Serrano v. Menard, Inc.
| Docket Number | 21 C 105 |
| Decision Date | 02 May 2023 |
| Parties | ERIK SERRANO, Plaintiff, v. MENARD, INC., Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
Plaintiff (“Serrano”) sues defendant for negligence. The case is before the Court on defendant's motion pursuant to Federal Rule of Civil Procedure 56 for summary judgment and defendant's Daubert[1] motion pursuant to Federal Rule of Evidence 702 to bar expert testimony of John Peterson. For the reasons set forth below, the Court grants the motion for summary judgment and denies the Daubert motion as moot.
Facts[2]
Defendant operates a hardware store in Bolingbrook, Illinois. (ECF 56 ¶ 1). Serrano was a guest at the store on October 16 2018. (Id. ¶ 2). Specifically, Serrano was shopping at the selfservice outdoor lumberyard that is part of defendant's store. (Id. ¶ 7). Despite the self-service nature of the lumberyard, there is a sign that generally states, “ask if you need help.” (Id. ¶ 4). Defendant's employees are assigned to assist guests in the yard and inspect the yard daily. (Id. ¶¶ 5-6). Serrano was shopping for 4x10' sewer pipes (PVC pipes), which weigh about 10-15 pounds each. (Id. ¶¶ 7-8). Serrano has purchased these pipes hundreds, if not thousands of times before. (Id. ¶ 13). In the lumberyard, the pipes that were for sale were displayed vertically and located near the hood of the truck depicted in this photograph[3]:
(Image Omitted)
(Id. ¶ 9).
Approximately 15 minutes before Serrano's injury, defendant's Assistant General Manager, Adam Franco, observed that the vertical stack of 4x10' sewer pipes was full. (Id. ¶ 11). Serrano retrieved several pipes from the vertical stack and placed them in his truck. (Id. ¶ 12). Near the rear of the truck, and to the right of vertical pipes, was a large bunk of PVC pipes on a pallet staged on a shelf, as depicted in this photograph:[4]
(Image Omitted)
(Id. ¶ 14).
Defendant asserts that this large bunk of PVC pipes was in an “overstock area,” and the bunk was not listed for sale by a price sign. (Id. ¶ 15). Plaintiff disagrees that there was no price sign located near the bunk. (ECF 64 ¶ 15).[5]In any event, the parties agree that the large bunk of pipes was bound with at least two heavy duty plastic straps. (ECF 56 ¶ 17). Moreover, the outer straps of the bunk held in place smaller bundles of PVC pipes that were banded together with black straps. (Id. ¶ 18). Serrano had never accessed pipes from this section of the lumberyard before. (Id. ¶ 23). The large bunk of pipes weighed approximately 400 pounds and was stacked on a shelf beginning around Serrano's chest level. (Id. ¶¶ 20-21).
Nevertheless, Serrano intended to retrieve individual 4x10' pipes from the bunk; his plan was to cut one or two bands to slip two to three pipes out of the bunk. (Id. ¶ 39). He did not ask anyone for help. (Id. ¶ 24). Rather, Serrano used a personal knife to cut the large outer band on the left side of the bunk. (Id. ¶ 27). After cutting the strap, Serrano slid the pipes within the PVC bunk to the left and right to try and remove them, and then rocked the bunk's individual pipes back and forth for three to four minutes to try and remove them from the PVC bunk. (Id. ¶¶ 2829). Eventually, the contents of the PVC bunk gave way and fell on Serrano. (Id. ¶ 30). Serrano had never previously cut the bands on bundles of overstock pipe. (Id. ¶ 26).
To prevail on a summary judgment motion, “the movant [must] show[] 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). At this stage, the Court does not weigh evidence or determine the truth of the matters asserted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court views all evidence and draws all inferences in favor of the non-moving party. Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009). Summary judgment is appropriate only when the record as a whole establishes that no reasonable jury could find for the non-moving party. Ricci v. DeStefano, 557 U.S. 557, 586 (2009).
A district court's evaluation of expert testimony under Daubert does not “take the place of the jury to decide ultimate issues of credibility and accuracy.” Lapsley v. Xtek, Inc., 689 F.3d 802, 805 (7th Cir. 2012); see also Stollings v. Ryobi Techs., Inc., 725 F.3d 753, 765 (7th Cir. 2013) (). Once it is determined that “the proposed expert testimony meets the Daubert threshold of relevance and reliability, the accuracy of the actual evidence is to be tested before the jury with the familiar tools of ‘vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.' ” Lapsley, 689 F.3d at 805 (quoting Daubert, 509 U.S. at 596). A district court's inquiry under Daubert is a flexible one and district courts have wide latitude in performing this gate-keeping function. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).
In Illinois,[6] a plaintiff asserting a common law negligence claim “must establish the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by that breach.” Choate v. Ind. Harbor Belt R.R. Co., 2012 IL 112948 ¶ 22, 366 Ill.Dec. 258, 980 N.E.2d 58, 64 (2012). The term “duty” means “a relationship between the defendant and the plaintiff such that the law imposes on the defendant an obligation of reasonable conduct for the benefit of the plaintiff.” Id. The elements of breach and proximate cause “are factual matters for the [finder of fact] to decide, provided there is a genuine issue of material fact regarding those issues.” Marshall v. Burger King Corp., 222 Ill.2d 422, 430, 305 Ill.Dec. 897, 856 N.E.2d 1048, 1054 (2006). Proximate cause “is a question of fact for the [finder of fact] unless there is no material issue regarding the matter or only one conclusion is clearly evident.” Williams v. Univ. of Chi. Hosps., 179 Ill.2d 80, 88, 227 Ill.Dec. 793, 688 N.E.2d 130, 134 (1997).
As a preliminary matter, defendant brings a Daubert motion contemporaneously with its summary judgment motion. Specifically, defendant argues that the five opinions laid out in plaintiff's expert's (John Peterson's) report must be stricken for failure to satisfy the Daubert standard. However, the Court finds that resolving defendant's Daubert motion is not necessary to resolving the summary judgment motion. Indeed, defendant does not argue that plaintiff's negligence action fails as a matter of law if plaintiff's expert's opinions are barred. Defendant's summary judgment motion barely references plaintiff's expert.[7]Moreover, Serrano does not argue that Peterson's opinions-if admitted-defeat defendant's motion for summary judgment (particularly as it relates to the “open and obvious doctrine,” discussed infra). Thus, because the Court does not find it essential to rule on defendant's Daubert motion before resolving the summary judgment motion, we deny defendant's Daubert motion as moot. See Africano v. Atrium Med. Corp., No. 17-CV-7238, 2021 WL 2375994, at *2 at ¶ 3 (N.D. Ill. June 10, 2021) (); see also Flagstar Bank, FSB v. Freestar Bank, N.A., 687 F.Supp.2d 811, 821-22 (C.D. Ill. 2009) (denying a motion to strike expert report as moot because not “essential” to ruling on summary judgment motions).
In its motion for summary judgment, defendant argues that Serrano's negligence claim must fail for four independent reasons:
(1) There is no evidence that defendant caused Serrano's injury;
(2) The bunk did not present an unreasonable risk of harm;
(3) There is no evidence that defendant had notice that the bunk would cause harm to a guest; and/or
(4) The bunk presented an open and obvious condition.
The Court finds that the “open and obvious doctrine” is dispositive of this case, and, accordingly, we focus our analysis on that issue.
“In Illinois, the open and obvious doctrine is an exception to the general duty of care owed by a landowner.” Park v. Northeast Illinois Regional Commuter R.R. Corp., 2011 IL App (1st) 101283, ¶ 12, 355 Ill.Dec. 882, 960 N.E.2d 764 (citing Restatement (Second) of Torts § 343A(1) (1965)). “When a condition is deemed open and obvious the likelihood of injury is generally considered slight as it is assumed that people encountering potentially dangerous conditions that are open and obvious will appreciate and avoid the risks.” Id. “The existence of an open and obvious danger is not an automatic or per se bar to the finding of a legal duty on the part of a defendant.” Bruns v. City of Centralia, 21 N.E.3d 684, 690 (Ill. 2014). However, the open and obvious character of a particular danger will implicate the first two factors of the duty analysis-that is, the reasonable foreseeability of the injury and the likelihood of the injury. See McCarty v. Menard, Inc., 927 F.3d 468, 471 (7th Cir. 2019).
The essence of the doctrine is that people can protect themselves from danger that they can see coming. “In other words the law expects ordinary people to take some care for their own safety.” See Hillsamer v. Walmart, Inc., 2022 WL 4079451, at *4 (N.D. Ill. 2022). “In cases where the open and obvious [doctrine] applies, traditionally the plaintiff affirmatively performed an action despite the presence of some obvious danger.” Patel v. Home Depot USA, Inc., 2020 WL...
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