Hannah Piotrowski v. Menard, Inc. , 842 F.3d 1035 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-3163
HANNAH PIOTROWSKI and
JAMES M. PIOTROWSKI,
Plaintiffs-Appellants,
v.
MENARD, INC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13 CV 05572 — Mary M. Rowland, Magistrate Judge.
____________________
ARGUED MAY 23, 2016 — DECIDED NOVEMBER 29, 2016
____________________
Before BAUER, POSNER, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Hannah Piotrowski was injured
after slipping on two small rocks in the parking lot of a
Menard store. She filed this suit alleging that her injuries were
due to Menard’s negligence, contending that the rocks must
have come from a planter that Menard maintained outside the
store or from decorative rocks that the store sold in bags of at
2 No. 15-3163
least forty pounds. We affirm the district court’s grant of sum-
mary judgment in favor of the store because Piotrowski’s be-
lief that she fell as a result of the store’s negligence is only
speculation, and speculation is not enough to survive sum-
mary judgment under Illinois law. That Piotrowski fell in the
Menard’s parking lot after slipping on two rocks is not enough
to support an inference that Menard’s negligence caused the
fall. In addition, there is no evidence of a pattern of conduct
or recurring incident, and the store’s general manager and
employees regularly monitored the parking lot for unsafe
conditions.
I. BACKGROUND
Hannah Piotrowski and her husband went shopping at a
Menard home improvement store in Hodgkins, Illinois on
April 14, 2012. While walking in the parking lot toward their
vehicle, Piotrowski stepped on one or two small rocks that she
had not seen before stepping on them and fell, very hard. Pi-
otrowski described the rocks as oval in shape and larger than
marbles.
When she fell, Piotrowski was in the area outside the store
entrance and exit used for vehicle drop-offs. About 50 to 125
feet away, there is a large, half-moon shaped concrete planter
with a small tree and bush in the center. Decorative “river
rock” fills the planter. The rock needed to be replenished from
time to time, and the store’s general manager said that rock
was added to the planter “whenever it looks a little bare.” The
planter was near the store’s exit, and the store’s front end man-
ager had seen children in the planter on occasion. Menard also
sold decorative river rock in the garden center of its store in
large bags weighing forty to fifty pounds.
No. 15-3163 3
The store’s general manager walked the store’s premises,
including the parking lot, on a daily basis. More specifically,
he explained that he walks “every square foot of our store, our
parking lot, my outside yard, and our perimeter” every day
as part of his duties as general manager. Other employees also
walked through the parking lot throughout the day and were
responsible for reporting any hazards.
Piotrowski went by ambulance to the hospital after her fall
and was treated for fracture, torn ligaments, and dislocation
of her right elbow. Her injuries required four additional hos-
pitalizations and three more surgeries within the first year of
the accident.
Piotrowski and her husband filed suit in the Circuit Court
of Cook County, Illinois against Menard, Inc. alleging negli-
gence and loss of consortium. 1 Menard removed the case to
federal court on the basis of diversity jurisdiction. The judge
granted Menard’s motion for summary judgment, and this
appeal followed.
II. ANALYSIS
The question on appeal, as it was before the district court,
is whether Piotrowski has set forth sufficient evidence to pro-
ceed to trial on whether Menard’s negligence caused Pi-
otrowski’s fall. We review the grant of summary judgment to
Menard de novo, viewing all evidence in the light most favor-
able to Piotrowski as the non-movant at summary judgment.
1 Hannah Piotrowski’s husband James is also a plaintiff and appellant in
the suit, but for ease we will refer only to Hannah Piotrowski in this opin-
ion. Mr. and Mrs. Piotrowski do not make any separate arguments on ap-
peal.
4 No. 15-3163
Farrell v. Butler Univ., 421 F.3d 609, 612 (7th Cir. 2005). Sum-
mary judgment is proper when there is no genuine issue as to
any material fact and the moving party is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(a).
Illinois law governs in this diversity case. A plaintiff like
Piotrowski who alleges that the defendant was negligent
must show a duty owed by the defendant, a breach of that
duty, and injury that was proximately caused by the breach.
Newsom-Bogan v. Wendy’s Old Fashioned Hamburgers of N.Y.,
Inc., 953 N.E.2d 427, 431 (Ill. App. Ct. 2011). In Illinois, a busi-
ness like Menard owes customers a duty to maintain its prem-
ises in a reasonably safe condition to avoid injuries to those
customers. Zuppardi v. Wal-Mart Stores, Inc., 770 F.3d 644, 649
(7th Cir. 2014). The parties agree that Menard owed Pi-
otrowski this duty, but they dispute whether Menard
breached its duty and also whether any breach was the prox-
imate cause of the injuries Piotrowski suffered.
When a business’s invitee is injured by slipping on a for-
eign substance, the business can be liable if the invitee estab-
lishes that: (1) the substance was placed there by the negli-
gence of the business; (2) the business had actual notice of the
substance; or (3) the business had constructive notice of the
substance. Id. (citing Newsom-Bogan, 953 N.E.2d at 431; Pavlik
v. Wal-Mart Stores, Inc., 753 N.E.2d 1007, 1010 (Ill. App. Ct.
2001)). Significantly, speculation or conjecture regarding the
cause of an injury is not sufficient in Illinois to impose liability
for negligence. Smith v. Eli Lilly & Co., 560 N.E.2d 324, 328 (Ill.
1990); Furry v. United States, 712 F.3d 988, 993 (7th Cir. 2013)
(applying Illinois law).
No. 15-3163 5
A. No Triable Issue as to Whether Placement of Rocks
Due to Menard’s Negligence
We look first to whether there is a triable issue as to
whether the two rocks were placed in the parking lot where
the fall occurred due to Menard’s negligence. Piotrowski
maintains that Menard caused the dangerous condition of
rocks in the parking lot by maintaining a planter full of rocks
outside the store. To prove that the defendant, rather than a
third party, created the dangerous condition, Illinois courts
require a plaintiff to (1) demonstrate that the foreign sub-
stance was related to the defendant’s business, and (2) offer
“some further evidence, direct or circumstantial, however
slight, such as the location of the substance or the business
practices of the defendant, from which it could be inferred
that it was more likely that defendant or his servants, rather
than a customer, dropped the substance on the premises.”
Zuppardi, 770 F.3d at 650 (quoting Donoho v. O’Connell’s, Inc.,
148 N.E.2d 434, 439 (Ill. 1958)).
Our decision in Zuppardi is instructive here. There a cus-
tomer slipped on a puddle of water in the back of a Wal-Mart
store. The puddle was near where employees traveled to clock
in and out, take breaks, and unload inventory. We ruled that
the plaintiff had not put forth sufficient evidence to survive
summary judgment, noting that she had not seen the water
prior to her fall nor seen how it accumulated, there were no
tracks leading to or from the puddle to any store display or
freezer, and the plaintiff had not seen any store employees as
she traveled down the aisle before the fall. Id. Even though the
plaintiff pointed to testimony that an employee was stocking
shelves a few aisles away in what may have been the soda and
water aisle as a possible cause of the spill, we said that was
6 No. 15-3163
not enough, as it was “insufficient for [the plaintiff] to solely
provide a possible way in which a Wal-Mart employee could
have caused the spill.” Id. at 646, 650. The plaintiff’s conten-
tion was purely speculation, and that was not enough. Id. at
650.
Here, too, there is no direct or circumstantial evidence to
indicate that it was more likely that a Menard employee, ra-
ther than a third party, was responsible for the two rocks’
presence where Piotrowski fell. It is not enough to say that
Menard sold river rocks and used river rocks to fill a planter
in the parking lot—that much is true. But it is not true that the
plaintiffs have adduced evidence that the rocks’ placement in
the parking lot was more likely caused by Menard’s negli-
gence rather than by that of a customer or other third party.
As even Piotrowski acknowledges, potential causes of rock
depletion to the planter were many and included that patrons
or children were carrying it away, power washing of the store
front, overfill, and customers or employees setting something
on the planter with the result that the rocks moved onto the
surrounding parking lot when the object was pulled off the
planter. A witness who saw Piotrowski fall testified that the
rocks at issue may have fallen from a tire of one of the vehicles
driving in the parking lot.
Piotrowski did not see the rocks fall, and neither she nor
anyone else to whom she points knew how the rocks at issue
ended up where they did. Although she is correct that a
Menard employee’s actions could have caused the rocks to
spill, that this was the cause is only speculation, and specula-
tion is not sufficient to survive summary judgment. See Ciciora
v. CCAA, Inc., 581 F.3d 480, 483 (7th Cir. 2009); see also Thomp-
son v. Econ. Super Marts, Inc., 581 N.E.2d 885, 888 (Ill. App. Ct.
No. 15-3163 7
1991) (“[E]ven where there is proof that the foreign substance
was related to the defendant’s business, but no further evi-
dence is offered other than the presence of the substance and
the occurrence of the injury, the defendant is entitled to a di-
rected verdict, such evidence being insufficient to support the
necessary inference.”).
B. No Triable Issue as to Whether Menard Had Actual
or Constructive Notice
Piotrowski could also succeed on her negligence claim if
she could show that Menard had actual or constructive notice
of the dangerous condition that caused her fall. Reid v. Kohl’s
Dep’t Stores, Inc., 545 F.3d 479, 481 (7th Cir. 2008) (citing Pavlik,
753 N.E.2d at 1010). It is not clear whether she is pressing this
theory on appeal, as she acknowledges that the district court
correctly found that the record contained no evidence of ac-
tual or constructive notice of the two rocks that caused her fall
and no evidence of how long the two rocks had been present
at the spot in question before her fall.
Piotrowski does maintain that the district court lost sight
of the overarching issue in the case, which to her is the per-
manent and dangerous condition created and maintained by
Menard. In support, she points to cases articulating the prin-
ciple that actual or constructive notice of a dangerous condi-
tion was not required to establish liability when the danger-
ous condition was created by the defendant or its employees.
See, e.g., Harding v. City of Highland Park, 591 N.E.2d 952, 958-
59 (Ill. App. Ct. 1992); Coffee v. Menard, Inc., No. 13 C 2726,
2015 WL 1399049, at *4 (N.D. Ill. Mar. 25, 2015). These cases
do not help Piotrowski, however, as unlike in those cases,
there is no evidence here from which a jury could find that it
8 No. 15-3163
is more probable than not that a Menard employee caused the
dangerous condition.
Piotrowski also stresses that Menard knew that rock was
leaving the planter because its store manager acknowledged
directing employees to replenish the rock as needed, and she
argues that this fact gives rise to a reasonable inference that
rock was escaping onto the pavement where customers
walked. Constructive notice can be established in Illinois by
presenting evidence that the dangerous condition was pre-
sent for a sufficient length of time such that in the exercise of
ordinary care its presence should have been discovered, or by
showing that the dangerous condition was part of a pattern of
conduct or a recurring incident. Culli v. Marathon Petroleum
Co., 862 F.2d 119, 123 (7th Cir. 1988); Donoho, 148 N.E.2d at
438. Piotrowski did not see the two rocks until after her fall,
and she does not have any evidence as to how long they were
on the pavement before her fall, so she does not press an ar-
gument based on how long the rocks were in the parking lot.
Rather, Piotrowski maintains that Menard is liable be-
cause it was aware that rock was escaping the planter since it
would refill the planter with additional rock, yet it took no
remedial action to halt the escape of rock from the planter. In
support she points to our decision in Culli, where we upheld
a jury verdict in favor of a plaintiff who slipped and fell on a
spill at a gas station. 862 F.2d at 119. But in Culli, the gas sta-
tion knew of spills on a daily basis in the area at issue yet
swept only at night, and did so despite evidence that the vol-
ume of sales made only nightly sweeps unreasonable. Id. at
126–27. Here, in contrast, there was no evidence of any other
incident involving rocks in the parking lot. Nor is there any
evidence of recurring escape of river rock from the planter
No. 15-3163 9
onto the parking lot pavement or of any prior complaint of
loose rock in the parking lot. And the store’s general manager
testified that he walked every square foot of the store, parking
lot, and perimeter every day as part of his duties as general
manager. The store’s policies and procedures also required
Menard employees to monitor the parking lot and to be on
the lookout for unsafe conditions, and even Piotrowski
acknowledges that there were “frequent inspections of the
parking lot by the General Manager, Front Store Manager and
other team member employees.” Under these circumstances,
Piotrowski has not shown a pattern of dangerous conditions
or a recurring incident which was not attended to within a
reasonable period of time. Cf. Culli, 862 F.2d at 126.
Piotrowski is correct that a prior injury is not necessary to
establish a store’s negligence, as the case she cites in support,
Ward v. Kmart Corp., 554 N.E.2d 223 (Ill. 1990), shows. There
the Supreme Court of Illinois held that the store’s duty of rea-
sonable care included the risk that one of its customers, while
carrying a large, bulky item, would collide upon exiting the
store with a post immediately outside the store’s entrance. Id.
at 234. The court ruled that the fact that a condition (such as
the post) is open and obvious is only a factor to be considered,
not a complete defense to liability. Id. at 228. We have no quar-
rel with Ward, but it does not help Piotrowski. Menard has not
argued that the “open and obvious” doctrine applies, there is
no evidence Piotrowski was distracted when she fell, and
while Kmart certainly knew of its post, there is no evidence
Menard was aware of the two rocks in the parking lot.
That Piotrowski fell in the Menard parking lot, as painful
as that fall was, is not enough to support an inference of neg-
ligence against Menard. We agree with Menard that she has
10 No. 15-3163
not set forth sufficient evidence that the store breached a duty
it owed to her. As a result, we affirm the grant of summary
judgment in favor of Menard.
III. CONCLUSION
The judgment of the district court is AFFIRMED.