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Austin v. Alton Casino, LLC

United States District Court, S.D. Illinois

September 7, 2016

CYNTHIA AUSTIN, Plaintiff,
v.
ALTON CASINO, LLC, d/b/a Argosy Casino Alton, Defendant.

          MEMORANDUM AND ORDER

          J. PHIL GILBERT DISTRICT JUDGE

         This matter comes before the Court on defendant Alton Casino, LLC's (“Casino”) motion for summary judgment (Doc. 23). Plaintiff Cynthia Austin has responded to the motion (Doc. 24).

         I. Summary Judgment Standard.

         Summary judgment must be granted “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.” Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). The reviewing court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Chelios v. Heavener, 520 F.3d 678, 685 (7th Cir. 2008); Spath, 211 F.3d at 396.

         The initial summary judgment burden of production is on the moving party to show the Court that there is no reason to have a trial. Celotex, 477 U.S. at 323; Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013). Where the non-moving party carries the burden of proof at trial, the moving party may satisfy its burden of production in one of two ways. It may present evidence that affirmatively negates an essential element of the non-moving party's case, see Fed. R. Civ. P. 56(c)(1)(A), or it may point to an absence of evidence to support an essential element of the non-moving party's case without actually submitting any evidence, see Fed. R. Civ. P. 56(c)(1)(B). Celotex, 477 U.S. at 322-25; Modrowski, 712 F.3d at 1169. Where the moving party fails to meet its strict burden, a court cannot enter summary judgment for the moving party even if the opposing party fails to present relevant evidence in response to the motion. Cooper v. Lane, 969 F.2d 368, 371 (7th Cir. 1992).

         In responding to a summary judgment motion, the nonmoving party may not simply rest upon the allegations contained in the pleadings but must present specific facts to show that a genuine issue of material fact exists. Celotex, 477 U.S. at 322-26; Anderson, 477 U.S. at 256-57; Modrowski, 712 F.3d at 1168. A genuine issue of material fact is not demonstrated by the mere existence of “some alleged factual dispute between the parties, ” Anderson, 477 U.S. at 247, or by “some metaphysical doubt as to the material facts, ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists only if “a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented.” Anderson, 477 U.S. at 252.

         II. Facts

         Construing all evidence and drawing all reasonable inferences in Austin's favor, the evidence established the following relevant facts.

         On the evening of October 19, 2012, Austin slipped and fell in the first floor women's bathroom of the Casino. That night, Nancy Steele was employed by the Casino as a housekeeper. Steele's responsibilities that evening were to clean the first floor of the Casino, including the women's bathroom on the first floor. She would spend about ten to fifteen minutes cleaning the bathroom, then spend about fifteen to twenty minutes cleaning other areas of the first floor and outside areas before returning to clean the bathroom again.

         Shortly before 10:30 p.m. on the evening in question, [1] Steele cleaned the bathroom, including wiping the sinks and the surrounding counter, refilling the toilet paper, mopping around the sinks and toilets with a dry or damp mop (without water) and spray cleaner, wiping down the toilets and cleaning the mirrors. Steele saw no spills on the floor at that time and did not mop any areas of the bathroom, such as the area around the wall by the entrance to the bathroom, other than around the sinks and toilets. At 10:30 p.m., she left to clean the rest of the first floor.

         Between 10:30 p.m. and 10:45 p.m., Austin, who was patronizing the Casino that evening, entered the women's bathroom on the first floor. She did not notice any liquid on the bathroom floor, but on her way around the wall by the entrance to the bathroom, she slipped on a puddle of a wet substance on the floor and fell. During her fall, she hit the wall and the floor, injuring herself and getting her clothes wet from the wet substance. Security guard Carol Ford received a call at approximately 10:45 p.m. that a patron had fallen in the women's bathroom so she reported to the scene, investigated, and eventually completed an accident report.

         When Steele was heading back to the bathroom ten to twenty minutes after the 10:30 p.m. cleaning, a man informed her that a woman had fallen in the bathroom. Steele found Austin sitting on Steele's chair in the bathroom, so Steele called security on her radio. Austin told Steele she had slipped on a wet substance on the bathroom floor. The area where Austin indicated she fell was away from the area Steele had dry/damp mopped shortly before 10:30 p.m. Steele then looked and saw what looked like water on the floor in the area where Austin had fallen, so she put out a sign to warn of a wet floor, mopped the substance up, and shut the bathroom down.

         In October 2014, Austin filed this lawsuit against the Casino in the Circuit Court for the Third Judicial Circuit, Madison County, Illinois. She alleges a cause of action for negligence (Count I), vicarious liability (Count II) and negligent hiring and retention (Count III). The Casino then removed the case based on diversity of citizenship between the parties.

         The Casino now moves for summary judgment arguing that Austin cannot establish an essential element of her claim for negligence: that the defendant breached its duty of care because it either caused or had actual or constructive notice of the liquid on the bathroom floor before Austin's fall. In response, Austin argues there is a genuine issues of material fact about whether the Casino or an agent of the Casino placed the wet substance on the floor and whether the Casino constructively knew the wet substance was there.

         III. Analysis.

         “It is, of course, well established that, as a general matter, a district court exercising jurisdiction because the parties are of diverse citizenship must apply state substantive law and federal procedural law.” Windy City Metal Fabricators & Supply, Inc. v. CIT Tech. Fin. Servs., Inc., 536 F.3d 663, 670 (7th Cir. 2008) (citing Erie R.R. v. Tompkins, 304 U.S. 64 (1938)). Thus, this Court applies the federal standard for summary judgment but Illinois law with regard to the negligence claim at issue.

         To prevail in a cause of action for negligence, the plaintiff must show the defendant owed her a duty of care, the defendant breached that duty and the breach proximately caused injury. See Marshall v. Burger King Corp., 856 N.E.2d 1048, 1053 (Ill. 2006). With respect to the duty element, a special relationship exists between a business and those it invites onto its property for business purposes. That special relationship may give rise to “an affirmative duty to aid or protect another against unreasonable risk of physical harm.” Id. at 1058; accord Reid v. Kohl's Dep't Stores, Inc., 545 F.3d 479, 481 (7th Cir. 2008); Peterson v. Wal-Mart Stores, Inc., 241 F.3d 603, 604 (7th Cir. 2001).

         A common hazardous condition encountered in a business is a spill on the floor. Where there is heavy patron traffic, there is a significant danger that spills caused by employees and/or patrons can precipitate an injurious fall. Peterson, 241 F.3d at 604. “The [business's] duty is not merely to prevent careless spillage by its employees but also to be on the lookout for spillage by whomever caused and to clean it up promptly.” Id. Accordingly, a business can be liable for a patron's slipping on a spilled substance if:

(1) the substance was placed there by the negligence of the proprietor, or (2) his servant knew of its presence, or (3) 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 proprietor had constructive notice of the substance.

Hayes v. Bailey, 400 N.E.2d 544, 546 (Ill.App.Ct. 1980); see Culli v. Marathon Petroleum Co., 862 F.2d 119, 123 (7th Cir. 1988). The Court addresses each of these theories of liability in turn.

         A. Substance Placed by Defendant

         In response, Austin argues that there is evidence from which a reasonable jury could conclude the substance on which she slipped was placed on the bathroom floor by Steele or another agent of the Casino. In support of her position, she cites Lane v. Hardee's Food Systems, Inc., 184 F.3d 705 (7th Cir. 1999). In Lane, the plaintiff slipped in a puddle of standing water near a drain in a Hardee's restaurant bathroom and fell. Id. at 706. The Court of Appeals held that there was a genuine issue of fact about whether the defendant created the spill because the plaintiff was able to “1) show that the foreign material was related to the defendant's business, and 2) produce some evidence that makes it more likely than not that the defendant was responsible for its existence.” Id. at 707 (citing Donoho v. O'Connell's Inc., 148 N.E.2d 434, 439 (Ill. 1958)). The Lane court had little trouble finding that water in a business's bathroom was related to the business. ...


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