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Calvert v. Office Depot, Inc.

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

June 25, 2015



JOHN W. DARRAH, District Judge.

Plaintiff Antoinette Calvert filed a personal injury action in the Circuit Court of Cook County, Illinois, on June 2, 2014, under theories of negligence, premises liability, and res ipsa loquitur against Defendant Office Depot, Inc. (Dkt. No. 1, Ex. A.) Office Depot removed the action to the Northern District of Illinois on August 11, 2014, pursuant to 28 U.S.C. § 1332(a), on the basis of complete diversity between the parties. (Dkt. No. 1.) Plaintiff subsequently filed her Second Amended Complaint on January 14, 2015, asserting additional claims against Defendant Thyssenkrupp Elevator Corporation ("TKE"), the Schindler Group, and Schindler Elevator Corporation. (Dkt. No. 30.) TKE moves to dismiss the counts against them, which allege negligence, premises liability, and res ipsa loquitur, pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendant's Motion to Dismiss [40] is denied.


The following facts are taken from Plaintiff's Second Amended Complaint[1], which are taken as true for purposes of deciding a motion to dismiss. See Indep. Trust Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 934 (7th Cir. 2012). On February 6, 2013, Plaintiff Antoinette Calvert was in an Office Depot retail store in downtown Chicago. (Compl. ¶¶ 8-10.) An escalator connected the basement level to the main floor of the store. ( Id. ¶ 11.) Plaintiff rode the escalator from the basement to the main floor, when the escalator suddenly jerked and came to a halt. ( Id. ¶ 32.) As a result, Plaintiff fell and injured herself. ( Id. )

Plaintiff does not allege a specific cause of the escalator stoppage, but rather asserts two theories. First, Plaintiff claims that an employee or agent of Defendant Office Depot manually caused the escalator to stop. ( Id. ¶ 33.) Second, Plaintiff states that a malfunction, defect, or hazard in the escalator caused the occurrence. ( Id. ¶ 34.) Plaintiff asserts that Office Depot contracted with TKE regarding the escalator within the retail store. ( Id. ¶ 23.) According to Defendant's Motion, TKE is the maintenance company for the escalator. (Dkt. No. 40, ¶ 10.) Out of the eight claims alleged by Plaintiff against Defendants, three are against Defendant TKE: negligence (Count IV); premises liability (Count V); and res ipsa loquitur (Count VI).


Pursuant to Rule 12(b)(6), a defendant may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). To survive a motion to dismiss, a complaint must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A court must take well-pleaded allegations in the complaint as true and read them in the light most favorable to the plaintiff. Stewart Info. Servs. Corp., 665 F.3d at 934. This presumption is "inapplicable to threadbare recitals of a cause of action's elements, supported by mere conclusory statements." Iqbal, 556 U.S. at 663. Instead, the "complaint must provide the defendant with fair notice of what the claim... is and the grounds on which it rests." Agnew v. Nat'l Collegiate Athletic Ass'n, 683 F.3d 328, 334 (7th Cir. 2012) (citing Erickson v. Pardus, 551 U.S. 89, 93 (2007)).



In Count IV, Plaintiff alleges a common-law claim of negligence against TKE. Plaintiff sets forth two alternative theories of negligence based on the duty of care. First, Plaintiff alleges that TKE was "under certain duties imposed by law." (Compl., Count IV, ¶ 36.) Second, Plaintiff alleges that TKE was held to the high standard of care required of a common carrier. ( Id. at ¶ 37.) Defendant argues that Plaintiff "misstates the duty of care" as "TKE is not a common carrier." (Dkt. No. 40, ¶ 10.) Defendant further argues that because TKE was the escalator maintenance company at the time of Plaintiff's fall, TKE should not be held to the heightened standard of care of a common carrier but, instead, to a standard of reasonable care. ( Id. at ¶¶ 10-11.)

To sustain a cause of action for negligence in Illinois, "a plaintiff must plead that the defendant owed a duty of care to the plaintiff, that the defendant breached that duty, and that the breach was the proximate cause of the plaintiff's injuries." Cowper v. Nyberg, 28 N.E.3d 768, 772 (Ill. 2015). Plaintiff has alleged that TKE "leased, owned, occupied, maintained, possessed, and/or controlled the premises." (Compl., ¶ 7.) "[T]he owner of a building in which an elevator is operated is a common carrier owing the highest degree of care to its passengers." Gavoni v. Dobbs Houses, Inc., No. 95 C 1749, 1996 WL 147920, at *1 (N.D. Ill. Mar. 29, 1996) (citing Suarez v. Trans World Airlines, 498 F.2d 612, 616 (7th Cir. 1974); Shoemaker v. Rush-Presbyterian-St. Luke's Medical Center, 543 N.E.2d 1014 (Ill.App.Ct. 1989)). In contrast, maintainers of elevators and escalators are held to an ordinary standard of due care. See Jardine v. Rubloff, 382 N.E.2d 232, 236 (Ill. 1978); Tolman v. Wieboldt Stores, Inc., 233 N.E.2d 33, 36 (Ill. 1968); Stach v. Sears, Roebuck and Co., 429 N.E.2d 1242, 1253 (Ill.App.Ct. 1981). Particularly in the case of escalators, the duty of care is lowered as "a person on an escalator may actively participate in the transportation... and may contribute to his own safety." Tolman, 233 N.E.2d at 36. If Plaintiff can prove that TKE is the owner of the building, then the common carrier duty is applicable; if not, then an ordinary standard of due care applies. Defendant's Motion to Dismiss Count IV is denied.

Premises Liability

Count V alleges a premises liability claim against TKE. Illinois follows the Restatement of Torts in its approach to premises liability. See, e.g., Clifford v. Wharton Bus. Group, L.L.C., 817 N.E.2d 1207, 1211-12 (Ill.App.Ct. 2004). Section 343 of the Restatement provides:

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on ...

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