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Broustis v. Cardinal Health 200, LLC

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

September 26, 2016

Elizabeth Broustis, Plaintiff,
Cardinal Health 200, LLC, Defendants.



         Plaintiff 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. [38]. As more fully explained below, that motion is denied.

         I. Background[1]

         On April 26, 2013, around 3:30 P.M., Elizabeth Broustis arrived at Cardinal to attend a rummage sale. DSOF [39] ¶¶ 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 [46] ¶ 2.

         The 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 [45] ¶ 24. Photographs submitted to the Court demonstrate that the lip of the curb is damaged, DSOF [45] Ex. 6, but the parties dispute whether Broustis fell at the damaged portion of the curb. RPSOF [49] ¶ 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.

         After 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.

         Broustis contends that defective cracking in the curb and the resulting height difference caused her fall. PSOF [46] ¶ 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 [49] ¶ 11. The parties do agree that nothing was obstructing Broustis's view, and she was wearing contact lenses, so her vision was normal. RDSOF [45] ¶ 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 [49] ¶ 19.

         II. Legal Standard

         Summary 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).

         III. Analysis

         To 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 duty.”).

         Defendant 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.

         A. Duty

         As a 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 ...

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