Torrez v. Tgi Friday's, Inc.

• Citation: 509 F.3d 808
• Decision Date: 03 December 2007
• Docket Number: No. 07-1107.,07-1107.
• Parties: Alexander TORREZ, also known as Alejandro Torrez, Plaintiff-Appellant, v. TGI FRIDAY'S, INC., Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

509 F.3d 808

Alexander TORREZ, also known as Alejandro Torrez, Plaintiff-Appellant, v. TGI FRIDAY'S, INC., Defendant-Appellee.

No. 07-1107.

United States Court of Appeals, Seventh Circuit.

Argued November 2, 2007.

Decided December 3, 2007.

James E. Ocasek (argued), Cooney & Conway, Chicago, IL, for Plaintiff-Appellant.

Steven G. Carlson (argued), Johnson & Bell, Chicago, IL, for Defendant-Appellee.

Before EASTERBROOK, Chief Judge, and POSNER and RIPPLE, Circuit Judges.

POSNER, Circuit Judge.

In this suit for personal injury, governed by Illinois law, the district judge granted summary judgment in favor of the defendant, and the plaintiff appeals. Federal jurisdiction is based on diversity of citizenship, though we were able to ascertain this only by directing the parties to file supplemental jurisdictional memoranda; for the jurisdictional statement in the plaintiff's opening brief failed to identify the state in which the defendant, a corporation, is incorporated, and the jurisdictional statement in the defendant's brief stated that the plaintiff's jurisdictional statement was complete and correct, though it was neither.

The plaintiff was injured while cleaning the hood over a fryer exhaust fan at the defendant's restaurant in Batavia, Illinois. He was employed not by the defendant, TGI Friday's (had he been, he could not have brought this suit but would have been remitted to an administrative proceeding under the state's workers' compensation law), but by a cleaning service, Facilitec, hired by the defendant. He was working at night because he had to wait to enter the restaurant until its employees had finished taking inventory and were about to close the restaurant for the night. Inside the fryer hood were five light bulbs, each encased in a transparent glass globe. The bulbs and their globes were not visible unless one looked under the hood, which the plaintiff did not do. Instead he reached inside to clean the inside of the hood—and felt a sudden pinch in his arm. The pinch turned out to be a serious wound, severing several tendons and disabling the plaintiff from regular employment. He had cut his arm on one of the globes, but the record is silent on whether it was a cracked globe that broke apart when his arm touched it or a globe that was broken before he reached into the hood.

The record contains no picture of the fryer or even identification of the brand or model. The plaintiff's lawyer told us that he could not gain access to the restaurant to look at the fryer and hood, which is absurd; hasn't he heard of pretrial discovery? (See Fed.R.Civ.P. 34(a)(2).) Well, maybe not, because he conducted no discovery at all. As a result, nothing is known about the source of the crack in the globe, or, if the globe was already broken when the plaintiff's arm touched it, the cause of its being broken. The globe could have been defectively designed by the manufacturer, defectively installed or manhandled by the manufacturer of the fryer hood, damaged in shipment, damaged by an employee of the restaurant, damaged by another employee of the plaintiff's company or by the plaintiff himself on a prior visit to clean the hood. We shall never know.

The plaintiff has litigated the case as if it were a slip and fall case, where for example a customer accidentally knocks a bottle containing liquid off a shelf in the defendant's store, another customer slips on the spilled liquid and injures himself, and the suit charges that the store should have detected and removed the danger before the accident. E.g., Perminas v. Montgomery Ward & Co., 60 Ill.2d 469, 328 N.E.2d 290, 291-92 (1975); Donoho v. O'Connell's, Inc., 13 Ill.2d 113, 148 N.E.2d 434, 437-41 (1958); Peterson v. Wal-Mart Stores, Inc., 241 F.3d 603 (7th Cir.2001); Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d Cir.2001). At the same time and inconsistently he argues that the globe was cracked or broken by the restaurant's employees. These are two quite different theories, requiring different proof. If an employee of the defendant creates a hidden danger (maybe, as claimed in Howard v. Wal-Mart Stores, Inc., 160 F.3d 358 (7th Cir.1998), a store's employee rather than another customer knocked the bottle off the shelf and failed to notice the spillage or report it or clean it up), such as a cracked or broken glass globe in a place into which the employee should know someone will be likely to reach his arm without awareness of the danger, the employee is negligent and his negligence is imputed to his employer. Donoho v. O'Connell's, Inc., supra, 148 N.E.2d at 437. But there is as we said no evidence of who broke or cracked the globe, and specifically no evidence that one of the restaurant's employees did it.

If the danger was created by someone other than an employee of the restaurant, the restaurant is liable...