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Catalano v. Menard Inc.

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

June 23, 2017

Alice Catalano, Plaintiff,
Menard Inc., d/b/a Menards Defendant.


         Plaintiff, 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[1] 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 [73] on all three counts. For the following reasons, Menards' motion is granted.

         I. Undisputed Material Facts

         Counsel 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.”[2] Plaintiff also submitted a statement of additional facts-none of which create a material dispute.

         In accordance with the rules, in opposing a summary judgment motion a party must provide:

(3) a concise response to the movant's statement that shall contain:
(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 requirements.”).

         The 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.)

         The 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).

         One 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.)

         Menards 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).

         In 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.[3] (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.[4] 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 ΒΆ 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 ...

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