United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
M. YANDLE, UNITED STATES DISTRICT JUDGE.
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). 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.
For the following reasons, Defendants' Motion for Summary
Judgment is GRANTED.
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
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
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).
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).
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).
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).
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,
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).
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).
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' ...