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Mitts v. Costco Wholesale Corp.

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

December 8, 2017

RHONDA MITTS, Plaintiff,
v.
COSTCO WHOLESALE CORPORATION, Defendant.

          MEMORANDUM OPINION AND ORDER

          HON. JORGE L. ALONSO UNITED STATES DISTRICT JUDGE.

         Plaintiff Rhonda Mitts brings this action against defendant Costco Wholesale Corporation (“Costco”), alleging that defendant's negligence caused her to slip, fall, and injure herself in one of defendant's stores. Costco has moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the following reasons, the Court grants the motion.

         BACKGROUND

         At approximately 3 p.m. on July 13, 2014, plaintiff and her husband arrived at a Costco store in Naperville, Illinois. (Def.'s LR 56.1 Stmt. ¶¶ 8-9, ECF No. 22.) After shopping for about twenty minutes, plaintiff entered a walk-in dairy cooler stocked with milk and eggs near the back of the store. (Id. ¶¶ 10-12.) As she approached the back wall of the cooler, she slipped on an unknown liquid substance, which caused to fall and injure her left arm and right foot. (Id. ¶¶ 13-15; id., Ex. E, Pl.'s Dep., at 20:4-13, 34:16-36:9.) Plaintiff described the substance as “stickier” and “tackier” than water, “like milk, ” but not as sticky as glue. (Id. Ex. E at 19:14-20:5.) She does not know what the substance was, how it got onto the floor, or how long it had been on the floor when she slipped on it. (Id., Ex. E at 20:3-5, 20:13-18.) The wet area of the floor was about the size of a dinner plate, large enough so that after she fell, plaintiff's leg was wet approximately from her knee to her ankle. (Pl.'s LR 56.1 Stmt. of Add'l Facts ¶¶ 12-13, ECF No. 25 at 3.)

         On an hourly basis, Costco required an employee to conduct a “floor walk, ” during which the employee would visually inspect the store for unsafe conditions and hazards by walking up and down aisles and throughout the store. (Def.'s LR 56.1 Stmt. ¶¶ 32-41.) According to the Naperville Costco's “Daily Floor-Walk/Safety Inspection” sheet for the day of plaintiff's fall, Costco employee Mary Maiorano began a floor walk at 2:53 p.m. and completed it at 3:20 p.m. (Id., Ex. I, Maiorano Dep. at 6:1-8:7, Exs. 1 &2, ECF No. 22-9 at 2, 14-15.) As part of the floor walk, she was required to enter the dairy cooler and walk to the back in order to take the temperature of the cooler. (Id., Ex. J, Maiorano Aff. ¶ 6, ECF No. 22-10.) She entered the dairy cooler at approximately 3:10 p.m., recorded a temperature of 32 degrees, and visually inspected the floor of the cooler, where she did not see any liquid substance. (Id., Ex. J ¶¶ 5, 7-9.)[1]

         Crystal Harper, an assistant general manager at the Naperville Costco, testified at her deposition that, although she was aware that milk sometimes spilled in the dairy cooler, she was not aware of anyone other than plaintiff ever slipping and falling there.[2] (Id. ¶¶ 28, 30; Pl.'s LR 56.1 Stmt. of Add'l Facts ¶¶ 16-17.)

         ANALYSIS

         To prevail on a summary judgment motion, “the movant [must] show[] 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). In considering such a motion, the court must view all evidence and draw all inferences in favor of the non-moving party. See Wesbrook v. Ulrich, 840 F.3d 388, 391 (7th Cir. 2016); Kvapil v. Chippewa Cty., 752 F.3d 708, 712 (7th Cir. 2014). At this stage, the court may not weigh evidence or determine the truth of the matters asserted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “Summary judgment should be denied if the dispute is ‘genuine': ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'” Talanda v. KFC Nat'l Mgmt. Co., 140 F.3d 1090, 1095 (7th Cir. 1998) (quoting Anderson, 477 U.S. at 248); see also Bunn v. Khoury Enters., Inc., 753 F.3d 676, 681-82 (7th Cir. 2014). The court will enter summary judgment against a party who does not “come forward with evidence that would reasonably permit the finder of fact to find in [its] favor on a material question.” Modrowski v. Pigatto, 712 F.3d 1166, 1167 (7th Cir. 2013).

         The Seventh Circuit has explained, as follows, the principles of Illinois law that govern plaintiff's negligence claim in this diversity case:

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.App.Ct. 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) (same). . . . Liability can be imposed when a business's invitee is injured by slipping on a foreign substance on its premises 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 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).

Zuppardi v. Wal-Mart Stores, Inc., 770 F.3d 644, 649 (7th Cir. 2014) (internal citations altered).

         Defendant argues it is entitled to summary judgment because plaintiff cannot establish that the substance that caused her to slip came to be on the floor of the dairy cooler through defendant's negligence or that defendant had actual or constructive notice of it. According to defendant, plaintiff readily admitted at her deposition that she does not know what the substance was, how it got onto the floor, or how long it had been on the floor when she slipped on it, and she cannot adduce any evidence that answers these questions.

         I. WHETHER DEFENDANT NEGLIGENTLY PLACED THE SUBSTANCE ON THE FLOOR

         Plaintiff's main argument in response to defendant's motion is that a reasonable juror could infer that the substance on which she slipped came to be on the floor through defendant's negligence in its operation of the Naperville store. Although she admits she does not know for sure what the substance was, she describes it as stickier and tackier than water, like milk might be. Further, Ms. Harper testified at her deposition that she has occasionally seen spills or wet spots on the floor of the dairy cooler. (Def.'s LR 56.1 Stmt., Ex. G, Harper Dep. at 23:15-23:22, ECF No. 22-7 at 6-7.) The wet spots usually consisted of spilled milk, and they occurred approximately twice a month, in Ms. Harper's estimation. (Id., Ex. G at 23:23-25:4.) Since plaintiff apparently slipped on spilled milk, and since, according to Ms. Harper, defendant's operations regularly caused milk from leaky cartons to spill onto the ...


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