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Bulduk v. Walgreen Co.

Court of Appeals of Illinois, First District, First Division

August 29, 2016

WALGREEN COMPANY, an Illinois corporation, Defendant-Appellee.

         Appeal from the Circuit Court of Cook County No. 12 L 001069, Honorable Daniel T. Gillespie, Judge Presiding.

          JUSTICE HARRIS delivered the judgment of the court, with opinion. Presiding Justice Cunningham concurred in the judgment and opinion. Justice Connors dissented, with opinion.



         ¶ 1 Plaintiff Saime Sebnem Bulduk appeals the order of the trial court granting defendant, Walgreen Company's (Walgreen) motion for summary judgment on her complaint alleging negligence, negligent spoliation of evidence, and res ipsa loquitur. On appeal, plaintiff argues that the trial court erred in granting summary judgment because a genuine issue of material fact exists as to whether the dangerous condition on defendant's property was open and obvious. Plaintiff also argues that Walgreen's spoliation of its surveillance tapes prevented her from establishing the facts necessary to support her negligence claim, and alternatively, that the doctrine of res ipsa loquitur applies to establish her negligence claim.

         ¶ 2 On October 15, 2015, this court issued an opinion affirming in part, and reversing in part, the trial court's judgment. Defendant filed a petition for rehearing which this court denied. Defendant then filed a petition to the supreme court which was denied on March 30, 2016. However, the supreme court issued a supervisory order directing this court to vacate its judgment in the matter, and to reconsider in light of Bruns v. City of Centralia, 2014 IL 116998. Accordingly, we vacated our October 15, 2015, judgment and issue this opinion in its stead. Upon reconsideration, we find Bruns distinguishable and therefore, for the following reasons, we reverse the judgment of the trial court on the negligence claim and affirm on the claim for negligent spoliation of the evidence, and remand for further proceedings.

         ¶ 3 JURISDICTION

         ¶ 4 The trial court entered its final order disposing of the case on December 15, 2014. Plaintiffs filed their notice of appeal on January 13, 2015. Accordingly, this court has jurisdiction pursuant to Illinois Supreme Court Rules 301 and 303 governing appeals from final judgments entered below. Ill. S.Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May 30, 2008).

         ¶ 5 BACKGROUND

         ¶ 6 On April 28, 2010, plaintiff entered a Walgreen store to purchase cosmetics products. The cosmetics display began near the door of the store and continued "all the way almost to the end." Plaintiff entered the store to purchase nail polish and browse the makeup selection. While in the cosmetics aisle, plaintiff noticed a large, plugged-in cleaning machine placed in the middle of the aisle. She "went around it, and [she] was looking at this [sic] items in the wall - on the wall" when "something hit [her] right where the tailbone is. It was a very heavy piece of equipment, and [she] noticed that it was just falling on [her]." After the incident, plaintiff experienced intense pain in her neck, lower back, and occasionally in her leg. She stated in her deposition that she still experiences pain and is "only living like ten - 20 to 30 percent of [her] life the way [she] used to live."

         ¶ 7 Nathan John Tauber was the store manager when the incident occurred. He stated that he did not generally give directions to employees of Brite Site, an independent company Walgreen hired to clean the store in question. He stated, however, that he would not "allow them to park [the cleaning machines] in front of - in front of the entrance or exit where people can't get in" and that the store's policy is to not allow Brite Site to "run the machines while the store is open."

         ¶ 8 On January 31, 2012, plaintiff filed her original negligence complaint against defendant Walgreen. Thereafter, plaintiff filed several amended complaints and in her third and final amended complaint, she alleged four counts against Walgreen: (1) negligence, (2) negligent spoliation of evidence, (3) res ipsa loquitur, and (4) loss of consortium. With respect to negligence, plaintiff alleged that while browsing the cosmetics aisle at a Walgreen store, she was hit by a cleaning machine that had been left in the middle of the aisle. The machine had fallen and hit her lower back, causing permanent injuries. Plaintiff's negligent spoliation of evidence claim alleged that Walgreen failed to download or preserve camera footage from the store's surveillance system on the day of the incident. Plaintiff also alleged that a presumption of negligence existed, pursuant to res ipsa loquitur, because the injury resulted from a cleaning machine under Walgreen's control and the individuals operating the machine on the day in question left the country after learning of their forthcoming depositions. Finally, plaintiff alleged loss of consortium for her husband, plaintiff Abdullah Bulduk, based on her injuries.

         ¶ 9 Walgreen filed motions for summary judgment as to the negligence, negligent spoliation of evidence, and res ipsa loquitur counts. It also filed a motion to dismiss plaintiff's claim for loss of consortium.[1] In its motion for summary judgment as to negligence, Walgreen claimed that the cleaning equipment injuring plaintiff was owned by Brite Site, a company Walgreen hired to clean the store in question. Walgreen argued that it did not owe a duty to plaintiff since it exercised no control over Brite Site employees, their work, or Brite Site's cleaning machines. Walgreen further argued that Brite Site was an independent contractor that retained control over its own activities, and its employees were not employees, agents, or servants of Walgreen. In response, plaintiff argued that Walgreen was liable because it retained a supervisory power to prevent Brite Site from using its cleaning machines in a harmful manner, and Walgreen provided cleaning supplies to Brite Site which were required for the operation of the cleaning machine at issue. Walgreen replied that it did not supervise the work of Brite Site and therefore had no liability.

         ¶ 10 In its motion for summary judgment as to negligent spoliation of evidence, Walgreen claimed that it did not have a duty to preserve evidence unless plaintiff could establish that an agreement, contract, statute, special circumstance, or voluntary undertaking had given rise to a duty to preserve the evidence, and that a reasonable person in Walgreen's position should have foreseen that the evidence was material to a potential civil action. Walgreen argued that plaintiff could not establish these factors because the surveillance footage at issue did not record the area of the store where the injury occurred, and therefore a reasonable person would not foresee that such evidence would be relevant to a cause of action. Plaintiff responded that based on the evidence, a minimum of three cameras could have captured the incident and the only surveillance downloaded was the tape by the entrance of the store.

         ¶ 11 In its motion for summary judgment as to res ipsa loquitur, Walgreen argued that it did not owe plaintiff a duty of care, and thus the claim must fail. Plaintiff responded that Walgreen exercised control over the cleaning machine at issue and allowed Brite Site to bring the machine in the store while customers were shopping, thus rendering the doctrine of res ipsa loquitur applicable.

         ¶ 12 The trial court granted Walgreen's motions for summary judgment as to the negligence claim, the negligent spoliation of evidence claim, and the res ipsa loquitur claim. We assume each of these motions were granted without a hearing, as no ...

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