United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
DANIEL G. MARTIN, Magistrate Judge.
This is a personal injury action in which Plaintiff John Daniels ("Daniels") alleges that on September 21, 2011 and October 13, 2011, he struck his head on a staircase located in the Menard, Inc. ("Menard") store in Melrose Park, Illinois. Daniels asserts claims based on state law negligence and voluntary undertaking theories against Menard. The Court has jurisdiction based on diversity of citizenship, and the parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). Menard has moved for summary judgment. For the reasons that follow, Menard's motion is granted in part and denied in part.
The following facts are primarily taken from Defendant's Local Rule 56.1(a) Statement (doc. 46) and are undisputed. Additional facts are taken from Daniels' deposition testimony and include a citation to that testimony. Daniels' date of birth is March 8, 1923, making him eighty-eight years (88) old at the time of incidents. At his deposition, Daniels testified that he is visually impaired. He has glaucoma and can only see straight ahead. Daniels has no peripheral vision.
On September 21, 2011, Daniels went to the Menard store to buy braces for railings in his front and back door. Daniels was driven to the Menard store on September 21, 2011 by his wife. Daniels' wife dropped him at the front door of the store and he entered the store alone. Daniels then located and walked up to a Menard employee without assistance. Although Daniels could not remember exactly what he told the Menard employee, he testified that he "walked over to the young lady and said, young lady, I need someone to escort me. I'm visually impaired and I need some things in the store, and she called someone." Daniels Dep. at 50. When asked why he wanted someone to escort him on September 21, 2011, Daniels testified that his vision is impaired and he needed help finding the product that he came to buy. Id. at 51-52.
Shortly thereafter, Menard employee John Malone ("Malone") approached Daniels. Daniels testified that he told Malone what he needed and asked Malone to take him to find the item. Id. at 57-58. In his deposition, Daniels stated what happened next:
A. We were down there, then he left and went somewhere; and when I looked for him again, he was way some other place.
Q. So the young man walks away from you, right?
A. As far as I known he went away.
Q. You stayed where you were?
A. I was walking around where I was there.
Q. So you were walking around an area -
A. I was moving around. That's all.
Q. And you look up, and you see that the young man is a ...