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Coleman v. Wal-Mart Stores, Inc.

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

January 17, 2016

JACQUELINE COLEMAN, Plaintiff,
v.
WAL-MART STORES, INC., Defendant.

          MEMORANDUM OPINION AND ORDER

          John Robert Blakey United States District Judge

         Plaintiff Jacqueline Coleman (“Plaintiff” or “Coleman”) allegedly slipped while shopping at a store owned and managed by Defendant Wal-Mart Stores, Inc. (“Defendant” or “Wal-Mart”). Plaintiff alleges that Wal-Mart's negligence caused her injuries, [1-1], and Wal-Mart has moved for summary judgment. [54] at 1. For the reasons explained below, Wal-Mart's motion is denied.

         I. Background [1]

         On August 23, 2012, Plaintiff and her son were shopping at the Wal-Mart store in Lansing, Illinois. [59] at 3. The parties agree that at approximately 12:10 p.m., Plaintiff was perusing the store's “back-to-school” aisle. [64] at 3. She examined a folder, returned it to the shelf, and turned to walk away when her foot slipped on “rusted orange” liquid located on the floor. Id. The liquid in question was “under” a “garden cart” left in the back-to-school aisle by Wal-Mart employee Alice Dugan. Id. at 1-3.

         The parties further agree that Ms. Dugan first exited the back-to-school aisle, leaving the garden cart behind, at some point between 11:30 a.m. and 12:00 p.m. Id. at 1. Ms. Dugan testified that there was no liquid on the floor of the back-to school aisle when she first arrived. [60] at 4. She further testified that the garden cart was in the exact position she left it when she returned to the back-to-school aisle. Id. A soiled paper towel and a paper towel roll were both found on the garden cart after Plaintiff's fall, though the parties disagree as to both how the paper towels got there and how they were used. [64] at 3-4; see also [61-1].

         Neither Plaintiff nor her son nor any Wal-Mart employee knew: (1) what caused the liquid to be on the floor of the back-to-school aisle; or (2) how long the liquid had been there before Plaintiff's fall. [60] at 7-8.

         All Wal-Mart employees are required to conduct periodic safety sweeps. [64] at 5. In addition to Ms. Dugan, two other Wal-Mart employees (Jessica Ann Turner and David Schmalz) were working near the back-to-school aisle when Plaintiff fell. Id. Two different Wal-Mart employees (Franchot Reed and David Fountain) were specifically responsible for maintaining the store's floors on the date of Plaintiff's accident. Id. at 6.

         II. Legal Standard

         Summary judgment is appropriate if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir. 2014). A genuine dispute as to any material fact exists if “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). The party seeking summary judgment has the burden of establishing that there is no genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In determining whether a genuine issue of material fact exists, this Court must construe all facts and reasonable inferences in the light most favorable to the nonmoving party. See CTL ex rel. Trebatoski v. Ashland Sch. Dist., 743 F.3d 524, 528 (7th Cir. 2014).

         III. Analysis

         Defendant argues that it is entitled to summary judgment on Plaintiff's negligence claim because: (1) Defendant lacked the requisite notice of the liquid that caused Plaintiff's fall; and (2) Plaintiff was contributorily negligent. The Court addresses each in turn.

         A. Notice

         Illinois retailers owe their invitees a duty to maintain their premises in a reasonably safe condition. Marshall v. Burger King Corp., 856 N.E.2d 1048, 1057-58 (Ill. 2006). A retailer breaches this duty if an invitee slips on a foreign substance and “the invitee establishes, ” inter alia, that “the business had actual notice of the substance, ” or “the substance was there a sufficient length of time so that, in the exercise of ordinary care, its presence should have been discovered, i.e., the business had constructive notice of the substance.” Zuppardi v. Wal-Mart Stores, Inc., 770 F.3d 644, 649 (7th Cir. 2014). Constructive notice can be established under Illinois law by either presenting evidence that: “(1) the dangerous condition existed for a sufficient amount of time so that it would have been discovered by the exercise of ordinary care; or (2) the dangerous condition was part of a pattern of conduct or a recurring incident.” Zuppardi, 770 F.3d at 651 (7th Cir. 2014).

         The Seventh Circuit has observed that in lieu of a “bright-line rule” governing “the requisite time to establish notice, ” Illinois courts have instead adopted a case-by-case approach that examines both the length of time the spill existed and the surrounding “circumstances.” Reid v. Kohl's Dep't Stores, Inc., 545 F.3d 479, 483 (7th Cir. 2008). Relevant circumstances include the area where the spill occurred, the time the spill occurred, the visibility of the spill, and the store's policies on patrolling its aisles for spills. Id. at 481-82. The “critical” question is “whether the ...


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