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Domkiene v. Menard, Inc.

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

September 6, 2016

MENARDS, INC., Defendant.


          SARA L. ELLIS United States District Judge

         After slipping and falling at one of Defendant Menard, Inc.'s (“Menard”) stores in Chicago, Illinois, Plaintiff Irena Domkiene filed this action against Menard, alleging that Menard negligently failed to clean the floor and allowed water to run off its shopping carts, causing her injury.[1] Menard has filed a motion for summary judgment [27]. Because Illinois' natural accumulation rule applies, meaning that Menard had no duty to remove the water that had accumulated in its store's entryway from that day's rain, the Court grants Menard's motion for summary judgment.


         On November 22, 2014, Domkiene entered a Menard's store located at 9140 South Harlem Avenue, Chicago, Illinois. It had rained all day, continuing to the time Domkiene arrived at the store. Domkiene entered the Menard's store, walked across a mat, continued into the store, and fell on a linoleum floor. Domkiene admits she was not distracted when she fell. Although she did not notice water on the floor, she thought she fell on water because it was raining. Indeed, the water had accumulated on the Menard's store's floor because of the rain, coming from two sources. Specifically, mats at the Menard's store entrance would get wet from rain, causing people walking into the store to track water from outside and the water-logged mats into the store. Additionally, customers and employees brought shopping carts, wet from being outside, inside the store that would drip on the floor. Although Domkiene did not notice water dripping from the shopping carts after she fell, Richard Nagel, a Menard's employee who pushed carts into the store that day, remembered the carts dripping water onto the floor.


         Summary judgment obviates the need for a trial where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. To determine whether a genuine issue of fact exists, the Court must pierce the pleadings and assess the proof as presented in depositions, answers to interrogatories, admissions, and affidavits that are part of the record. Fed.R.Civ.P. 56 & advisory committee's notes. The party seeking summary judgment bears the initial burden of proving that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In response, the non-moving party cannot rest on mere pleadings alone but must use the evidentiary tools listed above to identify specific material facts that demonstrate a genuine issue for trial. Id. at 324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). Although a bare contention that an issue of fact exists is insufficient to create a factual dispute, Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000), the Court must construe all facts in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).


         I. Domkiene's Late Response and Expert Affidavit

         Before addressing the merits of Menard's motion for summary judgment, the Court must address several procedural issues raised in connection with the filing of Domkiene's response. First, Domkiene filed her response a week after the deadline set to do so. Several days before the deadline, she filed a motion for extension of time, indicating that her counsel had numerous summary judgment motions to which he needed to respond in the upcoming weeks. Doc. 29. Domkiene did not notice that motion for presentment, as required by the Local Rules. N.D.Ill. L.R. 5.3(b)(requiring motions to be noticed for presentment within fourteen days after filing); id. 78.2 (providing that the Court may on its own initiative deny motions not noticed for presentment). Instead, Domkiene filed her response on the requested date of April 28, 2016. See Docs. 32, 33. She also filed Richard Hochgraver's affidavit, dated April 27, 2016, with her response. Doc. 32-2. Hochgraver purports to be an expert in the customs, practices, and standard of care in store management for “handling tracked in water from rainy conditions.” Id. at 1.

         Although the Court had not set a deadline for expert discovery, fact discovery closed on December 31, 2015. Doc. 15. According to the parties' proposed discovery plan, they contemplated completing all discovery, including expert discovery, prior to filing dispositive motions. See Doc. 10 at 4. But instead of taking up the issue of expert discovery at the status hearing after fact discovery closed, Menard stated it intended to file for summary judgment and requested a briefing schedule. Domkiene had several opportunities to raise the need for an expert prior to Menard filing its summary judgment motion, particularly in light of this Court's summary judgment procedures, which require the parties to meet and confer and jointly prepare a statement of undisputed facts. Instead of doing so, Domkiene only disclosed her expert's opinion the day she filed her response, after the parties' joint statement of undisputed facts had already been filed, the Court had ruled on any disputes the parties had concerning these facts, and one week after her response was originally due. See Docs. 21, 25, 32, 33. Additionally, her request for an extension of time had not candidly revealed that she needed more time to obtain Hochgraver's affidavit, instead referring to summary judgment deadlines counsel had in other cases. See Doc. 29.

         Under Rule 26(a)(2), a party cannot rely on an expert affidavit to oppose summary judgment unless it has first disclosed that expert testimony. Mannoia v. Farrow, 476 F.3d 453, 456 (7th Cir. 2007); Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1122 (10th Cir. 2005). Rule 37(c)(1) provides that a party's failure to make a required disclosure means the party cannot use the information or witness in a motion unless the failure to disclose was substantially justified or harmless. Fed.R.Civ.P. 37(c)(1). Here, Domkiene first disclosed Hochgraver as an expert at the same time she filed her response to the summary judgment motion, having delayed her filing to obtain this opinion. This late disclosure did not provide Menard with sufficient time to depose Hochgraver or obtain an expert of its own.[3] Moreover, Domkiene's actions undermined the Court's summary judgment procedures, raising new issues and evidence that may have avoided Menard's motion or at least altered Menard's approach to summary judgment. The Court cannot find Domkiene's actions with respect to disclosing Hochgraver's opinions substantially justified or harmless. Thus, although the Court will consider Domkiene's late-filed response, it will not consider Hochgraver's affidavit. See Mannoia, 476 F.3d at 456 (district court was within its discretion to strike expert's affidavit submitted in opposition to motion for summary judgment where affidavit was disclosed after limited discovery period had ended and plaintiff did not seek relief from court); Musser v. Gentiva Health Servs., 356 F.3d 751, 758-59 (7th Cir. 2004) (affirming exclusion of expert testimony at summary judgment stage where plaintiffs knew of need for expert testimony and denied defendants the opportunity to question witnesses in their expert capacity by failing to disclose them as experts until after defendants moved for summary judgment). As a result, the Court disregards any arguments in opposition to Menard's motion for summary judgment that rely on Hochgraver's opinions, such as Domkiene's position that Menard affirmatively caused water to be in the area where Domkiene slipped because it improperly brought wet carts into the store through the front entranceway instead of through a separate entrance.

         II. Merits of Domkiene's Negligence Claim

         To succeed on her negligence claim, Domkiene must establish that (1) Menard owed her a duty, (2) Menard breached that duty, and (3) Menard's breach proximately caused her injury. Rhodes v. Ill. Cent. Gulf R.R., 665 N.E.2d 1260, 1267, 172 Ill.2d 213, 216 Ill.Dec. 703 (1996). Menard argues that Domkiene cannot prevail on her negligence claim because she cannot establish that Menard owed her any duty. Specifically, Menard contends that the natural accumulation rule applies here, under which “a landowner or possessor of real property has no duty to remove natural accumulations of ice, snow, or water from its property.” Bernard v. Supervalu, Inc., No. 12-CV-1482, 2013 WL 6050616, at *2 (N.D. Ill. Nov. 14, 2013). The rule extends to “tracks or residue left by customers who have walked through natural accumulations of water, slush, or snow.” Pytlewski v. United States, 991 F.Supp. 1043, 1047 (N.D. Ill. 1998) (collecting cases).

         Here, the parties agree that Domkiene fell on water that had accumulated on the floor of the Menard's store as a result of rain-either tracked in by customers or from the shopping carts brought in from outside. Barring Domkiene presenting other evidence that Menard caused an unnatural accumulation of water or that Menard aggravated the natural accumulation of this water, this triggers the natural accumulation rule and warrants entry of summary judgment in Menard's favor. Bernard, 2013 WL 6050616, at *3 (citing Bloom v. Bistro Rest. Ltd. P'ship, 710 N.E.2d 121, 123, 304 Ill.App.3d 707, 237 Ill.Dec. 698 (1999); Bernard v. Sears, Roebuck & Co., 519 N.E.2d 1160, 1161-62, 166 Ill.App.3d 533, 116 Ill.Dec. 945 (1988)). Speculation about the cause of the accumulation does not suffice. See Good v. Univ. of Chicago Med. Ctr., 673 F.3d 670, 675 (7th Cir. 2012) (“[G]uesswork and speculation are not enough to avoid summary judgment.”); Ciciora v. CCAA, Inc., 581 F.3d 480, 483 (7th Cir. 2009) (“[M]erely inviting speculation as to the cause of the ice was insufficient to survive summary ...

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