United States District Court, N.D. Illinois, Eastern Division
DONALD AND JODI GUTTERMAN, Individually and as Parents and Next Friends of MADISON GUTTERMAN, Plaintiffs,
TARGET CORPORATION and BRAVO SPORTS, Defendants.
MEMORANDUM OPINION AND ORDER
Z. Lee United States District Judge
case arises from injuries that Madison Gutterman
("Madison") suffered while riding a skateboard
within a Target store in Vernon Hills, Illinois. Her parents,
Donald and Jodi Gutterman ("Plaintiffs"), brought
suit on her behalf against Target and Bravo Sports
("Bravo"), which manufactured and distributed the
skateboard at issue. Target and Bravo have separately moved
for summary judgment. For the reasons that follow, both
motions   are granted.
26, 2013, Donald, Jodi, and Madison visited Target's
store in Vernon Hills. Target's LR 56.1(a)(3) Stmt.
¶ 10, ECF No. 62. Madison, age eleven, was one month
away from her twelfth birthday. Id. ¶ 14. While
they were shopping, Madison asked Donald and Jodi if she
could go off by herself to a different section of the store,
and Donald and Jodi agreed. Id. ¶¶ 15-16.
went to a section of the store where skateboards were on
display. Id. ¶ 24. She took a skateboard off
the shelf, placed it on the floor, and rode it down an aisle.
Id. ¶ 27. The aisle was clean, clear, and dry,
and there were no obstructions on the floor. Id.
¶ 29. Despite this, the parties agree that the floor was
hard, slick, and unfit for skateboarding. See
Pis.' LR 56.1(b)(3)(C) Stmt. (Target) ¶ 76, ECF No.
89. After riding the skateboard for a short period of time,
Madison fell off and sustained injuries that spurred the
action before this Court. Target's LR 56.1(a)(3) Stmt.
skateboard at issue was manufactured and distributed to
Target by Bravo. Pis.' LR 56.1(b)(3)(C) Stmt. (Target)
¶ 72. Bravo placed "deterrent devices" on all
skateboards it distributed to Target, including those that
arrived at the Vernon Hills store prior to May 26, 2013.
Id. ¶¶ 73, 75. "Truck boxes" are
the only deterrent device Bravo used with the type of
skateboard at issue. Id. ¶ 75. A truck box is
"a cardboard box that covers the rear axle and wheels of
the skateboard." Target's LR 56.1(a)(3) Stmt. ¶
39. The box is affixed to the skateboard with hot glue or
packaging tape. Id. ¶ 41. It can be removed
quickly and easily by simply pulling it off. Id.
¶ 42. The purpose of the box is twofold: to protect the
skateboard from damage pre-sale, and to protect customers by
deterring them from riding skateboards in stores. See
Id. ¶ 40. Here, however, the parties agree that no
truck box was affixed to the skateboard at issue when Madison
rode it and that the truck box thus must have been removed at
some point prior. Id. ¶ 55; Pis.' LR
56.1(b)(3)(C) Stmt. (Bravo) ¶ 57, ECF No.
at the time Madison rode the skateboard, its surface was
covered in plainly visible plastic shrink wrap meant to
protect the board's surface during manufacturing and
distribution. Target's LR 56.1(a)(3) Stmt. ¶¶
43, 45; id., Ex. G, ECF No. 62-8. The plastic wrap
covers "grip tape" that provides traction on the
board's surface; thus, the board is unsuitable for riding
before the wrap is removed. Id. ¶ 45. The
parties agree that the fact that the board's surface
remained wrapped contributed to Madison's fall. Pis.'
LR 56.1(b)(3)(C) Stmt. (Target) ¶ 76. Bravo placed a
warning sticker on top of the plastic wrap that reads as
follows: "WARNING! Reduce the risk of serious injury and
only use this skateboard while wearing full protective
gear-Helmet, Knee Pads, Elbow Pads, Wrist Guards, and Flat
Soled Shoes[.] Max Rider Weight 110 lbs[.]" Target's
LR 56.1(a)(3) Stmt. ¶¶ 46-47, 49. Madison wore flip
flops, and no other protective gear, while riding the board.
See id. ¶¶ 13, 28. The parties dispute
whether wearing flip flops contributed to Madison's
injury and what impact wearing protective gear would have
had. Target's Resp. Pis.' LR 56.1(b)(3)(C) Stmt.
¶ 76, ECF No. 96.
had experience riding skateboards; "she knew how to ride
the skateboard she took off the shelf in the store that day,
and there was nothing new, different, or unusual about this
skateboard as compared to other skateboards she had
previously ridden." Target's LR 56.1(a)(3) Stmt.
¶ 30. At a more basic level, she knew "that a
skateboard has wheels, that it rolls on those wheels, that
she could fall off of it, and that if she were to fall off of
it, she could get hurt." Id. ¶ 33.
Moreover, while the parties dispute the precise guidance
Donald and Jodi had given her about using skateboards in a
store, riding with flip flops, and riding without protective
gear, there is no dispute that they generally advised her
against these activities. Target's LR 56.1(a)(3) Stmt.
¶¶ 17-18; id., Ex. B, at 38:20-40:1, ECF
No. 62-3; id., Ex. C, at 20:17-21:7, 25:2-14, ECF
No. 62-4; Bravo's LR 56.1(a)(3) Stmt. ¶¶ 13-15,
ECF No. 75; Target's Resp. Pis.' LR 56.1(b)(3)(C)
Stmt. ¶ 110.
court shall grant summary judgment 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 also Shell v. Smith, 789
F.3d 715, 717 (7th Cir. 2015). To survive summary judgment,
the nonmoving party must "do more than simply show that
there is some metaphysical doubt as to the material facts,
" Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986), and instead must
"establish some genuine issue for trial such that a
reasonable jury could return a verdict in her favor."
Gordon v. FedEx Freight, Inc., 674 F.3d 769, 772-73
(7th Cir. 2012). In reviewing a motion for summary judgment,
courts "must construe all facts and reasonable
inferences in favor of the nonmoving party."
Dorsey, 507 F.3d at 627. But "[i]nferences that
are supported by only speculation or conjecture will not
defeat a summary judgment motion." Id. (quoting
McDonald v. Vill. of Winnetka, 371 F.3d 992, 1001
(7th Cir. 2004)) (internal quotation marks omitted).
Claims Against Target
first seek to recover against Target on theories of common
law negligence and violation of the Illinois Premises
Liability Act. Target has moved for summary judgment on the
grounds that the skateboard by which Madison suffered her
injuries was an open and obvious danger, and that Target owed
Madison no duty of care.
diversity action, the Court applies Illinois law. Lane v.
Hardee's Food Sys., Inc., 184 F.3d 705, 707 (7th
Cir. 1999). To succeed in a claim of negligence, "the
plaintiff must plead and prove the existence of a duty owed
by the defendant to the plaintiff, a breach of that duty, and
injury proximately resulting from the breach." Bruns
v. City of Centralia, 21 N.E.3d 684, 688-89 (111. 2014).
The existence of a duty is a question of law. Id. at
determining the existence of a duty, Illinois courts ask
"'whether defendant and plaintiff stood in such a
relationship to one another that the law imposed upon
defendant an obligation of reasonable conduct for the benefit
of plaintiff.'" Bruns, 21 N.E.3d at 689
(quoting Ward v. KMart Corp., 554 N.E.2d 223, 227
(111. 1990)). Four factors are relevant to this analysis:
"(1) the reasonable foreseeability of the injury, (2)
the likelihood of the injury, (3) the magnitude of the burden
of guarding against the injury, and (4) the consequences of
placing that burden on the defendant." Id.
"open and obvious rule" is a common law construct
that mitigates a party's duty to protect another from a
potentially dangerous, yet open and obvious, condition.
Id. The open and obvious rule applies in both
negligence and premises liability actions. Id. at
689-90; Ward, 554 N.E.2d at 229-30.
"'Obvious' means that 'both the condition
and the risk are apparent to and would be recognized by a
reasonable man, in the position of the visitor, exercising
ordinary perception, intelligence, and judgment.'"
Bruns, 21 N.E.3d at 690 (quoting Restatement
(Second) of Torts § 343A cmt. b (1965)). "Whether a
dangerous condition is open and obvious may present a
question of fact, " but if there is no dispute as to the
"physical nature" of a condition, as is the case
here, whether it is open or obvious is a question of law.
a finding that a condition is open and obvious does not of
itself preclude the existence of a duty. Bruns, 21
N.E.3d at 690. Rather, in carrying out a traditional duty
analysis, courts use the open and obvious rule in evaluating
the first two factors of the duty inquiry: the foreseeability
and likelihood of injury. Id. In regard to
foreseeability, the open and obvious nature of a condition
reduces the reasonable foreseeability of injury, because it
is reasonable for a defendant to expect that a plaintiff will
avoid an open and obvious danger. Id. at 694.
Similarly, the likelihood that a plaintiff will avoid an open
and obvious danger reduces the likelihood of injury under the
second factor. Id. at 695. After incorporating the
open and obvious rule in this manner, courts proceed as usual
to consider the magnitude and consequences of placing a
burden on the defendant. Id.
open and obvious rule applies just the same when children are
involved. Corcoran v. Vill. of Libertyville, 383
N.E.2d 177, 180 (HI. 1978) (stating that "[e]ven if an
owner or occupier knows that children frequent his premises,
he is not required to protect against the ever-present
possibility that children will injure themselves on obvious
or common conditions"). As the Supreme Court of Illinois
has explained, "'[i]t is always unfortunate when a
child gets injured while playing, but a person who is merely
in possession and control of the property cannot be required
to indemnify against every possibility of injury thereon. The
responsibility for a child's safety lies primarily with
its parents, whose duty it is to see that his behavior does
not involve danger to himself" Id. (quoting
Driscoll v. Rasmussen Corp.,219 N.E.2d 483, 486
(111. 1966)). To that end, "'[t]here are many
dangers, such as those of fire and water, or of falling from
a height, which under ordinary conditions may reasonably be
expected to be understood and appreciated by any child of an
age to be allowed at large.'" Id. (quoting
Restatement (Second) of Torts § 339 cmt. j (1965)). And
"a possessor of land is free to rely upon the ...