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Lorsbach v. Pioneer Restaurants, L.L.C.

United States District Court, S.D. Illinois

February 28, 2018

PIONEER RESTAURANTS, L.L.C., et al. Defendants.



         Plaintiff Margaret Lorsbach originally filed the instant action in the Seventh Judicial Circuit Court, Jersey County, Illinois, asserting negligence and premises liability related to her falling outside a Hardee's Restaurant owned and operated by Defendants Pioneer Restaurants, L.L.C. and Hardee's Restaurants, L.L.C. (Doc. 1-1).[1] The case was subsequently removed to this Court based on diversity jurisdiction. Now pending before the Court is Defendants' Motion for Summary Judgment (Doc. 19). Plaintiff filed a Response (Doc. 23) and later filed a supplement to her Response (Doc. 30).[2] For the following reasons, Defendants' Motion for Summary Judgment is GRANTED.[3]

         Factual Background

         On November 3, 2015, Plaintiff and her husband, Charles Lorsbach, visited the Hardee's Restaurant located at 528 South State Street in Jerseyville, Illinois. (Deposition of Margaret Lorsbach, Doc. 19-2 at 13:9-21; 28:9-11). They parked on the south side of the restaurant and walked across a portion of the parking lot that included the drive-through lane toward the entrance to the building on that side. (Id. at 18:10-17; 23:8-16; 25:23-26:7). Before the south entrance, there is a rise (alternately described by the parties as a “lip” and a “curb”) creating a raised walkway area around the building toward the south entrance.

         Todd Pahl, Defendant Pioneer's corporate designee estimated that between 25, 000 and 30, 000 customers per year enter through that area. (Deposition of Todd Pahl, Doc. 30 at 24:14-25:9). Although Plaintiff's Complaint alleges that prior to the incident, the parking lot asphalt and drive-through lane area had been “cut out and new concrete was poured, resulting in a two or more inch difference in height between the parking lot and the sidewalk adjacent to the south entrance" (Doc. 1-1 at ¶10), during his deposition, restaurant manager Tony Perry testified that there had been no construction work on the exterior of the restaurant since he began working at that location in June 2014. (Deposition of Tony Perry, Doc. 23-2 at 15:8 and 35:14-18). He also testified that there had been no other falls in that area during that period. (Doc. 19-5 at 56:8-19).

         The drive-through lane is a 15-foot wide slab of concrete surrounded by asphalt, and the curb and sidewalk are cast-in-place concrete. (Affidavit of architect Gregory Wisniewski, Doc. 19-3 at ¶6). The precise height of the lip is a matter of some dispute, but is at least 1 7/8 inches tall. (Id. at ¶8). The restaurant has handicap-reserve parking spaces, as well as a “barrier-free accessible route” on both sides of the restaurant from those spaces. (Doc. 19-5 at ¶11). Plaintiff had a handicap placard and license plate, but she and her husband never used the handicap parking spaces. (Doc 19-2 at 22:4-23:7).

         On the date in question, Plaintiff “stubbed her toe on the little lip of concrete” as she was attempting to step up from the parking lot surface onto the sidewalk. (Id. at 23:8-16, 29:10-19). Plaintiff initially testified that she stubbed her left foot, but didn't recall whether her right foot had made it up on the sidewalk. (Id. at 31:2-7). Upon reviewing the surveillance video later in her deposition, she then testified that she put her right foot up on the sidewalk first. (Id. at 98:13-23). Plaintiff was carrying a cane in her left (dominant) hand at the time she fell (Id. at 26:8-16; 27:20-28:2). There is a short railing running parallel to the curb, but Plaintiff testified that she would not have used the railing because it was on her left side where she was carrying her cane. (Id. at 30:2-17). Plaintiff fell, hitting her head and both knees. (Id. at 36:23-37:17). She sustained a shattered kneecap and a “bump on the head” as a result of her fall. (Id. at 54:21-23).

         Plaintiff testified that she and her husband had visited the restaurant about twice a week for approximately two years prior to the accident, including several days beforehand. (Id. at 14:3-21). They had walked from the the same area of the south parking lot to the south entrance at least 20 to 30 times without incident (Doc. 19-2 at 23:20-24:9), and had last parked in that area and used the south entrance within a month prior to the incident. (Id. at 25:12-22). The area looked the same to Plaintiff on the date of the incident as it had on the prior occasions. (Doc. 19-2 at 30:20-31:1).

         Plaintiff's husband, Charles Lorsbach confirmed that they had walked the same path numerous times and that he was aware of the step-up prior to November 3, 2015. (Deposition of Charles Lorsbach, Doc. 19-4 at 13:1-18). He recalls that they had last parked on the south side of the restaurant and walked the same path into the restaurant approximately three days before the incident. (Id. at 26:7-27:8).

         Plaintiff claims that the difference in height between the sidewalk and the drive-through lane of the parking lot created a tripping hazard and an unreasonable risk of harm for invitees. (Doc. 1-1 at ¶12). She also claims that Defendants created the height difference and were negligent in failing to inspect the premises, failing to warn patrons of the height difference, failing to extend the handrail, failing to “provide contrast in surface colors for the area in question, ” and failing to repair or remedy the condition. (Id. at ¶¶ 17, 19).[4]


         Pursuant 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 will 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).

         In cases based on diversity-jurisdiction and asserting Illinois state law claims, the Court applies federal procedural law and Illinois substantive law. See, e.g., Reynolds v. CB Sports Bar, Inc., 623 F.3d 1143, 1148 (7th Cir. 2010). In order to prevail on an ordinary negligence claim under Illinois law, a plaintiff must prove that: (1) the defendant owed a duty of reasonable care to the plaintiff; (2) the defendant breached that duty; and (3) the breach proximately caused the plaintiff's injury. Galbreath v. Wal-Mart Stores, Inc., No. 10-2065, 2011 WL 1560669, at *4-5 (C.D.Ill. Apr. 25, 2011). Similarly, the Illinois Premises Liability Act, 740 ILCS 130/2 (1995), provides that “[t]he duty owed [invitees] is that of reasonable care under the circumstances regarding the state of the premises or acts done or omitted on them.” In other words, 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).

         Defendants first argue that Plaintiff did not fall due to any acts or omissions on their part, but because she failed to lift her leg high enough to clear the curb - essentially attacking the “proximate cause” element of both the premises liability and negligence claims. (Doc. 19 at 7). Plaintiff contends that she did not lift her foot sufficiently to mount the curb cleanly because she did not realize the curb was there, due to the allegedly hazardous condition (height and lack of warning) of the curb. The parties' ...

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