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Baroni v. Viox Services, Inc.

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

July 30, 2014

TINA BARONI, Plaintiff,
v.
VIOX SERVICES, INC., Defendant.

MEMORANDUM OPINION AND ORDER

MARIA VALDEZ, Magistrate Judge.

Plaintiff Tina Baroni filed this negligence action against U.S. Bank and its maintenance supplier, Viox Services, Inc. ("Viox") for an injury she sustained after a fall in the bank's lobby. Following a settlement, U.S. Bank was dismissed as a defendant. This matter is now before the Court on Viox's Motion for Summary Judgment [Doc. No. 112]. For the reasons that follow, Viox's motion is granted.

FACTS[1]

Plaintiff is a former employee and longtime customer of a branch of U.S. Bank located in Rosemont, Illinois. (LR 56.1(a)(3) ¶ 1.) She worked at the bank for nineteen years before retiring in 2000. ( Id. ¶ 2.) On February 5, 2011, she went to the bank for banking purposes. ( Id. ¶ 59.) She had noticed on prior visits to the bank that the lobby carpet was worn, for at least five years prior to 2011, duct tape had been used to repair the carpet. ( Id. ¶¶ 49, 60; LR 56.1(b)(3)(C) ¶ 70.) At some point prior to February 5, 2011, the bank's Branch Manager Doug Karlic received a promotional U.S. Bank rug, which he placed on the torn carpet for marketing purposes, not safety. He reasoned that it had the most visibility in the teller area. (LR 56.1(a)(3) ¶¶ 44-45, 48, 50-51, 53.) He alone made the decision about the placement of the rug. ( Id. ¶ 52.) Promotional rugs are usually put near a bank's front door so that customers can see it as they enter. (LR 56.1(b)(3)(C) ¶ 83.)

During her February 5 visit, Baroni noticed the promotional rug on top of what she knew to be a very worn part of the carpet. (LR 56.1(a)(3) ¶ 62.) When she entered the bank, she walked over the rug, which was laying flat on the ground and was not bunched or curled, and had no trouble walking to the teller area. ( Id. ¶¶ 63-64.) When she left, however, Baroni tripped over the rug and fell on the floor. ( Id. ¶ 65.) She believes that she tripped over the edge of the rug. ( Id. ¶ 66.)

U.S. Bank operated, managed, maintained, and controlled the bank's premises. ( Id. ¶ 3.) Defendant Viox is a maintenance company that was contracted by the bank to perform certain maintenance services.[2] ( Id. ¶ 4.) During the relevant time frame, Patrick Heatherly was the bank's property manager, and he reported to Mary Molloy, the regional real estate manager. ( Id. ¶¶ 5, 7-8.) Heatherly served as the liaison between Viox and the bank. ( Id. ¶ 6.) Bank Property Managers were responsible for overseeing the bank, including making sure the premises were clean and safe. ( Id. ¶ 9.)

Viox was responsible for building maintenance such as electrical repairs, light bulb replacement, plumbing repairs, and HVAC. ( Id. ¶ 16.) Certain other responsibilities, including replacing or repairing carpet, were outside the scope of Viox's work. ( Id. ¶¶ 17-18.) Accordingly to Heatherly, the Bank Property Manager, he would contract with a separate carpet company, not Viox, to handle carpet repairs, and Molloy admitted that carpet replacement was the responsibility of the bank, not Viox. ( Id. ¶¶ 19-20.)

Viox would evaluate conditions in the bank, make minor repairs, notify the Bank Property Manager of any problems, and make recommendations. ( Id. ¶¶ 13-15.) A Viox employee generally went to the bank on a monthly basis, using a checklist to review the premises, and the inspection reports were uploaded to a website for Bank Property Managers to view. ( Id. ¶¶ 11-12; LR 56.1(b)(3)(C) ¶ 86.) Bank employees also had access to a work order system and could contact the Bank Property Manager to report any issues. (LR 56.1(a)(3) ¶ 23.) After receiving a work order from the system, the Bank Property Manager would dispatch Viox, who would either accept the order or decline it as out of scope of Viox's responsibilities. ( Id. ¶¶ 24-25.) If the work order was accepted, Viox would address the problem and close the work order. ( Id. ¶ 26.)

On June 21, 2010, Federico Meza, a mobile mechanic employed by Viox, completed a checklist in which he noted that the carpet in the teller area was in bad shape and needed replacement. ( Id. ¶¶ 10, 27.) He recommended replacing the carpet, but carpet replacement was not within Viox's responsibility. ( Id. ¶ 28.) At some point in June 2010, Meza repaired the carpet with glue. (LR 56.1(b)(3)(C) ¶ 72.) Meza completed another checklist on August 10, 2010, again noting that "teller area carpet is very bad!". (LR 56.1(a)(3) ¶ 29.) On September 8, 2010, Meza's checklist stated that the carpet needed to be updated, the general condition was bad, and the mats were dirty, and his October 5, 2010 checklist repeated that the carpet in the teller area was "very bad." ( Id. ¶¶ 30-31; LR 56.1(b)(3)(C) ¶ 74.) Meza testified that he would have reported on the carpet, but after doing so, it was not Viox's responsibility. (LR 56.1(a)(3) ¶ 46.) He also stated that he would not have used duct tape to repair the carpet, because glue would be better. ( Id. ¶ 47.)

Eric Alcozer, another Viox mobile mechanic, completed checklists dated December 13, 2010 and January 14, 2011, but he did not note any carpet condition issues in either checklist. ( Id. ¶¶ 32-33; LR 56.1(b)(3)(C) ¶ 75.) He noted "good" in the flooring part of the checklists as to the general condition, mats, and no trip hazards. (LR 56.1(b)(3)(C) ¶ 76.) After January 14, Alcozer did not return to the bank until February 8, 2011, when he conducted a preventative maintenance examination. (LR 56.1(a)(3) ¶ 34.) Alcozer testified that he could not recall having anything to do with the carpet at the bank, and he also did not remember any problems with the carpet. ( Id. ¶ 35.) He stated that if he had seen duct tape or a tear on the carpet, he probably would have called Meza to have a carpet tradesman come in and repair it. ( Id. ¶¶ 36, 41.) Alcozer also testified that all of the banks he serviced had runners in them, but an outside company took care of most of them. ( Id. ¶ 38.) He would not have looked under a runner. ( Id. ¶ 39.)

On January 19, 2011, the bank's Assistant Branch Manager Svetlana Light prepared a work order stating: "big tear in carpet. Currently has a tape over it, in lobby area exposed to customer traffic. Creates danger of people falling." ( Id. ¶¶ 41-42.) The work order was assigned to Heatherly, and it was later deemed completed and closed, but what action, if any, was taken in response to the work order is unknown. ( Id. ¶ 43.)

Light and Hirut Tesfu, another bank employee, testified that the bank received no complaints about the condition of the rug on top of the carpet before February 5, 2011, nor did any employees or customers complain that it was a trip hazard. ( Id. ¶¶ 54-58.)

Among the areas included in the Services listed in Viox's contract with the bank are to:

Repair and maintain flooring... [Viox] shall:
- Remedy any defect that may create a safety hazard....
- Install, maintain, and replace safety or accessibility features, including but not limited to stairway skids, no-slip vestibule ...

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