United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
R. Wood United States District Judge.
trying to reach an item on the top shelf of a freezer in a
Wal-Mart store, Plaintiff Joan Martin stepped on a security
rail. The rail collapsed. Martin fell and injured herself.
Martin has sued Defendant Wal-Mart Stores, Inc.
(“Wal-Mart”), alleging that Wal-Mart was
negligent in maintaining the security rail, failing to make
certain that the customer area was free from dangerous
conditions, and permitting the dangerous conditions to be
present. Now before this Court is Wal-Mart's motion to
bar Martin's expert witness from testifying at trial
(Dkt. No. 38) and its motion for summary judgment (Dkt. No.
39). For the reasons explained below, Wal-Mart's motion
to bar the expert is granted but its motion for summary
judgment is denied.
summary judgment stage, the Court views the record in the
light most favorable to the plaintiff and draws all
reasonable inferences in her favor. See Smith v. Hope
School, 560 F.3d 694, 699 (7th Cir. 2009).
April 2013, Martin went to a Wal-Mart store located in
Bridgeview, Illinois. (Def.'s Response to Pl.'s L.R.
56(b)(3)(C) Statement of Additional Facts
(“DRPSAF”) ¶ 1, Dkt. No. 62.) While in a
freezer section, Martin tried to get some fish sticks that
were on the top shelf toward the back of the freezer but
could not reach them. (Id. ¶¶ 4, 5.) She
looked around to see if there was anyone to help her but did
not see anyone in the aisle. (Id. ¶ 6.) Martin
then saw a security rail that ran parallel to the floor in
front of the freezer section. (Id. ¶ 7.)
security rail consisted of red or orange plastic sheathing,
intermittently supported by metal bars affixed to the floor.
(Id.) The security rail did not have a metal bar
running through its entire length. (Id.) Rather, the
plastic sheathing pieces covered the intermittent metal bars
as well as the gaps between the metal bars. (Id.)
This security rail was purportedly installed to prevent
shopping carts from bumping into freezer doors. (Pl.'s
Response to Def.'s Amended LR 56.1 Statement of
Undisputed Material Facts (“PRDSUF”) ¶ 34,
Dkt. No. 54.) However, Martin was not aware of the intended
function of the rail, there were no warning signs saying not
to step on the rail, and Wal-Mart did not have any kind of
policy prohibiting people from stepping on the rail.
(Id. ¶ 16; DRPSAF ¶¶ 20, 21.)
claims that she put her foot on the security rail to test it
out before stepping on it- and the rail seemed sturdy.
(DRPSAF ¶ 9.) She stepped on the rail, then stepped on
the freezer door frame, reached up for the fish sticks, and,
as she was coming down, stepped on the security rail again.
(Id. ¶ 10; PRDSUF ¶ 17.) But on her way
down, the rail underneath Martin collapsed and she fell.
(DRPSAF ¶ 10.) She sustained various injuries as a
result of her fall, for which she now seeks compensation.
Martin fell, paramedics were called to the store. (PRDSUF
¶ 23.) Wal-Mart assistant manager Aracely Jerez also
responded to the incident. (Id. ¶ 21.) Jerez
asked Martin what happened but did not get a response.
(Id. ¶ 22.) Jerez then took photographs of the
place where Martin fell. (Id. ¶¶ 25, 33.)
The photos show a freezer section consisting of several
compartments, with a piece of cardboard covering one of the
freezer doors, a piece of a plastic sheathing missing from
the security rail in front of that freezer door (with some of
the underlying metal bar of the security rail not covered by
the sheathing), and Martin laying on the floor. (Id.
¶¶ 26, 27, 31; Ex. F to Def.'s L.R. 56.1
Statement of Undisputed Material Facts (“DSUF”),
Dkt. No. 41-6.)
the photos show that the security rail is missing a piece of
the sheathing, during her deposition in connection with this
case, Jerez testified that on the day of the incident, there
were no broken parts of the security rail laying around.
(PRDSUF ¶ 30; Ex. E to DSUF at 36, Dkt. No. 41-5.) Jerez
also stated that the rail in the photos that she took looked
the same as the rail was originally set up on the
floor-although she later clarified that the rail actually
should have a plastic sheathing covering the underlying metal
bar. (PRDSUF ¶ 31; Ex. E to DSUF at 31, 33, 34.)
Wal-Mart asset protection manager Willie Smith also testified
that Jerez's photo depicts the way that the security rail
at the Wal-Mart always appeared. (Ex. G to DSUF at 39, 40,
Dkt. No. 41-7.) On the other hand, Martin testified that the
security rail she stepped on did not have any gaps and that
it broke when she stepped on it. (DRPSAF ¶¶ 10,
connection with her case, Martin offers expert opinions and
testimony from Lloyd M. Sonenthal, which Wal-Mart seeks to
bar. Sonenthal has an educational background in engineering
mechanics and law; he is a consulting forensic engineer.
(Exhs. to Def.'s Mot. to Bar Pl.'s Expert at 1, 2,
Dkt. No. 38-1.) To prepare his opinions, Sonenthal
reviewed photos, read deposition transcripts (including those
of Martin and Jerez), searched the Internet to find
renovation manuals for other Wal-Mart stores, and reviewed
the description of an alternative security railing system
(which had a metal bar running through its entire length)
depicted in these renovation manuals. (Id. at 3-8,
38.) However, he did not visit Wal-Mart stores in connection
with his research, did not see the security rail system at
issue in the present case in person, did not conduct any
testing on the materials, and did not take any measurements.
(Id. at 35.)
has offered the following conclusions regarding the present
case. First, he opines that the security rail “was
foreseeably an available stepping point for a customer to
obtain sufficient height to reach the upper shelf of the
freezer unit to access product on the upper shelf.”
(Id. at 8.) Second, based on to the alternative
railing system design he discovered in the manuals on the
Internet, he concludes that the security rail at issue in the
present case “should have and could have . . . been
adequate to support the weight of a customer.”
(Id.) Third, he suggests that if Wal-Mart did not
want a customer to step on the security rail, Wal-Mart should
have put a “NOT A STEP” or “DO NOT USE AS A
STEP” sign on it, especially since a customer would not
know that the rail is not supported by the metal bar
throughout its length. (Id. at 8, 9.) Fourth, he
concludes that “the plastic tubing invited the customer
to stand upon it, without knowledge of the danger attendant
thereto, and was therefore an unreasonably dangerous
condition” that was known to Wal-Mart, but not the
customer, and that was not discoverable by reasonable
inspection. (Id. at 9.)
Motion to Bar Expert
admissibility of expert testimony is governed by Federal
Rules of Evidence 702 and 703, as construed by Daubert v.
Merrell Dow Pharmaceuticals, Inc.,509 U.S. 579
(1993). SeeKrik v. Exxon Mobil ...