United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
M. YANDLE, UNITED STATES DISTRICT JUDGE.
20, 2016, Plaintiff Georgia Gurley filed an Amended Complaint
in the Third Judicial Circuit Court, Madison County, Illinois
(subsequently removed to this Court) alleging negligence
related to her slipping and falling on landscaping rocks
strewn on the sidewalk at a Hardee's Restaurant which was
operated by Defendant North Star Foods, L.L.C. (“North
Star”) (Doc. 1-2). This matter is now before the Court
on North Star's Motion for Summary Judgment (Doc. 21).
Plaintiff filed a response in opposition (Doc. 33). For the
following reasons, the motion is DENIED.
April 8, 2016, Plaintiff and her husband parked at the
Hardee's Restaurant, exited their vehicle and began to
walk inside. (Deposition of Georgia Gurley, Doc. 33-4 at 24).
Plaintiff slipped and fell and suffered injuries after
stepping on landscaping rocks on the sidewalk. (Id.
at 31, 37). Plaintiff asserts that she could not see the
stones prior to her fall because they were nearly identical
in color to the sidewalk itself. (Id. at 33).
to the date of the incident, Plaintiff had visited the
restaurant an estimated 10 to 12 times. (Id. at 13,
14). She usually ate inside the restaurant, using the
sidewalk in front of the restaurant to enter. (Id.
at 13-14, 17). During her deposition, Plaintiff initially
testified that she could not recall one way or the other
whether she had seen rocks on the sidewalk at any point on
her previous visits, and that the day of the accident was the
only time she could specifically recall seeing them.
(Id. at 18-19). She later testified that it would be
common to see rocks which were not in the landscaping beds at
the restaurant, and that she had previously seen rocks on the
sidewalk. (Id. at 21, 32).
to Rule 56(a) of the Federal Rules of Civil Procedure,
summary judgment is warranted if the “movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to a judgment as a matter of law.”
The facts and all reasonable inferences are to be drawn in a
light most favorable to the nonmoving party. Kasten v.
Saint-Gobain Performance Plastics Corp., 703 F.3d 966,
972 (7th Cir. 2012). However, the Court shall not
“weigh evidence, make credibility determinations,
resolve factual disputes and swearing contests, or decide
which inferences to draw from the facts.” Miller v.
Gonzalez, 761 F.3d 822, 827 (7th Cir. 2014). Summary
judgment will be denied if a reasonable jury could find in
favor of the nonmoving party. Estate of Simpson v.
Gorbett, 863 F.3d 740, 745 (7th Cir. 2017).
Illinois law, businesses have a duty to maintain their
premises in a reasonably safe condition to avoid injuries to
their customers. Zuppardi v. Wal-Mart Stores, Inc.,
770 F.3d 644, 649 (7th Cir. 2014). When a business invitee is
injured by slipping on a foreign substance (in this case
rocks on the sidewalk), a business can be liable for breach
of that duty if 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 business had constructive notice of the substance.
Piotrowski v. Menard, Inc., 842 F.3d 1035, 1038 (7th
Cir. 2016) (citing Zuppardi 770 F.3d at 649).
Plaintiff concedes that there is no evidence that either
North Star or its agents placed the rocks on the sidewalk or
had actual knowledge that they were there. The central
question, then, is whether North Star had constructive notice
of the rocks on the sidewalk. “Constructive notice can
be established in Illinois by presenting evidence that the
dangerous condition was present for a sufficient length of
time such that in the exercise of ordinary care its presence
should have been discovered, or by showing that the dangerous
condition was part of a pattern of conduct or a recurring
incident.” Piotrowski, 842 F.3d at 1040
(citing Culli v. Marathon Petroleum Co., 862 F.2d
119, 123 (7th Cir. 1988) and Donoho v.
O'Connell's, Inc., 13 Ill.2d 113, 121, 148
N.E.2d 434, 439 (1958)).
offers no evidence to satisfy the “sufficient length of
time” element. Both she and her husband testified
during their depositions that they did not know how long the
rocks might have been there. (Docs. 33-4 at 34, 22-2 at 30).
While Plaintiff asserts that the store managers were not able
to testify as to when the condition of sidewalk was checked
on the day of the accident, it is not incumbent on North Star
to prove that the rocks were there for only a short period of
time. Rather, Plaintiff has the burden of proof to establish
that they were there long enough for them to have been
discovered had North Star exercised ordinary care. In the
absence of such evidence, Plaintiff cannot survive summary
judgment on this theory. Thus, Plaintiff's only
opportunity is to show that there were recurring incidents of
rocks on the sidewalk outside the restaurant sufficient to
put North Star on notice of the potential for a dangerous
points to the deposition testimony of North Star's expert
witness, Gregory Wisniewski, in support of her position.
Specifically, when asked whether it would be “typical
and ordinary for river rock to be displaced on a sidewalk in
this instance from time to time, ” Wisniewski responded
that although river rock is better than most ground covers,
“yes, it could still occur.” (Doc. 33-6 at 30).
However, Wisniewski's testimony that it
“could” occur is not evidence that it actually
had occurred prior to the incident.
Plaintiff offers her own testimony regarding prior instances
of rocks on the restaurant sidewalk. Plaintiff initially
testified that she could not recall whether she had seen
rocks on the sidewalk at any point during her previous
visits. (Doc. 33-4 at 18-19). She later testified that it was
not unusual to see rocks on the sidewalk and that she had
previously seen rocks on the sidewalk. (Id. at 21,
32). Although Plaintiff's testimony may be conflicting,
it is for the jury to assess credibility and to weigh the
evidence. As such, Plaintiff's testimony is sufficient to
raise a genuine issue of material fact for
Piotrowski, the Seventh Circuit addressed this issue
based on similar, but distinguishable facts. In that case, a
hardware store customer slipped and fell on loose rocks in
the store parking lot, which appeared to have come from
landscape beds around the parking lot or from bags of the
product sold in the store. As is true here, there was no
evidence that the defendant or its agents were responsible
for putting the rocks in a place where customers could slip
on them, or that it had any actual notice that the rocks were
there. The plaintiff also produced no evidence as to how long
the rocks she slipped on had been there. Instead, the
plaintiff argued that defendant had constructive notice that
the rocks were getting out of their beds because “it
was aware that rock was escaping the planter since it would
refill the planter with additional rock, yet it took no
remedial action to halt the escape of rock from the
planter.” Id. at 1040. The Court affirmed the
grant of summary judgment in favor of the store, noting that
the plaintiff had not produced “any evidence of
recurring escape of river rock from the planter onto the
parking lot pavement or of any prior complaint of loose rock
in the parking lot.” Id.
by contrast, there is at least some evidence of recurring
escape of rocks from the landscape beds. Therefore, whether
North Star had constructive knowledge of a potentially
dangerous condition is a disputed issue of material fact
precluding summary judgment. Accordingly, Defendant ...