Keedi v. Menard, Inc.

MEMORANDUM OPINION AND ORDER

Honorable Iain D. Johnston United States District Judge.

Plaintiff Nabil Keedi sues Defendant Menard, Inc. on a theory of premises liability for injuries that occurred when he slipped and fell over a brown box that had been temporarily placed in the aisle by an employee stocking shelves. Menard now moves this Court to enter summary judgment in its favor. For the reasons below, the Court denies that motion [36].

I. Background

On February 7, 2019, Nabil Keedi visited the Menard retail store in Machesney Park, Illinois, to purchase tile glue.^[1] The aisle in which the glue was located was about forty feet long. A box had been left on the floor of the aisle by an employee who was stocking shelves. The employee needed a ladder to put the box on the shelf, so he left it in the floor up against the shelf so that he could go get a ladder. The box was left unattended for about ten minutes. Before getting the

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ladder, he finished placing a different box on another shelf, and before he could return with the ladder, Keedi tripped over the box and fell.

A photo of the brown box is attached to this opinion as Appendix A. It shows the box as it was positioned when Keedi tripped over it. The box was located against the shelf and on the floor, near the end of the forty-foot-long aisle. The parties agree that the box was fifteen inches long, about ten inches wide, and eight and a half inches tall.

While walking down the forty-foot aisle, Keedi scanned the shelves looking for the tile glue. He had a specific type in mind and had a picture of it on his phone. He spotted the glue ahead of the area where the box was located. He looked at the shelf to get the glue and then tripped over the box. In his deposition, Keedi initially testified under oath that he was not distracted:

Q: You weren't looking at your phone when this happened

A: No

Q: You weren't talking on your phone when this happened

A: No, No

Q: And no one in the store was talking to you?

A: No.

Q: So you weren't distracted by any of these things?

A: No.

Q: And you weren't distracted by anything else?

A: No.

Q: You knew what you needed?

A: Yes.

Q: You went to get it?

A: Yes.

Q: And you weren't distracted --

A: Exactly.

Q: -- by any signs or --

A: Exactly.

Q: -- talking?

A: Exactly.

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Dkt. 38-1, at 29, 30 (Keedi Dep. 111:17-24, 112:1-17). On “friendly cross examination” at his deposition, Keedi “clarified” his sworn testimony based on questions from his counsel:

Q: So when you were approaching this box, you were looking for the glue?

A: Yes.

Q: And your eyes were - if you can, they were looking straight out?

A: They were eye level, almost eye level. The glue was eye level. I remember where on the shelf they were.

Q: So you were pretty much just constantly distracted by the items that were on the shelves?

A: Yeah. You're looking where to find and if this is what the contractor want and then you're walking and …

Id. at 31 (Keedi Dep. 117:12-24).

Not to put too fine a point on this conflicting testimony, but Keedi responded that he was not distracted (indeed, to the point of being characterized as “exactly”) when questioned by Menard's counsel. But when led with leading questions by his own counsel, Keedi was “pretty much constantly distracted.” Based upon the latter, Keedi claims that Menard was negligent in leaving the box in the aisle and that he suffered injuries because of that negligence.

II. Analysis

On summary judgment, the movant has the burden of showing that “no genuine dispute as to any material fact” exists and that they are “entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Material facts are those that might affect the outcome of the suit. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). No. “genuine” dispute exists if a court would be required to grant a Rule 50 motion at trial. Id. at 250-51. The Court must construe the “evidence and all

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reasonable inferences in favor of the party against whom the motion under consideration is made.” Rickher v. Home Depot, Inc., 535 F.3d 661, 664 (7th Cir. 2008). “Summary judgment is only warranted if, after doing so, [the court] determine[s] that no jury could reasonably find in the nonmoving party's favor.” Blasius v. Angel Auto, Inc., 839 F.3d 639, 644 (7th Cir. 2016).

To establish negligence in Illinois, the plaintiff must show that the defendants owed a duty of care, that it breached, and that the breach caused the injuries. Bruns v. City of Centralia, 21 N.E.3d 684, 688-89 (Ill. 2014). These are elements, not factors. To succeed, Keedi would have to prove all of them at trial. Therefore, to succeed on a motion for summary judgment, Menard need only show that Keedi cannot prevail on any one of the elements.

Menard argues that Keedi cannot establish the first element: duty. Dkt. 37, at 4. Whether Menard owed Keedi a duty of care is a question of law. Dunn v. Menard, Inc., 880 F.3d 899, 906 (7th Cir. 2018). But this legal question is based upon the factual circumstances presented. Quinton v. Kuffer, 582 N.E.2d 296, 300 (Ill.App.Ct. 1991) (“the existence of a duty is a question of law based on the facts presented”) (cleaned up); see also DR Distribs., LLC v. 21 Century Smoking, Inc., 513 F.Supp.3d 839, 978 (N.D. Ill. 2021). That determination is made “by asking ‘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.'” Id. (quoting Bucheleres v. Chicago Park Dist., 665 N.E.2d 826, 831 (Ill. 1990)). Illinois courts analyze four factors in determining whether a duty of care

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existed: “(1) the reasonable foreseeability of injury; (2) the likelihood of injury; (3) the magnitude of the burden of guarding against injury; and (4) the consequences of placing that burden on the defendant.” Id. (quoting Wilfong v. L.J. Dodd Constr., 930 N.E.2d 511, 519 (Ill.App.Ct. 2010)). Although elements three and four must still be evaluated, the open and obvious doctrine can provide a shortcut to analyzing the first two elements. Bruns, 21 N.E.3d at 690. “Where the condition is open and obvious, the foreseeability of harm and the likelihood of injury will be slight, thus weighing against the imposition of a duty.” Id. By the same token, however, if the defendant “has reason to expect that the invitee's attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it, ” then the foreseeability of injury and the likelihood of injury are both increased. Dunn, 880 F.3d at 909.

Under the open and obvious doctrine, a party that owns or controls the land is generally “not required to foresee and protect against an injury if the potentially dangerous condition is open and obvious.” Bruns, 21 N.E.3d at 689 (quoting Rexroad v. City of Springfield, 796 N.E.2d 1040, 1046 (Ill. 2003)). “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.” Id. at 690. Because the analysis is objective, the danger was open and obvious “if a reasonable person with the plaintiff's knowledge of the situation would have appreciated and avoided a hazard created by the defendant's

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actions.” Dunn, 880 F.3d at 907 (quoting Smith v. MHI Injection Molding Mach., Inc., No. 10-cv-8276, 2014 U.S. Dist. LEXIS 54498, at *18 (N.D. Ill. April 18, 2014)).

In this case, Keedi walked almost the entire length of the forty-foot-long aisle. The photograph in Appendix A shows that the aisle was not cluttered; persons exercising care to look where they walked would have seen the box and appreciated it as a tripping hazard. That hazard might be less pronounced because the box was up against the shelf, rather than directly in the middle of the aisle. But the box is still an open and obvious hazard that any reasonable person exercising ordinary perception, intelligence, and judgment would have seen and considered

Notwithstanding the open and obvious nature of the box, Keedi invokes the distraction exception, an exception to an exception. As stated above, this exception to the open and obvious doctrine applies when the defendant “has reason to expect that the invitee's attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it.” Dunn, 880 F.3d at 909; see also Williams v. Walmart, Inc., No. 18 C 1356, 2019 U.S. Dist. LEXIS 92778, at *7 (N.D. Ill. June 4, 2019).

In Bruns v. City of Centralia, 21 N.E.3d 684 (Ill. 2014), the Illinois Supreme Court outlined the contours of the distraction exception:

Each of the foregoing cases also made clear that the distraction was reasonably foreseeable by the defendant. In Ward, the defendant sold the plaintiff the vision-obscuring merchandise and was keenly aware of the placement of the post directly outside the doors. In Rexroad, the municipality and the school board could reasonably foresee that a student worker, required to traverse the parking lot where the hole was located, could become distracted by the task he was directed to perform. In Deibert, the defendant created the distraction. And in American

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National Bank, the defendant could foresee that a worker's need to watch his footing on the walkrail would distract him from the overhead power line.

Id. at 693. In Bruns, the nearly eighty-year-old plaintiff stubbed her toe on a crack in the sidewalk caused by...