Walker v. Menards Inc.

1

GWENDOLYN WALKER, Plaintiff, v. MENARDS, INC., Defendant.

No. 20 C 3936

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

January 31, 2022

MEMORANDUM OPINION AND ORDER

Jeffrey Cole Magistrate Judge

On July 7, 2018, the plaintiff was shopping with her husband for spray paint at the defendant's Joliet store. As she was carrying several spray paint cans in a five-gallon bucket down one of the main aisles in the store, she says she tripped and fell over a metal plate fastened to, but not flush with, the floor. The plaintiff filed suit for damages for her injury under theories of negligence and premises liability, and the defendant has moved for summary judgment.

I.

SUMMARY JUDGMENT

A. Fed.R.Civ.P. 56

“The court shall grant summary judgment if 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). The court must construe the evidence and all inferences that reasonably can be drawn from it in the light most favorable to the nonmoving party. Allin v. City of Springfield, 845 F.3d 858, 861 (7th Cir. 2017); Chaib v. Geo Grp., Inc., 819 F.3d 337, 340 (7th Cir. 2016). But, the court makes “only reasonable inferences, not every conceivable one.” Spitz v. Proven Winners N. Am., LLC, 759 F.3d 724, 730 (7th Cir. 2014). Not every purported factual dispute precludes summary judgment; the dispute must be material and genuine. Alston v. City of Madison, 853 F.3d 901, 910 (7th Cir. 2017). A factual dispute is “genuine” only if a reasonable jury could find for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Alston, 853 F.3d at 910 (7th Cir. 2017). If the opponent - here, the plaintiff - “ ‘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,' summary judgment must be granted.” Blow v. Bijora, Inc., 855 F.3d 793, 797-98 (7th Cir. 2017). See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[T]o survive summary judgment, the nonmoving party must present evidence sufficient to establish a triable issue of fact on all essential elements of [his] case.” Burton v. Kohn Law Firm, S.C., 934 F.3d 572, 579 (7th Cir. 2019). When considering a motion for summary judgment, a court “must resist the trap of assessing the credibility of witnesses, choosing between competing inferences or balancing the relative weight of conflicting evidence.” Orton-Bell v. Indiana, 759 F.3d 768, 773 (7th Cir. 2014). Sometimes a party makes that task difficult - perhaps by lodging speculative claims or attempting to obscure the facts, but the court must remain true to its task. Khan v. Midwestern Univ., 879 F.3d 838, 840 (7th Cir. 2018).

B. Local Rule 56.1

As always, the facts underlying this summary judgment proceeding are drawn from the parties' Local Rule 56.1 submissions. “For litigants appearing in the Northern District of Illinois, the Rule 56.1 statement is a critical, and required, component of a summary judgment proceeding.” Sojka v. Bovis Lend Lease, Inc., 686 F.3d 394, 398 (7th Cir.2012). Local Rule 56.1 requires a party seeking summary judgment to include with its motion “a statement of material facts as to which the ...party contends there is no genuine issue and that entitle the...party to a judgment as a matter of law.” Local Rule 56.1(a)(3); Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 643 (7th Cir.2008). Each paragraph must refer to the “affidavits, parts of the record, and other supporting materials” that substantiate the asserted facts. Local Rule 56.1(a)(3); F.T.C. v. Bay Area Business Council, Inc., 423 F.3d 627, 633 (7th Cir.2005).

The party opposing summary judgment must then respond to the movant's statement of proposed material facts; that response must contain both “a response to each numbered paragraph in the moving party's statement, ” Local Rule 56.1(b)(3)(B), and a separate statement “consisting of short numbered paragraphs, of any additional facts that require the denial of summary judgment.” Local Rule 56.1(b)(3)(C); Ciomber, 527 F.3d at 643. Again, each response, and each asserted fact, must be supported with a reference to the record. Local Rule 56.1(b)(3)(B); Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir.2009); Bay Area Business Council, Inc., 423 F.3d at 633.

The district court is entitled to enforce strict compliance with its local rules regarding summary judgment motions. Mendoza v. Herrera, 2020 WL 3975468 (N.D.Ill. 2020). See also Thornton v. M7 Aerospace LP, 796 F.3d 757, 769 (7th Cir. 2015)(“This court has repeatedly held that the district court is within its discretion to strictly enforce compliance with its local rules regarding summary-judgment....”); Yancick v. Hanna Steel Corp., 653 F.3d 532, 537 (7th Cir.2011); Schmidt v. Eagle Waste & Recycling, Inc., 599 F.3d 626, 630 (7th Cir.2010). Responses and facts that are not set out properly and appropriately supported in a Rule 56.1 filing will not be considered. See Shaffer v. American Medical Association, 662 F.3d 439, 442 (7th Cir.2011); Bay Area Business Council, 423 F.3d at 633. Moreover, when a responding party's statement fails to dispute the facts set forth in the moving party's statement in the manner the rule demands, those facts may be deemed admitted for purposes of the motion. Curtis v. Costco Wholesale Corp., 807 F.3d 215, 218 (7th Cir. 2015); Cracco v. Vitran Express, Inc., 559 F.3d 625, 632 (7th Cir. 2009).

II. FACTS

First, the culprit. It's a 12-inch-by-12-inch square, metal plate, silver in color. [Dkt. #28, Par. 48; #33, Par. 48]. The metallic silver in color causes the plates to stand out against the floor, which is a matte finish, and dark beige. [Dkt. #29-9; #29-10]. There are several such plates situated along the sides of the main aisle where plaintiff fell. [Dkt. #29-10]. So, do they present a tripping hazard? Here's what the assistant general manager of the store had to say about that:

Q: Is the plate flush with the floor?

A: Yes.

Q: It doesn't stick up at all?

A: Not really, no.

Q: Not really or no?

A: No, it - no. The scrubber goes right over it. It's minute. I - I don't know.

Q: If you were to run your hand over it, does the plate rise at all from the rest of the floor around it?

A: Yes.

Q: How much?

A: I don't know. It's rather minute, so I couldn't measure it. I don't know the measurement.

Q: But, I mean, it's fair to say -

A:What an electrical plate is, whatever the width of an electrical plate would be. It's - Q: Okay. Fair to say though, it's not flush with the concrete floor -

A: Yes.

[Dkt. # 29-3, at 47-48]. If it sticks up minutely, it's not flush, of course. But defendants assert in their statement of facts that the rise is minute [Dkt. #28, Par. 49], and so - because plaintiff cites no evidence to support her disagreement with that characterization [Dkt. #28, Par. 49] - minute is the characterization to be employed. Curtis, 807 F.3d at 218; Cracco, 559 F.3d at 632. The photos in the record don't contradict that assessment. [Dkt. #29-9; #29-10]. One would think someone, especially from the plaintiff's side, would have measured it, as it is the reason for everything the parties have done in this case so far and the work they have asked the court to do in this proceeding. But that did not occur.

Then there's the fall. The only evidence we have about plaintiff's fall is the deposition testimony from the plaintiff. There were a number of “distractions” in that deposition that prevented defendant's counsel from zeroing in on this issue. Some were relevant; many, at least in hindsight, were not. But given the nature of depositions as necessarily exploratory devices, the questioning made sense. Counsel wanted to know, for example, where plaintiff lived, why she took baby aspirin before her injury, who her cardiologist is, where that doctor's office is, where she went to high school, her insurance card number, where she went for primary care before she lived in Bolingbrook, what doctor she saw for bunions, where her daughter lives, who is her daughter's stepfather, when that gentleman died [Dkt. #29-6, at 1-25], and a number of other background. Counsel then turned to the specific matter at hand: Plaintiff and her husband were at Menard's, shopping for spray paint, and plaintiff had a bucket with spray paint in it in her hand. [Dkt. #29-6, at 26]. She said she wasn't looking at her phone. [Dkt. #29-6, at 27]. Counsel wondered if she still had the same phone; plaintiff didn't think so, but she had the same carrier. [Dkt. #29-6, at 28].

Then there were pages of questions dealing with where plaintiff had worked, what she did in that job, medical treatment, a previous lawsuit regarding a bus accident, that she filed bankruptcy 23 years ago, then back to her symptoms from her injury, and treatment she underwent, and activities she could no longer do. [Dkt. #29-6, at 27-113]. Counsel asked a few questions about plaintiff's footwear- little white sandals. [Dkt. #29-6, at 38-40]. Finally, counsel returned to the incident:

Q: All right. What you all want to talk about is the Menard event. I understand that you went there to get some paint and some other things, and you were with your husband, and you were on your way out when this happened. Is that true?

A: I was on my way to the register.

Q: You were right with him at the time?

A: Yes.

Q: He was right by your side; correct?

A: We were together. I don't know if that's -

Q: Was he ahead of you, behind you?

A: I don't know.

Q: Did you or he have a cart?

A: Not that I remember. We didn't have a cart. I didn't have a cart.

Q: Might you have had two buckets of paint in your hand?

A: A bucket with paint in the bucket.

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