United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
VALDEZ, United States Magistrate Judge
Fatima Osmani (“Plaintiff” or
“Osmani”) allegedly slipped while shopping at a
store owned and operated by Defendant Menard, Inc.
(“Defendant” or “Menards”). Osmani
alleges that Menards' negligence caused her injuries, and
Menard has moved for summary judgment. [Doc. No. 32]. The
parties have consented to the jurisdiction of the United
States Magistrate Judge pursuant to 28 U.S.C. § 636(c).
For the reasons explained below, Menards' motion is
approximately 7:00 p.m. on April 21, 2014, Osmani and her
husband Mohammed Khan were shopping at the Menards store in
Hanover Park, Illinois. [Doc. No. 34 at 2]. The Hanover Park
Menards has a “garden center, ” where Menards
sells trees and other plants. [Id.]. The garden
center is located outside, and is exposed to the elements.
[Id.]. According to the deposition testimony of
Menards' assistant general manager Robert Buhl, Jr., the
garden center is a “flat ground” area “with
pallet racking with blocks, and plant tables.”
[Buhl Dep. Tr. 20:10-14, Doc. No. 36-1]. It
is Menards' policy to place trees and potted plants onto
these pallets. [Id. at 26:2-12]. The plants are
placed on pallets to keep them off the ground, and for
mobility so that employees may move them to different
locations. [Id.]. Similarly, the plants are watered
daily, at around 5:00 a.m. [Id. at 25:2-12].
and her husband went into the garden center to buy a fruit
tree. [Doc. No. 34 at 2]. Three to four Menards employees
were working in the garden center at the time Osmani and her
husband went inside to shop. [Doc. No. 36-1 at 20:10-14].
After examining the selection of trees for a brief period,
Osmani slipped and fell in “mud, ” on the ground
in front of the fruit tree display. [Doc. No. 34 at 2].
According to photographs taken by Osmani's son and a
Menards' employee, the mud was a mixture of top soil and
wood chips that had accumulated on the ground in front of the
fruit tree display. [Id.].
their deposition testimony, Osmani could not remember the
size of the soil mixture pile on the ground; while her
husband estimated it was bigger than a “dinner
plate.” [Osmani Dep. Tr. 43:21 - 44:2, Doc.
No. 34-1; Mohammad Khan Dep. Tr. 16:10 - 17:1, Doc.
No. 34-4]. Neither Osmani nor her husband knew what happened
to cause the soil mixture to be on the ground in front of the
fruit tree display. [Doc. No. 34 at 2]. Osmani assumed the
source of the soil mixture was from the nearby trees.
[Osmani Dep. 44:22 - 45:1]. They also did not know
how long the soil mixture was on the ground before it caused
Osmani to slip and fall. [Doc. No. 34 at 2]. Buhl testified
he believed the soil mixture had come from “one of the
tipped over trees or plants, ” but did not know how
long the soil mixture had been on the ground before it caused
Osmani to slip and fall. [Buhl Dep. 14:22-24,
specific Menards employee is tasked with cleaning up abnormal
conditions. [Id. at 15:9 - 16:1]. Likewise, Menards
employees do not perform a regularly scheduled patrol of the
premises to monitor for abnormal conditions. [Id.].
Instead, all Menards employees are generally responsible for
monitoring abnormal conditions in the course of their normal
duties. [Id.]. All employees are trained to
immediately fix or clean anything out of the ordinary, or let
a general manager know that the condition would be unsafe.
[Id. at 23:10-23].
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. Spurling v. C
& M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir.
2014). The party seeking summary judgment has the burden of
establishing that there is no genuine dispute as to any
material fact. See Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). A genuine dispute as to any 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). A “genuine” dispute of material fact in
the context of a motion for summary judgment is not simply a
“metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). “The mere
existence of a scintilla of evidence in support of the
[non-movant's] position will be insufficient” and
the plaintiff's proof must be more than “merely
colorable.” Anderson, 477 U.S. at 249-50, 252.
In determining whether a genuine dispute of material fact
exists, this Court must construe all facts and reasonable
inferences in the light most favorable to the nonmoving
party. CTL ex rel. Trebatoski v. Ashland Sch. Dist.,
743 F.3d 524, 528 (7th Cir. 2014).
the parties' moving papers, the only dispute is the
narrow issue of whether Menards breached its duty to Osmani.
As this is a diversity action, Illinois negligence law
governs the Court's decision. In Illinois, businesses owe
their invitees a duty to maintain the premises in a
reasonably safe condition to avoid injuring them.
Marshall v. Burger King Corp., 856 N.E.2d 1048,
1057-58 (Ill. 2006); Thompson v. Economy Super Marts,
Inc., 581 N.E.2d 885, 888 (Ill. 1991); Reid v.
Kohl's Dept. Stores, Inc., 545 F.3d 479, 481 (7th
Cir. 2008) (applying Illinois law); Peterson v. Wal-Mart
Stores, Inc., 241 F.3d 603, 604 (7th Cir. 2001)
(applying Illinois law).
business will be found to breach its duty of maintaining a
safe premises if the invitee slips on a foreign substance on
its property, and the invitee establishes that (1) the
substance was placed there by the negligence of the business;
(2) the business had actual notice of the substance; or (3)
the substance was there a sufficient length of time so that,
in the exercise of ordinary care, its presence should have
been discovered, i.e., the business had constructive
notice of the substance. See Newsom-Bogan v. Wendy's
Old Fashioned Hamburgers of New York, Inc., 953 N.E.2d
427, 431 (Ill.App.Ct. 2011); Pavlik v. Wal-Mart Stores,
Inc., 753 N.E.2d 1007, 1010 (Ill.App.Ct. 2001).
argues that it is entitled to summary judgment because: (1)
Osmani has not shown Menards' negligence placed the soil
mixture on the ground; (2) Osmani has not shown Menards had
actual or constructive notice of the soil mixture on the
ground. The Court addresses each argument in turn.
Placement of ...