John Z. Lee, United States District Judge.
This case arises from injuries that Madison Gutterman ("Madison") suffered while riding a skateboard within a Target store in Vernon Hills, Illinois. Her parents, Donald and Jodi Gutterman ("Plaintiffs"), brought suit on her behalf against Target and Bravo Sports ("Bravo"), which manufactured and distributed the skateboard at issue. Target and Bravo have separately moved for summary judgment. For the reasons that follow, both motions [61] [73] are granted.
On May 26, 2013, Donald, Jodi, and Madison visited Target's store in Vernon Hills. Target's LR 56.1(a)(3) Stmt. ¶ 10, ECF No. 62. Madison, age eleven, was one month away from her twelfth birthday. Id. ¶ 14. While they were shopping, Madison asked Donald and Jodi if she could go off by herself to a different section of the store, and Donald and Jodi agreed. Id. ¶¶ 15-16.
Madison went to a section of the store where skateboards were on display. Id. ¶ 24. She took a skateboard off the shelf, placed it on the floor, and rode it down an aisle. Id. ¶ 27. The aisle was clean, clear, and dry, and there were no obstructions on the floor. Id. ¶ 29. Despite this, the parties agree that the floor was hard, slick, and unfit for skateboarding. See Pls.' LR 56.1(b)(3)(C) Stmt. (Target) ¶ 76, ECF No. 89. After riding the skateboard for a short period of time, Madison fell off and sustained injuries that spurred the action before
The skateboard at issue was manufactured and distributed to Target by Bravo. Pls.' LR 56.1(b)(3)(C) Stmt. (Target) ¶ 72. Bravo placed "deterrent devices" on all skateboards it distributed to Target, including those that arrived at the Vernon Hills store prior to May 26, 2013. Id. ¶¶ 73, 75. "Truck boxes" are the only deterrent device Bravo used with the type of skateboard at issue. Id. ¶ 75. A truck box is "a cardboard box that covers the rear axle and wheels of the skateboard." Target's LR 56.1(a)(3) Stmt. ¶ 39. The box is affixed to the skateboard with hot glue or packaging tape. Id. ¶ 41. It can be removed quickly and easily by simply pulling it off. Id. ¶ 42. The purpose of the box is twofold: to protect the skateboard from damage presale, and to protect customers by deterring them from riding skateboards in stores. See id. ¶ 40. Here, however, the parties agree that no truck box was affixed to the skateboard at issue when Madison rode it and that the truck box thus must have been removed at some point prior. Id. ¶ 55; Pls.' LR 56.1(b)(3)(C) Stmt. (Bravo) ¶ 57, ECF No. 91.
Additionally, at the time Madison rode the skateboard, its surface was covered in plainly visible plastic shrink wrap meant to protect the board's surface during manufacturing and distribution. Target's LR 56.1(a)(3) Stmt. ¶¶ 43, 45; id., Ex. G, ECF No. 62-8. The plastic wrap covers "grip tape" that provides traction on the board's surface; thus, the board is unsuitable for riding before the wrap is removed. Id. ¶ 45. The parties agree that the fact that the board's surface remained wrapped contributed to Madison's fall. Pls.' LR 56.1(b)(3)(C) Stmt. (Target) ¶ 76. Bravo placed a warning sticker on top of the plastic wrap that reads as follows: "WARNING! Reduce the risk of serious injury and only use this skateboard while wearing full protective gear—Helmet, Knee Pads, Elbow Pads, Wrist Guards, and Flat Soled Shoes[.] Max Rider Weight 110 lbs[.]" Target's LR 56.1(a)(3) Stmt. ¶¶ 46-47, 49.
Madison had experience riding skateboards; "she knew how to ride the skateboard she took off the shelf in the store that day, and there was nothing new, different, or unusual about this skateboard as compared to other skateboards she had previously ridden." Target's LR 56.1(a)(3) Stmt. ¶ 30. At a more basic level, she knew "that a skateboard has wheels, that it rolls on those wheels, that she could fall off of it, and that if she were to fall off of it, she could get hurt." Id. ¶ 33. Moreover, while the parties dispute the precise guidance Donald and Jodi had given her about using skateboards in a store, riding with flip flops, and riding without protective gear, there is no dispute that they generally advised her against these activities. Target's LR 56.1(a)(3) Stmt. ¶¶ 17-18; id., Ex. B, at 38:20-40:1, ECF No. 62-3; id., Ex. C, at 20:17-21:7, 25:2-14, ECF No. 62-4; Bravo's LR 56.1(a)(3) Stmt. ¶¶ 13-15, ECF No. 75; Target's Resp. Pls.' LR 56.1(b)(3)(C) Stmt. ¶ 110.
"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); see also Shell v. Smith, 789 F.3d 715, 717 (7th Cir. 2015). To survive summary judgment, the nonmoving party must "do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and instead must "establish some genuine issue for trial such that a reasonable jury could return a verdict in her favor." Gordon v. FedEx Freight, Inc., 674 F.3d 769, 772-73 (7th Cir. 2012). In reviewing a motion for summary judgment, courts "must construe all facts and reasonable inferences in favor of the nonmoving party." Dorsey, 507 F.3d at 627. But "[i]nferences that are supported by only speculation or conjecture will not defeat a summary judgment motion." Id. (quoting McDonald v. Vill. of Winnetka, 371 F.3d 992, 1001 (7th Cir. 2004)) (internal quotation marks omitted).
Plaintiffs first seek to recover against Target on theories of common law negligence and violation of the Illinois Premises Liability Act. Target has moved for summary judgment on the grounds that the skateboard by which Madison suffered her injuries was an open and obvious danger, and that Target owed Madison no duty of care.
In this diversity action, the Court applies Illinois law. Lane v. Hardee's Food Sys., Inc., 184 F.3d 705, 707 (7th Cir. 1999). To succeed in a claim of negligence, "the plaintiff must plead and prove the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and injury proximately resulting from the breach." Bruns v. City of Centralia, 386 Ill.Dec. 765, 21 N.E.3d 684, 688-89 (2014). The existence of a duty is a question of law. Id., 386 Ill.Dec. 765, 21 N.E.3d at 689.
The "open and obvious rule" is a common law construct that mitigates a party's duty to protect another from a potentially dangerous, yet open and obvious, condition. Id. The open and obvious rule applies in both negligence and premises liability actions. Id., 386 Ill.Dec. 765, 21 N.E.3d at 689-90; Ward, 143 Ill.Dec. 288, 554 N.E.2d at 229-30. "`Obvious' 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 (1965)). "Whether a dangerous condition is open and obvious may present a question of fact," but if there is no dispute as to the "physical nature" of a condition, as is the case here, whether it is open or obvious is a question of law. Id.
Importantly, a finding that a condition is open and obvious does not of itself preclude the existence of a duty. Bruns, 386 Ill.Dec. 765, 21 N.E.3d at 690. Rather, in carrying out a traditional duty analysis, courts use the open and obvious rule in evaluating the first two factors of the duty inquiry: the foreseeability and likelihood of injury. Id. In regard to foreseeability, the open and obvious nature of a condition reduces the reasonable foreseeability of injury, because it is reasonable for a defendant to expect that a plaintiff will avoid an open and obvious danger. Id., 386 Ill.Dec. 765, 21 N.E.3d at 694. Similarly, the likelihood that a plaintiff will avoid an open and obvious danger reduces the likelihood of injury under the second factor. Id., 386 Ill.Dec. 765, 21 N.E.3d at 695. After incorporating the open and obvious rule in this manner, courts proceed as usual to consider the magnitude and consequences of placing a burden on the defendant. Id.
The open and obvious rule applies just the same when children are involved. Corcoran v. Vill. of Libertyville, 73 Ill.2d 316, 22 Ill.Dec. 701, 383 N.E.2d 177, 180 (1978) (stating that "[e]ven if an owner or occupier knows that children frequent his premises, he is not required to protect against the ever-present possibility that children will injure themselves on obvious or common conditions"). As the Supreme Court of Illinois has explained, "`[i]t is always unfortunate when a child gets injured while playing, but a person who is merely in possession and control of the property cannot be required to indemnify against every
Illinois courts have had various opportunities to determine whether particular conditions are analogous to fire, water, and heights such that they are openly and obviously dangerous. While no Illinois court (or, by the Court's research, any court) has reached the issue of whether riding a skateboard in circumstances similar to this case constitutes an openly and obviously dangerous condition, two applications of the open and obvious rule provide some guidance. The first involves recreational trampolines, which Illinois courts have invariably determined are an openly and obviously dangerous condition when children jump on them. Qureshi, 334 Ill.Dec. 265, 916 N.E.2d at 1158 (collecting cases). The cases highlight the risk of falling from a height that trampolines present. Id. Similarly, Illinois courts also recognize that "even a child is expected to comprehend the danger of falling from a slide." Coleman v. Ramada Hotel Operating Co., 933 F.2d 470, 474 (7th Cir. 1991) (citing Alop by Alop v. Edgewood Valley Cmty. Ass'n, 154 Ill.App.3d 482, 107 Ill.Dec. 355, 507 N.E.2d 19, 21-23 (1987)); see Young by Young v. Chi. Hous. Auth., 162 Ill.App.3d 53, 113 Ill.Dec. 794, 515 N.E.2d 779, 782 (1987) ("A 5-year-old child knows that if he or she falls from a height onto concrete while, e.g., playing on monkey bars, he or she probably will get hurt."); see also Wreglesworth ex rel. Wreglesworth v. Arctco, Inc., 317 Ill.App.3d 628, 251 Ill.Dec. 363, 740 N.E.2d 444, 451 (2000) (concluding that colliding with a pier presented an open and obvious danger to a minor riding a jet ski).
Here, riding a skateboard in a Target store presents an open and obvious danger little different from the facts in the above cases. A reasonable near-twelve-year-old in Madison's position would recognize, just as Madison admittedly did, that a skateboard is a precarious device that rolls on wheels and invites the user to fall. Target's Rule 56.1(a)(3) Stmt. ¶¶ 30, 33; see Williams v. Toys "R" Us, 138 Fed.Appx. 798, 801 (6th Cir. 2005) (internal citation omitted) ("`A skateboard is an object of considerable size. These devices are ubiquitous, and their propensity to roll easily under the weight of a human body is patent.'. . . [A]n ordinary person would be aware that stepping onto [a] skateboard could cause that person to slip and fall."). The height of such a fall may be less than that from a trampoline, but the speed of a skateboard's movement presents its own, additional hazard. Thus, there is no reason why jumping on a trampoline or using playground equipment can constitute an openly and obviously dangerous condition, while using a skateboard would not.
The particular circumstances of this case only buttress this conclusion. Madison rode the skateboard while wearing flip flops, Pls.' LR 56.1(b)(3)(C) Stmt. (Target) ¶ 44, which a reasonable near-twelve-year-old would know provide inferior support while
For the foregoing reasons, the Court concludes that the dangers presented by riding the skateboard in the circumstances that existed here would be open and obvious to a reasonable near-twelve-year-old in Madison's position at the time of the accident.
This leaves only the magnitude of the burden that placing a duty on Target in this case would create and the consequences of imposing such a burden. The magnitude of a burden reflects financial considerations relative to the specific condition at issue, whereas the consequences of a burden reflect broader, systemic concerns. See Bruns, 386 Ill.Dec. 765, 21 N.E.3d at 695; Bucheleres v. Chi. Park Dist., 171 Ill.2d 435, 216 Ill.Dec. 568, 665 N.E.2d 826, 836-37 (1996). Here, requiring Target to prevent accidents like this from happening would likely entail significant
On balance, the Court concludes that these factors weigh in favor of not imposing a duty of care upon Target in this case. Thus, Plaintiffs cannot make out their prima facie case under their theories of negligence or premises liability, and summary judgment for Target is granted.
As against Bravo, Plaintiffs seek to recover under theories of negligence and strict products liability. In support of their negligence theory, Plaintiffs assert that the skateboard was defectively designed because Bravo should have equipped it with a better deterrent device. Pls.' Resp. (Bravo) at 5. Their theory appears to be that, because the truck box on Bravo's skateboards can be so easily removed, Bravo's skateboards can be too easily ridden in retail stores, making them unreasonably dangerous.
Under Illinois law, a plaintiff can bring a claim that a product is defectively designed through causes of action in both negligence and strict products liability. Blue v. Envtl. Eng'g, Inc., 215 Ill.2d 78, 293 Ill.Dec. 630, 828 N.E.2d 1128, 1141 (2005) (plurality opinion). A negligence-based theory focuses on the defendant's conduct, whereas a strict products liability-based theory focuses on the product at issue. Id. To prove a product is defectively designed under a negligence theory, the same common law framework applies as outside the products liability context. Calles v. Scripto-Tokai Corp., 224 Ill.2d 247, 309 Ill.Dec. 383, 864 N.E.2d 249, 270 (2007). Thus, a plaintiff must prove that (1) the defendant owed a duty to the plaintiff; (2) the defendant breached that duty; (3) the breach proximately caused the plaintiff's injury; and (4) the plaintiff suffered damages. Id. (citing Ward, 143 Ill.Dec. 288, 554 N.E.2d at 226). Moreover, "[t]he crucial question in a negligent-design case is whether the manufacturer exercised reasonable care in the design of the product." Id.
Bravo, like Target, argues that it is entitled to summary judgment on Plaintiffs' negligence claim because of the open and obvious rule. In defective design claims premised on negligence, the open and obvious rule applies in much the same fashion as described above. Just as with a
Here, the danger presented by the skateboard's purported design defect— that the truck box could be removed and the skateboard used in a store—appears to be no different than the danger presented by the skateboard itself. Accordingly, for the same reasons as discussed above, the Court concludes that the skateboard's purported design defect presents an openly and obviously dangerous condition. On that basis, Madison's injury resulting from the purported defect was not reasonably foreseeable, because it was reasonable for Bravo to expect that she would not have ridden the skateboard in the Target store. Similarly, because the open and obvious nature of the danger made it likely Madison would avoid the injuries she suffered, her injuries were not likely to occur for the purposes of this analysis.
Moreover, the magnitude of the burden and consequences of imposing a burden on Bravo in this case would be significant. Bravo would not only have to conduct research to determine an appropriate deterrent device that is impenetrable within a retail store, but would have to outfit all of its skateboards with that device, no doubt at great expense. Granted, Bravo has other deterrent devices at its disposal, but Plaintiffs have not indicated that substituting one of these devices would remedy incidents like that involving Madison in a cost-effective manner. In addition to implementing a new deterrent device, Bravo would then need to monitor the effectiveness of its device in retail stores across the country to guard against its circumvention. This imposition is unjustifiable given the open and obvious danger of riding a skateboard in a retail store.
For these reasons, the Court finds that Bravo did not owe Madison a duty of care and therefore grants Bravo summary judgment on Plaintiffs' negligent-design claim.
Plaintiffs' strict products liability claim is premised on the notion that (1) Bravo failed to warn of the danger its use presented, and (2) the skateboard at issue had two design defects: an inadequate deterrent device and plastic wrapping. Pls.' Resp. (Bravo) at 9-10.
Little need be said about Plaintiffs' failure to warn theory. To succeed under a failure to warn theory, Plaintiffs would need to show that Bravo's skateboard "possesses dangerous propensities and there is unequal knowledge with respect to the risk of harm," and that Bravo, "possessed of such knowledge, knows or should know that harm may occur absent a warning." Sollami v. Eaton, 201 Ill.2d 1, 265 Ill.Dec. 177, 772 N.E.2d 215, 219 (2002). The problem facing Plaintiffs in making this showing, however, is that "[n]o duty to warn exists where the danger is apparent or open and obvious." Id. And as explained above, the risks presented by Bravo's skateboard were open and obvious. Plaintiffs' failure to warn theory therefore fails.
Plaintiffs' design defect theory requires lengthier consideration. To prove a strict products liability claim based on a design defect, a plaintiff must demonstrate that the product's design renders it unreasonably dangerous. Calles, 309 Ill.Dec. 383, 864 N.E.2d at 254. To determine whether a product is unreasonably dangerous, Illinois courts apply both the consumer-expectation test and the risk-utility test. Id., 309 Ill.Dec. 383, 864 N.E.2d at 255. The consumer-expectation test asks whether a
The risk-utility test requires that a plaintiff "demonstrate[] that the magnitude of the danger outweighs the utility of the product, as designed." Calles, 309 Ill.Dec. 383, 864 N.E.2d at 257. In weighing risk versus utility, Illinois courts look to a wide variety of factors, which include "the magnitude and probability of the foreseeable risks of harm; the instructions and warnings accompanying the product; the nature and strength of consumer expectations regarding the product, including expectations arising from product portrayal and marketing; the likely effects of any alternative designs on production costs; and conformity with industry standards, voluntary organization guidelines, and government regulation." Ferraro v. Hewlett-Packard Co., 721 F.3d 842, 846 (7th Cir. 2013) (citing Mikolajczyk, 327 Ill.Dec. 1, 901 N.E.2d at 335). On summary judgment, "the court must balance factors it finds relevant to determine if the case is a proper one to submit to the jury." Calles, 309 Ill.Dec. 383, 864 N.E.2d at 261 (citing Restatement (Third) of Torts: Products Liability § 2, Reporters' Notes, cmt. e (1988)). Then, if the case is submitted to the jury, the jury must determine what factors are relevant and what weight to give them. Id.; Salerno v. Innovative Surveillance Tech., Inc., 402 Ill.App.3d 490, 342 Ill.Dec. 210, 932 N.E.2d 101, 109 (2010).
Where the consumer-expectation and risk-utility tests produce different results, the risk-utility test prevails. Mikolajczyk, 327 Ill.Dec. 1, 901 N.E.2d at 352; see also Ferraro, 721 F.3d at 846. In such cases, it is more helpful to consider the tests in an integrated manner, with consumer expectations serving as one factor to weigh in the risk-utility calculus. See Mikolajczyk, 327 Ill.Dec. 1, 901 N.E.2d at 352-53. Moreover, while an open and obvious danger automatically obviates any duty to warn, not so where a design defect is concerned. Calles, 309 Ill.Dec. 383, 864 N.E.2d at 259-60. Rather, whether a design defect presents an open and obvious danger is just one additional factor to consider among the myriad others in the risk-utility calculus.
Plaintiffs' first asserted design defect is the skateboard's truck box. In support of their argument that this feature rendered the skateboard unreasonably dangerous, Plaintiffs point only to the reason they think the truck box renders the skateboard defective: it is too easily removed, permitting individuals in Madison's position to take it off and ride the skateboard. Plaintiffs offer no evidence as to the expectations of ordinary consumers, nor do they argue that the risk presented by the truck box outweighs its utility relative to other potential deterrent devices. Because Plaintiffs have offered no meaningful argument in line with either test for determining liability for a design defect, Bravo is entitled to summary judgment. Winters v. Fru-Con Inc., 498 F.3d 734, 744-45 (7th Cir. 2007) (affirming award of summary judgment on design defect claim where plaintiff did not offer any evidence of consumer expectations or comparative analysis of alternative designs); see also Assaf v. Cottrell, Inc., No. 10 C 85, 2012 WL 4177274, at *3 (N.D. Ill. Sept. 19, 2012).
In any case, Plaintiffs could not establish a design defect regarding the skateboard and its truck box under either test, making their claim unfit to submit to a jury. Plaintiffs have offered no evidence from which a reasonable jury could find that the skateboard or the truck box did not function as an ordinary consumer would expect. Even if the truck box can be easily circumvented, an ordinary consumer would expect that riding a skateboard in a retail store would create a risk of falling down from its use. Thus, Plaintiffs cannot succeed under the consumer expectation test.
Under the risk-utility test, the open and obvious nature of the skateboard's purported defect again weighs in Bravo's favor. It also reduces the magnitude and possibility of harm, as explained above, pointing another factor in Bravo's favor. The parties acknowledge that the skateboard was equipped with a warning accessible to a reader in Madison's position that cautioned against use without proper protective wear. Finally, there is no evidence in the record from which the Court can evaluate the cost and utility of alternative designs for equipping Bravo's skateboards with deterrent devices, nor is there any indication that Bravo did not comply with industry standards, voluntary organization guidelines, or government regulations. On balance, therefore, the relevant factors under the risk-utility test weigh entirely in Bravo's favor regarding the skateboard's truck box, and Plaintiff's claim is unfit to submit to a jury.
Plaintiffs' argument that the skateboard's plastic wrap is a design defect fares no better. The plastic wrap is a design defect, Plaintiffs explain, because it covers the skateboard's grip tape, rendering the skateboard unsafe to ride with the wrap in place. Of course, this purported defect is in some tension with Plaintiff's initial position. Plaintiffs initially maintain that the skateboard is defective because the truck box fails to prevent it from being ridden in retail stores, while their second theory assumes such riding should occur and must therefore be made safer. This is an odd position for Plaintiffs to take.
Nevertheless, as Plaintiffs point out, "[a] strict product liability action may be based on an injury resulting from defective packaging." Pls.' Resp. (Bravo) at 9 (citing Perez v. Fid. Container Corp., 289 Ill.App.3d 924, 225 Ill.Dec. 73, 682 N.E.2d 1150, 1153 (1997)). But Perez does not deal with a case where a product user failed to remove obvious packaging material prior
For these reasons, the Court concludes that no reasonable jury could find that Bravo's skateboard suffered from a design defect and the Court therefore grants summary judgment to Bravo on Plaintiffs' strict products liability claim.
For the foregoing reasons, Target's motion for summary judgment [61] and Bravo's motion for summary judgment [73] are granted. Civil case terminated.
