Mitts v. Costco Wholesale Corp.

RHONDA MITTS, Plaintiff, v. COSTCO WHOLESALE CORPORATION, Defendant.

No. 16 C 5788

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

December 8, 2017

Judge Jorge L. Alonso

MEMORANDUM OPINION AND ORDER

Plaintiff Rhonda Mitts brings this action against defendant Costco Wholesale Corporation ("Costco"), alleging that defendant's negligence caused her to slip, fall, and injure herself in one of defendant's stores. Costco has moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the following reasons, the Court grants the motion.

BACKGROUND

At approximately 3 p.m. on July 13, 2014, plaintiff and her husband arrived at a Costco store in Naperville, Illinois. (Def.'s LR 56.1 Stmt. ¶¶ 8-9, ECF No. 22.) After shopping for about twenty minutes, plaintiff entered a walk-in dairy cooler stocked with milk and eggs near the back of the store. (Id. ¶¶ 10-12.) As she approached the back wall of the cooler, she slipped on an unknown liquid substance, which caused to fall and injure her left arm and right foot. (Id. ¶¶ 13-15; id., Ex. E, Pl.'s Dep., at 20:4-13, 34:16-36:9.) Plaintiff described the substance as "stickier" and "tackier" than water, "like milk," but not as sticky as glue. (Id. Ex. E at 19:14-20:5.) She does not know what the substance was, how it got onto the floor, or how long it had been on the floor when she slipped on it. (Id., Ex. E at 20:3-5, 20:13-18.) The wet area of the floor was about the size of a dinner plate, large enough so that after she fell, plaintiff's leg was wet approximately from her knee to her ankle. (Pl.'s LR 56.1 Stmt. of Add'l Facts ¶¶ 12-13, ECF No. 25 at 3.)

On an hourly basis, Costco required an employee to conduct a "floor walk," during which the employee would visually inspect the store for unsafe conditions and hazards by walking up and down aisles and throughout the store. (Def.'s LR 56.1 Stmt. ¶¶ 32-41.) According to the Naperville Costco's "Daily Floor-Walk/Safety Inspection" sheet for the day of plaintiff's fall, Costco employee Mary Maiorano began a floor walk at 2:53 p.m. and completed it at 3:20 p.m. (Id., Ex. I, Maiorano Dep. at 6:1-8:7, Exs. 1 &2, ECF No. 22-9 at 2, 14-15.) As part of the floor walk, she was required to enter the dairy cooler and walk to the back in order to take the temperature of the cooler. (Id., Ex. J, Maiorano Aff. ¶ 6, ECF No. 22-10.) She entered the dairy cooler at approximately 3:10 p.m., recorded a temperature of 32 degrees, and visually inspected the floor of the cooler, where she did not see any liquid substance. (Id., Ex. J ¶¶ 5, 7-9.)¹

Crystal Harper, an assistant general manager at the Naperville Costco, testified at her deposition that, although she was aware that milk sometimes spilled in the dairy cooler, she was not aware of anyone other than plaintiff ever slipping and falling there.² (Id. ¶¶ 28, 30; Pl.'s LR 56.1 Stmt. of Add'l Facts ¶¶ 16-17.)

ANALYSIS

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). In considering such a motion, the court must view all evidence and draw all inferences in favor of the non-moving party. See Wesbrook v. Ulrich, 840 F.3d 388, 391 (7th Cir. 2016); Kvapil v. Chippewa Cty., 752 F.3d 708, 712 (7th Cir. 2014). At this stage, the court may not weigh evidence or determine the truth of the matters asserted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). "Summary judgment should be denied if the dispute is 'genuine': 'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Talanda v. KFC Nat'l Mgmt. Co., 140 F.3d 1090, 1095 (7th Cir. 1998) (quoting Anderson, 477 U.S. at 248); see also Bunn v. Khoury Enters., Inc., 753 F.3d 676, 681-82 (7th Cir. 2014). The court will enter summary judgment against a party who does not "come forward with evidence that would reasonably permit the finder of fact to find in [its] favor on a material question." Modrowski v. Pigatto, 712 F.3d 1166, 1167 (7th Cir. 2013).

The Seventh Circuit has explained, as follows, the principles of Illinois law that govern plaintiff's negligence claim in this diversity case:

In Illinois, businesses owe their invitees a duty to maintain the premises in a reasonably safe condition to avoid injuring them. Marshall v. Burger King Corp., 856 N.E.2d 1048, 1057-58 (Ill. 2006); Thompson v. Economy Super Marts, Inc., 581 N.E.2d 885, 888 (Ill. App. Ct. 1991); Reid v. Kohl's Dept. Stores, Inc., 545 F.3d 479, 481 (7th Cir. 2008) (applying Illinois law); Peterson v. Wal-Mart Stores, Inc., 241 F.3d 603, 604 (7th Cir. 2001) (same). . . . Liability can be imposed when a business's invitee is injured by slipping on a foreign substance on its premises if the invitee establishes that (1) the substance was placed there by the negligence of the business; (2) the business had actual notice of the substance;or (3) the substance was there a sufficient length of time so that, in the exercise of ordinary care, its presence should have been discovered, i.e., the business had constructive notice of the substance. See Newsom-Bogan v. Wendy's Old Fashioned Hamburgers of New York, Inc., 953 N.E.2d 427, 431 (Ill. App. Ct. 2011); Pavlik v. Wal-Mart Stores, Inc., 753 N.E.2d 1007, 1010 (Ill. App. Ct. 2001).

Zuppardi v. Wal-Mart Stores, Inc., 770 F.3d 644, 649 (7th Cir. 2014) (internal citations altered). Defendant argues it is entitled to summary judgment because plaintiff cannot establish that the substance that caused her to slip came to be on the floor of the dairy cooler through defendant's negligence or that defendant had actual or constructive notice of it. According to defendant, plaintiff readily admitted at her deposition that she does not know what the substance was, how it got onto the floor, or how long it had been on the floor when she slipped on it, and she cannot adduce any evidence that answers these questions.

I. WHETHER DEFENDANT NEGLIGENTLY PLACED THE SUBSTANCE ON THE FLOOR

Plaintiff's main argument in response to defendant's motion is that a reasonable juror could infer that the substance on which she slipped came to be on the floor through defendant's negligence in its operation of the Naperville store. Although she admits she does not know for sure what the substance was, she describes it as stickier and tackier than water, like milk might be. Further, Ms. Harper testified at her deposition that she has occasionally seen spills or wet spots on the floor of the dairy cooler. (Def.'s LR 56.1 Stmt., Ex. G, Harper Dep. at 23:15-23:22, ECF No. 22-7 at 6-7.) The wet spots usually consisted of spilled milk, and they occurred approximately twice a month, in Ms. Harper's estimation. (Id., Ex. G at 23:23-25:4.) Since plaintiff apparently slipped on spilled milk, and since, according to Ms. Harper, defendant's operations regularly caused milk from leaky cartons to spill onto the floor of the dairy cooler, plaintiff argues that it is reasonable to infer that, on the day of plaintiff's fall, defendantnegligently caused milk to spill onto the floor of the dairy cooler, which caused plaintiff to fall and injure herself.

Plaintiff's burden is to show that "in addition to the fact that the substance on the floor was a product sold or related to defendant's operations, . . . some further evidence, direct or circumstantial, however slight, such as the location of the substance or the business practices of the defendant, [supports the inference] that it was more likely that defendant or his servants, rather than a customer, dropped the substance on the premises." Donoho v. O'Connell's, Inc., 148 N.E.2d 434, 439 (Ill. 1958). Even assuming that plaintiff slipped on spilled milk (although plaintiff's husband testified that the substance was "clear," not white (Def.'s LR 56.1 Stmt., Ex. F, Michael Mitts Dep. at 17:7-12)), the evidence is woefully inadequate to permit a reasonable inference that defendant was more likely to have spilled the substance than a customer. This case is essentially indistinguishable from the Seventh Circuit's decision in Zuppardi, in which the court explained that plaintiff did not "come close to setting forth sufficient evidence" to establish that the defendant caused the spill, when plaintiff did not see any water on the floor prior to her fall; did not know how it accumulated; did not notice any trails, tracks, or footprints leading to or from the puddle; and did not see any employees in the vicinity. See 770 F.3d at 650. While it is at least possible that defendant negligently caused the spill to the extent that plaintiff slipped on "something that happens to be sold" by defendant, that is not enough to support a reasonable inference that it is more likely that defendant caused the spill than a customer. See id. (citing Olinger v. Great Atl. & Pac. Tea Co., 173 N.E.2d 443, 446 (Ill. 1961) ("[E]ven where there is proof that the foreign substance was related to defendant's business, but no further evidence is offered other than the presence of the substance and the occurrence of the injury, . . . such evidence [is] insufficient to support the necessary inference.").

Plaintiff argues that Zuppardi is distinguishable because, in that case, the inference of causation was weaker. In Zuppardi, although defendant sold bottled water, there were no bottles or other obvious source of water in the immediate vicinity of the fall, whereas in this case, plaintiff fell in the dairy cooler, where cartons of milk were kept, and there was evidence that milk spills happened there occasionally. But this distinction makes no difference. At most, plaintiff might prove that she slipped on milk in a dairy cooler; she does not adduce evidence demonstrating that it is more likely that defendant, rather than a customer, caused the spill that caused her to slip. See Thompson v. Econ. Super Marts, Inc., 581 N.E.2d 885, 888-89 ...