2018 WL 576758
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United States Court of Appeals,
Seventh Circuit.
Larry D. DUNN, Plaintiff–Appellant,
v.
MENARD,
INC., Defendant–Appellee.
INC., Defendant–Appellee.
No. 17-1870
Argued January 17,
2018
2018
Decided January 29,
2018
2018
Opinion
FLAUM, Circuit Judge.
*1 Plaintiff-appellant Larry Dunn filed a
negligence suit against defendant-appellee Menard, Inc. (“Menards”) after he
was injured by a falling stack of rolled insulation at a Menards store in
Hodgkins, Illinois. The district court granted summary judgment to Menards,
finding that it did not owe plaintiff a legal duty because: (1) the stack of
insulation constituted an “open and obvious” danger; and (2) imposing such a
duty would be excessively onerous under the circumstances. Plaintiff now
appeals the district court’s ruling. We affirm.
negligence suit against defendant-appellee Menard, Inc. (“Menards”) after he
was injured by a falling stack of rolled insulation at a Menards store in
Hodgkins, Illinois. The district court granted summary judgment to Menards,
finding that it did not owe plaintiff a legal duty because: (1) the stack of
insulation constituted an “open and obvious” danger; and (2) imposing such a
duty would be excessively onerous under the circumstances. Plaintiff now
appeals the district court’s ruling. We affirm.
I. Background
A. Factual Background
Menards is a chain of
home improvement centers located in the Midwestern United States. At
approximately 7:00 PM on January 3, 2014, plaintiff Larry Dunn and his adult
son, Erik Dunn, visited a Menards in Hodgkins, Illinois to purchase rolled
insulation. This was not the first time plaintiff had frequented the Hodgkins
Menards; he went to the store on a monthly basis to purchase personal home
improvement supplies.
home improvement centers located in the Midwestern United States. At
approximately 7:00 PM on January 3, 2014, plaintiff Larry Dunn and his adult
son, Erik Dunn, visited a Menards in Hodgkins, Illinois to purchase rolled
insulation. This was not the first time plaintiff had frequented the Hodgkins
Menards; he went to the store on a monthly basis to purchase personal home
improvement supplies.
After plaintiff paid for
twenty-one rolls of insulation inside the main store, a cashier instructed him
to pick up his merchandise in one of the store’s surrounding self-service
warehouses, where customers loaded their purchased materials. Plaintiff drove
his Dodge Grand Caravan to the Menards “yard,” and a security guard directed
him to the warehouse containing insulation.
twenty-one rolls of insulation inside the main store, a cashier instructed him
to pick up his merchandise in one of the store’s surrounding self-service
warehouses, where customers loaded their purchased materials. Plaintiff drove
his Dodge Grand Caravan to the Menards “yard,” and a security guard directed
him to the warehouse containing insulation.
Both entrances to the
insulation warehouse displayed warning signs stating, “For your safety,
caution, do not cut bandings, do not open packages, do not pull, do not climb,
and if you need assistance, please call.” Although neither plaintiff nor Erik
recall seeing the warning signs, they do not dispute that they were posted on
the date of the incident.
insulation warehouse displayed warning signs stating, “For your safety,
caution, do not cut bandings, do not open packages, do not pull, do not climb,
and if you need assistance, please call.” Although neither plaintiff nor Erik
recall seeing the warning signs, they do not dispute that they were posted on
the date of the incident.
Plaintiff did not
observe any Menards employees inside the warehouse. However, he had witnessed
employees assist customers in the self-service warehouses in the past, and
understood he could ask for assistance if needed.
observe any Menards employees inside the warehouse. However, he had witnessed
employees assist customers in the self-service warehouses in the past, and
understood he could ask for assistance if needed.
Plaintiff parked his van
next to the supply of rolled insulation, which was organized in vertical
stacks. Upon exiting his vehicle, plaintiff noticed that one stack of
insulation, approximately sixteen feet in height, “was not straight” and was
“leaning to the right.” During his deposition, plaintiff testified that the
stack “seemed too high,” and that “it was pretty obvious” the stack “was
leaning and unstable.” As a result, plaintiff told his son to “keep an eye” on
the stack.
next to the supply of rolled insulation, which was organized in vertical
stacks. Upon exiting his vehicle, plaintiff noticed that one stack of
insulation, approximately sixteen feet in height, “was not straight” and was
“leaning to the right.” During his deposition, plaintiff testified that the
stack “seemed too high,” and that “it was pretty obvious” the stack “was
leaning and unstable.” As a result, plaintiff told his son to “keep an eye” on
the stack.
Despite the leaning
stack, plaintiff did not seek assistance from any Menards employees. Instead,
he observed the insulation for approximately five minutes to determine whether
“it was safe to proceed.” After counting the rolls of insulation in front of
the leaning stack, plaintiff concluded he could obtain the insulation he needed
without utilizing the unstable batch. Plaintiff decided it was safe to proceed
as long as neither he nor his son touched the leaning stack. Nevertheless,
plaintiff instructed Erik to “be wary of where [he was] and what [he was]
moving” and to “be cautious” and “careful” while loading.
stack, plaintiff did not seek assistance from any Menards employees. Instead,
he observed the insulation for approximately five minutes to determine whether
“it was safe to proceed.” After counting the rolls of insulation in front of
the leaning stack, plaintiff concluded he could obtain the insulation he needed
without utilizing the unstable batch. Plaintiff decided it was safe to proceed
as long as neither he nor his son touched the leaning stack. Nevertheless,
plaintiff instructed Erik to “be wary of where [he was] and what [he was]
moving” and to “be cautious” and “careful” while loading.
*2 Plaintiff and Erik proceeded to load their
van with insulation for approximately ten to fifteen minutes. Plaintiff faced
his van as they loaded, with the leaning stack approximately eight to ten feet
behind him. The parties agree that, during this time, neither plaintiff nor
Erik directly or indirectly touched the leaning stack. Still, as they loaded
the final bales of insulation, the leaning stack fell. Some of the falling
insulation struck plaintiff and forced him to the ground, allegedly injuring
his right shoulder.
van with insulation for approximately ten to fifteen minutes. Plaintiff faced
his van as they loaded, with the leaning stack approximately eight to ten feet
behind him. The parties agree that, during this time, neither plaintiff nor
Erik directly or indirectly touched the leaning stack. Still, as they loaded
the final bales of insulation, the leaning stack fell. Some of the falling
insulation struck plaintiff and forced him to the ground, allegedly injuring
his right shoulder.
After the incident,
plaintiff and Erik immediately returned to the Menards main store and notified
the front office manager. While preparing an incident report, the front office
manager learned that two Menards employees were working in the bay next to
plaintiff at the time of the accident. The employees told the front office
manager that, although they did not see plaintiff enter the warehouse, they
heard the insulation fall. They further told the front office manager that they
were never asked for assistance.
plaintiff and Erik immediately returned to the Menards main store and notified
the front office manager. While preparing an incident report, the front office
manager learned that two Menards employees were working in the bay next to
plaintiff at the time of the accident. The employees told the front office
manager that, although they did not see plaintiff enter the warehouse, they
heard the insulation fall. They further told the front office manager that they
were never asked for assistance.
As a general practice,
the general manager of the Hodgkins Menards patrols both the store and
warehouses three times by 5:00 PM in order to look for potential hazards. In
addition, the yard shipping and receiving manager, the assistant yard shipping
and receiving managers, and individual team members routinely monitor the
self-service warehouses for potential safety issues.
the general manager of the Hodgkins Menards patrols both the store and
warehouses three times by 5:00 PM in order to look for potential hazards. In
addition, the yard shipping and receiving manager, the assistant yard shipping
and receiving managers, and individual team members routinely monitor the
self-service warehouses for potential safety issues.
B. Procedural Background
On May 6, 2015,
plaintiff filed a negligence suit against Menards in the Circuit Court of Cook
County. Menards removed the case to the Northern District of Illinois, where the
matter was assigned to District Judge Sara L. Ellis.
plaintiff filed a negligence suit against Menards in the Circuit Court of Cook
County. Menards removed the case to the Northern District of Illinois, where the
matter was assigned to District Judge Sara L. Ellis.
Plaintiff was deposed on
September 23, 2015 and non-medical fact discovery closed on November 20, 2015.
On February 22, 2016, five months after plaintiff’s deposition, three months
after the close of non-medical fact discovery, and four days before the
deadline for Menards’s summary judgment brief, plaintiff provided Menards with
a supplemental 14–paragraph personal affidavit. Menards moved to strike the
affidavit on the grounds that it contradicted plaintiff’s prior deposition
testimony. Following an in-court hearing, the district court granted Menards’s
motion in part and struck paragraphs 3 through 10 and 14.
September 23, 2015 and non-medical fact discovery closed on November 20, 2015.
On February 22, 2016, five months after plaintiff’s deposition, three months
after the close of non-medical fact discovery, and four days before the
deadline for Menards’s summary judgment brief, plaintiff provided Menards with
a supplemental 14–paragraph personal affidavit. Menards moved to strike the
affidavit on the grounds that it contradicted plaintiff’s prior deposition
testimony. Following an in-court hearing, the district court granted Menards’s
motion in part and struck paragraphs 3 through 10 and 14.
The district court
granted summary judgment to Menards on November 18, 2016. The court found Menards
did not owe a legal duty to plaintiff because the leaning stack of insulation
that fell on him constituted an open and obvious condition, and imposing such a
duty would be excessively onerous under the circumstances. Plaintiff
subsequently filed a motion to reconsider, which was denied. This appeal
followed.
granted summary judgment to Menards on November 18, 2016. The court found Menards
did not owe a legal duty to plaintiff because the leaning stack of insulation
that fell on him constituted an open and obvious condition, and imposing such a
duty would be excessively onerous under the circumstances. Plaintiff
subsequently filed a motion to reconsider, which was denied. This appeal
followed.
II. Discussion
123The first two issues
presented in this appeal—the open and obvious nature of the leaning stack of
insulation and whether Menards owed plaintiff a legal duty—are subject to de novo
review. See C.G. Schmidt, Inc. v. Permasteelisa N. Am.,
825 F.3d 801, 805 (7th Cir. 2016). Summary judgment is appropriate if the
movant shows there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law. Spurling v. C & M Fine
Pack, Inc., 739 F.3d 1055, 1060 (7th Cir. 2014). A genuine dispute of
material fact exists if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We
“consider all of the evidence in the record in the light most favorable to the
non-moving party, and we draw all reasonable inferences from that evidence in
favor of the party opposing summary judgment.” Feliberty v. Kemper
Corp., 98 F.3d 274, 276–77 (7th Cir. 1996).
presented in this appeal—the open and obvious nature of the leaning stack of
insulation and whether Menards owed plaintiff a legal duty—are subject to de novo
review. See C.G. Schmidt, Inc. v. Permasteelisa N. Am.,
825 F.3d 801, 805 (7th Cir. 2016). Summary judgment is appropriate if the
movant shows there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law. Spurling v. C & M Fine
Pack, Inc., 739 F.3d 1055, 1060 (7th Cir. 2014). A genuine dispute of
material fact exists if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We
“consider all of the evidence in the record in the light most favorable to the
non-moving party, and we draw all reasonable inferences from that evidence in
favor of the party opposing summary judgment.” Feliberty v. Kemper
Corp., 98 F.3d 274, 276–77 (7th Cir. 1996).
*3 4The third issue on appeal—the district
court’s exclusion of portions of plaintiff’s supplemental affidavit—is reviewed
for an abuse of discretion. See Griffin v. Foley, 542
F.3d 209, 217 (7th Cir. 2008). Under this standard of review, “the relevant
inquiry is not how the reviewing judges would have ruled if they had been
considering the case in the first place.” Id. at 218
(quoting Wheeler v. Sims, 951 F.2d 796, 802 (7th Cir. 1992) ).
“Rather, the district court’s decision is to be overturned only if no
reasonable person would agree with the trial court’s ruling.” Id.
court’s exclusion of portions of plaintiff’s supplemental affidavit—is reviewed
for an abuse of discretion. See Griffin v. Foley, 542
F.3d 209, 217 (7th Cir. 2008). Under this standard of review, “the relevant
inquiry is not how the reviewing judges would have ruled if they had been
considering the case in the first place.” Id. at 218
(quoting Wheeler v. Sims, 951 F.2d 796, 802 (7th Cir. 1992) ).
“Rather, the district court’s decision is to be overturned only if no
reasonable person would agree with the trial court’s ruling.” Id.
A. The stack of
insulation that fell on plaintiff constituted an open and obvious condition.
insulation that fell on plaintiff constituted an open and obvious condition.
56“[S]tate law provides
the substantive law in a diversity action.” Maroules v. Jumbo, Inc.,
452 F.3d 639, 645 (7th Cir. 2006). Thus, “our task is to 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). “Where
the Illinois Supreme Court 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.
the substantive law in a diversity action.” Maroules v. Jumbo, Inc.,
452 F.3d 639, 645 (7th Cir. 2006). Thus, “our task is to 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). “Where
the Illinois Supreme Court 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.
7To establish a cause of
action for negligence under Illinois law, a plaintiff must prove: “(1) a duty
owed to the plaintiff by the defendant; (2) a breach of that duty; and (3) an
injury proximately caused by the breach.” Wilfong v. L.J. Dodd Constr.,
401 Ill.App.3d 1044, 341 Ill.Dec. 301, 930 N.E.2d 511, 519 (2010). Here,
plaintiff’s arguments relate to the first element.
action for negligence under Illinois law, a plaintiff must prove: “(1) a duty
owed to the plaintiff by the defendant; (2) a breach of that duty; and (3) an
injury proximately caused by the breach.” Wilfong v. L.J. Dodd Constr.,
401 Ill.App.3d 1044, 341 Ill.Dec. 301, 930 N.E.2d 511, 519 (2010). Here,
plaintiff’s arguments relate to the first element.
8910Whether a duty
exists is a question of law to be determined by the court. Fulk v. Ill.
Cent. R. Co., 22 F.3d 120, 125 (7th Cir. 1994); see also Mayer
v. Gary Partners & Co., 29 F.3d 330, 333 (7th Cir. 1994) (holding that
the allocation of duties between judge and jury is governed by federal law).
Put broadly, “[d]uty is determined 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.’ ” Bucheleres
v. Chi. Park Dist., 171 Ill.2d 435, 216 Ill.Dec. 568, 665 N.E.2d 826, 831
(1996) (quoting Ward v. K Mart Corp., 136 Ill.2d
132, 143 Ill.Dec. 288, 554 N.E.2d 223, 226 (1990) ). As a matter of practical
application, however, “the concept of duty in negligence cases is very
involved, complex and indeed nebulous.” Ward, 136 Ill.2d 132,
143 Ill.Dec. 288, 554 N.E.2d at 226 (quoting Mieher v. Brown, 54
Ill.2d 539, 301 N.E.2d 307, 310 (1973) ). “The four factors courts typically
consider in determining whether a duty exists are: (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.” Wilfong, 401 Ill.App.3d 1044, 341
Ill.Dec. 301, 930 N.E.2d at 519; see also LaFever v.
Kemlite Co., 185 Ill.2d 380, 235 Ill.Dec. 886, 706 N.E.2d 441, 446 (1998).
exists is a question of law to be determined by the court. Fulk v. Ill.
Cent. R. Co., 22 F.3d 120, 125 (7th Cir. 1994); see also Mayer
v. Gary Partners & Co., 29 F.3d 330, 333 (7th Cir. 1994) (holding that
the allocation of duties between judge and jury is governed by federal law).
Put broadly, “[d]uty is determined 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.’ ” Bucheleres
v. Chi. Park Dist., 171 Ill.2d 435, 216 Ill.Dec. 568, 665 N.E.2d 826, 831
(1996) (quoting Ward v. K Mart Corp., 136 Ill.2d
132, 143 Ill.Dec. 288, 554 N.E.2d 223, 226 (1990) ). As a matter of practical
application, however, “the concept of duty in negligence cases is very
involved, complex and indeed nebulous.” Ward, 136 Ill.2d 132,
143 Ill.Dec. 288, 554 N.E.2d at 226 (quoting Mieher v. Brown, 54
Ill.2d 539, 301 N.E.2d 307, 310 (1973) ). “The four factors courts typically
consider in determining whether a duty exists are: (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.” Wilfong, 401 Ill.App.3d 1044, 341
Ill.Dec. 301, 930 N.E.2d at 519; see also LaFever v.
Kemlite Co., 185 Ill.2d 380, 235 Ill.Dec. 886, 706 N.E.2d 441, 446 (1998).
1112“In Illinois, the
open and obvious doctrine is an exception to the general duty of care owed by a
landowner.” Park v. Ne. Ill. Reg’l Commuter R.R. Corp., 355
Ill.Dec. 882, 960 N.E.2d 764, 769 (Ill. App. Ct. 2011). This is because
“persons who own, occupy, or control and maintain land are not ordinarily
required to foresee and protect against injuries from potentially dangerous
conditions that are open and obvious.” Bucheleres, 216 Ill.Dec.
568, 665 N.E.2d at 832; see also Ward, 143 Ill.Dec. 288, 554
N.E.2d at 230 (“Certainly a condition may be so blatantly obvious and in such
position on the defendant’s premises that he could not reasonably be expected
to anticipate that people will fail to protect themselves from any danger posed
by the condition.”). Thus, “[i]n cases involving obvious and common conditions
… the law generally assumes that persons who encounter these conditions will
take care to avoid any danger inherent in such condition.” Bucheleres,
216 Ill.Dec. 568, 665 N.E.2d at 832. “The open and obvious nature of the
condition itself gives caution and therefore the risk of harm is considered
slight; people are expected to appreciate and avoid obvious risks.” Id.
open and obvious doctrine is an exception to the general duty of care owed by a
landowner.” Park v. Ne. Ill. Reg’l Commuter R.R. Corp., 355
Ill.Dec. 882, 960 N.E.2d 764, 769 (Ill. App. Ct. 2011). This is because
“persons who own, occupy, or control and maintain land are not ordinarily
required to foresee and protect against injuries from potentially dangerous
conditions that are open and obvious.” Bucheleres, 216 Ill.Dec.
568, 665 N.E.2d at 832; see also Ward, 143 Ill.Dec. 288, 554
N.E.2d at 230 (“Certainly a condition may be so blatantly obvious and in such
position on the defendant’s premises that he could not reasonably be expected
to anticipate that people will fail to protect themselves from any danger posed
by the condition.”). Thus, “[i]n cases involving obvious and common conditions
… the law generally assumes that persons who encounter these conditions will
take care to avoid any danger inherent in such condition.” Bucheleres,
216 Ill.Dec. 568, 665 N.E.2d at 832. “The open and obvious nature of the
condition itself gives caution and therefore the risk of harm is considered
slight; people are expected to appreciate and avoid obvious risks.” Id.
*4 13Often, “[w]hether a dangerous condition
is open and obvious may present a question of fact.” Bruns v. City of
Centralia, 386 Ill.Dec. 765, 21 N.E.3d 684, 690 (Ill. 2014). However,
“where no dispute exists as to the physical nature of the condition, whether
the dangerous condition is open and obvious is a question of law.” Id. The
district court found the latter applied here.
is open and obvious may present a question of fact.” Bruns v. City of
Centralia, 386 Ill.Dec. 765, 21 N.E.3d 684, 690 (Ill. 2014). However,
“where no dispute exists as to the physical nature of the condition, whether
the dangerous condition is open and obvious is a question of law.” Id. The
district court found the latter applied here.
14Plaintiff claims the
district court’s ruling was improper because he and his son “each had a
different interpretation of the physical nature of the stack of insulation that
fell.” This argument, however, misstates the record. During plaintiff’s
deposition, he testified that he “noticed that one stack of insulation did not
look stable.” When asked for further details, plaintiff stated that it was
“pretty obvious” that the stack was “leaning” and “not straight.” In
comparison, plaintiff’s son testified that it was “obvious” that the stack was
“uneven” and “somewhat” unstable.
district court’s ruling was improper because he and his son “each had a
different interpretation of the physical nature of the stack of insulation that
fell.” This argument, however, misstates the record. During plaintiff’s
deposition, he testified that he “noticed that one stack of insulation did not
look stable.” When asked for further details, plaintiff stated that it was
“pretty obvious” that the stack was “leaning” and “not straight.” In
comparison, plaintiff’s son testified that it was “obvious” that the stack was
“uneven” and “somewhat” unstable.
Plaintiff asserts this
testimony evinces “different opinions and interpretation[s]” of how the leaning
stack appeared. We disagree. True, plaintiff described the stack as “leaning,”
while Erik testified the stack was “uneven.” In our view, however, this is a
semantic distinction without a meaningful difference. More importantly, both
plaintiff and his son agreed the stack was “unstable,” and both witnesses
testified that the physical condition of the stack was “obvious.” Indeed, the
parties’ Joint Statement of Undisputed Material Facts (the “Joint Statement”)
explicitly states that “[t]he uneven stacking was obvious to Erik Dunn and his
father” and “Plaintiff and Erik Dunn were both aware
of the obvious condition of the stack” (emphases added). These accounts are
sufficiently consistent to make application of the open and obvious doctrine a
question of law.1
testimony evinces “different opinions and interpretation[s]” of how the leaning
stack appeared. We disagree. True, plaintiff described the stack as “leaning,”
while Erik testified the stack was “uneven.” In our view, however, this is a
semantic distinction without a meaningful difference. More importantly, both
plaintiff and his son agreed the stack was “unstable,” and both witnesses
testified that the physical condition of the stack was “obvious.” Indeed, the
parties’ Joint Statement of Undisputed Material Facts (the “Joint Statement”)
explicitly states that “[t]he uneven stacking was obvious to Erik Dunn and his
father” and “Plaintiff and Erik Dunn were both aware
of the obvious condition of the stack” (emphases added). These accounts are
sufficiently consistent to make application of the open and obvious doctrine a
question of law.1
15Moving on, “
‘[o]bvious’ 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.’ ” Bruns,
386 Ill.Dec. 765, 21 N.E.3d at 690 (quoting Restatement (Second) of Torts §
343A cmt. b, at 219 (1965) ); see also Deibert v. Bauer
Bros. Constr. Co., 141 Ill.2d 430, 152 Ill.Dec. 552, 566 N.E.2d 239, 241
(Ill. 1990) (noting that Illinois has adopted § 343A). “Thus, the determination
of whether the condition is open and obvious depends not on plaintiff’s
subjective knowledge but, rather, on the objective knowledge of a reasonable
person confronted with the same condition.” Racky v. Belfor USA Grp.,
Inc., 415 Ill.Dec. 856, 83 N.E.3d 440, 467 (Ill. App. Ct. 2017). In other
words, “if a reasonable person with the plaintiff’s knowledge of the situation
would have appreciated and avoided a hazard created by the defendant’s actions,
then from the defendant’s perspective the plaintiff’s injuries were neither
foreseeable nor likely.” Smith v. MHI Injection Molding Mach., Inc.,
No. 10-cv-8276, 2014 WL 1516592, at *5 (N.D. Ill. Apr. 18, 2014).
‘[o]bvious’ 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.’ ” Bruns,
386 Ill.Dec. 765, 21 N.E.3d at 690 (quoting Restatement (Second) of Torts §
343A cmt. b, at 219 (1965) ); see also Deibert v. Bauer
Bros. Constr. Co., 141 Ill.2d 430, 152 Ill.Dec. 552, 566 N.E.2d 239, 241
(Ill. 1990) (noting that Illinois has adopted § 343A). “Thus, the determination
of whether the condition is open and obvious depends not on plaintiff’s
subjective knowledge but, rather, on the objective knowledge of a reasonable
person confronted with the same condition.” Racky v. Belfor USA Grp.,
Inc., 415 Ill.Dec. 856, 83 N.E.3d 440, 467 (Ill. App. Ct. 2017). In other
words, “if a reasonable person with the plaintiff’s knowledge of the situation
would have appreciated and avoided a hazard created by the defendant’s actions,
then from the defendant’s perspective the plaintiff’s injuries were neither
foreseeable nor likely.” Smith v. MHI Injection Molding Mach., Inc.,
No. 10-cv-8276, 2014 WL 1516592, at *5 (N.D. Ill. Apr. 18, 2014).
*5 16Here, the district court correctly
determined that “the undisputed evidence allows for only one conclusion: …
the leaning and unstable stack posed an open and obvious danger that a
reasonable person with Dunn’s knowledge would have appreciated.” It is
undisputed that “[p]rior to the incident, Plaintiff noticed that one stack of
insulation did not look stable.” Specifically, the stack “was not straight” and
“was leaning to the right.” The parties’ Joint Statement goes so far as to say
“[i]t was obvious to Plaintiff that the stack was leaning and unstable,” so
much so that plaintiff told his son to “be careful,” “keep an eye on the stack
of insulation,” and “be wary of where [he was] and what [he was] moving.”
Presented with these circumstances, a reasonable person would have taken
sufficient care to avoid the primary danger inherent in the stack’s condition:
that the stack might fall over.
determined that “the undisputed evidence allows for only one conclusion: …
the leaning and unstable stack posed an open and obvious danger that a
reasonable person with Dunn’s knowledge would have appreciated.” It is
undisputed that “[p]rior to the incident, Plaintiff noticed that one stack of
insulation did not look stable.” Specifically, the stack “was not straight” and
“was leaning to the right.” The parties’ Joint Statement goes so far as to say
“[i]t was obvious to Plaintiff that the stack was leaning and unstable,” so
much so that plaintiff told his son to “be careful,” “keep an eye on the stack
of insulation,” and “be wary of where [he was] and what [he was] moving.”
Presented with these circumstances, a reasonable person would have taken
sufficient care to avoid the primary danger inherent in the stack’s condition:
that the stack might fall over.
Plaintiff devotes a
significant portion of his brief to a discussion of his own recognition
of this inherent risk. Specifically, he argues that although he observed
the condition of the leaning stack of insulation, he did not
appreciate the risk the condition posed. Although plaintiff’s
claim stems from a correct interpretation of the law, see Racky,
415 Ill.Dec. 856, 83 N.E.3d at 467 (“The open and obvious doctrine applies only
where both the condition and the risk are apparent to and
would be recognized by a reasonable person.”), it is at odds with the
undisputed record. Had plaintiff truly believed the leaning stack posed no
danger, he would have had no reason to monitor the insulation for five minutes
to determine whether “it was safe to proceed with loading the insulation in the
van.” Nor would he have needed to warn his son to be mindful of his
surroundings.
significant portion of his brief to a discussion of his own recognition
of this inherent risk. Specifically, he argues that although he observed
the condition of the leaning stack of insulation, he did not
appreciate the risk the condition posed. Although plaintiff’s
claim stems from a correct interpretation of the law, see Racky,
415 Ill.Dec. 856, 83 N.E.3d at 467 (“The open and obvious doctrine applies only
where both the condition and the risk are apparent to and
would be recognized by a reasonable person.”), it is at odds with the
undisputed record. Had plaintiff truly believed the leaning stack posed no
danger, he would have had no reason to monitor the insulation for five minutes
to determine whether “it was safe to proceed with loading the insulation in the
van.” Nor would he have needed to warn his son to be mindful of his
surroundings.
Plaintiff counters that
his apprehension applied only to a scenario where either he or his son touched
the stack, and it is undisputed that neither of them made contact with the
stack prior to its collapse. Once again, the evidence belies plaintiff’s assertion.
Plaintiff observed the leaning stack for five minutes before attempting
to load his van. From this, it is reasonable to infer that plaintiff at least
initially feared the stack might spontaneously fall, even without any
additional disturbance.
his apprehension applied only to a scenario where either he or his son touched
the stack, and it is undisputed that neither of them made contact with the
stack prior to its collapse. Once again, the evidence belies plaintiff’s assertion.
Plaintiff observed the leaning stack for five minutes before attempting
to load his van. From this, it is reasonable to infer that plaintiff at least
initially feared the stack might spontaneously fall, even without any
additional disturbance.
Regardless, plaintiff
seeks to split hairs. See Bujnowski v. Birchland, Inc.,
394 Ill.Dec. 906, 37 N.E.3d 385, 388 (Ill. App. Ct. 2015) (“[T]he test of
openness and obviousness [is] not what the plaintiff actually knew at the time,
but what he had reason to suspect and could have learned.”). Moreover, the
operative focus is not on plaintiff himself, but on a reasonable
person with plaintiff’s knowledge of the situation, and whether such
an individual, after exercising ordinary perception, intelligence, and judgment,
would have appreciated and avoided the hazard. See Smith,
2014 WL 1516592, at *5; Bruns, 386 Ill.Dec. 765, 21 N.E.3d at 690.
Viewed from this perspective, a reasonably prudent person would not have stood
underneath a sixteen-foot stack of “obvious[ly]” “unstable” insulation, even if
that person ventured to avoid physical contact. Therefore, the leaning stack of
insulation constituted an open and obvious condition.
seeks to split hairs. See Bujnowski v. Birchland, Inc.,
394 Ill.Dec. 906, 37 N.E.3d 385, 388 (Ill. App. Ct. 2015) (“[T]he test of
openness and obviousness [is] not what the plaintiff actually knew at the time,
but what he had reason to suspect and could have learned.”). Moreover, the
operative focus is not on plaintiff himself, but on a reasonable
person with plaintiff’s knowledge of the situation, and whether such
an individual, after exercising ordinary perception, intelligence, and judgment,
would have appreciated and avoided the hazard. See Smith,
2014 WL 1516592, at *5; Bruns, 386 Ill.Dec. 765, 21 N.E.3d at 690.
Viewed from this perspective, a reasonably prudent person would not have stood
underneath a sixteen-foot stack of “obvious[ly]” “unstable” insulation, even if
that person ventured to avoid physical contact. Therefore, the leaning stack of
insulation constituted an open and obvious condition.
17Of course, we must
also consider whether an exception to the open and obvious rule applies.
“Exceptions to the rule make provision for cases in which ‘the possessor of
land can and should anticipate that the dangerous condition will cause physical
harm to the invitee notwithstanding its known or obvious danger.’ ” Bruns,
386 Ill.Dec. 765, 21 N.E.3d at 691 (quoting Restatement (Second) of Torts §
343A cmt. f, at 220 (1965) ). “Illinois law recognizes two such exceptions” in
cases involving premises liability: “the ‘distraction exception,’ and the
‘deliberate encounter exception.’ ” Id. (quoting Sollami
v. Eaton, 201 Ill.2d 1, 265 Ill.Dec. 177, 772 N.E.2d 215, 224 (Ill.
2002) ). “Where an exception to the open and obvious rule applies, the outcome
of the duty analysis … is ‘reversed.’ ” Id. (quoting Belluomini
v. Stratford Green Condo. Ass’n, 346 Ill.App.3d 687, 282 Ill.Dec. 82,
805 N.E.2d 701, 705 (Ill. App. Ct. 2004) ). That is, “[w]hereas operation of
the open and obvious rule negatively impacts the foreseeability and likelihood
of injury, application of an exception to the rule positively impacts the
foreseeability and likelihood of injury.” Id.
also consider whether an exception to the open and obvious rule applies.
“Exceptions to the rule make provision for cases in which ‘the possessor of
land can and should anticipate that the dangerous condition will cause physical
harm to the invitee notwithstanding its known or obvious danger.’ ” Bruns,
386 Ill.Dec. 765, 21 N.E.3d at 691 (quoting Restatement (Second) of Torts §
343A cmt. f, at 220 (1965) ). “Illinois law recognizes two such exceptions” in
cases involving premises liability: “the ‘distraction exception,’ and the
‘deliberate encounter exception.’ ” Id. (quoting Sollami
v. Eaton, 201 Ill.2d 1, 265 Ill.Dec. 177, 772 N.E.2d 215, 224 (Ill.
2002) ). “Where an exception to the open and obvious rule applies, the outcome
of the duty analysis … is ‘reversed.’ ” Id. (quoting Belluomini
v. Stratford Green Condo. Ass’n, 346 Ill.App.3d 687, 282 Ill.Dec. 82,
805 N.E.2d 701, 705 (Ill. App. Ct. 2004) ). That is, “[w]hereas operation of
the open and obvious rule negatively impacts the foreseeability and likelihood
of injury, application of an exception to the rule positively impacts the
foreseeability and likelihood of injury.” Id.
Neither exception
applies here. The deliberate encounter exception only applies “where the
possessor [of land] has reason to expect that the invitee will proceed to
encounter the known or obvious danger because to a reasonable man in his
position the advantages of doing so would outweigh the apparent risk.” Id. (alteration
in original) (quoting Sollami, 265 Ill.Dec. 177, 772 N.E.2d at
223). “The deliberate encounter exception has most often been applied in cases
involving some economic compulsion,” Sollami, 265 Ill.Dec. 177, 772
N.E.2d at 224, such as when a plaintiff “is forced to choose between facing
danger and neglecting his duties” to an employer. Atchley v. Univ. of
Chi. Med. Ctr., 407 Ill.Dec. 982, 64 N.E.3d 781, 791 (Ill. App. Ct.
2016); see also Kleiber v. Freeport Farm & Fleet, Inc.,
406 Ill.App.3d 249, 347 Ill.Dec. 437, 942 N.E.2d 640, 648 (Ill. App. Ct. 2010)
(“The deliberate-encounter exception recognizes that individuals will make
deliberate choices to encounter hazards when faced with employment concerns and
that those encounters are reasonably foreseeable by possessors of property.”).
No such compulsion is present here.
applies here. The deliberate encounter exception only applies “where the
possessor [of land] has reason to expect that the invitee will proceed to
encounter the known or obvious danger because to a reasonable man in his
position the advantages of doing so would outweigh the apparent risk.” Id. (alteration
in original) (quoting Sollami, 265 Ill.Dec. 177, 772 N.E.2d at
223). “The deliberate encounter exception has most often been applied in cases
involving some economic compulsion,” Sollami, 265 Ill.Dec. 177, 772
N.E.2d at 224, such as when a plaintiff “is forced to choose between facing
danger and neglecting his duties” to an employer. Atchley v. Univ. of
Chi. Med. Ctr., 407 Ill.Dec. 982, 64 N.E.3d 781, 791 (Ill. App. Ct.
2016); see also Kleiber v. Freeport Farm & Fleet, Inc.,
406 Ill.App.3d 249, 347 Ill.Dec. 437, 942 N.E.2d 640, 648 (Ill. App. Ct. 2010)
(“The deliberate-encounter exception recognizes that individuals will make
deliberate choices to encounter hazards when faced with employment concerns and
that those encounters are reasonably foreseeable by possessors of property.”).
No such compulsion is present here.
20This conclusion is
supported by the Illinois Appellate Court’s opinion in Kleiber.
There, the plaintiff was loading bags of topsoil into her vehicle from a pallet
located outside the front of a Farm and Fleet store. Kleiber, 347
Ill.Dec. 437, 942 N.E.2d at 642. In order to obtain the bags of topsoil, the plaintiff
walked across an empty wooden pallet lying on the ground. Id. Plaintiff’s
foot went through one of the slats in the pallet and she fell, injuring her
leg. Id., 347 Ill.Dec. 437, 942 N.E.2d at 642–43. On appeal, the
court held that, even if “there was no other way to access the topsoil except
by crossing the empty pallet,” the deliberate encounter exception did not
apply. Id. at 649, 942 N.E.2d at 642–43. According to the
court, “despite the location of the topsoil, plaintiff had another option available.
Plaintiff could have gone into the store and asked for assistance.” Id. The
same reasoning applies here.
supported by the Illinois Appellate Court’s opinion in Kleiber.
There, the plaintiff was loading bags of topsoil into her vehicle from a pallet
located outside the front of a Farm and Fleet store. Kleiber, 347
Ill.Dec. 437, 942 N.E.2d at 642. In order to obtain the bags of topsoil, the plaintiff
walked across an empty wooden pallet lying on the ground. Id. Plaintiff’s
foot went through one of the slats in the pallet and she fell, injuring her
leg. Id., 347 Ill.Dec. 437, 942 N.E.2d at 642–43. On appeal, the
court held that, even if “there was no other way to access the topsoil except
by crossing the empty pallet,” the deliberate encounter exception did not
apply. Id. at 649, 942 N.E.2d at 642–43. According to the
court, “despite the location of the topsoil, plaintiff had another option available.
Plaintiff could have gone into the store and asked for assistance.” Id. The
same reasoning applies here.
21The distraction
exception is also inapposite. The distraction exception applies “where the
possessor [of land] 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.” Bruns,
386 Ill.Dec. 765, 21 N.E.3d at 691 (alteration in original) (quoting Sollami, 265
Ill.Dec. 177, 772 N.E.2d at 223). “[T]he distraction exception will only
apply,” however, “where evidence exists from which a court can infer that
plaintiff was actually distracted.” Id. Here, the parties’
Joint Statement explicitly states that “Plaintiff did not do anything to
distract himself at the time of the accident.”
exception is also inapposite. The distraction exception applies “where the
possessor [of land] 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.” Bruns,
386 Ill.Dec. 765, 21 N.E.3d at 691 (alteration in original) (quoting Sollami, 265
Ill.Dec. 177, 772 N.E.2d at 223). “[T]he distraction exception will only
apply,” however, “where evidence exists from which a court can infer that
plaintiff was actually distracted.” Id. Here, the parties’
Joint Statement explicitly states that “Plaintiff did not do anything to
distract himself at the time of the accident.”
Admittedly, the parties
agree that immediately prior to the accident, plaintiff “was facing the van
where he was loading insulation” and “talking to Erik Dunn.” However, “the mere
fact of looking elsewhere does not constitute a distraction.” Id.,
386 Ill.Dec. 765, 21 N.E.3d at 692 (holding that the fact a pedestrian was
looking at the front door of her destination when she tripped on a sidewalk
defect did not constitute a distraction). Nor do “self-created distractions”
that are “solely within the plaintiff’s own creation.” Whittleman v.
Olin Corp., 358 Ill.App.3d 813, 295 Ill.Dec. 482, 832 N.E.2d 932, 936 (Ill.
App. Ct. 2005).
agree that immediately prior to the accident, plaintiff “was facing the van
where he was loading insulation” and “talking to Erik Dunn.” However, “the mere
fact of looking elsewhere does not constitute a distraction.” Id.,
386 Ill.Dec. 765, 21 N.E.3d at 692 (holding that the fact a pedestrian was
looking at the front door of her destination when she tripped on a sidewalk
defect did not constitute a distraction). Nor do “self-created distractions”
that are “solely within the plaintiff’s own creation.” Whittleman v.
Olin Corp., 358 Ill.App.3d 813, 295 Ill.Dec. 482, 832 N.E.2d 932, 936 (Ill.
App. Ct. 2005).
In sum, the district
court did not err when it ruled the stack of insulation that fell on plaintiff
constituted an open and obvious condition under Illinois law.
court did not err when it ruled the stack of insulation that fell on plaintiff
constituted an open and obvious condition under Illinois law.
B. Menards did not owe
plaintiff a legal duty.
plaintiff a legal duty.
22Plaintiff next argues
Menards owed him a legal duty even if an open and obvious
condition existed. True, “[t]he existence of an open and obvious danger is not
an automatic or per se bar to the finding of a legal duty on
the part of a defendant.” Bruns, 386 Ill.Dec. 765, 21 N.E.3d at
690. Rather, “[i]n assessing whether a duty is owed, the court must still apply
traditional duty analysis to the particular facts of the case.” Jackson
v. TLC Assocs., Inc., 185 Ill.2d 418, 235 Ill.Dec. 905, 706 N.E.2d 460, 463
(Ill. 1998).
Menards owed him a legal duty even if an open and obvious
condition existed. True, “[t]he existence of an open and obvious danger is not
an automatic or per se bar to the finding of a legal duty on
the part of a defendant.” Bruns, 386 Ill.Dec. 765, 21 N.E.3d at
690. Rather, “[i]n assessing whether a duty is owed, the court must still apply
traditional duty analysis to the particular facts of the case.” Jackson
v. TLC Assocs., Inc., 185 Ill.2d 418, 235 Ill.Dec. 905, 706 N.E.2d 460, 463
(Ill. 1998).
*7 23“Application of the open and obvious
rule affects the first two factors of the duty analysis: the foreseeability of
injury, and the likelihood of injury.” Bruns, 386 Ill.Dec. 765, 21
N.E.3d at 690; see also Belluomini, 282 Ill.Dec. 82,
805 N.E.2d at 707 (“[T]he open and obvious doctrine covers, in substance, the
first two factors of the duty test.”). “[I]f the danger is open and obvious …
that means … that the first two factors favor the defendant.” Bujnowski,
394 Ill.Dec. 906, 37 N.E.3d at 395. In other words, “[w]here 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.” Bruns,
386 Ill.Dec. 765, 21 N.E.3d at 690. Indeed, the Bujnowski court
noted that “[n]o published premises-liability negligence case … [has] held
both (1) that the open-and-obvious rule applied without exception and (2) that
the defendant nonetheless owed the plaintiff a duty.” 394 Ill.Dec. 906, 37
N.E.3d at 397.
rule affects the first two factors of the duty analysis: the foreseeability of
injury, and the likelihood of injury.” Bruns, 386 Ill.Dec. 765, 21
N.E.3d at 690; see also Belluomini, 282 Ill.Dec. 82,
805 N.E.2d at 707 (“[T]he open and obvious doctrine covers, in substance, the
first two factors of the duty test.”). “[I]f the danger is open and obvious …
that means … that the first two factors favor the defendant.” Bujnowski,
394 Ill.Dec. 906, 37 N.E.3d at 395. In other words, “[w]here 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.” Bruns,
386 Ill.Dec. 765, 21 N.E.3d at 690. Indeed, the Bujnowski court
noted that “[n]o published premises-liability negligence case … [has] held
both (1) that the open-and-obvious rule applied without exception and (2) that
the defendant nonetheless owed the plaintiff a duty.” 394 Ill.Dec. 906, 37
N.E.3d at 397.
24“This leaves one more
inquiry: do the third and fourth factors—the burden that defendant would incur,
and the consequences of imposing that burden—favor plaintiff to the extent that
they outweigh the first two factors and thus call for imposing a duty?” Id. The
district court found “Menards employees already perform regular inspections of
the warehouse and are available to assist customers if requested.” In the
court’s view, imposing an additional duty to monitor the stacks of insulation
“would be onerous, requiring [Menards] to expend significant resources to have
employees constantly stationed in the warehouse to oversee its customers.” The
district court found this was particularly true here because plaintiff “did not
request assistance despite recognizing the risk and knowing such an option was
available.” See also Kleiber, 347 Ill.Dec. 437, 942
N.E.2d at 650 (holding that imposing a burden on the defendant to monitor
pallets in front of a store would be unreasonable “where the plaintiff never
sought assistance from anyone in the store, despite having recognized the open
and obvious danger”).
inquiry: do the third and fourth factors—the burden that defendant would incur,
and the consequences of imposing that burden—favor plaintiff to the extent that
they outweigh the first two factors and thus call for imposing a duty?” Id. The
district court found “Menards employees already perform regular inspections of
the warehouse and are available to assist customers if requested.” In the
court’s view, imposing an additional duty to monitor the stacks of insulation
“would be onerous, requiring [Menards] to expend significant resources to have
employees constantly stationed in the warehouse to oversee its customers.” The
district court found this was particularly true here because plaintiff “did not
request assistance despite recognizing the risk and knowing such an option was
available.” See also Kleiber, 347 Ill.Dec. 437, 942
N.E.2d at 650 (holding that imposing a burden on the defendant to monitor
pallets in front of a store would be unreasonable “where the plaintiff never
sought assistance from anyone in the store, despite having recognized the open
and obvious danger”).
We agree with the district
court’s reasoning. We also add that less onerous safeguards than continuous
surveillance, such as building a frame to prevent tall stacks of rolled
insulation from tipping over or stacking rolled insulation at lower heights,
would not be justified given the open and obvious nature of the risk involved.
court’s reasoning. We also add that less onerous safeguards than continuous
surveillance, such as building a frame to prevent tall stacks of rolled
insulation from tipping over or stacking rolled insulation at lower heights,
would not be justified given the open and obvious nature of the risk involved.
C. The exclusion of
plaintiff’s supplemental affidavit does not warrant reversal.
plaintiff’s supplemental affidavit does not warrant reversal.
Finally, plaintiff
argues that the excluded portions of his supplemental affidavit create
genuinely disputed issues of material fact regarding the open and obvious
nature of the leaning stack of insulation.
argues that the excluded portions of his supplemental affidavit create
genuinely disputed issues of material fact regarding the open and obvious
nature of the leaning stack of insulation.
The district court
struck paragraphs 3 through 10 and 14 of plaintiff’s supplemental affidavit on
the grounds that they contradicted plaintiff’s prior deposition testimony. “As
a general rule … this circuit does not permit a party to create an issue of
fact by submitting an affidavit whose conclusions contradict prior deposition
or other sworn testimony.” Buckner v. Sam’s Club, Inc., 75 F.3d
290, 292 (7th Cir. 1996); see also Bank of Ill. v. Allied
Signal Safety Restraint Sys., 75 F.3d 1162, 1168 (7th Cir. 1996) (“We have
long followed the rule that parties cannot thwart the purposes of Rule 56 by
creating ‘sham’ issues of fact with affidavits that contradict their prior
depositions.”). Thus, where deposition testimony and an affidavit conflict,
“the affidavit is to be disregarded unless it is demonstrable that the
statement in the deposition was mistaken, perhaps because the question was
phrased in a confusing manner or because a lapse of memory is in the
circumstances a plausible explanation for the discrepancy.” Russell v.
Acme–Evans Co., 51 F.3d 64, 67–68 (7th Cir. 1995). In the alternative,
supplemental affidavits can be employed “to clarify ambiguous or confusing
deposition testimony.” Buckner, 75 F.3d at 292.
struck paragraphs 3 through 10 and 14 of plaintiff’s supplemental affidavit on
the grounds that they contradicted plaintiff’s prior deposition testimony. “As
a general rule … this circuit does not permit a party to create an issue of
fact by submitting an affidavit whose conclusions contradict prior deposition
or other sworn testimony.” Buckner v. Sam’s Club, Inc., 75 F.3d
290, 292 (7th Cir. 1996); see also Bank of Ill. v. Allied
Signal Safety Restraint Sys., 75 F.3d 1162, 1168 (7th Cir. 1996) (“We have
long followed the rule that parties cannot thwart the purposes of Rule 56 by
creating ‘sham’ issues of fact with affidavits that contradict their prior
depositions.”). Thus, where deposition testimony and an affidavit conflict,
“the affidavit is to be disregarded unless it is demonstrable that the
statement in the deposition was mistaken, perhaps because the question was
phrased in a confusing manner or because a lapse of memory is in the
circumstances a plausible explanation for the discrepancy.” Russell v.
Acme–Evans Co., 51 F.3d 64, 67–68 (7th Cir. 1995). In the alternative,
supplemental affidavits can be employed “to clarify ambiguous or confusing
deposition testimony.” Buckner, 75 F.3d at 292.
1. Paragraphs 3 through
5
5
*8 Paragraphs 3 through 5 of plaintiff’s
post-deposition affidavit state the following:
post-deposition affidavit state the following:
3. During [my prior visits to the Hodgkins
Menards outside warehouse], I observed stacks of insulation that were both the
same and similar in size as the stacks of insulation that I purchased and that
fell on top of me and injured me on January 3, 2015, which were located within
the warehouse both at and near the location where I was injured.
Menards outside warehouse], I observed stacks of insulation that were both the
same and similar in size as the stacks of insulation that I purchased and that
fell on top of me and injured me on January 3, 2015, which were located within
the warehouse both at and near the location where I was injured.
4. On all of these prior occasions, the stacks
of insulation were stacked akin and leaning similarly to the way they were
stacked on the day I was injured.
of insulation were stacked akin and leaning similarly to the way they were
stacked on the day I was injured.
5. What is more, I have observed other products
consistently stacked in such a manner at Defendant’s MENARD store.
consistently stacked in such a manner at Defendant’s MENARD store.
The district court found
these paragraphs were directly contradicted by the following portion of
plaintiff’s deposition testimony, which involved a discussion of a photograph
taken in the immediate aftermath of plaintiff’s accident. The photograph
depicted not only the rolled insulation that had fallen to the ground, but also
other surrounding stacks that remained intact:
these paragraphs were directly contradicted by the following portion of
plaintiff’s deposition testimony, which involved a discussion of a photograph
taken in the immediate aftermath of plaintiff’s accident. The photograph
depicted not only the rolled insulation that had fallen to the ground, but also
other surrounding stacks that remained intact:
Q. Now, let’s look at Plaintiff’s Exhibit 1. Can
you take a look at that photo? In the top right corner there is two bales of
insulation, far right and right next to it. Do you see those?
you take a look at that photo? In the top right corner there is two bales of
insulation, far right and right next to it. Do you see those?
A. Yes.
Q. And when you talked about the insulation
leaning to the right, would the picture of the insulation in the right corner,
is that what you were referring to, leaning into the right?
leaning to the right, would the picture of the insulation in the right corner,
is that what you were referring to, leaning into the right?
A. Similarly. It was more kind of haphazardly
stacked. It wasn’t as nice and neat as those are.
stacked. It wasn’t as nice and neat as those are.
According to the
district court, considered collectively, paragraphs 3 through 5 of plaintiff’s
affidavit state that “the leaning stack of insulation on the day that
[plaintiff] was injured looked similar to all of the stacks … that he’d seen
on prior occasions.” In contrast, plaintiff’s deposition testimony suggested “that
actually it was more haphazardly stacked, that it wasn’t as nice and neat as it
was in the photographs that he was shown.”
district court, considered collectively, paragraphs 3 through 5 of plaintiff’s
affidavit state that “the leaning stack of insulation on the day that
[plaintiff] was injured looked similar to all of the stacks … that he’d seen
on prior occasions.” In contrast, plaintiff’s deposition testimony suggested “that
actually it was more haphazardly stacked, that it wasn’t as nice and neat as it
was in the photographs that he was shown.”
Plaintiff argues this
conclusion is misguided. In plaintiff’s view, Plaintiff’s Exhibit 1 (discussed
during his deposition) depicted stacks of insulation that were present on
the date plaintiff was injured. Thus, when plaintiff suggested that
the stack that fell on him was “more haphazardly stacked” and not “as nice and
neat” as those shown in the photograph, he was comparing the leaning stack to
other stacks that were present on the same date. In contrast,
plaintiff’s affidavit compared the leaning stack to stacks he had
observed during prior visits, which were never discussed during his
deposition.
conclusion is misguided. In plaintiff’s view, Plaintiff’s Exhibit 1 (discussed
during his deposition) depicted stacks of insulation that were present on
the date plaintiff was injured. Thus, when plaintiff suggested that
the stack that fell on him was “more haphazardly stacked” and not “as nice and
neat” as those shown in the photograph, he was comparing the leaning stack to
other stacks that were present on the same date. In contrast,
plaintiff’s affidavit compared the leaning stack to stacks he had
observed during prior visits, which were never discussed during his
deposition.
However, even
assuming arguendo that plaintiff’s technical interpretation is
correct, it does not alter the summary judgment analysis. If anything, the
addition of paragraphs 3 through 5 reinforces plaintiff’s knowledge of the open
and obvious condition prior to his accident. See Bruns,
386 Ill.Dec. 765, 21 N.E.3d at 687 (noting that, during prior visits to
location of accident, the plaintiff “definitely” noticed the defect in sidewalk
that later caused her to fall). The exclusion of these paragraphs, therefore,
does not warrant reversal.
assuming arguendo that plaintiff’s technical interpretation is
correct, it does not alter the summary judgment analysis. If anything, the
addition of paragraphs 3 through 5 reinforces plaintiff’s knowledge of the open
and obvious condition prior to his accident. See Bruns,
386 Ill.Dec. 765, 21 N.E.3d at 687 (noting that, during prior visits to
location of accident, the plaintiff “definitely” noticed the defect in sidewalk
that later caused her to fall). The exclusion of these paragraphs, therefore,
does not warrant reversal.
2. Paragraphs 6 through
10
10
*9 29Paragraphs 6 through 10 of plaintiff’s
post-deposition affidavit state the following:
post-deposition affidavit state the following:
6. At my discovery deposition on September 23,
2015, I was asked why I believed the stack of insulation fell and I responded
that “… it was not stacked properly.” I was then asked “how do you know it
was not stacked properly?” My response was that “[i]n my opinion it seemed to
[sic] high and it was not stacked straight.” I formed this opinion after I
was injured.
2015, I was asked why I believed the stack of insulation fell and I responded
that “… it was not stacked properly.” I was then asked “how do you know it
was not stacked properly?” My response was that “[i]n my opinion it seemed to
[sic] high and it was not stacked straight.” I formed this opinion after I
was injured.
7. Prior to being injured, I did not believe the
stack of insulation would fall unless it was pushed or moved by someone.
stack of insulation would fall unless it was pushed or moved by someone.
8. I formed the opinion that the stack would not
fall, absent being pushed or moved, because it was stacked the same as stacks
of insulation that I encountered on my previous visits to MENARD and because I
am a professional who is highly experienced in working with and around building
materials.
fall, absent being pushed or moved, because it was stacked the same as stacks
of insulation that I encountered on my previous visits to MENARD and because I
am a professional who is highly experienced in working with and around building
materials.
9. While the stack of insulation was leaning and
did not appear to be stable, I perceived no obvious risk to my son or myself
because, as stated, I believed that the insulation could only fall over if, and
only if, someone were to push or move the tall stack of insulation.
did not appear to be stable, I perceived no obvious risk to my son or myself
because, as stated, I believed that the insulation could only fall over if, and
only if, someone were to push or move the tall stack of insulation.
10. I did not recognize any obvious risk to my
son or myself because I did not believe that insulation was potentially
dangerous as is.
son or myself because I did not believe that insulation was potentially
dangerous as is.
According to the
district court, plaintiff’s deposition testimony indicated that, contrary to
his affidavit, his opinion regarding the condition of the leaning stack “was
formed prior to when the stack fell on him as opposed to after.”
district court, plaintiff’s deposition testimony indicated that, contrary to
his affidavit, his opinion regarding the condition of the leaning stack “was
formed prior to when the stack fell on him as opposed to after.”
The district court’s
reasoning mirrors our analysis above: the fact that plaintiff monitored the
insulation for five minutes before attempting to load his van
and warned his son to be mindful of his surroundings serves as evidence that
plaintiff formed an opinion about the condition and risk of the leaning
stack prior to its collapse. Thus, the district court’s ruling
was reasonable. Therefore, the exclusion of paragraphs 6 through 10 was not
erroneous.
reasoning mirrors our analysis above: the fact that plaintiff monitored the
insulation for five minutes before attempting to load his van
and warned his son to be mindful of his surroundings serves as evidence that
plaintiff formed an opinion about the condition and risk of the leaning
stack prior to its collapse. Thus, the district court’s ruling
was reasonable. Therefore, the exclusion of paragraphs 6 through 10 was not
erroneous.
3. Paragraph 14
30Paragraph 14 of
plaintiff’s post-deposition affidavit states, “When the leaning stack fell on
me I was distracted from looking at it because I was focused on loading
insulation into the van.”
plaintiff’s post-deposition affidavit states, “When the leaning stack fell on
me I was distracted from looking at it because I was focused on loading
insulation into the van.”
The district court found
these paragraphs were directly contradicted by the following portion of
plaintiff’s deposition testimony:
these paragraphs were directly contradicted by the following portion of
plaintiff’s deposition testimony:
Q. Did you do anything to distract you prior to
your incident?
your incident?
A. No.
Here, the district
court’s decision was clearly reasonable, as plaintiff’s affidavit directly
contradicts his deposition testimony. The court’s exclusion of paragraph 14,
therefore, did not constitute an abuse of discretion.
court’s decision was clearly reasonable, as plaintiff’s affidavit directly
contradicts his deposition testimony. The court’s exclusion of paragraph 14,
therefore, did not constitute an abuse of discretion.
III. Conclusion
For the foregoing
reasons, we AFFIRM the judgment
of the district court.
reasons, we AFFIRM the judgment
of the district court.