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Susie Burnam, As Special Administrator of the Estate of Rosemary Iwaszko, and Walter Iwaszko v. Bob Evans Farms

September 11, 2012

SUSIE BURNAM, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF ROSEMARY IWASZKO, AND WALTER IWASZKO, PLAINTIFFS,
v.
BOB EVANS FARMS, INC., DEFENDANT THIRD-PARTY PLAINTIFF,
v.
ARAMARK UNIFORM SERVICES, THIRD-PARTY DEFENDANT.



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

MEMORANDUM AND ORDER REAGAN, District Judge:

Before the Court are motions for summary judgment filed by Defendant Bob Evans Farms, Inc., (Doc. 26) and Third-Party Defendant Aramark Uniform Services (Doc. 27).

1. Background and Procedural History

On December 12, 2009, Rosemary Iwaszko tripped on a wrinkled floor mat and fell as she and her husband Walter Iwaszko were entering the Bob Evans restaurant in Marion, Illinois; Mrs. Iwaszko later died. The Iwaszko's daughter, Susie Burnham, as administrator of Mrs. Iwaszko's estate, and Mr. Iwaszko filed suit in June 2011 in the Court for the First Judicial Circuit in Williamson County, Illinois. Plaintiffs assert three claims against Bob Evans: (1) a Wrongful Death Act claim pursuant to 740 ILCS 180/1, et seq., based on alleged negligence; (2) a Survival claim pursuant to the Probate Act of 1975, 755 ILCS 65/15, for pain and suffering, and medical expenses occurring before Mrs. Iwaszko died; and (3) a Family Expense claim under 750 ILCS 65/15 for medical, funeral and burial expenses.

Defendant Bob Evans Farms, Inc., filed a third-party action against Aramark Uniform Services, based on the uniform rental services agreement under which Aramark provided, cleaned and maintained the mats for the restaurant. In July 2011, Bob Evans removed the case to this federal court.

Bob Evans now moves for summary judgment pursuant to Federal Rule of Civil Procedure 56 (Doc. 26). Bob Evans argues that it did not have a duty to protect Mrs. Iwaszko from an open and obvious condition and, further, that there is no evidence of how the mat became wrinkled or how long it was wrinkled. Plaintiffs respond that whether the wrinkled mat was an open and obvious hazard, and whether Bob Evans breached its duty to Mrs. Iwasaszko are material questions of fact that preclude summary judgment (Doc. 37). Plaintiffs also assert that, if the wrinkled mat was an open and obvious condition, the "distraction or forgetfulness" and "deliberate-encounter" exceptions apply. Citing Plaintiffs' insertion of those exceptions into the mix, and Plaintiffs' reliance upon speculation, Bob Evans filed a reply (Doc. 38).*fn1

Aramark has also moved for summary judgment, piggybacking on Bob Evans' arguments (Doc. 27). Bob Evans agrees that if its motion is successful, Aramark would also be entitled to summary judgment (Doc. 34). Plaintiffs did not specifically respond to Aramark's motion-an apparent concession that as goes Bob Evans, so goes Aramark.

Because the parties agree on all of the essential facts (but not conclusions to be drawn from those facts), the Court will merely cite pertinent facts as needed for analysis.

2. The Legal Standard for Summary Judgment

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).

3. Analysis

Plaintiffs' Wrongful Death Act claim is premised upon alleged negligence. The gravamen of a negligence claim is the violation of a duty, which is a question of law. Kleiber v. Freeport Farm and Fleet, Inc., 942 N.E.2d 640, 646 (Ill. App. 3rd Dist. 2010) (citing Ward v. K Mart Corp., 554 N.E.2d 223, 226 (1990)).

In making that determination, a court should consider the following factors: (1) the reasonable foreseeability of injury to another, (2) the reasonable likelihood of injury, (3) the magnitude of the burden that guarding against injury places on the ...


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