Dunn v. Menard, Inc.

• Decision Date: 29 January 2018
• Docket Number: No. 17-1870,17-1870
• Citation: 880 F.3d 899
• Parties: Larry D. DUNN, Plaintiff–Appellant, v. MENARD, INC., Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

880 F.3d 899

Larry D. DUNN, Plaintiff–Appellant,

v.MENARD, INC., Defendant–Appellee.

No. 17-1870

United States Court of Appeals, Seventh Circuit.

Argued January 17, 2018

Decided January 29, 2018

Ralph J. Licari, Attorney, RALPH J. LICARI & ASSOCIATES, LTD, Chicago, IL, Sean C. Starr, Attorney, LAW OFFICES OF SEAN C. STARR, Northfield, IL, for Plaintiff–Appellant.

Laura E. Fahey, Gary T. Jansen, Attorneys, CREMER, SPINA, SHAUGHNESSY, JANSEN & SIEGERT, LLC, Chicago, IL, for Defendant–Appellee.

Before Flaum, Easterbrook, and Barrett, Circuit Judges.

FLAUM, Circuit Judge.

Plaintiff-appellant Larry Dunn filed a negligence suit against defendant-appellee Menard, Inc. ("Menards") after he was injured by a falling stack of rolled insulation at a Menards store in Hodgkins, Illinois. The district court granted summary judgment to Menards, finding that it did not owe plaintiff a legal duty because: (1) the stack of insulation constituted an "open and obvious" danger; and (2) imposing such a duty would be excessively onerous under the circumstances. Plaintiff now appeals the district court's ruling. We affirm.

I. Background

A. Factual Background

Menards is a chain of home improvement centers located in the Midwestern United States. At approximately 7:00 PM on January 3, 2014, plaintiff Larry Dunn and his adult son, Erik Dunn, visited a Menards in Hodgkins, Illinois to purchase rolled insulation. This was not the first time plaintiff had frequented the Hodgkins Menards; he went to the store on a monthly basis to purchase personal home improvement supplies.

After plaintiff paid for twenty-one rolls of insulation inside the main store, a cashier instructed him to pick up his merchandise in one of the store's surrounding self-service warehouses, where customers loaded their purchased materials. Plaintiff drove his Dodge Grand Caravan to the Menards "yard," and a security guard directed him to the warehouse containing insulation.

Both entrances to the insulation warehouse displayed warning signs stating, "For your safety, caution, do not cut bandings, do not open packages, do not pull, do not climb, and if you need assistance, please call." Although neither plaintiff nor Erik recall seeing the warning signs, they do not dispute that they were posted on the date of the incident.

Plaintiff did not observe any Menards employees inside the warehouse. However, he had witnessed employees assist customers in the self-service warehouses in the past, and understood he could ask for assistance if needed.

Plaintiff parked his van next to the supply of rolled insulation, which was organized in vertical stacks. Upon exiting his vehicle, plaintiff noticed that one stack of insulation, approximately sixteen feet in height, "was not straight" and was "leaning to the right." During his deposition, plaintiff testified that the stack "seemed too high," and that "it was pretty obvious" the stack "was leaning and unstable." As a result, plaintiff told his son to "keep an eye" on the stack.

Despite the leaning stack, plaintiff did not seek assistance from any Menards employees. Instead, he observed the insulation for approximately five minutes to determine whether "it was safe to proceed." After counting the rolls of insulation in front of the leaning stack, plaintiff concluded he could obtain the insulation he needed without utilizing the unstable batch. Plaintiff decided it was safe to proceed as long as neither he nor his son touched the leaning stack. Nevertheless, plaintiff instructed Erik to "be wary of where [he was] and what [he was] moving" and to "be cautious" and "careful" while loading.

Plaintiff and Erik proceeded to load their van with insulation for approximately ten to fifteen minutes. Plaintiff faced his van as they loaded, with the leaning stack approximately eight to ten feet behind him. The parties agree that, during this time, neither plaintiff nor Erik directly or indirectly touched the leaning stack. Still, as they loaded the final bales of insulation, the leaning stack fell. Some of the falling insulation struck plaintiff and forced him to the ground, allegedly injuring his right shoulder.

After the incident, plaintiff and Erik immediately returned to the Menards main store and notified the front office manager. While preparing an incident report, the front office manager learned that two Menards employees were working in the bay next to plaintiff at the time of the accident. The employees told the front office manager that, although they did not see plaintiff enter the warehouse, they heard the insulation fall. They further told the front office manager that they were never asked for assistance.

As a general practice, the general manager of the Hodgkins Menards patrols both the store and warehouses three times by 5:00 PM in order to look for potential hazards. In addition, the yard shipping and receiving manager, the assistant yard shipping and receiving managers, and individual team members routinely monitor the self-service warehouses for potential safety issues.

B. Procedural Background

On May 6, 2015, plaintiff filed a negligence suit against Menards in the Circuit Court of Cook County. Menards removed the case to the Northern District of Illinois, where the matter was assigned to District Judge Sara L. Ellis.

Plaintiff was deposed on September 23, 2015 and non-medical fact discovery closed on November 20, 2015. On February 22, 2016, five months after plaintiff's deposition, three months after the close of non-medical fact discovery, and four days before the deadline for Menards's summary judgment brief, plaintiff provided Menards with a supplemental 14–paragraph personal affidavit. Menards moved to strike the affidavit on the grounds that it contradicted plaintiff's prior deposition testimony. Following an in-court hearing, the district court granted Menards's motion in part and struck paragraphs 3 through 10 and 14.

The district court granted summary judgment to Menards on November 18, 2016. The court found Menards did not owe a legal duty to plaintiff because the leaning stack of insulation that fell on him constituted an open and obvious condition, and imposing such a duty would be excessively onerous under the circumstances. Plaintiff subsequently filed a motion to reconsider, which was denied. This appeal followed.

II. Discussion

The first two issues presented in this appeal—the open and obvious nature of the leaning stack of insulation and whether Menards owed plaintiff a legal duty—are subject to de novo review. See C.G. Schmidt, Inc. v. Permasteelisa N. Am. , 825 F.3d 801, 805 (7th Cir. 2016). Summary judgment is appropriate if the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Spurling v. C & M Fine Pack, Inc. , 739 F.3d 1055, 1060 (7th Cir. 2014). A genuine dispute 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We "consider all of the evidence in the record in the light most favorable to the non-moving party, and we draw all reasonable inferences from that evidence in favor of the party opposing summary judgment." Feliberty v. Kemper Corp. , 98 F.3d 274, 276–77 (7th Cir. 1996).

The third issue on appeal—the district court's exclusion of portions of plaintiff's supplemental affidavit—is reviewed for an abuse of discretion. See Griffin v. Foley , 542 F.3d 209, 217 (7th Cir. 2008). Under this standard of review, "the relevant inquiry is not how the reviewing judges would have ruled if they had been considering the case in the first place." Id. at 218 (quoting Wheeler v. Sims, 951 F.2d 796, 802 (7th Cir. 1992) ). "Rather, the district court's decision is to be overturned only if no reasonable person would agree with the trial court's ruling." Id.

A. The stack of insulation that fell on plaintiff constituted an open and obvious condition.

"[S]tate law provides the substantive law in a diversity action." Maroules v. Jumbo, Inc. , 452 F.3d 639, 645 (7th Cir. 2006). Thus, "our task is to predict how the Illinois Supreme Court would decide the issues presented here." Nationwide Agribusiness Ins. Co. v. Dugan , 810 F.3d 446, 450 (7th Cir. 2015). "Where the Illinois Supreme Court has not ruled on an issue, decisions of the Illinois Appellate Courts control, unless there are persuasive indications that the Illinois Supreme Court would decide the issue differently." Id.

To establish a cause of action for negligence under Illinois law, a plaintiff must prove: "(1) a duty owed to the plaintiff by the defendant; (2) a breach of that duty; and (3) an injury proximately caused by the breach." Wilfong v. L.J. Dodd Constr. , 401 Ill.App.3d 1044, 341 Ill.Dec. 301, 930 N.E.2d 511, 519 (2010). Here, plaintiff's arguments relate to the first element.

Whether a duty exists is a question of law to be determined by the court. Fulk v. Ill. Cent. R. Co. , 22 F.3d 120, 125 (7th Cir. 1994) ; see also Mayer v. Gary Partners & Co. , 29 F.3d 330, 333 (7th Cir. 1994) (holding that the allocation of duties between judge and jury is governed by federal law). Put broadly, "[d]uty is determined by asking ‘whether defendant and plaintiff stood in such a relationship to one another that the law imposed upon defendant an obligation of reasonable conduct for the benefit of plaintiff.’ " Bucheleres v. Chi. Park Dist. , 171 Ill.2d 435, 216 Ill.Dec. 568, 665 N.E.2d 826, 831 (1996) (quoting Ward v. K MartCorp., 136 Ill.2d 132, 143 Ill.Dec. 288, 554 N.E.2d 223, 226 (1990) ). As a matter of practical application, however, "the concept of duty in negligence cases is very involved, complex and indeed nebulous." Ward, 136 Ill.2d 132, 143 Ill.Dec. 288, 554 N.E.2d at 226 (quoting Mieher v. Brown , 54 Ill.2d 539, 301 N.E.2d 307, 310 (1973) ). "The four factors courts typically consider in determining whether a duty exists are: (1) the...