United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
ROBERT BLAKEY, UNITED STATES DISTRICT JUDGE
Elizabeth Broustis (“Broustis”) sustained
injuries in the parking lot of Defendant Cardinal Health 200,
LLC (“Cardinal”), and now brings claims against
Cardinal sounding in premises liability and negligence.
Compl. [1-1]. Cardinal has moved for summary judgment on both
claims. Mot. Summ. J. . As more fully explained below,
that motion is denied.
April 26, 2013, around 3:30 P.M., Elizabeth Broustis arrived
at Cardinal to attend a rummage sale. DSOF  ¶¶
8-9. She was accompanied by her daughter, Petra Foo, who
drove Broustis, Broustis's grandchildren, and her
granddaughter's friend in a minivan. Id.
¶¶ 10-11. Ms. Foo parked the minivan in the front
parking lot, in a space situated to the right of a
landscaping island made of concrete. PSOF  ¶ 2.
island contained loose rocks within its curbed border.
Id. The parties dispute whether the surface of the
rocks was level with the curb, or if there was a three to
four inch differential between the surface of the rocks and
the top of the curb. RDSOF  ¶ 24. Photographs
submitted to the Court demonstrate that the lip of the curb
is damaged, DSOF  Ex. 6, but the parties dispute whether
Broustis fell at the damaged portion of the curb. RPSOF 
¶ 15. The parties agree there were no signs warning
pedestrians to avoid the island. Id. ¶ 28-29.
Mr. Mehdi Anvari, head of maintenance at Cardinal, routinely
inspected the parking lot for safety hazards. Id.
¶ 21. Mr. Anvari also testified that he knew, by virtue
of these routine inspections, that there were broken curbs on
some of the islands in Cardinal's parking lot.
Id. ¶ 22.
exiting the van from the front passenger side, Ms. Broustis
walked around to the driver's-side rear sliding door to
manually close it after the children exited. Id.
¶ 5. Broustis walked on top of the landscaping island to
close the door. Id. ¶ 6. The parties dispute
whether Broustis had sufficient space between the car and the
island to walk on the pavement, or whether she was forced to
step onto the island. Id. After closing the sliding
door from atop the landscaping island, Broustis traversed it
perpendicularly and tripped while walking over the opposite
edge of the island. DSOF [39-7]. She fell down to the area of
pavement adjacent to the island. Id.
contends that defective cracking in the curb and the
resulting height difference caused her fall. PSOF  ¶
11. Again, Cardinal acknowledges a large breakage on the end
of the island, but argues that no cracks exist at the portion
of the curb where Broustis fell. RPSOF  ¶
11. The parties do agree that nothing was
obstructing Broustis's view, and she was wearing contact
lenses, so her vision was normal. RDSOF  ¶ 16.
Further, they agree that Broustis was not distracted at the
time of the occurrence and weather played no role in her
fall. Id. ¶ 29-31. As a result of the fall,
Broustis broke seven bones in her left wrist, requiring the
placement of a plate and pins in her wrist. RPSOF  ¶
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, 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, here,
Plaintiff. See CTL ex rel. Trebatoski v. Ashland School
Dist., 743 F.3d 524, 528 (7th Cir. 2014).
prevail on either of her claims, Broustis must prove that
Cardinal owed her a duty of care, Cardinal breached that
duty, and Cardinal's breach caused Broustis's injury.
See Simpkins v. CSX Transp., Inc., 965 N.E.2d 1092,
1096 (Ill. 2012) (in a negligence action, a plaintiff must
show that defendant owed her a duty of care, that defendant
breached the duty, and that the breach proximately caused an
injury); Rusch v. Leonard, 927 N.E.2d 316, 321
(Ill.App.Ct. 2010) (To “prevail on a claim for premises
liability, a plaintiff must allege and prove the existence of
a duty owed by the defendant to the plaintiff, a breach of
that duty, and an injury proximately caused by that breach of
essentially makes three arguments on summary judgment: (1) it
did not owe Plaintiff a duty, as any danger posed by the curb
was “open and obvious”; (2) it did not have any
knowledge of any defect with the curb, and thus,
Plaintiff's negligence claim must fail; and (3) there
was, in fact, no defect with the curb. The Court addresses
each argument in turn.
general matter, the “existence of a duty . . . is a
question of law for the court to decide.” Forsythe
v. Clark USA, Inc., 864 N.E.2d 227, 232 (Ill. 2007);
see also Rich v. Quad/Graphics Printing Corp.,
11-cv-7656, 2014 WL 5835623, at *3 (N.D. Ill. Nov. 10, 2014)
(“Whether a duty exists is a question of law for the
court to decide.”). In deciding whether a defendant
owes a plaintiff a duty, the Court considers: (1) whether the
plaintiff's injury was reasonably foreseeable; (2) the
likelihood of injury; (3) the magnitude of burden of ...