United States District Court, C.D. Illinois, Rock Island Division
DARROW, UNITED STATES DISTRICT JUDGE
the Court is Defendant Menard, Inc.'s
(“Menard”) motion for summary judgment, ECF No.
35. For the following reasons, the motion is GRANTED IN PART
and DENIED IN PART.
Marion Fullerlove lives in Sherrard, Illinois. Menard, a
Wisconsin corporation, operates a chain of retail outlets
under the name “Menards, ” selling a variety of
home improvement supplies, building materials, tools, and
November 28, 2014, Fullerlove was shopping at a Menards
location in Moline, Illinois. The parking lot at this
location is striped with yellow acrylic paint. The curbs were
also painted yellow, at least all the ones relevant to this
case. Fullerlove finished his shopping, and at about 1:43
p.m., pushed a shopping cart with a few items in it back to
his car, which he had parked in one of the handicapped
parking spots. The weather was not cold enough to produce
ice; indeed, Fullerlove states that it was “kind of
rainy like, ” Fullerlove Dep. 11:24, Mot. Summ. J. Ex.
6, ECF No. 35-6, and the parties agree that there were
accumulations of water on some of the curbs and other flat
surfaces. Fullerlove stopped pushing the cart when he arrived
at his car. Still on the curb in front of the car, he let go
of the cart, took a step or two to his right at the edge of
the curb, and fell forward into the parking lot. He was
briefly stunned. Bystanders helped him to his feet. His wife
drove him to the hospital.
November 24, 2015, Fullerlove filed suit in Illinois Circuit
Court in Rock Island, Illinois, alleging that Menard had
breached its duty of care under Illinois law to make the
premises reasonably safe for invitees, and that he had fallen
as a result of this breach. Compl. 1- 2, Not. Removal Ex. 1,
ECF No. 1-1. On December 16, 2015, Menard removed the case to
this Court pursuant to 28 U.S.C. §§ 1441, 1446. On
December 21, 2016, Menard moved for summary judgment on
Legal Standard on a Motion for Summary Judgment
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.”
Fed.R.Civ.P. 56(a). At the summary judgment stage the
court's function is not to weigh the evidence and
determine the truth of the matter, but to determine whether
there is a genuine issue for trial-that is, whether there is
sufficient evidence favoring the non-moving party for a jury
to return a verdict in its favor. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986); Patel v.
Allstate Ins. Co., 105 F.3d 365, 370 (7th Cir. 1997).
The court must view the evidence in the light most favorable
to the non-moving party and draw all reasonable inferences in
that party's favor. McCann v. Iroquois Mem'l
Hosp., 622 F.3d 745, 752 (7th Cir. 2010) (citing
Anderson, 477 U.S. at 255). “A genuine issue
for trial exists only when a reasonable jury could find for
the party opposing the motion based on the record as a
whole.” Pipitone v. United States, 180 F.3d
859, 861 (7th Cir.1999) (quoting Roger v. Yellow Freight
Sys., Inc., 21 F.3d 146, 149 (7th Cir. 1994).
argues that summary judgment must enter in its favor because
Fullerlove cannot show that it breached any duty of care in
its use of paint on the curbs in its parking lot, Mot. Summ.
J. 8-12; and that he cannot show that any alleged breach
proximately caused his fall, id. at 12-16.
Fullerlove's response, adorned with just one citation to
legal authority, observes that juries make findings of fact.
law governs Menard's liability in this diversity case.
“In Illinois, businesses owe their invitees a duty to
maintain the premises in a reasonably safe condition to avoid
injuring them [that is, the invitees].” Zuppardi v.
Wal-Mart Stores, Inc., 770 F.3d 644, 649 (7th Cir.
2014); see Marshall v. Burger King Corp., 856 N.E.2d
1048, 1057-58 (Ill. 2006). “Under Illinois law,
‘[t]he essential elements of a cause of action based on
common-law negligence are the existence of a duty owed by the
defendant to the plaintiff, a breach of that duty, and an
injury caused by that breach.'” Carlson v.
Wal-Mart Stores, Inc., No. 06 C 4318, 2007 WL 4569867,
at *2 (N.D. Ill.Dec. 21, 2007) (quoting Judge-Zeit v.
General Parking Corp., 875 N.E.2d 1209, 1215
(Ill.App.Ct. 2007)). Here, the parties agree that Fullerlove
was an invitee of Menard, and that as a consequence, Menard
owed him a duty to keep the Moline Menards location
reasonably safe. The parties also agree that Fullerlove was
injured. Breach and causation are thus the elements at issue.
the unrebutted report of its expert, George Widas, Menard has
shown that there is no genuine issue of fact as to whether
Menard breached a duty of care to its invitees by allowing
the curb upon which Fullerlove slipped to be too slippery.
Widas, a forensic engineer, examined the sidewalk and curb
where Fullerlove fell. Widas used a tribometer, a device that
measures (among other things) the coefficient of friction
between two surfaces, and a “testfoot” (sample
shoe sole), and found that, under both dry and wet
conditions, the coefficient of friction between the shoe and
fully painted areas of the curb was .64 ± 0.02. Widas
Report 16, Mot. Summ. J. Ex. 4, ECF No. 35-4. He found that
on areas where “asperities from the underlying concrete
were evident through the safety yellow paint, ”
id., it was .68 ± 0.04. (In other words,
where the paint did not fully sheathe the concrete, the
surface had even more friction.) Citing publications from
OSHA and the National Bureau of Standards to the effect that
surfaces with a coefficient of friction of .5 or greater are
“non hazardous walkway surfaces, ” id.
at 17, Widas concluded that Fullerlove's slow, shuffling
steps at the time of his fall did not come close to applying
lateral force in excess of the traction the curb provided.
That is to say that, given Fullerlove's admission that he
was wearing shoes with good traction, Fullerlove Dep.
15:10-11, and his observed slow gait, there is no way that
Fullerlove could have slipped on the curb Widas studied,
because the curb was not slippery enough. Id. at 26.
offers no evidence suggesting that Widas's assessment of
the curb's slipperiness is wrong, beyond an assertion
that the curb where he fell was slipperier than other parts
of the curb. Resp. Mot. Summ. J. 3. However, the portion of
his own deposition to which Fullerlove cites does not support
this assertion, see Fullerlove Dep. 9:3-17; and,
more significantly, a plaintiff's bare assertion that the
area he fell on was slipperier than the surroundings, without
more evidence of some kind, is insufficient to survive
summary judgment. See Kimbrough v. Jewel Companies,
Inc., 416 N.E.2d 328, 331-32 (Ill.App.Ct. 1981)
(“Liability cannot be predicated upon surmise or
conjecture as to the cause of the injury; proximate cause can