The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge
This matter is before the court on Defendant Target Corporation's (Target) motion for summary judgment. For the reasons stated below, the motion for summary judgment is granted.
Plaintiff Patricia Daleus (Daleus) alleges that on August 11, 2008, she was walking down an aisle at a Target store in Calumet City, Illinois (Store) when she slipped and fell due to "an unnatural accumulation of liquid" on the floor in the aisle.
(A. Compl. Par. 16). Daleus contends that Target, by and through its agents or employees, knew or should have known of the liquid and the hazardous condition it created for customers. According to Daleus, Target was negligent in failing to properly manage, maintain, and operate the Store by allowing the liquid to remain in the aisle. Target was also allegedly negligent in failing to warn of the liquid and in failing to barricade the area where the liquid was located. As a result of Target's alleged negligence, Daleus allegedly sustained physical injuries.
In addition, Target allegedly had a Store surveillance camera that took video of the area where Daleus slipped and fell. Daleus allegedly reported the incident to a manager of the Store (Store Manager) immediately after it occurred. The Store Manager allegedly observed the liquid a few minutes later, but allegedly took no steps to try to determine how long the liquid had been on the floor. The Store Manager allegedly instructed that certain video showing Daleus' fall be preserved. The video that was preserved allegedly does not show how the liquid came to be on the floor. Daleus contends that Target had a duty to preserve additional video surveillance of the area where she slipped, that Target breached that duty, and that as a result of the breach, additional video surveillance was either lost or destroyed. Daleus includes in her amended complaint a negligence claim (Count I), a negligence claim based on the doctrine of res ipsa loquitur (Count II), and a negligent spoliation of evidence claim (Count III). Target now moves for summary judgment on all claims.
Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, reveals that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Smith v. Hope School, 560 F.3d 694, 699 (7th Cir. 2009). A "genuine issue" of material fact in the context of a motion for summary judgment is not simply a "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 248 (1986); Insolia v. Philip Morris, Inc.,216 F.3d 596, 599 (7th Cir. 2000). In ruling on a motion for summary judgment, the court must consider the record as a whole, in the light most favorable to the nonmoving party. Anderson,477 U.S. at 255; Bay v. Cassens Transport Co.,212 F.3d 969, 972 (7th Cir. 2000).
I. Negligence Claim (Count I)
Target argues that summary judgment should be granted in favor of Target on the negligence claim because Daleus cannot establish that Target had actual or constructive notice of the liquid on the floor. To succeed on a negligence claim under Illinois law, a plaintiff must prove "a duty of care owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by that 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)). It is undisputed that Target owed a duty to Daleus to "exercis[e] ordinary and reasonable care to see that the premises [was] reasonably safe for use." Swearingen, 662 F.3d at 972 (quoting Marshall v. Burger King Corp., 856 N.E.2d 1048, 1063 (Ill. 2006)). With respect to whether there was a breach of duty in this case, under Illinois law, "a business owner breaches its duty to an invitee who slips on a foreign substance if: (1) the substance was placed there by the negligence of the proprietor; (2) its servant knew of its presence; or (3) the substance was there a sufficient length of time so that, in the exercise of ordinary care, its presence should have been discovered, i.e., the proprietor had constructive notice of the substance." Newsom-Bogan v. Wendy's Old Fashioned Hamburgers of New York, Inc., 953 N.E.2d 427, 431 (Ill. App. Ct. 2011)(citations omitted); see also Reid v. Kohl's Dept. Stores, Inc., 545 F.3d 479, 481 (7th Cir. 2008)(stating that "[l]iability can be imposed when a business's invitee is injured by slipping on a foreign substance on its premises if the invitee establishes that the business had actual or constructive notice of the dangerous condition that caused the fall").
The undisputed record indicates that at the time Daleus was shopping, traffic in the store was medium to light, and that a few moments prior to Daleus' slip, Daleus and her friend walked down the same aisle where Daleus slipped and neither noticed any liquid on the floor at that time. (R SAF Par. 1); (R SF Par. 11-12, 22). The undisputed record also indicates that the liquid that caused Daleus' slip spanned approximately eighteen inches, was clear in color, and that Daleus did not see the liquid on the floor prior to slipping. (R SF Par. 17-18);(R SAF Par. 12). The undisputed record indicates further that Daleus does not know how the liquid came to be on the floor or how long the liquid was on the floor prior to her slip. (R SF Par. 20-21). In addition, the undisputed record indicates that Nicholas Karageorge (Karageorge) was working as the Senior Team Lead at the Store at the time of the incident, that Karageorge was in the area where Daleus slipped ten minutes prior to the incident, and that Karageorge did not see any liquid on the floor in the area where Daleus slipped at that time. (R SF Par. 23-24, 34-36). The undisputed record also shows that Karageorge first saw the liquid on the floor after Daleus slipped on it, when he was called to the area via walkie-talkie by a Target team member. (R SF Par. 28-30). The undisputed record further shows that Target team members are trained to walk the Store to look for hazards and trained that "if there is a spill on the floor, they are to stand by the spill, in order to warn other customers, and then utilize their walkie-talkies to call for assistance to help with the spill." (R SF Par. 32-33). Based on the above facts, Daleus cannot show that Target was responsible for the presence of the liquid on the floor, that Target knew of the presence of the liquid on the floor, or that the liquid was on the floor for a sufficient length of time such that Target should reasonably have discovered the presence of the liquid prior to Daleus' slip. See Reid, 545 F.3d at 482-83 (finding that "no reasonable person could conclude that ten minutes was enough time to give Kohl's constructive notice of the spilled substance," observing that although "Illinois law recognizes that there is no bright-line rule indicating the requisite time to establish notice, [ ] periods in excess of ten minutes have failed the test," and noting that courts must look to "the circumstances of the particular case to determine if the length of time gave rise to notice")(citations omitted).
Daleus argues that a Target employee folding towels a few shelves away from where Daleus slipped should have seen the liquid on the floor. However, Daleus indicated in her deposition testimony that the employee was a few shelves away, in the middle of the Store, and that Daleus did not see the employee until after she slipped. (Daleus Dep. 37). Daleus also argues that Target has not presented evidence to show that the liquid was not put on the floor by a Target employee. However, as Target correctly points out, it is Daleus who bears the burden of proving the elements of her claim. The undisputed facts indicate that the approximately eighteen inches of clear liquid was most likely on the floor for less than ten minutes, and that store traffic at the time of the incident was not heavy, which decreases Target's duty to "provide frequent and careful patrolling." Reid, 545 F.3d at 483; see also Peterson v. Wal-Mart Stores, Inc., 241 F.3d 603, 604-05 (7th Cir. 2001)(stating that "the duty of inspection and clean up . . . may require, in self-service stores where customer traffic is heavy and the probability of a slip and fall therefore high . . . , frequent and careful patrolling")(citations omitted). In addition, the ...