United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
E. Aspen United States District Judge.
Christine Brama brings this state-law negligence action
against Defendant Target Corporation (“Target”)
after she slipped and fell in the entrance of one of its
stores. Presently before us are the parties'
cross-motions for summary judgment. (Dkt. Nos. 50, 81.) Also
before us is Target's motion to strike Plaintiff's
reply in support of her motion for summary judgment,
Plaintiff's motion to strike Target's motion to
strike her reply, and Plaintiff's motion to waive the
page limit for her reply as set forth in Local Rule 7.1.
(Dkt. Nos. 97, 100, 104.) For the reasons set forth below, we
deny both motions for summary judgment, grant Plaintiff's
motion to waive the page limit requirements for her reply,
and deny both motions to strike as moot.
facts herein are undisputed and taken from the parties'
Local Rule 56.1 statements of fact and the exhibits thereto
unless otherwise noted. (See Def.'s SOF (Dkt.
No. 51); Pl.'s SOF (Dkt. No. 84).) For the purposes of
this analysis, we must rely on “evidence of a type
otherwise admissible at trial.” Hemsworth v.
Quotesmith.Com., Inc., 476 F.3d 487, 490 (7th Cir.
2007). On August 13, 2012, Plaintiff visited the Target store
located at 2939 West Addison Street in Chicago, Illinois.
(Pl.'s SOF ¶ 5.) The weather was damp and it was
raining. (Def.'s SOF ¶ 10.) Plaintiff left the store
after shopping for thirty-five to forty minutes and observed
that it had rained. (Id. ¶¶ 11-12.) While
waiting for the bus, Plaintiff noticed on her receipt that
she had been overcharged. (Id. ¶¶ 13-14.)
She returned to the store to get a refund and re-entered the
store through the same doors that she had entered earlier.
(Id. ¶ 19.) The entrance contains one set of
doors between the outside and entryway, and a second set of
doors between the entryway and the store interior.
(Id. ¶ 18.) Plaintiff took one step into the
entryway and slipped and fell between the first and second
set of doors. (Id. ¶¶ 22-23.) Plaintiff
observed there was water pooled on the floor where she fell
and that the water smelled strongly like a sewer. (Pl.'s
Rule 56.1 Resp. (Dkt. No. 80) ¶ 35.) Plaintiff claims
that after the fall, a security guard employed by Target
stated, “I knew this was gonna [sic] happen one day,
because that entrance always floods when it
rains.” (Pl.'s SOF ¶ 31.) A Target
employee called an ambulance, and Plaintiff was taken to a
hospital for treatment. (Def.'s SOF ¶¶ 48, 52.)
Plaintiff asserts she suffered numerous injuries as a result
of the fall. (Id. ¶ 48.)
April 21, 2012, Plaintiff filed a four-page customer
complaint with the store, (Def.'s SOF ¶ 61), in
which she described a “filthy, smelly liquid” on
the entryway floor and reported that her canvas bag was
“soaking wet” after the fall. (Dkt. No. 51-5 at
1-2.) She also signed a statement claiming that she fell on
the wet carpet. (Def.'s SOF ¶ 63.) Several Target
employees submitted witness statements observing that the
carpet was wet or damp due to rain. (Id.
¶¶ 57-59.) Thereafter, Plaintiff filed suit in the
Circuit Court of Cook County, Illinois on July 6, 2014,
alleging, under state tort law, that Target negligently
allowed a foreign substance to accumulate in its entryway
which caused her to slip and fall. (Dkt. No. 1-1.) Target
removed the case to federal court on August 8, 2014.
judgment is proper only when “there is no genuine issue
as to any material fact and the moving party is entitled to
judgment as a matter of law.” Fed R. Civ. P. 56(a). A
genuine issue for trial exists when “the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986).
The moving party has the burden to identify “those
portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence
of a genuine issue of material fact.” Celotex Corp.
v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553
(1986) (internal quotation marks omitted). Once the moving
party meets its burden of production, the nonmoving party
“may not rest upon the mere allegations or denials of
the adverse party's pleading, ” but rather
“must set forth specific facts showing that there is a
genuine issue [of material fact] for trial.”
Fed.R.Civ.P. 56(e). In deciding whether summary judgment is
appropriate, we must accept the nonmoving party's
evidence as true, and draw all inferences in that party's
favor. See Anderson, 477 U.S. at 255, 106 S.Ct. at
2513. However, “inferences relying on mere speculation
or conjecture will not suffice.” Stephens v.
Erickson, 569 F.3d 779, 786 (7th Cir. 2009) (citing
Argyropoulos v. City of Alton, 539 F.3d 724, 732
(7th Cir. 2008)). Because the parties have filed
cross-motions, we “construe all inferences in favor of
the party against whom the motion under consideration is
made.” Andersen v. Chrysler Corp., 99 F.3d
846, 856 (7th Cir. 1996) (citing I.A.E., Inc. v.
Shaver, 74 F.3d 768, 774 (7th Cir.1996)).
the Erie doctrine, federal courts sitting in diversity apply
state substantive law and federal procedural law.”
Gasperini v. Ctr. for Humanities, Inc., 518 U.S.
415, 427, 116 S.Ct. 2211, 2219 (1996). The parties agree
Illinois substantive law controls. (Def.'s Mem. ISO Summ.
J. (Dkt. No. 52) at 4; Pl.'s Mem. ISO Summ. J. (Dkt. No.
83) at 3.) To prove negligence under Illinois law, “the
plaintiff must establish the existence of a duty owed by the
defendant, a breach of that duty, and an injury proximately
resulting from that breach.” Pavlik v. Wal-Mart
Stores, Inc., 323 Ill.App.3d 1060, 1063, 753 N.E.2d
1007, 1010 (1st Dist. 2001). If the plaintiff cannot
establish an element of her cause of action, summary judgment
for the defendant is proper. Id. The parties agree
Target owed Plaintiff a duty to exercise reasonable care to
maintain the premises in a reasonably safe condition for her
use, but they dispute the elements of breach and proximate
cause. (Def.'s Mem. at 10.)
Breach of Duty
Illinois law, a defendant business owner breaches its duty to
an invitee who slips on a foreign substance if “the
substance was placed there by the negligence of the
proprietor” or if the defendant had actual or
constructive notice of the substance. Pavlik, 323
Ill.App.3d. at 1063-64, 753 N.E.2d at 1010 (internal
quotation marks and citations omitted). “Generally, an
employee's knowledge of a dangerous condition or spilled
substance on the premises is considered sufficient to impute
notice to a defendant employer.” Id. at 1065,
753 N.E.2d at 1012. Plaintiff offers comments from a security
guard employed by Target to establish that a genuine issue of
material fact exists as to whether Target, through its
employee, had notice of the substance she slipped on.
Specifically, Plaintiff claims that a Target security guard
stated, “the floors always flood when it rains”
and “I knew this was gonna [sic] happen one day,
because that entrance always floods when it rains.”
(Pl.'s Mem. at 12; Pl.'s Reply (Dkt. No. 96) at
21-22; Pl.'s SOF ¶ 31; Brama Dep. (Dkt. No. 51-3) at
Pg. ID#: 177-78.)
responds that any such statement by the security guard is
“inadmissible hearsay which is not supported by any
written statements that have been shown to decision makers
and should not be considered by the court in consideration of
a summary judgment ruling.” (Dkt. No. 91 ¶ 31.)
Hearsay is a “statement that the declarant does not
make while testifying at the current trial or hearing”
offered “to prove the truth of the matter asserted in
the statement.” Fed.R.Evid. 801(c). However, Federal
Rule of Evidence 801(d)(2)(D) provides that a
“statement offered against an opposing party” and
“made by the party's agent or employee on a matter
within the scope of that relationship and while it
existed” is not hearsay, and is admissible. To analyze
the admissibility of the security guard's alleged
statement, “there are two relevant requirements under
Rule 801(d)(2)(D).” Aliotta v. Nat'l R.R.
Passenger Corp., 315 F.3d 756, 761 (7th Cir. 2003). The
statement “must be an admission” and must be made
“concerning a matter within the scope” of the
security guard's employment. Id. “To
qualify as an admission, the statement ‘need not be
inculpatory, ' but rather, it ‘need only be made by
the party against whom it is offered.'” Miller
v. TGI Friday's, Inc., No. 05 C 6445, 2007 WL
723426, at *4 (N.D. Ill. March 5, 2007) (quoting United
States v. McGee, 189 F.3d 626, 631-32 (7th Cir. 1999.)
Because the security guard's admission is being offered
against Target, “it qualifies as a vicarious admission
if it meets the other Rule 801(d)(2)(D) requirement that the
statement has to be ‘within the scope . . . of
employment.” Aliotta, 315 F.3d at 761.
security guard's statement was “within the scope of
his employment” if he was “performing the duties
of his employment when he comes in contact with the
particular facts at issue.” Id. at 761.
According to Plaintiff, the security guard was employed by
Target and, while working for Target, saw her fall and
stated, “I knew this was gonna happen one day, because
that entrance always floods when it rains.” (Pl.'s
SOF ¶ 31; Brama Dep. at Pg. ID#: 177-78.) The
guard's statement was thus an admission within the scope
of his employment, and not hearsay pursuant to Rule
801(d)(2)(D). See, e.g., McClelland v.
Blazin' Wings, Inc., 675 F.Supp.2d 1074, 1077-78 (D.
Co. 2009) (citing Aliotta and finding a
bartender's statement concerning a bar fight he observed
while working could be imputed to his employer under Rule
801(d)(2)(D) because he was performing the duties of his
employment when he came in contact with the facts at issue);
Taylor v. United States, 3 C 2589, 2008 WL 152896,
at *8 (W.D. Tenn. 2008) (finding a police officer's
statement qualified as non-hearsay under Rule 801(d)(2)(D)
because learned of the facts at issue “while performing
the duties of his employment”). Moreover, despite the
fact that Plaintiff has not corroborated the security
guard's statement with any written documents,
Plaintiff's testimony is sufficient to establish her
personal knowledge of the security guard's statement.
Fed.R.Evid. 602. (See Brama Dep. at Pg. ID#:
177-78.) We therefore find that there is a genuine dispute as
to whether Target had actual notice of the water in the
entryway, which precludes summary judgment on the issue of
Target's alleged breach.