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Flakes v. Target Corp.

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

December 18, 2019

KIRK FLAKES, Plaintiff,
v.
TARGET CORPORATION, Defendants.

          MEMORANDUM OPINION & ORDER

          MARY M. ROWLAND UNITED STATES DISTRICT JUDGE

         On September 9, 2015, Plaintiff Kirk Flakes slipped and fell in a hair products aisle of a Target store. (Dkt. 37, pg. 1; Dkt. 40, pg. 3 ¶ 1) Flakes sued for damages in the Circuit Court of Cook County, under theories of premises liability and negligence. Defendant Target Corporation (“Target”) removed the case based on diversity jurisdiction and has moved for summary judgment. For the reasons stated below, Defendant's motion for summary judgment [37] is denied.

         BACKGROUND

         Plaintiff Kirk Flakes traversed the aisles of a Target store for about an hour and half before entering hair products aisle-27 and slipping on a substance that appeared to be white cream. (Dkt. 42, pg. 1 ¶ 7; pg. 4 ¶ 14) The substance came from a bottle of hair product called “Cantu.” (Id. at pg. 10 ¶ 38) It is unclear how long the substance was on the ground before Plaintiff fell, and the parties dispute this point. Target claims the substance appeared to be wet and fresh, suggesting it could not have been on the ground for long, while Plaintiff claims the product “did not look overly fresh” and “looked like it had been there a while.” (Id. at pg. 11 ¶ 43; at pg. 12 ¶ 1)

         There is no dispute that Target employees were unaware of the spilled product prior to Flakes' fall. (Dkt. 42, pg. 8 ¶ 7) No one had complained of the spill and there were no other accidents in that aisle. (Id.) About 15 minutes before Plaintiff's fall, Target employee Kelly Rufus had walked through aisle-27 with another customer and maintains that the floors looked clean at that time. (Id. at pg. 8 ¶ 38) Kelly Rufus also asserts that no other customers or Target employees came into the aisle while he was there or after he and his customer left. (Id. at pg. 9 ¶ 34) Plaintiff, however, claims to have seen Target employees stocking shelves in other aisles near the aisle where he fell. (Id. at pg. 13 ¶ 2) Kelly Rufus additionally testified that Cantu is typically stocked on a higher shelf, but on the date in question, the bottle was on a bottom shelf. (Id. at pg. 10 ¶ 38)

         Plaintiff brought suit under theories of premises liability and negligence. Defendant Target now moves for summary judgement. Target argues that Flakes has failed to provide evidence that Defendant created the condition which caused the fall or that Target had constructive notice of the condition, and that Donoho v. O'Connell's notice exception does not apply. 13 Ill.2d 113, 122, 148 N.E.2d 434, 439 (1958). Flakes argues that he need not demonstrate constructive notice for his case to proceed to a jury under Donoho and that, in the alternative, Target had constructive notice of the spilled substance.[1]

         LEGAL STANDARD

         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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine factual dispute exists when there is enough evidence that a reasonable jury could find in favor of the nonmoving party. Whiting v. Wexford Health Sources, Inc., 839 F.3d 658, 661 (7th Cir. 2016); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In construing the evidence and facts supported by the record in favor of the non-moving party, the Court gives the non-moving party “the benefit of reasonable inferences from the evidence, but not speculative inferences in [its] favor.” White v. City of Chi., 829 F.3d 837, 841 (7th Cir. 2016) (internal citations omitted).

         To survive a motion for summary judgment, the plaintiff need not prove his case; “he need only show that there is a genuine issue of material fact as to each element.” Gil v. Reed, 381 F.3d 649, 659 (7th Cir. 2004) Summary judgment is proper, however, against “a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party will bear the burden of proof at trial.” Celotex, 477 U.S. at 323; see also White, 829 F.3d at 841 (summary judgment warranted where a reasonable juror could not find in favor of the non-moving party “on the evidence submitted in support of and opposition to the motion for summary judgment”) (internal citation omitted).

         DISCUSSION

         1. Local Rule 56.1 Issues

         As a preliminary matter, neither Defendant nor Plaintiff included a statement of fact section in their memoranda of law in support of the summary judgment motion or in opposition thereto, electing instead to leave it to the Court to sift through Defendant's Local Rule 56.1 statements, and the underlying exhibits, to determine the factual background and sequence of relevant events. Courts in this district have repeatedly informed litigants that a Local Rule 56.1 statement of facts is not a substitute for a statement of facts contained in a supporting memorandum of law. See e.g., FirstMerit Bank, N.A. v. 2000 N. Ashland, LLC, No. 12 C 572, 2014 U.S. Dist. LEXIS 159741, at *11 (N.D. Ill. 2014); Condon v. City of Chicago, No. 9 C 2641, 2011 U.S. Dist. LEXIS 131931, at *1 (N.D. Ill. 2011); Cleveland v. Prairie State College, 208 F.Supp.2d 967, 972-73 (N.D. Ill. 2002); Duchossois Industries, Inc. v. Crawford & Co., 99 C 3766, 2001 U.S. Dist. LEXIS 444, at *1 (N.D. Ill. 2001) (“The purpose of LR 56.1 statements [is] not intended to be substitutes for a statement of facts section of a memorandum of law. Rather, their purpose is to assist the court in identifying those material, uncontested facts in the record that entitle the movant to judgment.”). The parties' failure to include a statement of fact section causes an undue burden on the Court to sift through mounds of paper to ferret out the material facts at issue.

         In addition to a statement of fact section in a memorandum of law, litigants are required to provide the Court with a Local Rule 56.1 statement of material facts. “For litigants appearing in the Northern District of Illinois, the Rule 56.1 statement is a critical, and required, component of a litigant's response to a motion for summary judgment.” Sojka v. Bovis Lend Lease, Inc., 686 F.3d 394, 398 (7th Cir. 2012). Local Rule 56.1 requires a party seeking summary judgment to include with its motion “a statement of material facts as to which the … party contends there is no genuine issue and that entitle the … party to a judgment as a matter of law.” Locale Rule 56.1(a)(3); Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 643 (7th Cir. 2008). Each paragraph must refer to the “affidavits, parts of the record, and other supporting materials” that substantiate the asserted facts. Local Rule 56.1(a)(3); F.T.C. v. Bay Area Business Counsel, Inc., 423 F.3d 627, 633 (7th Cir. 2005).

         Flakes does not cite to its Local Rule 56.1 Statement (Dkt. 40) in its Response Brief, and instead cites directly to the record, including several depositions. Courts in this district have repeatedly held that, in the memorandum of law filed in support of the summary judgment motion or in opposition thereto, parties should cite to specific Local Rule 56.1 statements of fact in support of their arguments, not to the record directly. See e.g., FirstMerit Bank, N.A., 2014 U.S. Dist. LEXIS 159741, at *11 (N.D. Ill. 2014); Morningware, Inc. v. Hearthware Home Products Inc., No. 9 C 4348, 2012 U.S. Dist. LEXIS 121333, at *3 (N.D. Ill. 2012); LaSalvia v. City of Evanston, 806 F.Supp.2d 1043, 1046 (N.D. Ill. 2011). Facts are to be set forth in properly submitted Local Rule 56.1 statements and cited thereto in a party's memorandum of law. It is not the role of the Court to parse out the parties' exhibits to construct undisputed facts. United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (Judges are not “like pigs, hunting for truffles buried in briefs”). It is not the Court's job to sift through the record to determine whether there is sufficient undisputed evidence to ...


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