United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Alice Catalano, visited Defendant, Menard Inc.'s (d/b/a
Menards) retail store located in Mount Prospect, Illinois,
and on her way out of the store she was struck by the
automatic sliding doors. She filed a Complaint in the Circuit
Court of Cook County and Menards removed the matter to this
Court. Plaintiff then filed an Amended Complaint (Dkt. 15)
alleging that Menards was liable for injury based on
negligence (Count I), premises liability (Count II), and
negligence based on res ipsa loquitor (Count III).
Menards moves for summary judgment  on all three counts.
For the following reasons, Menards' motion is granted.
Undisputed Material Facts
for Plaintiff failed to respond to Menards' Statement of
Facts in compliance with the Northern District of
Illinois' Local Rule 56.1. Instead of filing a Response
to Menards' Rule 56 statement, counsel filed
“Plaintiff's Memorandum of Law In Support of
Response to Motion For Summary Judgment, ” which
included a “Summary of Facts.” In the summary,
Plaintiff's counsel only states that “Defendant
adequately summarized the facts until the last paragraph of
its Facts section.” Plaintiff also submitted a statement of
additional facts-none of which create a material dispute.
accordance with the rules, in opposing a summary judgment
motion a party must provide:
(3) a concise response to the movant's statement that
(A) numbered paragraphs, each corresponding to and stating a
concise summary of the paragraph to which it is directed, and
(B) a response to each numbered paragraph in the moving
party's statement, including, in the case of any
disagreement, specific references to the affidavits, parts of
the record, and other supporting materials relied upon, and
(C) a statement, consisting of short numbered paragraphs, of
any additional facts that require the denial of summary
judgment, including references to the affidavits, parts of
the record, and other supporting materials relied upon.
Absent prior leave of Court, a respondent to a summary
judgment motion shall not file more than 40
separately-numbered statements of additional facts. All
material facts set forth in the statement required of the
moving party will be deemed to be admitted unless
controverted by the statement of the opposing party.
See LR 56.1(3). Plaintiff's counsel failed to
follow this rule and failed to support any objections she may
have had with documented evidence that the Court could
review. Because district courts are entitled to enforce
strict compliance with Rule 56.1, Plaintiff's statement
of additional facts and her response to Menards's
statement of facts will be disregarded and Menards'
Statement of Facts is deemed admitted. See Ammons v.
Aramark Unif. Servs., Inc., 368 F.3d 809, 818 (7th Cir.
2004) (district court did not abuse its discretion when it
struck responses to statement of facts that were not
compliant with Rule 56.1); Smith v. Lamz, 321 F.3d
680, 683 (7th Cir. 2003) (“We have consistently held
that a failure to respond by the nonmovant as mandated by the
local rules results in an admission.”); Curtis v.
Costco Wholesale Corp., 807 F.3d 215, 219 (7th Cir.
2015) (noting that the Seventh Circuit has “routinely
upheld the district court's discretion in requiring
parties to comply strictly with local rule
following facts, therefore, are taken from Menard's
Statement of Facts and the record and are not disputed. On
October 4, 2015, Plaintiff and her mother went to the Menards
in Mount Prospect, Illinois, to shop for lava rock.
(Def.'s SOF ¶ 1.) At Menards' entrance, there
are automatic sliding doors (“entrance doors”)
which are triggered to slide when customers pass by a sensor
on either side of the doors. (Def.'s SOF ¶ 2.) While
exiting the store, Plaintiff claims that the sensor on the
sliding panel of the doors did not register her presence and
so she was struck on her left side. (Def.'s SOF ¶ 4,
5); (see also Dkt. 15 ¶ 8) (“It was
unclear why the sensors did not ‘see' Catalano and
stop the doors from closing.”). After she was struck,
Plaintiff experienced difficulty seeing and pain on the left
side of her body. (Dkt. 15 ¶ 9.)
entrance doors have two parts, a stationary emergency
breakaway panel and adjacent sliding panels with sensors.
(Dkt. 83, Exhibit A p. 78.) There are two different types of
sensors on both sides of the sliding panels which ensure that
the doors properly open and close: (1) eagles - these are the
activation or “motion only” sensors that make
sure that the door opens (Andrew Gerard Christopher Dep.
39:1-16); and (2) beams - or “presence sensors”
which hold the door open if an individual is standing in the
door path (Id. 39:17-19).
month before Plaintiff visited Menards, on September 8, 2015,
there was a windstorm that blew open the emergency breakaway
panel of Menards' entrance doors. (Richard Gerke Dep.
17:22-18:2.) Menards called its service technician, Nabco,
and Nabco ultimately serviced the doors three times in
September 2015. None of the visits or repairs related to
issues with the doors' sensors on the sliding panels.
(Def.'s SOF ¶ 11.) On each visit, the Nabco
technician, Richard Gerke, checked and confirmed to Menards
that the doors were functioning appropriately - opening and
closing when the sensor was activated. (Def.'s SOF
¶¶ 10, 12.) When Gerke first visited the store on
September 8, 2015, he made emergency repairs to secure the
emergency breakaway panel back to the door frame. Although
the doors were functioning when he left that day, Gerke
needed to come back to replace the hinge pivot, a part of the
breakaway panel that does not pertain to the sliding door,
that had been damaged by the wind. (Dkt. 84 at 3; Dkt. 79-2
at ¶ 4.) On September 18, 2015, when Gerke returned, he
encountered issues fitting the new pivot and determined he
would need to return with a different pivot. (Dkt. 79-2 at
¶ 5; Gerke Dep. 23:8-10.) Although the repair work
regarding the pivot pertained to the stationary breakaway
panel part of the door, Gerke made certain that the doors
were function in properly when he left the store on September
18. (Id.) During his third visit on September 21, he
installed the proper pivot, (Dkt. 79-2 at ¶ 5.), and
also repaired a “ball detent” which “holds
the door in place once it's in the closed position”
- again a repair on the breakout panel (Dkt. 79-2 at ¶
7). In the September 21, 2015 report, Gerke specifically
noted, “all functions and safety check OK.”
(Def.'s SOF ¶ 14.)
also called Nabco technicians to the store for a new issue a
few weeks after the incident. On October 23, 2015,
Menards called Gerke because although the doors were working
they were “not rolling smoothly.” Gerke
determined that a carriage assembly needed work but he did
not have the correct part to make the repair with him. (Gerke
Dep. 31:3-5.) On October 26, 2015, when Christopher returned
to the store to finish the repair, Christopher checked both
sides of the doors and found that the sensors worked.
(Christopher Dep. 40:22-41:2.) In order to check the sensors,
Christopher walked up to the door “from 45 degree
angles from the sides dead on and do the same thing on both
sides.” (Christopher Dep. 11:1-12:15.); (see
also Gerke Dep. 25:16-22).
summary, neither Nabco technician ever reported any issues
with the sensors when they left the store each time in 2015
both prior to and after the incident. (Dkt. 84 at 4; Dkt. 79-7 at
37-45.) There is no evidence in the record that supports that
the windstorm impacted either the sliding panels of the
entrance or the sensors on those panels. Menards never
received any complaints regarding their entrance doors before
or after Plaintiff's October 4th visit nor were there any
incidents involving the doors. (Def.'s SOF ¶ 7.)
Menards' managers Jacob Frosch and Charles Leveritte gave
deposition testimony that they had never received any
complaints from customers or other employees, nor had they
themselves witnessed the doors ...