two supervisors (including Silas Fulcher ("Fulcher")) took over.

The leadership structure in a Target store is convoluted. However, several supervisors evidently shared responsibility on the date in question for ensuring that the Pet Department was clean, well-stocked, and free of hazards. Each current and former Target employee testified that Target policy mandates that every employee moving about on the floor must look for ways to: 1) help customers, 2) re-stock and fix displays, and 3) identify and remedy hazards, including spills. Because the Pet Department is at the rear of the store where employees must go to obtain re-stock items, employees walk by aisle E-37 at least every 10 to 15 minutes, checking for hazards as they go. There is no employee whose sole responsibility is to patrol for spills.

II. LEGAL STANDARD

Summary judgment is appropriate if the movant "shows that there is no genuine dispute as to any material fact and [that it] is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a).

A dispute is "genuine" if the evidence would permit a verdict for the non-movant, and material if it may affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the movant meets its burden, the non-movant must present facts showing a genuine dispute to avoid summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 323--24 (1986).

Courts do not evaluate credibility or decide facts on summary judgment, and construe all facts in favor of the non-movant. Liberty Lobby, 477 U.S. at 249; Ricci v. DeStefano, 129 S.Ct. 2658, 2677 (2009). Courts may draw inferences from the evidence, but need not draw every conceivable inference. McDonald v. Vill. of Winnetka, 371 F.3d 992, 1001 (7th Cir. 2004). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Ricci, 129 S. Ct. at 2677 (citation omitted).

Illinois business owners owe their customers a duty to exercise reasonable care in maintaining their premises in a reasonably safe condition, but are not the ultimate insurers of customers' safety. Perminas v. Montgomery Ward & Co., 328 N.E.2d 290, 293-94 (Ill. 1975). Proprietors are liable if an invitee is injured by slipping on a foreign substance: a) placed there through the proprietor or his agent's negligence, or b) if there is no evidence as to how the substance appeared, if the proprietor or agent had actual or constructive knowledge of the hazard. Donoho v. O'Connell's, Inc., 148 N.E.2d 434, 437 (Ill. 1958).

A lesser-used formulation of Illinois' constructive notice standard makes proprietors liable if the hazard was part of a pattern of recurring incidents or practices. Compare, e.g., Tomczak v. Planetsphere, Inc., 735 N.E.2d 662, 667 (Ill. App. Ct. 2000) and Nicholson v. St. Anne Lanes, Inc., 483 N.E.2d 291, 294-95 (Ill. App. Ct. 1985). Courts have variously described where this pattern-or-practice theory fits into Illinois tort liability. See, e.g., Nicholson 735 N.E.2d at 667 (treating it as a species of constructive notice); Perminas v. Montgomery Ward & Co., 306 N.E.2d 750 (Ill. App. Ct. 1973) (noting that in recurring incident cases plaintiff need prove neither actual nor constructive notice), rev'd on other grounds, 328 N.E.2d 290 (Ill. 1975). However, the Seventh Circuit has treated recurring incident cases as a species of constructive notice, see Culli v. Marathon Petroleum Co., 862 F.2d 119, 123 (7th Cir. 1988), and this Court follows accordingly.

III. DISCUSSION

Defendant moves for summary judgment solely on the ground that there is no evidence that any Target employee placed the liquid on the floor, and that Target had no notice (actual or constructive) of the liquid's presence before the incident. Plaintiff concedes that there is no evidence that any Target employee caused the spill or actually knew about it before Plaintiff slipped. Pl.'s Resp. to Def.'s Rule ...


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