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Burl Vogel v. Casey's Retail Company

August 19, 2012

BURL VOGEL, PLAINTIFF,
v.
CASEY'S RETAIL COMPANY, DEFENDANT.



The opinion of the court was delivered by: Michael J. Reagan United States District Judge

MEMORANDUM AND ORDER REAGAN, District Judge:

A. Introduction and Procedural Overview

In June 2011, Burl Vogel filed a personal injury suit against Casey's General Stores, Inc. (CGS) in the Circuit Court of Bond County, Illinois. CGS timely removed the case to this Court on July 27, 2011, where subject matter jurisdiction lies under the federal diversity statute, 28 U.S.C. 1332. The case was randomly assigned to the undersigned District Judge. CGS immediately moved to dismiss the complaint for failure to state a claim, explaining that it (CGS) did not own or operate the convenience store in which Vogel allegedly sustained his injuries. The owner of the store was Casey's Retail Company -- a separate Iowa corporation.

Vogel amended his complaint on October 17, 2011 substituting Casey's Retail Company ("Casey's") for CGS. The amended complaint (which rendered the dismissal motion moot) alleges that Vogel sustained injuries to his head, neck, right shoulder, right arm, and lower extremities when he fell at Casey's convenience store in Greenville, Illinois on July 20, 2010 -- a fall Vogel alleges was due to Casey's negligence in maintaining the store (specifically, failing to keep the floor free of foreign substances).

Casey's answered the amended complaint, and a Scheduling Order was entered, which culminates in a September 14, 2012 final pretrial conference and September 24, 2012 jury trial. Now before the Court is Casey's summary judgment motion and supporting memorandum. The motion ripened ripe with the filing of a reply brief on July 19, 2012. The issue before the Court is straightforward, and the decision on summary judgment presents a close call. But for the reasons stated below, the Court denies the motion. Analysis begins with reference to the standard governing summary judgment motions filed in federal district court.

B. Applicable Legal Standards

Federal Rule of Civil Procedure 56 governs motions for summary judgment. Summary judgment should be granted if the record "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 assessing a summary judgment motion, the district court must construe all facts in the light most favorable to, and draw all legitimate inferences in favor of, the non-movant. Righi v. SMC Corp., 632 F.3d 404, 408 (7th Cir. 2011); Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir. 2011); Spivey v. Adaptive Marketing, LLC, 622 F.3d 816, 822 (7th Cir. 2010); Reget v. City of La Crosse, 595 F.3d 691, 695 (7th Cir. 2010).

But once the movant challenges the factual support and legal soundness of the plaintiff's claim, the plaintiff acquires the burden of demonstrating that a genuine fact issue remains for trial. Marcatante, 657 F.3d at 440, citing Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 787 (7th Cir. 2007). See also Reget, 595 F.3d at 695.

A genuine issue of material fact remains "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Serednyj v. Beverly Healthcare, LLC, 656 F.3d 540, 547, citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In other words, to survive summary judgment, the plaintiff must produce admissible evidence on which a jury could find in his favor. Maclin v. SBC Ameritech, 520 F.3d 781, 786 (7th Cir. 2008).

C. Analysis

Burl Vogel's personal injury claim is rooted in Illinois negligence law.*fn1 To establish a claim for negligence under Illinois law, a plaintiff must prove the existence of a duty of care (from defendant to plaintiff), a breach of that duty, and an injury proximately caused by the breach. Swearingen v. Momentive Specialty Chemicals, Inc., 662 F.3d 969, 972 (7th Cir. 2011), citing Thompson v. Gordon, 948 N.E.2d 39, 45 (Ill. 2011). Whether a duty is owed presents a question of law; breach and proximate cause present questions of fact. Id.

In the instant case, there is no dispute that Burl Vogel was a business invitee at the convenience store, and Casey's owed him a duty of reasonable care. See, e.g., Swearingen, 662 F.3d at 972, quoting Marshall v. Burger King Corp., 856 N.E.2d 1048, 1063 (Ill. 2006)(As a general rule in Illinois, a landowner owes a business invitee "the duty of exercising ordinary and reasonable care to see that the premises are reasonably safe for use.").

Although the parties presumably disagree as to the nature and extent of the injuries sustained by Vogel, the record leaves no room for dispute that he fell at Casey's. A Casey's cashier who was on duty at the time, Karen Stengel, witnessed the fall and helped Vogel get up off the floor. While doing so, Stengel saw a coffee stirrer, roughly four to five inches long, and a plastic wrapper on the floor. She testified that Vogel was approaching the counter to pay, he was walking right up to her, ...


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