United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Robert Blakey, Judge
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. . For the reasons stated below,
Defendant's motion  is granted.
afternoon in September 2014, Plaintiff visited
Defendant's store located at 5347 North Lincoln Avenue in
Chicago, Illinois. DSOF  ¶ 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.
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  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 
called for help until another customer came to offer
assistance. DSOF  ¶ 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  Ex. B at 37:19,
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,
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
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  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  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.
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  Ex. A. On March 2, 2016,
Defendant removed the case to this Court. Notice . On
January 13, 2017, Defendant moved for summary judgment.
Def.'s Mot. Summ. J. .
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.
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 ...