Treshuk v. Whole Foods Mkt. Grp.

ALLA TRESHUK, Plaintiff, v. WHOLE FOODS MARKET GROUP, INC., Defendant.

No. 18-cv-5050

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

September 21, 2021

MEMORANDUM OPINION AND ORDER

JOHN F. KNESS JUDGE

In June 2016, Plaintiff Alla Treshuk slipped and fell on droplets of water in the restroom of a Whole Foods grocery store in Schaumburg, Illinois. Having suffered multiple injuries Plaintiff sued Defendant Whole Foods in the Circuit Court of Cook County, Illinois on the theory that her fall and subsequent injury were the result of a negligently maintained restroom. Defendant removed the case to this Court and following a period of discovery, now moves for summary judgment.^[1]

As explained below, the undisputed evidence shows that Defendant was not negligent in its maintenance of the restroom and had neither actual nor constructive knowledge of the water on the restroom floor. Accordingly, the Court grants Defendant's motion for summary judgment.

I. BACKGROUND

Defendant operates a Whole Foods grocery store in Schaumburg, Illinois. (Complaint (“Compl.”), Dkt. 1-1 ¶ 1.) On the afternoon of June 17, 2016, Plaintiff entered the women's restroom at Defendant's grocery store prior to beginning shopping. (Defendant's Statement of Fact (“DSOF”), Dkt. 52 ¶¶ 7-8; Plaintiff's Response to Defendant's Statement of Facts (“Pl.'s Resp. DSOF”), Dkt. 55 ¶¶ 7-8.) While in the restroom, Plaintiff washed her hands and then took a step toward the paper towel dispenser. (Pl.'s Resp. DSOF ¶ 17.) As she turned the knob of the paper towel dispenser, Plaintiff felt her right foot slip from underneath her and she fell to the floor. (Id. ¶ 18.) After falling, Plaintiff observed “spots of water” on the floor. (Id. ¶ 19.)

Plaintiff then went to the store's customer service counter, where she informed a staff member, George Nestoras, about her accident. (Id. ¶ 20.) Nestoras inspected the restroom and observed “small drops of water” about the size of a quarter on the floor below the sink. (Id. ¶ 22; Plaintiff's Statement of Facts (“PSOF”), Dkt. 55 ¶ 55.) Nestoras then filled out a customer incident report, which indicated that Plaintiff's accident occurred at 3:45 p.m. (Pl.'s Resp. DSOF ¶ 27.)

At the time of the incident, Defendant had maintenance protocols in place that required staff members to inspect the floors throughout the store, including the floors in the restrooms, once every hour. (Id. ¶¶ 28-29.) The staff member carrying out the hourly inspection would create an entry in an electronic inspection system (referred to by the Parties as the “Gleason Log”) to note that either (1) the floor was “clear” or (2) there was a hazard or substance on the floor, and whether that hazard had been removed. (DSOF ¶ 31.)^[2] On the day of Plaintiff's accident, the Gleason Log reflects that employee Marc Sapitula inspected the women's restroom floor at 3:20 p.m. and that it was “clear” at that time. (Id. ¶ 36; Dkt. 52-1, Nestoras Aff. Exh. 2, at 14.)

As a result of the accident, the Plaintiff suffered multiple injuries to her elbow, back, neck, and shoulder. (Pl.'s Resp. DSOF ¶ 6.) The injury to Plaintiff's elbow required surgical repair. (Id.) On June 15, 2018, Plaintiff sued Defendant in the Circuit Court of Cook County, Illinois and Defendant timely removed the case to this Court. (See generally, Compl.; Notice of Removal, Dkt. 1.) After an ample period of discovery, Defendant moved for summary judgment. (Dkt. 51.) That motion is now fully briefed and before the Court for resolution.

II. LEGAL STANDARD

Summary judgment is warranted only if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Jewett v. Anders, 521 F.3d 818, 821 (7^th Cir. 2008) (quoting Magin v. Monsanto Co., 420 F.3d 679, 686 (7th Cir. 2005); see also Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Rule 56(c) “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who 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.” Celotex Corp., 477 U.S. at 322. As the “ ‘put up or shut up' moment in a lawsuit, summary judgment requires a non-moving party to respond to the moving party's properly-supported motion by identifying specific, admissible evidence showing that there is a genuine dispute of material fact for trial.” Grant v. Trs. of Ind. Univ., 870 F.3d 562, 568 (7th Cir. 2017) (quotations omitted). All facts, and any inferences to be drawn from them, are viewed in the light most favorable to Plaintiff as the non-moving party. See Scott v. Harris, 550 U.S. 372, 378 (2007).

III. DISCUSSION

This diversity action arises from events that took place in the state of Illinois. State law “provides the substantive law in a diversity action.” Maroules v. Jumbo, Inc., 452 F.3d 639, 645 (7th Cir. 2006). Accordingly, the Court must “predict how the Illinois Supreme Court would decide the issues presented here.” Nationwide Agribusiness Ins. Co. v. Dugan, 810 F.3d 446, 450 (7th Cir. 2015) (citation omitted). Where the Supreme Court of Illinois “has not ruled on an issue, decisions of the Illinois Appellate Courts control, unless there are persuasive indications that the Illinois Supreme Court would decide the issue differently.” Id.

Although Plaintiff's Complaint does not include enumerated counts, she proceeds under theories of both negligence (Defendant “negligently allowed . . . water . . . to be lying on the ground in [the] women's public lavatory”) and premises liability (Defendant “failed to timely remove said liquid when [it] knew or should have known of the danger to . . . Plaintiff”). (Compl. ¶ 5.) Under Illinois law, negligence and premises liability are distinct torts with distinct elements that should be analyzed “separately and fully.” Donald v. Target Corp., No. 15 C 5714, 2016 WL 397377, at *1 (N.D. Ill. Feb. 2, 2016) (collecting cases) (“Courts have recognized the independence of these two claims and have highlighted the different elements required to prove each one”). Accordingly, the Court will address each theory of liability in turn.

A. Negligence

To prevail on a negligence claim under Illinois law, a plaintiff must prove that: (1) the defendant owed a duty of reasonable care to the plaintiff; (2) the defendant breached that duty; and (3) the breach was the proximate cause of the plaintiff's injury. Wiegman v. Hitch-Inn Post of Libertyville, Inc., 721 N.E.2d 614, 620 (Ill.App.Ct. 1999). Where a business invitee, such as a customer at a grocery store, is injured “by slipping on a foreign substance, the defendant business may be liable if the substance was placed on the premises by the negligence of the proprietor or its agents.” Hickey v. Target Corp., No. 12-cv-04180, 2014 WL 1308350, at *3 (N.D. Ill. Apr. 1, 2014) (citing Olinger v. Great Atl. & Pac. Tea Co., 173 N.E.2d 443, 445 (Ill. 1961)); see also Zuppardi v. Wal-Mart Stores, Inc., 770 F.3d 644, 649 (7th Cir. 2014). Summary judgment for the defendant is proper where “no further evidence is offered other than the presence of the substance and the occurrence of the injury.” Olinger, 173 N.E.2d at 446.

Plaintiff contends that she fell and was injured “due to slipping on water in the women's washroom” at Defendant's store (Dkt. 54 at 4), but she does not contend that Defendant caused the water to be present on the floor. Moreover, the record before the Court on summary judgment does not address the source of the water droplets at all. In other words, Plaintiff has offered no more evidence to support her negligence theory other than the presence of the water and the occurrence of her injury. Because Plaintiff has not offered any evidence from which a jury could conclude that the water droplets were placed on the restroom floor by the negligence of Defendant or its agents, the Court must grant summary judgment for Defendant with respect to Plaintiff's negligence theory of liability. See Olinger, 173 N.E.2d at 446; Zuppardi, 770 F.3d at 646 (affirming summary judgment where plaintiff failed to set forth sufficient evidence to create an inference that defendant caused the water spill that led to her injury); Bailey v. City of Chicago, 779 F.3d 689, 697 (7th Cir. 2015) (summary judgment is appropriate where “the factual record is not sufficiently developed for [the Court] to find a question of material fact”).

B. Premises Liability

Because the undisputed facts show that Defendant did not cause the water to be placed on the floor, the only remaining avenue for Plaintiff to establish liability is through notice-that is to say, whether Defendant knew or should have known of the dangerous condition that caused the fall. A business owner is on notice of an object that causes an invitee to slip and fall if: (1) “his servants knew of its presence” (that is to say, if the defendant had actual notice of the dangerous condition); or (2) “the object was there a sufficient length of time so that, in the exercise of ordinary care, its presence should have been discovered (i.e., the proprietor had constructive notice of the object).” Haslett v. United Skates of Am., Inc., 136 N.E.3d 172, 182 (Ill.App.Ct. 2019).

1. Actual Notice

To prove actual notice under Illinois law, a plaintiff must present evidence that a defendant knew of the dangerous condition before the plaintiff's accident. Id at 185-86; see also Pydo v. Dominick's Finer Foods, LLC, No. 2-11-0155, 2012 WL 6967250, at *4 (Ill.App.Ct. Apr. 11, 2012) (liability “cannot...