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Malacina v. Meijer Stores Limited Partnership

United States District Court, N.D. Illinois, Eastern Division

March 18, 2014



SIDNEY I. SCHENKIER, Magistrate Judge.

On July 3, 2012, plaintiff Sherry Malacina filed a three-count complaint against defendants Meijer Stores Limited Partnership, Meijer Great Lakes Limited Partnership, and Meijer, Inc. (collectively, "defendants" or "Meijer") alleging that each defendant was negligent under Illinois common law and thus liable for damages she suffered in a slip and fall in a Meijer store in Rolling Meadows, Illinois (doc. #1, Ex. A: Compl.). On August 22, 2012, upon filing an amended notice of removal, defendants removed the case to federal court (doc. #8). Defendants have moved for summary judgment on plaintiff's claims (doc. #23: Defs.' Mot. for Summ. J). For the reasons that follow, the Court grants defendants' motion for summary judgment.


The legal standards governing motions for summary judgment are well-established. Summary judgment is appropriate where the moving party establishes that there is no genuine issue as to any material fact and that she is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A genuine issue 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). Where the nonmovant shows that there is an absence of evidence to support the nonmoving party's case, the nonmovant "must go beyond the pleadings ( e.g., produce affidavits, depositions, answers to interrogatories, or admissions on file), to demonstrate that there is evidence upon which a jury could properly proceed to find a verdict in her favor." Modrowski v. Pigatto, 712 F.3d 1166, 1168-69 (7th Cir. 2013) (internal citations and quotations omitted).

In deciding a motion for summary judgment, we "construe all facts and draw all reasonable inferences in the light most favorable to the nonmoving party." Majors v. Gen'l Elec. Co., 714 F.3d 527, 532 (7th Cir. 2013). We do not "assess the credibility of witnesses, choose between competing reasonable inferences, or balance the relative weight of conflicting evidence." Stokes v. Board of Educ. of the City of Chicago, 599 F.3d 617, 619 (7th Cir. 2010). That said, we are mindful that "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248.


We begin by setting forth the material undisputed facts established by the parties' submissions, made pursuant to Local Rule 56.1. "In determining what is disputed, we focus not only on whether the parties profess to dispute a fact, but also on the evidence the parties offer to support their statements." Barkl v. Kaysun Corp., No. 10 C 2469, 2011 WL 4928996, at *1 n.2 (N.D. Ill. Oct. 13, 2011) (citing Zitzka v. Vill. of Westmont, 743 F.Supp.2d 887, 899 n.2 (N.D. Ill.2010)). "We review only those facts whose substance would be admissible at trial under a form permitted by the Federal Rules of Evidence, although the form produced at summary judgment need not be admissible." Wragg v. Vill. of Thornton, 604 F.3d 464, 466 (7th Cir. 2010). The following facts are undisputed unless otherwise noted by the Court.

On September 3, 2010, Ms. Malacina, her adult son Adam Malacina, and his friend Dennis Wojkovich entered the Rolling Meadows Meijer store at around 10:00 p.m. (doc. #36, Ex. 2: Pl.'s Stmt. of Facts ("PSOF" at ¶ 2); doc. #25: Defs.' Stmt. of Facts ("DSOF") at ¶ 26). The store had experienced a power outage at around 7:00 p.m. that evening, and the emergency lighting was still activated at the time Ms. Malacina, Adam, and Dennis entered the store (PSOF at ¶ 5). The Meijer Store Manager, Jonathan Capps, contacted ComEd, but ComEd did not give him an estimated time as to when the power would be restored ( Id. at ¶ 7). A Meijer Store detective, Stan Blustein, estimated that the emergency lighting operated at 50 to 70 percent of the brightness of the store's regular lighting (doc. #38: Defs.' Resp. to PSOF at ¶ 10).[2] No store announcements or signs informed customers that the emergency lights were on due to a power outage (PSOF at ¶¶ 13-14).

From outside the store, Ms. Malacina could not tell that the store's lighting was dimmer than normal (PSOF at ¶ 22), but Adam and Dennis could tell that the lighting inside the store did not appear normal (DSOF at ¶ 27). The dimmer-than-normal lighting condition, however, was obvious to anyone immediately upon entering the store, including Ms. Malacina ( Id. at ¶¶ 25, 28). Ms. Malacina and her son described the lighting as shadowy and inconsistent throughout the store (PSOF at ¶¶ 23, 34). While Ms. Malacina recognized that the lighting condition was hazardous and that she had numerous courses of action she could have taken to avoid that hazard, she nevertheless entered the store to make a purchase, taking extra care to walk slowly and safely (DSOF at ¶¶ 30-33). She went by herself to retrieve wrapping paper for purchase, while her son and his friend went elsewhere in the store ( Id. at ¶ 34). As a result, neither Ms. Malacina's son nor his friend witnessed Ms. Malacina's fall ( Id. ).

In her deposition, Ms. Malacina testified that while walking back to the front of the store to check out with her purchase, at approximately 10:10 p.m., she felt her left foot slip, then fell down with her right shoulder striking the floor (PSOF at ¶ 26). At the time this occurred, Ms. Malacina was wearing high-heeled shoes that she often wore (DSOF at ¶¶ 18-19). Ms. Malacina denied that she had tripped, and testified that this was the only area of the store where she had experienced any slippage while walking (PSOF at ¶¶ 26, 28). Ms. Malacina testified that while she was sitting on the floor, "maybe my leg felt a little, like, it was damp, wet, maybe cold feeling" (DSOF, Ex. 2: Malacina Dep. at 65:18-20). Later in her deposition, Ms. Malacina reiterated that "while I was sitting there, I did for that moment feel that there was like this wetness, dampness on there" ( Id. at 136:7-9). Ms. Malacina admits that she does not know for sure if her foot stepped into the dampness that she says she felt on the back of her thigh (DSOF at ¶ 61). In addition, Ms. Malacina never observed any substance on the store floor, and her son and his friend did not observe any substance on the floor when they reached her after her fall ( Id. at ¶¶ 36-39).

The Meijer store detective, Mr. Blustein, and the store manager, Mr. Capps, approached Ms. Malacina shortly after she fell; she was still on the floor and was in obvious pain (DSOF at ¶ 47; PSOF at ¶¶ 15-16). Store cameras did not record the fall (DSOF, Ex. 7: Blustein Dep. at 23:1-2). In their depositions, Mr. Capps and Mr. Blustein testified that they did a visual survey of the floor area at that time but did not observe anything on the floor that could have caused her fall (DSOF at ¶ 47). They further testified that they conducted a more thorough investigation after Ms. Malacina was removed from the store to determine if any foreign substance or hazard may have caused her fall ( Id. at ¶ 48). Mr. Capps testified that he and Mr. Blustein got down on the ground to feel for a clear substance, but they did not see or feel anything ( Id. at ¶ 49; DSOF, Ex. 8: Capps Dep. at 99:5-18). Mr. Blustein also photographed the area of the floor where the fall occurred, and it is undisputed that the photographs do not show any foreign substance on the floor (DSOF at ¶ 49).[3]

William Rodgers and David Strojny were the responding paramedics (DSOF at ¶ 55). Mr. Rodgers testified that Ms. Malacina rated her pain as the worst pain she ever had, 10 out of 10 (PSOF at ¶ 17). The paramedics administered Fentanyl, a powerful analgesic, for Ms. Malacina's pain before taking her to the hospital in a gurney ( Id. at ¶¶ 15, 18). While Ms. Malacina testified that she does not remember being asked how she fell, Mr. Rodgers' written report of the fall stated that Ms. Malacina said she "just tripped while walking, falling on her right shoulder" (DSOF at ¶ 59; DSOF, Ex. 11: Rodgers Dep., Ex. 1: EMT Report).

Later that night, after returning from the hospital, Ms. Malacina observed a dried residue on the back of her pants (DSOF at ¶ 60). A few days later, she observed a residue on the bottom of her shoes ( Id. ). Photographs taken of Ms. Malacina's pants, however, do not show any stain, residue, or foreign substance, and the pants are no longer available ( Id. at ¶¶ 64-65). ...

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