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Roper v. Wal-Mart Stores, Inc.

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

June 5, 2018

MARY ROPER, Plaintiff,
v.
WAL-MART STORES, INC. d/b/a WALMART SUPERCENTER, Defendant.

          MEMORANDUM OPINION AND ORDER

          HON. VIRGINIA M. KENDALL UNITED STATES DISTRICT JUDGE.

         Plaintiff Mary Roper was injured when she slipped and fell on a patch of ice in the parking lot of a store owned and operated by Defendant Wal-Mart Stores, Inc. d/b/a Walmart Supercenter (“Wal-Mart”). This matter is currently before the Court on Wal-Mart's motion for summary judgment. (Dkt. 36). For the reasons set forth below, Wal-Mart's motion is granted.

         BACKGROUND

         A. Local Rule 56.1

         In the Northern District of Illinois, a party moving for summary judgment must file along with its motion a Local Rule 56.1(a) statement of undisputed facts, consisting of short numbered paragraphs and citations to affidavits or other parts of the record relied on to support the facts set forth in each paragraph. N.D.Ill. L.R. 56.1(a); see also Malec v. Sanford, 191 F.R.D. 581, 583 (N.D. Ill. 2000). The response of the party opposing the motion must contain “a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon” and a statement of “any additional facts that require the denial of summary judgment.” N.D.Ill. L.R. 56.1(b)(3)(B) & (C). In this case, although Roper responded to Wal-Mart's summary judgment motion and (1) included about a page of “Relevant Testimony” and (2) attached excerpts of the two depositions taken in this case as part of that response, she failed to respond to each numbered paragraph in Wal-Mart's statement of material facts. (Dkt. 38). Thus, because Roper did not adhere to the Local Rules, the Court accepts the facts of the case as stated by Wal-Mart. Id.; see L.R. 56.1(b)(3)(C) (“All material facts set forth in the statement required of the moving party will be deemed to be admitted unless controverted by the statement of the opposing party.”); Friend v. Valley View Cmty. Unit Sch. Dist. 365U, 789 F.3d 707, 710 (7th Cir. 2015) (district court properly deemed admitted facts asserted by defendants as penalty for non-movant's noncompliance with Local Rule 56.1); Raymond v. Ameritech Corp., 442 F.3d 600, 608 (7th Cir. 2006) (affirming district court's decision to admit the facts set forth in moving party's Local Rule 56.1 submission where nonmovant failed to timely respond); Mintjal v. Prof'l Benefit Trust, 146 F.Supp.3d 981, 985 (N.D. Ill. 2015) (“ ‘the penalty for failing to properly respond to a movant's 56.1(a) statement is usually summary judgment for the movant (at least if the movant has done his or her job correctly) because the movant's factual allegations are deemed admitted' ”) (quoting Malec, 191 F.R.D. at 584).

         B. Facts

         Roper's friend Kathy Lawniczak drove Roper to a Wal-Mart store in Round Lake Beach, Illinois on Thanksgiving-November 27, 2014-because Lawniczak wanted to shop a 6:00 p.m. sale on big screen televisions. (Dkt. 38) at ¶¶ 5-7. Roper testified that the temperature at the time was somewhere around 30 degrees and snow was not falling, although there was some snow on the ground from a previous snowfall. See (Dkt. 38-3) (M. Roper Dep.) at 19:9-11, 40:24- 41:5. Once in the Wal-Mart parking lot, which is located to the east of the store, Lawniczak circled for eight to ten minutes, searching for a parking spot in the crowded lot. (Dkt. 38) at ¶¶ 10, 12. Neither Roper nor Lawniczak saw anyone shoveling snow or throwing salt or sand in the lot. Id. at ¶¶ 19, 30. At approximately 6:15 p.m., Lawniczak eventually found a spot in the southeast corner of the parking lot, although the spot she found was the furthest east spot in its row, that is, the last parking stall that particular row. Id. at ¶ 12. Roper got out of Lawniczak's vehicle on the passenger side and walked towards the back of the car without slipping or sliding, although she felt snow under her feet. Id. at ¶¶ 13, 33. When Roper was at the back of the car, she turned to walk in the direction of Wal-Mart and slipped on ice: her legs went out from underneath her, she fall forward, she landed on her right wrist, and she slid. Id. at ¶¶ 14, 16. Lawniczak did not see Roper fall or the ice that caused the fall. Id. at ¶¶ 17, 22, 26.

         When she fell, Roper was no longer in the parking spot; instead, she was in a driver's lane (or aisle) of the lot, and that area was level. Id. at ¶¶ 15, 20. As for the ice that caused Roper to fall, Roper did not see the ice before she fell and she does not know the size or thickness of the ice, nor could she tell how long the ice had been there when she fell. Id. at ¶¶ 21-25. In addition, neither Roper or Lawniczak know what caused the ice to form at the location where Roper fell, either by an act of Wal-Mart or otherwise. Id. at ¶¶ 27-28. In the specific area where Roper fell, there was no indication that the snow had been plowed or shoveled, and Roper observed “lumps” that “could have been ice or a buildup of snow” on the passenger side of the car that could have been naturally formed or the result of somebody else. Id. at ¶¶ 31-32.

         Lawniczak drove Roper to the emergency room after her fall, and Roper eventually underwent surgery for her fracture, which included the placement of a plate and screws into her wrist.

         Roper reported the incident to Wal-Mart 17 days later, on December 14, 2014. Id. at ¶ 36. On May 25, 2016, Roper filed suit against Wal-Mart in the Circuit Court of Cook County, Illinois alleging negligence. (Dkt. 1-3) at 3-6. Specifically, Roper alleges that Wal-Mart was negligent by (1) failing to provide safe parking lots and/or walkways to its visitors; (2) failing to take reasonable actions to minimize the risk of personal injury during and after a winter weather event; (3) failing to check the property parking lots and/or walkways for ice patches; (4) failing to provide ice treatment services at the premises before the accumulation of winter precipitation; (5) allowing ice in the parking lots and/or walkways to develop, creating an unreasonably dangerous condition; (6) failing to inspect and repair the parking lots and/or walkways after receiving notice that an unreasonably dangerous condition existed; and (7) failing to warn visitors of the unreasonably dangerous condition. Id. at 5-6. Wal-Mart removed the case to federal court on the basis of diversity jurisdiction. (Dkt. 1); see 28 U.S.C. § 1332(a).

         STANDARD OF REVIEW

         Summary judgment is proper where “the movant shows 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). A genuine issue of material fact exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Although a bare contention that a factual dispute exists is insufficient to defeat a motion for summary judgment, Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000) (citing Anderson, 477 U.S. at 247), the Court must construe all facts in a light most favorable to the non-moving party and draw all reasonable inferences in that party's favor (here, Roper). Majors v. Gen. Elec. Co., 714 F.3d 527, 532 (7th Cir. 2013) (citation omitted). Still, Roper is “only entitled to the benefit of inferences supported by admissible evidence, not those ‘supported by only speculation or conjecture.'” Grant v. Trs. of Ind. Univ., 870 F.3d 562, 568 (7th Cir. 2017) (citation and quotation marks omitted).

         Wal-Mart is entitled to summary judgment if Roper “cannot present sufficient evidence to create a dispute of material fact regarding any essential element of her legal claims on which she bears the burden of proof.” Burton v. Bd. of Regents of the Univ. of Wis. Sys., 851 F.3d 690, 694 (7th Cir. 2017). To avoid summary judgment, the nonmoving party must go beyond the allegations of her complaint and “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 250 (internal quotation marks and citation omitted); accord Hannemann v. Southern Door County Sch. Dist., 673 F.3d 746, 751 (7th Cir. 2012). For this reason, summary judgment is the “put up or shut up” moment in a lawsuit-“when a party must show what evidence it has that would convince a trier of fact to accept its version of events.” See Steen v. Myers, 486 F.3d 1017, 1022 (7th Cir. 2007). In other words, the party opposing summary judgment “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “The mere existence of a scintilla of evidence in support of the [nonmoving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for [that party].” Anderson, 477 U.S. at 252.

         It is not the role of the Court to scour the record in search of evidence to defeat a motion for summary judgment; instead, the nonmoving party bears the responsibility of identifying evidence to defeat summary judgment. See Harney v. Speedway SuperAmerica, LLC, 526 F.3d 1099, 1104 (7th Cir. 2008). Although a failure to timely respond to the moving party's Local Rule 56.1 statement results in “deeming admitted” the moving party's factual statements, a nonmovant's failure to respond to a summary judgment motion or failure to comply with Local Rule 56.1 does not, of course, automatically result in judgment for the movant. Raymond ...


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