Keenan v. Home Depot U.S.A., Inc.

• Decision Date: 20 September 2021
• Docket Number: 16-cv-4530
• Parties: Patrick Keenan, Plaintiff, v. Home Depot U.S.A., Inc., Defendant.
• Court: U.S. District Court — Northern District of Illinois

Patrick Keenan, Plaintiff, v. Home Depot U.S.A., Inc., Defendant.

No. 16-cv-4530

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

September 20, 2021

MEMORANDUM OPINION AND ORDER

Joan B. Gottschall, United States District Judge

This diversity negligence and premises liability action arises out of an accident that occurred on February 3, 2006, in a Home Depot store in Countryside, Illinois. See Compl, ECF No. 1-1. Plaintiff Patrick Keenan (“Keenan”) testified that a safety cable snapped up and hit him in the eye as he reached into a lumber bin to retrieve a board. See Pl.'s Resp. to Def.'s Statement of Material Facts (“Resp. to SOF”) ¶¶ 40 41, ECF No. 99-2. The court has before it the amended motion of defendant Home Depot U.S.A., Inc. (“Home Depot”) for summary judgment. Home Depot argues that it did not owe Keenan a duty of care and that no reasonable jury could find that Home Depot's negligence proximately caused his injury. For the following reasons, the court grants Home Depot's motion on the duty of care element of Keenan's claims.

I. Summary Judgment Standard

Summary judgment is proper where the moving party “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). 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 (1986). At summary judgment, the court considers “all of the evidence in the record in the light most favorable to the non-moving party, ” and draws “all reasonable inferences from that evidence in favor of the party opposing summary judgment.” Donald v. Wexford Health Sources, Inc., 982 F.3d 451, 457 (7th Cir. 2020) (citing Dunn v. Menard, Inc., 880 F.3d 899, 905 (7th Cir. 2018)).

The party seeking summary judgment bears the initial burden of establishing that there is no genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013). After “a properly supported motion for summary judgment is made, the adverse party must” go beyond the pleadings and “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 250 (quotation omitted); see also Modrowski, 712 F.3d at 1169.

II. Facts

The court recites the facts in keeping with summary judgment principles, resolving genuine disputes for Keenan and drawing reasonable inferences in his favor. See Donald, supra, 982 F.3d at 457. Keenan arrived at the Countryside Home Depot store between 8:30 and 9:00 a.m. Resp. to SOF ¶ 26. He had been to the store on prior occasions, and the display of lumber looked the same as it had when he shopped on those occasions. See Id. ¶ 33.

A. The Accident

Keenan made his way to aisle 17 and began loading 1x6 and 1x8 boards into his shopping cart. See Resp. to SOF ¶¶ 26, 27, 38. Consistent with Home Depot corporate policy, the boards were stacked vertically, leaning toward the bin's rear. See Resp. to SOF ¶¶ 28-29; Def.'s Resp. to Pl.'s Statement of Add'l Facts (“Resp. to SAF”) ¶ 14, ECF No. 100.

It is undisputed that the bin was well-stocked and “not in disarray” when Keenan began loading boards into his cart. Resp. to SOF ¶¶ 34-35. Keenan testified that the following photograph, taken by an assistant store manager shortly after the accident, accurately depicts the lumber bin's condition before the accident occurred. Resp. to SOF ¶ 53.

(Image Omittted)

Def Ex. 6, ECF No. 95-6.

As the photograph shows, the lumber bin was divided into sections by white m-bars attached to orange beams at the bin's rear. See Grzeskowiak Dep. 35:10-14, 42:3-9, Def. Ex. 4, ECF No. 95-4. A gray bracket is attached to some of the m-bars. Id. at 43:4-5. The safety cable running along the front of the bin can be passed through or clipped to loops on the gray bracket. See Resp. to SAF ¶ 24; Resp. to SOF ¶ 62; Grzeskowiak Dep. 42:19-43:5, 43:14-20. The height of the cable can be adjusted. See Resp. to SAF ¶ 24; see also Grzeskowiak Dep. 35:21-23 (uncited testimony that there are two sizes of m-bar). "The purpose of the safety cable is to prevent the lumber from falling out of the bin and hitting anybody in the head." Resp. to SAF

¶ 25 (citation omitted). As discussed below, the safety cable's height and the amount of tension on the cable are disputed.

Keenan loaded each board by lifting it and sliding it out of the bin. Resp. to SOF ¶¶ 36- 38. He successfully retrieved two boards before the accident. Resp. to SOF ¶ 39. Keenan's deposition testimony about how the accident occurred must be treated as true at summary judgment:

Q. Okay. When you got at least two boards out, you went to retrieve another one, correct?

A. Yes.

Q. And did anything unusual happen when you got that board?

A. Yes.

Q. And what was that?

A. When I went to retrieve another board, I just went to grab it like I had grabbed the other boards and the protective cable snapped up and it got taut and hit me in the eye.

Q. Now, when you say it became taut, what caused it to become taut?

A. The wood in another bay had fallen forward and then the protective cable did what, I presume was there to do, it caught the wood and prevented it from falling into the aisle. And then where I was it [sic], there was slack on the cable and the wood caught it and it became taut and it moved upwards just as I was leaning in to get the board that I needed.

Keenan Dep. 21:9-22:5; see also Resp. to SAF ¶¶ 30, 32-34; Resp. to SOF ¶¶ 40-41, 43-44 (both summarizing this testimony).

Keenan's back was turned when the accident occurred, so he did not see how the board came to be leaning against the cable.^[1] See Resp. to SOF ¶ 45. The board could have been in either an immediately adjacent section of the display (one m-bar away) or further. See Resp. to SOF ¶ 48. After the accident, Keenan saw another customer at the end of the aisle. Resp. to SOF ¶ 49.

Keenan reported the accident to store personnel. Assistant store manager Tim Naumann accompanied Keenan to the bin, took photographs, and wrote a short incident report. See Resp. to SOF ¶ 50; Resp. to SAF ¶¶ 1-2; Naumann Dep. 13:23-18:20, Def. Ex. 2, ECF No. 95-2. Naumann took the photo above during the inspection. Naumann found no board leaning against the safety cable when he returned to the display with Keenan, and the incident report noted no other safety concerns. See Resp. to SOF ¶¶ 52-54.

B. Home Depot Policies and Safety Checklists

The Countryside Home Depot store employs four lumber associates and a lumber department supervisor, Nathan Grzeskowiak, who is responsible for day-to-day operations. Resp. to SOF ¶ 12; Resp. to SAF ¶¶ 9-12. The record does not reveal the associates' shifts and work schedules nor how many associates were on duty on the day of Keenan's accident. Each lumber associate must complete 8-12 hours of training before being allowed to work in the lumber department. Resp. to SAF ¶¶ 16-18. The training consists of watching videos on Home Depot's employees-only website and answering questions, presumably about the topic of the training video. See Resp. to SAF ¶¶ 17-19. Home Depot has no written training materials, and the summary judgment record does not include the training videos. See Resp. to SAF ¶ 20. Home Depot also requires employees to complete ongoing safety training once a year, but whether any of the ongoing training bears on the issues raised in this case has not been explained. Resp. to SAF ¶ 23

Home Depot policies require the lumber associate on duty when the store opens to walk through the lumber department and complete a store readiness checklist; the associate is directed to ensure that the department looks as though “no one [has] shopped it.” See Resp. to SOF ¶¶ 14-18; see also Grzeskowiak Dep. 27:19-28:8. This was generally done first thing in the morning at the Countryside Home Depot store. Resp. to SOF ¶ 9.

The record contains a copy of the store readiness checklist completed on the day of Keenan's accident. Def. Ex. 3, ECF No. 95-3; see also Resp. to SOF ¶ 6. As discussed in the analysis below, Keenan has submitted a different safety checklist bearing a revision date of September 14, 2006, which he claims was on Home Depot's website. ECF No. 72-7. For Keenan, the critical difference between the two checklists is that the checklist revised September 14, 2006, requires the safety cable to be secured at a height of seven feet while the checklist completed on the day of Keenan's accident does not mention the height of the safety cable. Compare Def. Ex. 3 at 1, ECF No. 95-3; with Pl. Ex. 3, ECF No. 72-7. Home Depot disputes the authenticity of the September 14, 2006, checklist.

The checklist completed on the day of Keenan's accident includes the following items: “[t]here is no leaning or protruding merchandise, ” “lumber safety poles [are] in place at the shopping level, ” and “safety cables or beams [are] used to secure vertically stacked merchandise (example: 1x merchandise).” Def. Ex. 3 at 1. The inspector was expected to note any safety concerns on the checklist. Resp. to SOF ¶¶ 7, 10. No. leaning or protruding merchandise is noted in the checklist for February 3, 2016, indicating that no such safety concerns were observed. Def. Ex. 3 at 1; Resp. to SOF ¶ 10. In addition to a morning walkthrough, Home Depot policies require lumber associates to spend most of the workday in the lumber department, direct lumber associates to address any safety concerns they encounter, and require assistant store managers to walk through the store to look for safety and neatness concerns throughout the day. See Resp. to SOF ¶¶ 19-21.

Grzeskowiak the...