Byrd-Tolson v. Supervalu, Inc.

• Decision Date: 12 June 2007
• Docket Number: No. 06 C 3818.,06 C 3818.
• Citation: 500 F.Supp.2d 962
• Parties: Debra BYRD-TOLSON, Plaintiff, v. SUPERVALU, INC., a Delaware Corporation, d/b/a Say-A-Lot Grocers and Say-A-Lot Grocers of 7908 Halstead, Chicago, Illinois, and Moran Foods Inc., a Missouri Corporation, Defendants.
• Court: U.S. District Court — Northern District of Illinois

500 F.Supp.2d 962

Debra BYRD-TOLSON, Plaintiff, v. SUPERVALU, INC., a Delaware Corporation, d/b/a Say-A-Lot Grocers and Say-A-Lot Grocers of 7908 Halstead, Chicago, Illinois, and Moran Foods Inc., a Missouri Corporation, Defendants.

No. 06 C 3818.

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

June 12, 2007.

COPYRIGHT MATERIAL OMITTED

Gerard Martin Stocco, Stocco Law Offices, Warrenville, IL, for Plaintiff.

Mark Thomas Schmidt, Janella L. Barbrow, Schmidt & Barbrow, Wheaton, IL, for Defendants.

MEMORANDUM OPINION AND ORDER GRANTING SUMMARY JUDGMENT MOTION OF DEFENDANT MORAN FOODS, INC.

FILIP, District Judge.

On or about June 6, 2006, Plaintiff, Debra Byrd-Tolson ("Plaintiff'), an Illinois resident, filed suit against Supervalu, Inc. ("Supervalu") d/b/a "Sav-A-Lot Grocers" and "Say-A-Lot Grocers of 7908 S. Halsted, Chicago, IL," based on injuries she allegedly suffered at a grocery store on June 6, 2004. (D.E. 1, Ex. A at 1.) Supervalu subsequently filed a notice of removal under 28 U.S.C. § 1441. (D.E.1.)

In November 2006, Plaintiff was granted leave to file an amended complaint. (D.E.23) In response, Supervalu filed a motion for summary judgment in which it averred, inter alia, that it did not own the supermarket referred to in the original complaint and did not have any activities concerning the operation of the grocery store in question on the date of Plaintiff's accident, (D.E.24.) Thereafter, Plaintiff filed an amended complaint on February 6, 2007, in which Plaintiff voluntarily dismissed Supervalu as a defendant, and added Moran Foods, Inc. ("Moran"). (D.E.43.) As a consequence, the Court struck as moot a motion by Supervalu to stay discovery pending resolution of the summary judgment motion (and to extend discovery thereafter, if necessary), and the Court also struck as moot the underlying summary judgment motion. (D.E.40, 42.)

After being named as a party in the amended complaint, Moran filed a motion that it styled as a "motion to dismiss." (D.E.50.) In conjunction with the "motion to dismiss," Moran also filed a statement of material facts pursuant to Local Rule 56.1, which is a local procedural rule that addresses the presentation of the record for summary judgment motions. (D.E.51, 53.) Following a status hearing held in connection with the motion, the Court explained that the motion would be analyzed "and treated as a motion for summary judgment" pursuant to Fed.R.Civ.P. 56, (D.E.56.) Briefing thereafter proceeded on that basis, with Plaintiff, for example, filing her own statement of material facts consistent with the Local Rule 56.1 framework. (D.E.59.)

The Court has evaluated Moran's summary judgment motion. As explained below, the motion is granted for two independent reasons: (1) the suit against Moran was untimely; and (2) Plaintiff failed to adduce a triable case concerning substantive liability.

RELEVANT FACTS¹

This is a personal injury action that is in federal court pursuant to diversity of citizenship jurisdiction following removal from the Circuit Court of Cook County. The Plaintiff, Ms. Byrd-Tolson, is citizen and resident of Illinois. (D.E. 57, Ex. 1 (Pl. Rule 56.1 Resp.) ¶ 2 (concerning subject matter jurisdiction).) The Defendant, Moran Foods, Inc., is a Missouri corporation with its principal place of business in Missouri, (D.E. 51 (Def. Rule 56.1 Statement) ¶ 3 (concerning subject matter jurisdiction.).)

I. Plaintiff's Slip and Fall Incident

In this case, Plaintiff alleged injuries as a result of a slip and fall accident which occurred on June 6, 2004. (See, e.g., id. ¶¶ 2, 4.) Specifically, Plaintiff fell in Aisle Five of Defendant's grocery store in Chicago. (D.E. 57, Ex. 1 (Pl's Rule 56.1 Resp.) ¶¶ 3, 9.) Aisle Five of the store contained water, potatoes, and popcorn on one side, built-in coolers on the other, and low-slung coolers in the middle. (Id. ¶ 9.) A customer service counter was at the front of the aisle. (Id. ¶ 10.) Plaintiff stated that nothing was blocking her view as she walked down the aisle pulling a cart, and that the lighting was such that she had no problem seeing as she moved forward. (Id. ¶¶ 14, 16.) Plaintiff was about four feet from the frozen case when she fell, which was an equal distance from the opposite shelf on her right side. (Id. ¶ 12.) Plaintiff does not know of anyone who actually saw her fall. (Id. ¶ 15.) Plaintiff does not remember feeling anything under her feet at any point during the fall. (Id. ¶ 17.) When she was on the floor, Plaintiff recalled seeing smashed grapes. (Id. ¶ 23.) However, she did not see any grapes between her legs when she looked down, or any grapes behind her when she was on the ground, nor did she see any grapes in the area of her fall before the fall. (Id. ¶¶ 17-19.) Plaintiff contends that she fell on some grapes, but she does not know how long the grapes allegedly had been on the floor prior to her fall or how the grapes got on the floor. (Id. ¶¶ 20-21.) (Plaintiff also acknowledges that she cannot say whether a grape as opposed to something else on the floor caused her fall, but she does maintain that her fall was caused by a wet substance. (Id. ¶ 23-24.)) Plaintiff did not know where the wetness came from, who put it there, how long it had been there, or whether or not people from the store knew about it. (Id. ¶ 21, 22, 24.)

LEGAL STANDARD

Summary judgment is proper where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The nonmovant cannot rest on the pleadings alone, but must identify specific facts, see Cornfield v. Consol. High Sch. Dist. No. 230, 991 F.2d 1316, 1320 (7th Cir.1993), that raise more than a scintilla of evidence to show a genuine triable issue of material fact. See Murphy v. ITT Educ. Servs., Inc., 176 F.3d 934, 936 (7th Cir.1999) (citation omitted). The Court views the properly-presented record and all reasonable inferences drawn therefrom in the light most favorable to the nonmovant. See Fed. R.Civ.P. 56(c); Foley v. City of Lafayette, 359 F.3d 925, 928 (7th Cir.2004). Summary judgment is proper 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 that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To avoid summary judgment, the opposing party must go beyond the pleadings and "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (internal quotation marks and citation omitted).

This judicial district has well settled rules concerning the presentation and analysis of motions subject to Local Rule 56.1. Local Rule 56,1 ("L.R.56.1") requires that statements of facts contain allegations of material fact, and the factual allegations must be supported by admissible record evidence. See L.R. 56.1; Malec v. Sanford, 191 F.R.D. 581, 583-85 (N.D.Ill.2000). Where a party has offered a legal conclusion or a statement of fact without offering proper evidentiary support, the Court will not consider that statement. See, e.g., Malec, 191 F.R.D. at 583 ("Factual allegations not properly supported by citation to the record are nullities."). The only appropriate way to present additional material factual allegations is through a counter-statement of material facts filed within the prescribed Local Rule 56.1 framework. See, e.g., Knights v. Williams, No. 02 C 5017, 2005 WL 1838427, at *2 (N.D.Ill. July 28, 2005) (collecting cases); Malec, 191 F.R.D. at 584 (L.R.56.1(b)(3) (B) statement is the only acceptable means of presenting additional facts to the Court). In addition, facts are properly presented through the framework of the Rule 56.1 statements, and not through citation in the briefs to raw record material, as that does not promote a reasoned process to air and evaluate the parties' respective positions concerning either: (a) whether there are disputed material facts in the record; or (b) evidentiary objections concerning such matters. See, e.g., Malec, 191 F.R.D. at 586; accord, e.g., Madaffari v. Metrocall Cos. Group Policy GL, No. 02 C 4201, 2005 WL 1458071, *1 (N.D.Ill. June 15, 2005) (St.Eve, J.) (citing, inter alia, Solaia Tech. LLC v. ArvinMeritor, Inc., 361 F.Supp.2d 797, 826 (N.D.Ill. 2005)). The Seventh Circuit teaches that a district court has broad discretion to require strict compliance with L.R. 56.1. See, e.g., Koszola v. Bd. of Ed. of City of Chicago, 385 F.3d 1104, 1109 (7th Cir. 2004); Curran v. Kwon, 153 F.3d 481, 486 (7th Cir.1998) (citing Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1316 (7th Cir.1995) (collecting cases)). As is standard in this district, the Court applies the Rule 56.1 framework and accompanying rules, particularly as both parties are represented.

ANALYSIS

I. Plaintiff's Claim is Barred By the Statute of Limitations

In its motion for summary judgment, Moran contends that the case must be dismissed because Plaintiff failed to commence it within the applicable statute of limitations. (D.E. 52 at 4.) The parties agree that the issue of the timeliness of the suit in this diversity action is controlled by Illinois law. (D.E. 50 ¶ 7; D.E. 52 at 1, 3; D.E. 57 ¶¶ 5-6.) Seventh Circuit precedent teaches that when the parties agree on the applicable choice of law, the district court may accept that stipulation. See Vukadinovich v. McCarthy, 59 F.3d 58, 62 (7th Cir.1995); accord, e.g., Harter v. Iowa Grain Co., 220 F.3d 544, 559 n. 13 (7th Cir.2000). The Court accordingly analyzes the timeliness of the suit pursuant to Illinois law.

Under Illinois law, a personal injury claim must be commenced within two years after the cause of action...