Butler v. Walmart, Inc.

ELAINE BUTLER, Plaintiff, v. WALMART, INC., Defendant.

No. 19-cv-6084

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

July 8, 2021

MEMORANDUM OPINION AND ORDER

Robert M. Dow, Jr. United States District Judge

Plaintiff Elaine Butler (“Plaintiff”) brings suit against Defendant Walmart Inc. (“Defendant” or “Walmart”) for negligence arising out of a fall she took in one of Defendant's parking lots. Currently before the Court is Defendant's motion for summary judgment [73]. For the following reasons, Defendant's motion [73] is denied. This case is set for telephone status hearing on July 27, 2021 at 9:45 a.m. Participants should use the Court's toll-free, call-in number 877-336-1829 passcode 6963747.

I. Background

The following facts are taken from the parties' Local Rule 56.1 statements and supporting exhibits. See [40], [43] [45]. The facts are undisputed unless otherwise indicated. The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1332. Plaintiff is a resident of Illinois, while Defendant is a Delaware corporation with its principal place of business in Bentonville, Arkansas. The amount in controversy exceeds $75, 000. Venue is proper in this district because a substantial part of the events giving rise to Plaintiff's complaint occurred within this judicial district.

In her governing complaint, Plaintiff alleges that on August 3, 2017, she went shopping at a Walmart store located at 475 IL-173 in Antioch, Illinois. Plaintiff was shopping with her daughter, Peggy Butler. At the time of the relevant events, Plaintiff was using a cane to assist her in walking. Plaintiff testified at her deposition that she used the cane because it made her feel safer, not because any doctor had proscribed its use. Peggy testified at her deposition that Plaintiff used the cane because she had a blister on her left foot due to diabetes. While Plaintiff was shopping, she placed her cane in her shopping cart and used the cart to assist with her balance while she walked. See [43] at 3. Defendant does not maintain any policies prohibiting its carts from being used in this manner.

After Plaintiff was finished shopping, she pushed her shopping cart into the parking lot and she and her daughter loaded their groceries into their vehicle. Plaintiff then went to return the cart to the cart corral. Her cane was in the cart. Plaintiff testified that as she was returning her cart, one of its wheels became stuck in a crack in the parking lot. Plaintiff lost her balance and “fell as she pushed the cart from the stopped position and it went out of her hands.” [43] at 3. “Specifically, when she let go of the cart, she ‘had nothing to grab onto' for her balance.” Id. Plaintiff did not trip on the crack or catch her foot in it. Plaintiff was looking at where she was going at the time of her fall. Plaintiff did not know the precise size or depth of the crack but testified that it was “kind of deep, ” deep “[e]nough to get the wheels stuck in it, ” and “pretty long.” [40-2] at 12.

There were two witnesses to Plaintiff's fall. Peggy “saw the cart ‘fly away' from Plaintiff's hands and Plaintiff falling.” [43] at 4. Peggy also saw a crack in the parking lot; she did not know its depth or width but testified that it was “on the thinner side.” Id. at 5. Another customer, Barbara Rosenberger, also witnessed Plaintiff fall. She described the accident as the cart “[getting] away from [Plaintiff], and [Plaintiff] fell down.” Id. at 7.

Terri Taylor was the Asset Protection Assistant Manager at the Antioch Walmart Store on the date of the accident. At her deposition, Taylor identified the location of Plaintiff's fall based on her review of surveillance video. Taylor estimated that the video was taken from about fifty feet away from where Plaintiff fell. Taylor testified that she could not “say for an absolute fact” whether Plaintiff's cart became stuck in a crack, but stated that from her viewing of the video “[a]ll I saw was the cart roll away from her.” [40-4] at 4. Taylor also could not “say for certain one way or the other” whether the condition depicted in a photograph of the parking lot was “enough that it would cause a cartwheel to get stuck.” Id. at 6. Taylor referred to the crack as an “expansion joint[]” having “no depth”; rather, Taylor testified, the crack was “even with the rest of the asphalt, ” “filled in, ” with “no variation in height.” [43] at 5. However, Taylor did not take any measurements of the crack and could not recall the parking lot being resurfaced any time between 2012 and Plaintiff's accident in 2017. Taylor also testified that she was not aware of a rule that would prohibit a customer from leaning on a cart for support or any store policies on the proper usage of carts by customers.

David LaForge was the Assistant Manager on duty at the time of Plaintiff's accident. At his deposition, LaForge testified that he recognized the photographs of the parking lot surface as the ones that he and Taylor took immediately after Plaintiff's fall. He also testified that, prior to Plaintiff's fall, he was not aware of any falls in the parking lot or any complaints about cracks or deviations in the parking lot. LaForge referred to the crack as a “flat crack” with “no height differential, ” [40-6] at 6-7, but also testified that he could not say one way or the other whether any height deviations existed in the crack on the day of the incident and did not know the width of the crack, id. at 5. LaForge further testified that he had no basis to dispute Plaintiff's testimony that her cart became stuck in the crack, causing her to lose control of the cart and fall. Id. at 3.

There is a surveillance video, taken from approximately fifty feet away, showing Plaintiff's fall. See [40-7]. The video is grainy, but appears to depict a dark, long crack running up the center of one of the parking lot aisles, with cars parked on either side. According to Defendant, the video shows that “Plaintiff falls in the parking lot after her cart rolls out from her control and well after she already passes any crack in the parking lot.” [43] at 9. Plaintiff denies Defendant's description of the video and maintains that she fell after her cart became stuck in the crack and she had to push it out. Plaintiff also emphasizes the graininess of the video and that it is taken from approximately fifty feet away.

In her governing complaint, Plaintiff alleges that Walmart acted negligently by causing and allowing its parking lot to contain cracks, crevices, bumps and height deviations; failing to repair these dangerous conditions within a reasonable time; and failing to block or barricade the dangerous conditions or properly warn invitees about them. See [1-1] at 3-4. Currently before the Court is Defendant's motion for summary judgment.

II. Legal Standard

Summary judgment is proper where “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). To avoid summary judgment, the nonmoving party must go beyond the pleadings and “set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by ... citing to particular parts of materials in the record” or “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). A genuine issue of material fact exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Liberty Lobby, 477 U.S. at 248.

The party seeking summary judgment has the burden of establishing the lack of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The Court “must construe all facts and draw all reasonable inferences in the light most favorable to the nonmoving party.” Majors v. Gen. Elec. Co., 714 F.3d 527, 532-33 (7th Cir. 2013) (citation omitted). It “‘may not make credibility determinations, weigh the evidence, or decide which inferences to draw from the facts; these are jobs for a factfinder.'” Johnson v. Rimmer, 936 F.3d 695, 705 (7th Cir. 2019) (quoting Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003)).

Summary judgment is proper if the nonmoving party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Ellis v. CCA of Tennessee LLC, 650 F.3d 640, 646 (7th Cir. 2011) (quoting Celotex, 477 U.S. at 322). The non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In other words, the “mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant].” Liberty Lobby, 477 U.S. at 252.

III. Analysis

“To prove a defendant's negligence under Illinois law, a plaintiff must establish ‘the existence of a duty of care owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by that breach.'” Hutchison v. Fitzgerald Equipment Co., 910 F.3d 1016, 1022 (7th Cir. 2018) (quoting Buechel v. United States, 746 F.3d 753, 763-64 (7th Cir. 2014)). Defendant moves for summary judgment on the first and third elements, which the Court will discuss in reverse order.

A. Proximate Cause

Typically “[t]he proximate cause element is a factual question for the...