Gutterman v. Target Corp., 15 C 5714

• Decision Date: 17 March 2017
• Docket Number: 15 C 5714
• Citation: 242 F.Supp.3d 695
• Parties: Donald and Jodi GUTTERMAN, Individually and as Parents and Next Friends of Madison Gutterman, Plaintiffs, v. TARGET CORPORATION and Bravo Sports, Defendants.
• Court: U.S. District Court — Northern District of Illinois

242 F.Supp.3d 695

Donald and Jodi GUTTERMAN, Individually and as Parents and Next Friends of Madison Gutterman, Plaintiffs,

v.TARGET CORPORATION and Bravo Sports, Defendants.

15 C 5714

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

Signed March 17, 2017

Kenneth C. Apicella, Drost, Gilbert, Andrew & Apicella, LLC, Palatine, IL, for Plaintiffs.

Jodi Gutterman, pro se.

Robert Michael Burke, Helena Maria Jorgensen, Michael Joseph Linneman, Johnson & Bell, Ltd., Donald J. O'Meara, Jr., Pretzel & Stouffer, Chtd., Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

John Z. Lee, United States District Judge

This case arises from injuries that Madison Gutterman ("Madison") suffered while riding a skateboard within a Target store in Vernon Hills, Illinois. Her parents, Donald and Jodi Gutterman ("Plaintiffs"), brought suit on her behalf against Target and Bravo Sports ("Bravo"), which manufactured and distributed the skateboard at issue. Target and Bravo have separately moved for summary judgment. For the reasons that follow, both motions [61] [73] are granted.

Background¹

On May 26, 2013, Donald, Jodi, and Madison visited Target's store in Vernon Hills. Target's LR 56.1(a)(3) Stmt. ¶ 10, ECF No. 62. Madison, age eleven, was one month away from her twelfth birthday. Id. ¶ 14. While they were shopping, Madison asked Donald and Jodi if she could go off by herself to a different section of the store, and Donald and Jodi agreed. Id. ¶¶ 15–16.

Madison went to a section of the store where skateboards were on display. Id. ¶ 24. She took a skateboard off the shelf, placed it on the floor, and rode it down an aisle. Id. ¶ 27. The aisle was clean, clear, and dry, and there were no obstructions on the floor. Id. ¶ 29. Despite this, the parties agree that the floor was hard, slick, and unfit for skateboarding. See Pls.' LR 56.1(b)(3)(C) Stmt. (Target) ¶ 76, ECF No. 89. After riding the skateboard for a short period of time, Madison fell off and sustained injuries that spurred the action before this Court. Target's LR 56.1(a)(3) Stmt. ¶¶ 21–22.

The skateboard at issue was manufactured and distributed to Target by Bravo. Pls.' LR 56.1(b)(3)(C) Stmt. (Target) ¶ 72. Bravo placed "deterrent devices" on all skateboards it distributed to Target, including those that arrived at the Vernon Hills store prior to May 26, 2013. Id. ¶¶ 73, 75. "Truck boxes" are the only deterrent device Bravo used with the type of skateboard at issue. Id. ¶ 75. A truck box is "a cardboard box that covers the rear axle and wheels of the skateboard." Target's LR 56.1(a)(3) Stmt. ¶ 39. The box is affixed to the skateboard with hot glue or packaging tape. Id. ¶ 41. It can be removed quickly and easily by simply pulling it off. Id. ¶ 42. The purpose of the box is twofold: to protect the skateboard from damage pre-sale, and to protect customers by deterring them from riding skateboards in stores. See id. ¶ 40. Here, however, the parties agree that no truck box was affixed to the skateboard at issue when Madison rode it and that the truck box thus must have been removed at some point prior. Id. ¶ 55; Pls.' LR 56.1(b)(3)(C) Stmt. (Bravo) ¶ 57, ECF No. 91.²

Additionally, at the time Madison rode the skateboard, its surface was covered in plainly visible plastic shrink wrap meant to protect the board's surface during manufacturing and distribution. Target's LR 56.1(a)(3) Stmt. ¶¶ 43, 45; id. , Ex. G, ECF No. 62–8. The plastic wrap covers "grip tape" that provides traction on the board's surface; thus, the board is unsuitable for riding before the wrap is removed. Id. ¶ 45. The parties agree that the fact that the board's surface remained wrapped contributed to Madison's fall. Pls.' LR 56.1(b)(3)(C) Stmt. (Target) ¶ 76. Bravo placed a warning sticker on top of the plastic wrap that reads as follows: "WARNING! Reduce the risk of serious injury and only use this skateboard while wearing full protective gear—Helmet, Knee Pads, Elbow Pads, Wrist Guards, and Flat Soled Shoes[.] Max Rider Weight 110 lbs[.]" Target's LR 56.1(a)(3) Stmt. ¶¶ 46–47, 49.³ Madison wore flip flops, and no other protective gear, while riding the board. See id. ¶¶ 13, 28. The parties dispute whether wearing flip flops contributed to Madison's injury and what impact wearing protective gear would have had. Target's Resp. Pls.' LR 56.1(b)(3)(C) Stmt. ¶ 76, ECF No. 96.

Madison had experience riding skateboards; "she knew how to ride the skateboard she took off the shelf in the store that day, and there was nothing new, different, or unusual about this skateboard as compared to other skateboards she had previously ridden." Target's LR 56.1(a)(3) Stmt. ¶ 30. At a more basic level, she knew "that a skateboard has wheels, that it rolls on those wheels, that she could fall off of it, and that if she were to fall off of it, she could get hurt." Id. ¶ 33. Moreover, while the parties dispute the precise guidance Donald and Jodi had given her about using skateboards in a store, riding with flip flops, and riding without protective gear, there is no dispute that they generally advised her against these activities. Target's LR 56.1(a)(3) Stmt. ¶¶ 17–18; id. , Ex. B, at 38:20–40:1, ECF No. 62–3; id. , Ex. C, at 20:17–21:7, 25:2–14, ECF No. 62–4; Bravo's LR 56.1(a)(3) Stmt. ¶¶ 13–15, ECF No. 75; Target's Resp. Pls.' LR 56.1(b)(3)(C) Stmt. ¶ 110.

Legal Standard

"The court shall grant summary judgment 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) ; see also Shell v. Smith , 789 F.3d 715, 717 (7th Cir. 2015). To survive summary judgment, the nonmoving party must "do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and instead must "establish some genuine issue for trial such that a reasonable jury could return a verdict in her favor." Gordon v. FedEx Freight, Inc. , 674 F.3d 769, 772–73 (7th Cir. 2012). In reviewing a motion for summary judgment, courts "must construe all facts and reasonable inferences in favor of the nonmoving party." Dorsey , 507 F.3d at 627. But "[i]nferences that are supported by only speculation or conjecture will not defeat a summary judgment motion." Id. (quoting McDonald v. Vill. of Winnetka , 371 F.3d 992, 1001 (7th Cir. 2004) ) (internal quotation marks omitted).

Analysis

I. Claims Against Target

Plaintiffs first seek to recover against Target on theories of common law negligence and violation of the Illinois Premises Liability Act. Target has moved for summary judgment on the grounds that the skateboard by which Madison suffered her injuries was an open and obvious danger, and that Target owed Madison no duty of care.

In this diversity action, the Court applies Illinois law. Lane v. Hardee's Food Sys., Inc. , 184 F.3d 705, 707 (7th Cir. 1999). To succeed in a claim of negligence, "the plaintiff must plead and prove the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and injury proximately resulting from the breach." Bruns v. City of Centralia , 386 Ill.Dec. 765, 21 N.E.3d 684, 688–89 (2014). The existence of a duty is a question of law. Id. , 386 Ill.Dec. 765, 21 N.E.3d at 689.

In determining the existence of a duty, Illinois courts ask " ‘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.’ " Bruns , 386 Ill.Dec. 765, 21 N.E.3d at 689 (quoting Ward v. K Mart Corp. , 136 Ill.2d 132, 143 Ill.Dec. 288, 554 N.E.2d 223, 227 (1990) ). Four factors are relevant to this analysis: "(1) the reasonable foreseeability of the injury, (2) the likelihood of the injury, (3) the magnitude of the burden of guarding against the injury, and (4) the consequences of placing that burden on the defendant." Id.

The "open and obvious rule" is a common law construct that mitigates a party's duty to protect another from a potentially dangerous, yet open and obvious, condition. Id. The open and obvious rule applies in both negligence and premises liability actions. Id. , 386 Ill.Dec. 765, 21 N.E.3d at 689–90 ; Ward , 143 Ill.Dec. 288, 554 N.E.2d at 229–30. " ‘Obvious' means that ‘both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising ordinary perception, intelligence, and judgment.’ " Bruns , 386 Ill.Dec. 765, 21 N.E.3d at 690 (quoting Restatement (Second) of Torts § 343A cmt. b (1965)). "Whether a dangerous condition is open and obvious may present a question of fact," but if there is no dispute as to the "physical nature" of a condition, as is the case here, whether it is open or obvious is a question of law. Id.⁴

Importantly, a finding that a condition is open and obvious does not of itself preclude the existence of a duty. Bruns , 386 Ill.Dec. 765, 21 N.E.3d at 690. Rather, in carrying out a traditional duty analysis, courts use the open and obvious rule in evaluating the first two factors of the duty inquiry: the foreseeability and likelihood of injury. Id. In regard to foreseeability, the open and obvious nature of a condition reduces the reasonable foreseeability of injury, because it is reasonable for a defendant to expect that a plaintiff will avoid an open and obvious danger. Id. , 386 Ill.Dec. 765, 21 N.E.3d at 694. Similarly, the likelihood that a plaintiff will avoid an open and obvious danger reduces the likelihood of injury under the second factor. Id. , 386 Ill.Dec. 765, 21 N.E.3d at 695. After incorporating the open and obvious rule in this manner, courts proceed as usual to consider the magnitude and consequences of placing a burden on the defendant. Id.

The open and obvious rule applies just the same when children are involved. Corcoran v. Vill. of Libertyville , 73 Ill.2d 316, 22 Ill.Dec. 701, 383...