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Faraj v. Dollar Tree Stores, Inc.

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

April 17, 2017

HANAN FARAJ, Plaintiff,
v.
DOLLAR TREE STORES, INC. Defendant.

          MEMORANDUM OPINION AND ORDER

          John Robert Blakey, Judge

         Plaintiff Hanan Faraj (“Plaintiff”) alleges that she sustained injuries after she slipped and fell on an unidentified substance that was negligently left on the floor of Defendant Dollar Tree's (“Defendant's”) store in Chicago, Illinois. On January 13, 2017, Defendant moved for summary judgment. Def.'s Mot. Summ. J. [30]. For the reasons stated below, Defendant's motion [30] is granted.

         I. Background[1]

         One afternoon in September 2014, Plaintiff visited Defendant's store located at 5347 North Lincoln Avenue in Chicago, Illinois. DSOF [29] ¶ 6. Plaintiff shopped for approximately ten to fifteen minutes before going to the cash register to pay. Id. ¶¶ 7, 9. As she was paying, Plaintiff realized that she had forgotten an item. Id. ¶ 9. Plaintiff asked the cashier to hold her purchased goods at the cash register, and returned to the store's main floor to retrieve the forgotten merchandise. Id.

         Plaintiff walked directly to a food product aisle, which she had not visited during her initial trip through the store. Id. ¶¶ 12, 14. Seconds after entering the aisle, Plaintiff's right foot slipped and she fell to the ground onto her right shoulder. Id. ¶¶ 12, 16. After she fell, Plaintiff noticed a substance on the floor that, by her observation, resembled “vomit mixed with yogurt.” Id. ¶ 20. The substance was “pink and yellow” in color, and covered an area approximately two to three feet long by two feet wide in the middle of the aisle. Id. ¶¶ 20, 22, 24. At her deposition, Plaintiff testified that the substance “smelled very bad.” DSOF [29] Ex. A at 82:13. Plaintiff further testified that she did not know how long the substance had been present in the aisle, but, based upon the smell, opined that it had been there “maybe for a while.” Id. at 99:12-100:18. Plaintiff took a photograph of the substance immediately after her fall, which Defendant attached to its summary judgment motion. DSOF [29] Ex. A.

         Plaintiff called for help until another customer came to offer assistance. DSOF [29] ¶ 17. Shortly thereafter, Peter Klepacki, the store manager, and another Dollar Store employee arrived at Plaintiff's location. Id. ¶ 18. The employee called an ambulance, which took Plaintiff to the hospital. DSOF [29] Ex. B at 37:19, 50:23-24.

         Klepacki testified at his deposition that, at the time of Plaintiff's fall, he was working in a nearby health and beauty supplies aisle. Id. at 28:2-6. Klepacki further testified that he was in the process of conducting the store's midday “recovery, ” during which employees organize and straighten merchandise throughout the store. Id. at 29:5-15. Klepacki stated that the store conducted a thorough “recovery” at least three times a day-at the beginning, middle, and end of business hours-but that employees also “constantly” inspected the premises for hazards. Id. at 75:6-18. Klepacki stated that, although he no longer had independent recollection, based upon his usual “recovery” routine, he would have inspected the aisle in which Plaintiff ultimately fell approximately ten minutes before her accident. Id. at 112:14-113:8, 119:20-120:5. Klepacki did not recall observing any substance on the floor at that time, and testified that if he had, he would have immediately cleaned it pursuant to Defendant's policies and procedures. Id. at 102:15-17, 134:20-135:18.

         Klepacki stated that he first noticed the substance on the floor after coming to Plaintiff's aide after her fall. Id. at 50:11-18. Although Klepacki did not recall any particular smell, he testified that Plaintiff told him that the substance was vomit. Id. at 48:5-12. According to Klepacki, the substance appeared “very fresh and very wet.” Id. at 103:13-16, 111:15-112:2. After Plaintiff was taken to the hospital, Klepacki cleaned the substance with a mop and bleach. Id. at 112:4-13. No part of the substance was preserved. Id. at 47:21-24.

         Although Plaintiff noticed that there were “some” customers in the store at the time of her fall, she could not recall how many there were. DSOF [29] Ex. A at 44:10-46:15. Plaintiff did remember, however, that it was “kind of a big Dollar Tree.” Id. at 44:14-15. Klepacki recalled between ten and fifteen customers, although he did not count them. DSOF [29] Ex. B at 48:18-49:1. Klepacki also testified that midday crowds at Defendant's store are generally smaller, thus justifying the need for only two employees on the day of Plaintiff's accident (as opposed to evenings or weekends, when up to six or seven employees are present). Id. at 117:11-118:16, 133:6-9.

         On February 18, 2016, Plaintiff filed suit in state court, alleging negligence on the part of Defendant for failing to properly maintain its premises or warn Plaintiff of the slippery substance. Notice [1] Ex. A. On March 2, 2016, Defendant removed the case to this Court. Notice [1]. On January 13, 2017, Defendant moved for summary judgment. Def.'s Mot. Summ. J. [30].

         II. Legal Standard

         Summary judgment “is the ‘put up or shut up' moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events.” Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003) (quoting Schacht v. Wisconsin Dep't of Corr., 175 F.3d 497, 504 (7th Cir. 1999)). Once a party has made a properly-supported motion for summary judgment, “the nonmoving party may not simply rest upon the pleadings but must instead submit evidentiary materials that set forth specific facts showing that there is a genuine issue for trial.” Siegel v. Shell Oil Co., 612 F.3d 932, 937 (7th Cir. 2010) (internal quotations omitted). Summary judgment is appropriate if the moving party can establish 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); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Burnell v. Gates Rubber Co., 647 F.3d 704, 708 (7th Cir. 2011). The nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts, ” and the “mere existence of a scintilla of evidence in support of the nonmoving party's position will be insufficient to survive a summary judgment motion.” Siegel, 612 F.3d at 937. Instead, there must be evidence upon which “a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In conducting its analysis, the Court construes all facts and reasonable inferences in favor of the nonmoving party. Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d 651, 653 (7th Cir. 2010).

         III. Analysis

         To establish a claim for negligence under Illinois law, Plaintiff must prove: (1) the existence of a duty of care owed by Defendant to Plaintiff; (2) a breach of that duty; and (3) an injury proximately caused by that breach. Swearingen v. Momentive Specialty Chems., Inc., 662 F.3d 969, 972 (7th Cir. 2011) (citing Thompson v. Gordon,948 N.E.2d 39, 45 (Ill.App.Ct. 2011)). Additionally, under Illinois' comparative negligence statute, Plaintiff may not recover damages if ...


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