United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
PHIL GILBERT DISTRICT JUDGE
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).
Summary Judgment Standard.
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.
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).
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.
all evidence and drawing all reasonable inferences in
Austin's favor, the evidence established the following
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.
before 10:30 p.m. on the evening in question,  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.
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.
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.
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
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.
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.
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.
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.
Substance Placed by Defendant
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.