Barrios v. Fashion Gallery, Inc., 15 C 10193.

• Citation: 255 F.Supp.3d 728
• Decision Date: 13 June 2017
• Docket Number: No. 15 C 10193.,15 C 10193.
• Parties: Gloria BARRIOS, Plaintiff, v. FASHION GALLERY, INC., Defendant.
• Court: U.S. District Court — Northern District of Illinois

255 F.Supp.3d 728

Gloria BARRIOS, Plaintiff,

v.FASHION GALLERY, INC., Defendant.

No. 15 C 10193.

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

Signed June 13, 2017

Frank J. Olavarria, Law Office of Frank J. Olavarria, P.C., Chicago, IL, for Plaintiff.

John P. Lynch, Jr., Neil Raj Pandey, William P. Bingle, Cremer, Spina, Shaughnessy, Jansen & Siegert LLC, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

Jeffrey Cole, UNITED STATES MAGISTRATE JUDGE

On May 6, 2014, the plaintiff was shopping for a skirt in the defendant's store and, when she reached up to take one down from a hook on the wall, an empty shelf lower on the wall fell and hit her foot. She sued for damages in the Circuit Court of Cook County, under theories of premises liability and negligence.¹ The defendant removed the case here based on diversity jurisdiction and has moved for summary judgment on plaintiff's Complaint.

I.SUMMARY JUDGMENT

A. Fed.R.Civ.P. 56

Summary judgment is appropriate "if 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). The court must construe the evidence and all inferences that reasonably can be drawn from it in the light most favorable to the nonmoving party. Allin v. City of Springfield , 845 F.3d 858, 861 (7th Cir. 2017) ; Chaib v. Geo Grp., Inc. , 819 F.3d 337, 340 (7th Cir. 2016). A factual dispute is "genuine" only if a reasonable jury could find for either party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Alston v. City of Madison , 853 F.3d 901 (7th Cir. 2017). If the opponent—here, the plaintiff—" ‘fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial, summary judgment must be granted." Blow v. Bijora, Inc. , 855 F.3d 793 (7th Cir. 2017). See generally , Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

B.Local Rule 56.1

As always, the facts underlying this summary judgment proceeding are drawn from the parties' Local Rule 56.1 submissions. "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." Local 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 Council, Inc., 423 F.3d 627, 633 (7th Cir. 2005).

The party opposing summary judgment must then respond to the movant's statement of proposed material facts; that response must contain both "a response to each numbered paragraph in the moving party's statement," Local Rule 56.1(b)(3)(B), and a separate statement "consisting of short numbered paragraphs, of any additional facts that require the denial of summary judgment," Local Rule 56.1(b)(3)(C); Ciomber, 527 F.3d at 643. Again, each response, and each asserted fact, must be supported with a reference to the record. Local Rule 56.1(b)(3)(B); Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009) ; Bay Area Business Council, Inc., 423 F.3d at 633.

The district court is entitled to enforce strict compliance with its local rules regarding summary judgment motions. See Gray v. Hardy , 826 F.3d 1000, 1004–05 (7th Cir. 2016) ; Friend v. Valley View Cmty. Unit Sch. Dist. 365U , 789 F.3d 707, 711 (7th Cir. 2015) ; Yancick v. Hanna Steel Corp., 653 F.3d 532, 537 (7th Cir. 2011) ; Schmidt v. Eagle Waste & Recycling, Inc., 599 F.3d 626, 630 (7th Cir. 2010). And that rule has been applied even in cases involving pro se litigants. Welcher–Butler v. Brennan , 619 Fed.Appx. 550 (7th Cir. 2015). Thus, responses and facts that are not set out properly and appropriately supported in an opponent's Rule 56.1 response need not be considered. See Shaffer v. American Medical Association, 662 F.3d 439, 442 (7th Cir. 2011) ; Bay Area Business Council, 423 F.3d at 633. Here, the defendant has filed a proper statement of facts. [Dkt. # 25]. The plaintiff has not; indeed, she has neither filed a response to the defendant's statement of facts, nor her own statement of additional facts. [Dkt. # 36]. As a result, defendant's properly supported facts are deemed admitted, Apex Digital, Inc. v. Sears, Roebuck & Co., 735 F.3d 962, 965 (7th Cir. 2013), and the assertions plaintiff makes in her brief need not be considered. See Flint v. City of Belvidere , 791 F.3d 764, 767 (7th Cir. 2015) (court need only consider "the facts (and inferences drawn from them) presented in accordance with Local Rule 56.1."); Johal v. Little Lady Foods, Inc. , 434 F.3d 943, 947 (7th Cir. 2006) (court entitled to ignore facts set out, not in proper Local Rule 56.1 submission, but in memorandum of law)

II.FACTS

The facts in this case are not complicated. As already mentioned, plaintiff went skirt-shopping at defendant's store in early May of 2014. [Dkt # 25, ¶¶ 4–5]. In her deposition, plaintiff testified that she frequently shopped at that particular store. (Dep., at 17, 18). Upon entering the store, she walked over to a wall display that had skirts hanging from hooks that extended out of the wall, just above an empty shelf. [Dkt. # 25, ¶ 5; Dep., at 20, 22]. When she reached up with her right hand to touch a skirt, the empty shelf fell on top of her left foot. [Dkt. # 25, ¶ 5, Dep., at 18, 20, 22]. The plaintiff has no idea why the shelf fell. [Dkt. # 25, ¶ 6; Dep., at 22, 42]. She didn't notice anything wrong with the shelf. [Dkt. # 25, ¶ 6; Dep., at 22, 42]. In the five years prior to the incident, the store never received any reports about any problems with shelving. [Dkt # 25, ¶ 7; Ex. 6].

III.ANALYSIS

Under Illinois law, property owners owe to their invitees a duty to maintain the premises in a reasonably safe condition. Parker v. Four Seasons Hotels, Ltd. , 845 F.3d 807, 811 (7th Cir. 2017) ; Piotrowski v. Menard, Inc. , 842 F.3d 1035, 1038 (7th Cir. 2016). In a premises liability action, a plaintiff has the burden of proving: (1) the existence of a condition that presents an unreasonable risk of harm to persons on the premises; (2) that the defendants knew, or should have known, that the condition posed an unreasonable risk of harm; (3) that the defendants should have anticipated that individuals on the premises would fail to discover or recognize the danger or otherwise fail to protect themselves against it; (4) a negligent act or omission on the part of the defendant; (5) an injury suffered by the plaintiff; and (6) that the condition of the property was a proximate cause of the injury to the plaintiff. Parker, 845 F.3d at 811. Absent the landowner's actual or constructive knowledge of dangerous or defective conditions on the premises, there is no premises liability. Hanna v. Creative Designers, Inc. , 407 Ill.Dec. 604, 63 N.E.3d 1036, 1046 (1st Dist. 2016) ; Tomczak v. Planetsphere, Inc. , 315 Ill.App.3d 1033, 1038, 249 Ill.Dec. 58, 735 N.E.2d 662, 666 (1st Dist. 2000).

But, a plaintiff does not have to prove actual or constructive notice when she can show that the dangerous condition was placed on the premises through the defendant's negligence. Donoho v. O'Connell's, Inc., 13 Ill.2d 113, 122, 148 N.E.2d 434, 439 (1958) ; Reed v. Wal–Mart Stores, Inc., 298 Ill.App.3d 712, 715, 233 Ill.Dec. 111, 700 N.E.2d 212, 214 (4th Dist. 1998) ; Wind v. Hy–Vee Food Stores, Inc., 272 Ill.App.3d 149, 155, 208 Ill.Dec. 801, 650 N.E.2d 258, 262 (3rd Dist. 1995). This distinction is a sticking point for the parties in this case because, while the facts are few and aren't really in dispute, the parties have competing views of what this case is about and, consequently, the applicable law. Given the volume of litigation over these types of "accidents" in retails establishments, it's not as easy a distinction to draw as it ought to be. Or, as the Illinois Supreme Court has put it, the analysis can be "very involved, complex and indeed nebulous." Marshall v. Burger King Corp. , 222 Ill. 2d 422, 435, 305 Ill.Dec. 897, 856 N.E.2d 1048, 1056 (2006). Here, however, the distinction is not dispositive as, in either case, the plaintiff has failed to establish that there is a genuine issue of fact requiring a trial.

A.

The defendant rests its motion on the absence of any evidence of constructive or actual knowledge of a problem with the shelf. It relies in large part on Smolek v. K.W. Landscaping , 266 Ill. App. 3d 226, 228, 203 Ill.Dec. 415, 639 N.E.2d 974 (2nd Dist. 1994), in which the plaintiff was injured when she stepped in a hole that had been concealed by overgrowth in the lawn of her townhome development. The court ruled that plaintiff had to show constructive notice and she did not. In fact, the hole was concealed and there was no evidence that anyone knew of the hole's existence before the accident. Smolek , 266 Ill.App.3d at 230, 203 Ill.Dec. 415, 639 N.E.2d 974 (1994). It doesn't seem a dispositive analogy for a shelf falling on someone's toe, but it is in an important case: the hazard was not obvious, and there is no evidence defendant had actual or constructive knowledge about it.

Constructive notice can be established by either presenting evidence that: (1) the dangerous condition existed for a sufficient amount of time so that it would have been discovered by the exercise of ordinary care; or (2) the dangerous condition was part of a pattern of conduct or a recurring incident. Zuppardi v. Wal–Mart...