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Osmani v. Menard, Inc.

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

July 13, 2017

FATIMA OSMANI, Plaintiff,
v.
MENARD, INC., individually and d/b/a MENARDS, Defendant.

          MEMORANDUM OPINION AND ORDER

          MARIA VALDEZ, United States Magistrate Judge

         Plaintiff 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 granted.

         BACKGROUND[1]

         At 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].

         Osmani 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.].

         In 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, 16:10-16].

         No 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].

         LEGAL STANDARD

         Summary 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).

         ANALYSIS

         From 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).

         A 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).

         Menards 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.

         A. Placement of ...


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