Gentry v. Shop ‘n Save Warehouse Foods Inc

• Decision Date: 07 April 2010
• Docket Number: No. 09-cv-3101.,09-cv-3101.
• Citation: 708 F.Supp.2d 733
• Parties: Alice GENTRY and William Gentry, Plaintiffs,v.SHOP ‘N SAVE WAREHOUSE FOODS, INC., Defendant.
• Court: U.S. District Court — Central District of Illinois

708 F.Supp.2d 733

Alice GENTRY and William Gentry, Plaintiffs,v.SHOP ‘N SAVE WAREHOUSE FOODS, INC., Defendant.

No. 09-cv-3101.

United States District Court, C.D. Illinois.

April 7, 2010.

Brent A. Beeman, Wolter Beeman & Lynch, Springfield, IL, for Plaintiff.

Beth Clemens Boggs, Boggs Avellino Lach & Boggs LLC, St. Louis, MO, for Defendant.

OPINION

RICHARD MILLS, District Judge:

For the following reasons, Defendant's Motion for Summary Judgment is granted.

I. BACKGROUND

On the afternoon of December 18, 2008, Plaintiffs Alice and William Gentry entered a Shop ‘n Save grocery store in Springfield, Illinois. Mrs. Gentry, who is 84 years old, was not watching where she was stepping. Mrs. Gentry encountered a black floor mat and fell after her right toe caught on the mat.

Jim and Shirley McDonough witnessed Mrs. Gentry's fall. As Mrs. Gentry lay on the ground, several people came to her assistance including Annet Godiksen and the McDonoughs. Neither the McDonoughs nor Ms. Godiksen noticed a buckle or wrinkle in the floor mat before Mrs. Gentry fell, although Mr. McDonough and Ms. Godiksen noticed one after the fall. Neither Mrs. Gentry nor Mrs. McDonough noticed a wrinkle in the floor mat at any point.

Ms. Godiksen noticed after Mrs. Gentry's fall that the mat was crumpled or buckled and was about one to two inches off of the ground in the place where Mrs. Gentry fell.

The assistant store manager, Shirley Hamilton, spoke with Mrs. Gentry immediately after the fall. Ms. Hamilton also spoke with Mr. McDonough and Ms. Godiksen, and prepared a Confidential Customer Incident Report.

The Plaintiffs filed suit in the Circuit Court of Sangamon County, Illinois, and the case was subsequently removed to this Court. Mrs. Gentry brings a negligence claim against the Defendant, while Mr. Gentry brings a loss of consortium claim.

II. STANDARDS

“Summary judgment is appropriate when the evidence submitted, viewed in the light most favorable to the non-moving party, shows ‘no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ ” Smith v. Hope School, 560 F.3d 694, 699 (7th Cir.2009) (quoting Fed.R.Civ.P. 56(c) and citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

In order to survive summary judgment, there must be sufficient evidence that a reasonable jury could find for the nonmoving party. Trade Finance Partners, LLC v. AAR Corp., 573 F.3d 401, 406-407 (7th Cir.2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

“A motion for summary judgment requires the responding party to come forward with the evidence that it has-it is the ‘put up or shut up’ moment in a lawsuit.” Eberts v. Goderstad, 569 F.3d 757, 767 (7th Cir.2009) (internal quotation marks and citations omitted). Although inferences are drawn in favor of the nonmoving party, inferences relying on speculation or conjecture are insufficient. Stephens v. Erickson, 569 F.3d 779, 786 (7th Cir.2009).

III. ANALYSIS

A. Erie Doctrine

The Court has jurisdiction over this case because of diversity of citizenship; the Plaintiffs are citizens of Illinois and the Defendant is a Missouri corporation. See 28 U.S.C. § 1332. “Under the Erie doctrine, federal courts sitting in diversity apply state substantive law and federal procedural law.” Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 427, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996); see also Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Therefore, we will apply the substantive law of Illinois and federal procedural law.

B. Confusion Regarding Claim

There is a decided lack of clarity regarding the Plaintiffs' claim. Initially, it appeared to be a premises liability claim, but the Plaintiffs now argue it is based upon a negligence theory, not premises liability.

The Plaintiffs initially made the following assertions in their Amended Complaint:

Defendant negligently violated its duty to Plaintiff at said time and place in that Defendant carelessly and negligently failed to maintain its premises in one or more of the following ways:

a. allowed the floor mat to be flipped and crumpled up in an area of the store where the Defendant knew or should have known that it would pose a danger to its customers; and/or

b. failed to smooth out the floor mat or otherwise maintain the entryway in an area of the store where it knew or should have known that defects on a heavily traveled walkway would endanger distracted customers; and/or

c. failed to properly and adequately monitor and oversee the grocery store and the floors therein so as to protect its customers from trip hazards at times and places where it should have known its customers would be unable to protect themselves.

Defendant knew or should have known that the floor mat had been crumpled and flipped up, and that the floor mat was thereby rendered dangerous to its customers.

The excerpt above looks like a premises liability claim. Notice is an essential element of premises liability claims, and the Plaintiffs assert five times that the Defendant was on notice that the mat was buckled. Also, under Illinois premises liability law, an owner or occupier of land has a duty to maintain the land in a reasonably safe condition, and the Plaintiffs' reference to this duty suggests a premises liability claim. Finally, the excerpt mentions “maintain[ing] the premises.”

The Defendant has made strong arguments that it had no notice of any dangerous condition in the Motion for Summary Judgment. After the Motion for Summary Judgment was filed, the Plaintiffs stated that in their Response they were proceeding under a negligence theory, not a premises liability theory, and therefore do not need to show notice.

At times in the pleadings, there is inconsistent use of terms and the swapping of elements between negligence and premises liability theories. Given the mix-ups, we will examine the case under each theory, in order to eliminate the confusion. The Plaintiffs' claims under premises liability will be examined first, followed by negligence. The Defendants are entitled to summary judgment under both theories.

C. Premises Liability

The Supreme Court of Illinois has looked to the Restatement (Second) of Torts for the standard of landowner liability.

“A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger.”

Genaust v. Ill. Power Co., 62 Ill.2d 456, 468, 343 N.E.2d 465 (1976) (quoting Restatement (Second) of Torts § 343 (1965)).

This is the general standard for premises liability. The landowner must know of the condition or would have discovered the condition through the exercise of reasonable care.

The Plaintiffs have presented no evidence that the Defendant has received complaints about the floor mat or its location. Mrs. Gentry did not look at the mat as she entered the store. The Plaintiffs have not presented any testimony from any person that the floor mat was flipped or curled before Mrs. Gentry's fall. The Plaintiffs have offered no evidence that the mat had any defects, that someone had tripped on the mat before, or that the mat had previously become buckled due to wetness or heavy foot traffic.

Therefore, to the extent premises liability has been alleged, the Defendant is entitled to summary judgment. There is no evidence in the record that the Defendant was on actual or constructive notice of an irregular floor mat, as required under Genaust.

D. Negligence

1. Notice Not Always Required

The regime in Genaust does not automatically apply in cases where there is evidence defendants were involved in creating the hazard. See Donoho v. O'Connell's, Inc., 13 Ill.2d 113, 122, 148 N.E.2d 434 (1958). “[A] plaintiff does not need to prove actual or constructive notice when she can show the substance was placed on the premises through the defendant's negligence.” Reed v. Wal-Mart Stores, Inc., 298 Ill.App.3d 712, 715, 233 Ill.Dec. 111, 700 N.E.2d 212 (4th Dist.1998).

In their Response, the Plaintiffs assert that it is irrelevant whether the Defendant had notice if the mat was defective or buckled, because the Plaintiffs are only bringing a negligence claim. Specifically, the Plaintiffs claim that because the Defendant and its agents placed the mat, the Plaintiffs do not need to prove notice. The Plaintiffs state:

In the instant case, the Defendant admits that it, rather than another customer or third party, placed the floor mat on the floor. This admission makes the notice requirement, common in premises liability cases inapplicable and assigns Defendant a duty of exercising care for the safety of those lawfully on his property.

2. Reasonable Use of Ordinary Mats

The Plaintiffs can avoid the notice requirement only if they can establish that the mats were negligently placed on the floors by the agents of the Defendant, not merely by showing that they were placed by the agents of the Defendant.

In this case, the Defendant placed mats on a grocery store floor on a wintery day. “[T]he use of ordinary floor mats to assist pedestrians is perfectly reasonable, and the fact that a person trips on one of them is no evidence of negligence.” Robinson v. Sw. Bell Tel. Co., 26 Ill.App.2d 139, 146, 167 N.E.2d 793 (4th Dist.1960); see also Johnson v. United States, No. 98 C 2572, 1999 WL 446694, at *3 (N.D.Ill. June 23, 1999) (applying Illinois law).

Therefore, the remaining question is whether the Defendant used ordinary mats in a reasonable fashion. When the use of mats is not reasonable, a grocery store may be held...