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Kozyra v. Dollar Tree Stores, Inc.

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

July 11, 2017

STELLA KOZYRA, Plaintiff,
v.
DOLLAR TREE STORES, INC., Defendant.

          MEMORANDUM OPINION AND ORDER

          Robert M. Dow, Jr. United States District Judge.

         Plaintiff Stella Kozyra was injured when she tripped and fell into a shopping cart in a retail store owned and operated by Defendant Dollar Tree Stores, Inc. This matter is currently before the Court on Defendant's motion for summary judgment [35].[1] For the reasons set forth below, Defendant's motion [35] is granted. In light of this decision, the Court strikes Plaintiff's motion calling attention of the court for a decision [43] as moot and strikes the notice of motion date of July 13, 2017. No appearances are necessary on that date.

         I. Background[2]

         Defendant Dollar Tree Stores, Inc. operates a store at 3620 East 118th Street in Chicago, Illinois. The store's entrance contains two sets of manual doors. The first set of doors allows entry from the outside into an interior vestibule area. The vestibule is a rectangle that has two large windows looking into the store: a window that is parallel with the store front that looks directly into the store, and a window to the left that is perpendicular to the store front. A second set of doors allows entry from the vestibule into the store itself. Checkout counters are located near the front of the store, approximately ten feet from the entrance in a leftward direction. The store has a light colored floor.

         The incident in question occurred on Friday April 10, 2015. The parties dispute the details regarding the arrangement of the front of the store on that date, and there is no surveillance footage or contemporaneous photographic evidence of the scene. Plaintiff maintains that shopping carts were located inside the store to the left of the entrance, and that they were lined up against the vestibule window parallel to the storefront. See [38] at ¶ 35, 39. Defendant states that the shopping carts instead were lined up along the perpendicular window, which is slightly farther to the left than Plaintiff's description.[3] See [41] at ¶ 35, 39. As for the shopping baskets, Defendant maintains that they were kept in stacks in the vestibule area. Plaintiff both agrees with and also disputes this fact within her own Local Rule 56.1 statement, claiming at times that the baskets were kept in the store. Compare [38] at ¶ 16 (“In the vestibule, there were approximately four stacks of the shopping baskets.”) with ¶ 29 (the baskets “were stacked against the glass wall, not in the hallway, when Plaintiff fell. They were stacked near the window.”). Acknowledging these disagreements, it is undisputed that (1) the carts were lined up near the front of the store and to the left of the entrance, and (2) the shopping baskets were stacked somewhere near the store entrance.

         Turning to the incident itself, Plaintiff, then a 90-year-old woman, entered the Dollar Tree at 12:36 p.m. Plaintiff testified that she made a complete entrance into the store, with both sets of doors shut behind her. See [36-1] (S. Kozyra Dep.) at 24. Once in the store, Plaintiff turned left and walked about eight to ten steps towards the shopping carts when she tripped and fell into a shopping cart. See [38] at ¶ 36. It is undisputed that at the time of the incident there was no one near the store's entrance: no one was waiting in line at the checkout counter and no employees were at the cash registers or otherwise were in the area. The parties acknowledge that some customers were in the store at this time, but there is no indication as to how many. The record indicates that Fridays were generally “busy, ” and 12:30 p.m. is typically a “busy time.” See [36-2] (M. Bly Dep.) at 53.

         Plaintiff states that a shopping basket was left on the floor and caused her to trip and fall. Defendant has acknowledged this but has also put forth statements of fact asserting that Plaintiff tripped over a different item. However, recognizing that the facts are construed in favor of Plaintiff at this stage and for the sake of its summary judgment arguments, Defendant's motion accepts the basket as the cause of Plaintiff's fall. See [35] at 4 (accepting Plaintiff's version “so that there is no dispute with regard to the physical nature of the condition”).[4]

         Plaintiff screamed when she fell, and assistant store manager Marianne Bly, who was on break at the time and elsewhere in the store, came to offer assistance. When she arrived, Bly saw Plaintiff holding on to a shopping cart and trying to pull herself up. Bly provided Plaintiff a chair, prepared an accident report form, and called Defendant's insurer to notify it of the incident. More than once, Bly asked Plaintiff if she wanted an ambulance; Plaintiff declined. After about 15 to 30 minutes, Plaintiff got up and proceeded to shop in Defendant's store and drive home. Plaintiff claims to have sustained serious injuries from her fall. See [28] at ¶ 5, 7.

         No one claims to have seen the out-of-place basket before the fall, not even Plaintiff, who was not looking down at the ground as she walked towards the carts. Plaintiff testified-and it is undisputed-that she does not know how the basket got on the floor, who put it there, or how long it was on the floor before her fall. See [36-1] at 36-37, 55; [40] at ¶ 17, 24, 25. When asked if she previously had seen any hazards or defects at the store, Plaintiff mentioned that (1) she had seen baskets on the floor of the store before; (2) she sometimes saw Kleenex, paper towels, and “toilet paper in cases in the aisle”; and (3) Defendant “had-in one of the aisles, they had a round table-a round-with a lot of toys in them.” [36-1] at 27-28, 55-56; see also [38] at ¶ 40. Plaintiff also testified that she had not fallen in the store before the incident or seen anyone else fall. See [36-1] at 28.

         Defendant maintains a Safety Program Manual for its stores. The manual contains a “Code of Safe Practices, ” instructing employees to keep the floors clean and dry; keep the aisles, stairways, and doorways clear; and ensure that carts, ladders, and display racks are not left unattended in aisles or other places “as they create a tripping hazard.” Specific “vinyl floor safety” provisions direct employees to clean spills immediately and remove all foreign objects and fallen merchandise from the floor. The manual also provides for the formation of store-specific safety committees, monthly safety meetings, and quarterly safety inspections of the store using a provided template checklist. See (M. Bly Dep. Group Ex. 8).[5] At her deposition, Bly testified that she was unfamiliar with the Safety Program Manual, she did not recall a formal accident prevention program at the store, the store did not have a safety committee, and she had not seen any specific “store inspection checklists.” See [36-2] at 40, 43; see also [41] at ¶¶ 6-9. Still, she testified that she attended mandatory monthly safety meetings at the store led by the manager, during which topics and procedures dictated by “corporate” were discussed, including “foreign objects that may constitute a tripping hazard.” See [36-2] at 26-30. She also testified that she inspected the store at the beginning of each shift using a written checklist, id. at 41, and, despite being unfamiliar with the safety manual itself, she described the document as “basically our procedures” which she followed in April 2015. Id. at 43, 59.

         Bly testified that approximately every 15 minutes, a Dollar Store employee would corral stray carts and place them where they belong at the front of the store, and at the same time, survey the area and remove anything that did not belong there, and it is undisputed that employees were supposed to remedy any tripping hazards observed, including baskets on the floor. Id. at 37; see also [40] at ¶ 38; [41] at ¶¶ 13-15. Bly testified that front of the store was inspected frequently on April 10, 2015 in this manner. See [36-2] at 53; see also [40] at ¶ 37. Regarding staffing, Bly testified that on the date of the accident one other employee was working at the time of Plaintiff's fall, an associate named Jackie Bejar. Plaintiff believes that a third unidentified employee was present as well.

         Generally, Bly confirmed that she had seen customers leave shopping baskets on the floor near the cash registers. [41] at ¶ 20. She testified that when this happens, an employee is supposed to pick up the baskets and take them to where they are stored. [36-2] at 40. Finally, Bly testified that she was not aware of prior complaints or accidents involving shopping baskets in the area where Plaintiff fell, id. at 58, and that she was only aware of one other trip-and-fall accident inside the Dollar Tree store during her seven years there, which she described as a woman who “fell over her shoes.” Id. at 70.

         Plaintiff sued Defendant in the Circuit Court of Cook County, Illinois in August 2015, and Defendant removed that lawsuit to federal court, invoking the Court's diversity jurisdiction pursuant to 28 U.S.C. § 1332. See [1]. Plaintiff has filed an amended two-count complaint [28], which appears to separately allege negligence and a violation of a City of Chicago ordinance governing building passageways and exits, Chi. Mun. Code § 13-196-080.[6] Defendant now moves for summary judgment. [35]. In support, Defendant has submitted transcripts from Plaintiff's and Bly's deposition, without the corresponding exhibits; Plaintiff has submitted the single exhibit to her own deposition-a photograph taken at the Dollar Tree store by Bly sometime after April 10-and one exhibit to Bly's deposition-the Safety Program Manual.

         II. Summary Judgment Standard

         Summary judgment is proper where “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). A genuine issue of material fact exists if “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 (1986). Although a bare contention that a factual dispute exists is insufficient to defeat a motion for summary judgment, Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000) (citing Liberty Lobby, 477 U.S. at 247), the Court must construe all facts in a light most favorable to the non-moving party and draw all reasonable inferences in that party's favor (here, Plaintiff). Majors v. Gen. Elec. Co., 714 F.3d 527, 532 (7th Cir. 2013) (citation omitted).

         Defendant is entitled to summary judgment if Plaintiff “cannot present sufficient evidence to create a dispute of material fact regarding any essential element of her legal claims on which she bears the burden of proof.” Burton v. Bd. of Regents of the Univ. of Wis. Sys., 851 F.3d 690, 694 (7th Cir. 2017). To avoid summary judgment, the nonmoving party must go beyond the allegations of her complaint and “set forth specific facts showing that there is a genuine issue for trial.” Liberty Lobby, 477 U.S. at 250 (internal quotation marks and citation omitted); accord Hannemann v. Southern Door County Sch. Dist., 673 F.3d 746, 751 (7th Cir. 2012). For this reason, the Seventh Circuit has called summary judgment 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.” See Steen v. Myers, 486 F.3d 1017, 1022 (7th Cir. 2007). In other words, the party opposing summary judgment “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

         III. ...


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