JEFFREY COLE, United States Magistrate Judge.
Charlotte Beaumont fell as she entered the Chase Bank branch in Plainfield, Illinois, on January 29, 2008. She sued the
As always, the facts underlying this summary judgment proceeding are drawn from the parties' Local Rule 56.1 submissions. Local Rule 56.1 requires a party seeking summary judgment to include with its motion "a statement of material facts as to which the ... party contends there is no genuine issue and that entitle the ... party to a judgment as a matter of law." Local Rule 56.1(a)(3); Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 643 (7th Cir.2008). Each paragraph must refer to the "affidavits, parts of the record, and other supporting materials" that substantiate the asserted facts. Local Rule 56.1(a)(3); F.T.C. v. Bay Area Business Council, Inc., 423 F.3d 627, 633 (7th Cir. 2005). The party opposing summary judgment must then respond to the movant's statement of proposed material facts; that response must contain both "a response to each numbered paragraph in the moving party's statement," Local Rule 56.1(b)(3)(B), and a separate statement "consisting of short numbered paragraphs, of any additional facts that require the denial of summary judgment." Local Rule 56.1(b)(3)(C); Ciomber, 527 F.3d at 643. Again, each response, and each asserted fact, must be supported with a reference to the record. Local Rule 56.1(b)(3)(B); Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir.2009); Bay Area Business Council, Inc., 423 F.3d at 633.
If the moving party fails to comply with the rule, the motion can be denied without further consideration. Local Rule 56.1(a)(3); Smith v. Lamz, 321 F.3d 680, 682 n. 1 (7th Cir.2003). If the responding parting fails to comply, its additional facts may be ignored, and the properly supported facts asserted in the moving party's submission are deemed admitted. Local Rule 56.1(b)(3)(C); Montano v. City of Chicago, 535 F.3d 558, 569 (7th Cir.2008); Cracco, 559 F.3d at 632; Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir.2006). District courts are "`entitled to expect strict compliance'" with Rule 56.1 and do not abuse their discretion when they opt to disregard facts presented in a manner that does follow the rule's instructions. Cracco, 559 F.3d at 632; Ciomber, 527 F.3d at 643; Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809, 817 (7th Cir.2004). The court is not required to hunt for evidence
At her deposition, Ms. Beaumont testified that on the day of her fall, which occurred within 25 minutes of the Bank's 9:00 a.m. opening, the sidewalk outside the entrance of the Bank was wet, but there were no puddles or accumulations of water. (Plaintiff's Response to Defendant's Local Rule 56.1 Filing ("Pl. Rsp.") at 9; Plaintiff's Rule 56.1 Statement ("Pl. St."), ¶ 9). Ms. Beaumont "saw the sidewalk was wet...." (Pl. St., ¶ 6; Response at 6). She does not know of any other source of water or moisture that could have made the tile floor where she fell slippery except the wet sidewalk leading to the Bank. (Defendant's Local Rule 56.1 Statement ("Def. St."), ¶¶ 9, 22, 23; Pl. Rsp., ¶¶ 9, 22, 23). "Other people entering the ... Bank would have walked on the same wet sidewalk." (Def. St., ¶ 10; Pl. Rsp., ¶ 10). She estimated that she saw six to ten people already inside the Bank. (Def. St. ¶ 18; Pl. Rsp., ¶ 18). She did not see any water on the floor of the entryway as she went in; nor was there any debris. (Def. St. ¶ 12; Pl. Rsp., ¶ 12). Inside the entryway, there was a mat, but it did not go all the way to the door that led from the outside of the Bank into the vestibule leading to the interior door; there was a space of about three feet of bare tile between the mat and the doorway. (Def. St. ¶ 13; Pl. Rsp., ¶ 13). Ms. Beaumont never looked down at that area of bare floor or down at her feet as she entered the Bank. (Pl. Rsp. ¶¶ 13-14).
Plaintiff opened the door, took two steps inside and then fell on the portion of the floor that was not covered by the mat. (Def. St. ¶ 15-16; Pl. Rsp., ¶ 15-16). As she lost her footing, her body pivoted and she landed on her left elbow and shoulder. (Plaintiff's Dep., at 43-44). When asked what caused her fall, she said she "believe[d] that if the mat had been down [all the way to the door] [she] would not have fallen." (Plaintiff's Dep., at 47). The tile in front of the mat was wet, but there were no puddles. (Plaintiff's Dep., at 47-49). Her coat got damp—"a little bit moist"— from her fall. (Plaintiff's Dep., at 48).
Branch manager, Alexis Espino, "remembers the weather being somewhat clear" the morning of the accident. (Pl. St., ¶ 1); (Response at 2). Phillip Boch recalled that there was no snow or ice present on the day of the incident, and that there was no extreme weather. He did not recall whether it was raining that morning, but was certain there was no water on the floor when he inspected it after Ms. Beaumont's fall. (Pl. St., ¶ 2).
Personal banker, Larry Summers, testified that it was a pretty clear and cool day and he did not see any water, snow or ice on the vestibule floor after the plaintiff's
At the summary judgment stage, the facts must be viewed in the light most favorable to the nonmoving party only if there is a "genuine" dispute as to those facts. Fed. Rule Civ. Pro. 56(c); Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). Once the moving party has made a properly supported motion for summary judgment, "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (footnote omitted). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (Emphasis supplied).
The Bank argues that the "natural accumulation" rule applies in this case. Under this hoary principle of Illinois common law, a landowner or possessor of real property has no duty to remove natural accumulations of ice, snow, or water from its property. Krywin v. Chicago Transit Authority, 238 Ill.2d 215, 222, 345 Ill.Dec. 1, 938 N.E.2d 440, 445 (2010); Reed v. Galaxy Holdings, Inc., 394 Ill.App.3d 39, 43, 333 Ill.Dec. 213, 914 N.E.2d 632, 637-38 (1st Dist.2009). This includes "tracks or residue left by customers who have walked through natural accumulations of water, slush, or snow." Pytlewski v. United States, 991 F.Supp. 1043, 1047 (N.D.Ill. 1998) (collecting cases); Reed, supra. The doctrine is so deeply ingrained in Illinois common law that it applies even to common carriers, which owe their passengers the highest duty of care, including the duty to furnish them an opportunity to safely alight from the conveyance and reach a place of safety. Krywin, 238 Ill.2d at 233-35, 345 Ill.Dec. 1, 938 N.E.2d 440.
The evidence relied on by the plaintiff to show a genuine issue of material fact consists of her own testimony and that of several of the Bank's employees. In her Response to the Motion for Summary Judgment, Ms. Beaumont claims that the Bank employees "recall no water, snow, or ice being present." (Response, at 11). None of those employees saw the accident or could say what caused it; they came on the scene after Ms. Beaumont's fall.. They said nothing about the condition of the sidewalk leading to the Bank's entrance. Ms. Beaumont did. She testified that the weather on the day of the accident was cloudy and cold, but it had not rained or snowed that morning or for some days before, although she also insisted the sidewalk was wet. (See supra at 3; Response at 6-7). She was wearing gym shoes at the time she fell in the area between the inner and outer doors of the Bank—an area which she claimed was slippery. (Plaintiff's Dep., at 47-48).
In sum, the testimony of the Bank's employees and that of Ms. Beaumont is that no one saw water on the entryway floor, that the sidewalk outside the Bank was wet, and that Ms. Beaumont walked on that sidewalk before she entered the Bank, as did the several customers who were already in the Bank. But, as discussed below, this testimony does not begin to support an argument that there was an unnatural accumulation of water or moisture in the entryway to the Bank or that there exists a genuine issue of material fact on that issue. Quite the opposite. Some moisture would have been tracked in on the shoes of Ms. Beaumont and the Bank's other customers. Under all the cases, see supra at 5, natural accumulations include "tracks or residue left by customers who have walked through natural accumulations of water, slush, or snow." Pytlewski, 991 F.Supp. at 1047. See also infra at 11 et. seq.
But let us assume that Ms. Beaumont is correct in her assertion that the Bank's
The first "possibility" hypothesized by Ms. Beaumont is that "the moisture which Plaintiff slipped upon was condensation which formed on slippery tile." But she has offered no proof to support the theory, and, given the precise details of the conjecture offered in Ms. Beaumont's Response, testimony by a witness qualified to give testimony under Rule 702, Federal Rules of Evidence, would clearly be needed. The Response argues:
(Response, at 12) (Emphasis supplied) (Parenthesis in original).
This hypothesis is based entirely on the testimony of Richard Loos, the facility manager, who testified as to the location of the thermostat and the layout of the entryway. Mr. Loos testified at his deposition that he did not know how the air flowed into the vestibule. The Response contends that he later "seemed to testify" that the return air flow to the HVAC system from the vestibule was in the ceiling and that hot hair came into the vestibule from a vent. (Pl. St., ¶ 18). Assuming that Mr. Loos in fact testified this way and that he was competent to do so, see Rule 602, Federal Rules of Evidence, he was not shown to be competent about matters of condensation, and he was never asked to render an opinion that might have lent support to the plaintiff's theory, and he did not do so.
There is no testimony from anyone that condensation had previously formed on the floor under similar conditions or that it could have formed under the circumstances presented by this case. There is no evidence that it was a humid day. In fact, the undisputed testimony is that it was a clear, cool day. Plaintiff essentially concedes that she has no idea whether it was humid or even if condensation could have formed. (Response at 14). Moreover, whether condensation could have formed under the circumstances presented
In sum, Ms. Beaumont has failed to show that there is a genuine issue of material fact as to whether condensation even could have been a source of moisture on the tile floor, let alone that it was. The condensation theory is no better than a hopeful hypothesis, and "hypothesis is not proof ...." Lauth v. McCollum, 424 F.3d 631, 634 (7th Cir.2005). The Seventh Circuit "has long `reject[ed] the idea that speculation can be employed as a substitute for proof'" in any context, United States v. Landry, 257 F.2d 425, 431 (7th Cir.1958), In re Cohen, 507 F.3d 610, 614 (7th Cir.2007), and time and again has emphasized that when responding to a summary judgment motion it is not sufficient to advance a "hunch." Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008). Summary judgment is "put up or shut up" time. Goodman v. National Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). It "is not a dress rehearsal or practice run; ... a party must show what evidence it has that would convince a trier of fact to accept its version of the events." Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir.2005) (internal citations omitted).
In the specific context of cases involving the natural accumulation rule, courts have consistently held that "merely inviting speculation as to the cause of the [water/moisture] [is] insufficient to survive summary judgment." Ciciora v. CCAA, Inc., 581 F.3d 480, 483 (7th Cir.2009). Accord Judge-Zeit v. General Parking Corp., 376 Ill.App.3d 573, 584, 314 Ill.Dec. 922, 875 N.E.2d 1209, 1219 (1st Dist.2007) ("Mere speculation [that defendant was responsible for an unnatural accumulation] is not enough to create a genuine issue of material fact sufficient to survive a motion for summary judgment.").
The second "possibility" hypothesized by the Response is that someone spilled a drink on the tile of the entryway. (Response at 13). But the Response offers no testimony from any of the Bank's employees or from the plaintiff, herself, to support this theory. In fact, she never looked down at the floor as she entered the Bank. See supra at 4. That she slipped on a spill from a drink is simply tendentious speculation on her part, and that is insufficient to withstand summary judgment. Ciciora, 581 F.3d at 483; Judge-Zeit, 376 Ill.App.3d at 584, 314 Ill.Dec. 922, 875 N.E.2d at 1219.
Ms. Beaumont did not say she slipped or tripped on the mat or that the mat was in a state of disrepair. Rather, she claims that she slipped on water or moisture—or perhaps some unknown liquid—on the floor in front of the mat. But there was no proof of any unnatural accumulation of water, some other liquid, or of moisture. Although there is no duty to remove natural accumulations of water, ice or snow, a voluntary undertaking may subject a defendant to liability if it is performed negligently. Tzakis v. Dominick's Finer Foods, Inc., 356 Ill.App.3d 740, 746, 292 Ill.Dec. 551, 826 N.E.2d 987, 992 (1st Dist.2005). But the duty of care is limited to the extent of a defendant's undertaking. Roberson v. J.C. Penney Co., 251 Ill.App.3d 523, 527, 191 Ill.Dec. 119, 623 N.E.2d 364, 366 (3rd Dist.1993).
Under Illinois law, the question in this case is whether the placement of the mat aggravated the natural accumulation of water, and the plaintiff has the burden of proof on that issue. Roberson, 251 Ill. App.3d at 528, 191 Ill.Dec. 119, 623 N.E.2d at 367; Wilson v. Gorski's Food Fair, 196 Ill.App.3d 612, 615, 143 Ill.Dec. 477, 554 N.E.2d 412, 415 (1st Dist.1990). "Allowing saturated mats to remain in an entranceway does not by itself, however, transform the tracked in water into an unnatural accumulation nor suggest that defendant aggravated the water's natural accumulation." Reed, 394 Ill.App.3d at 44, 333 Ill.Dec. 213, 914 N.E.2d at 637. But, Ms. Beaumont does not contend that the mat was saturated or that it aggravated the accumulation of water. The argument is that the Bank should be liable for failing to have attended to the space between the threshold and the mat, and that a different placement might have prevented the fall. All the cases require rejection of that argument.
Lohan v. Walgreens Co., 140 Ill.App.3d 171, 175, 94 Ill.Dec. 680, 488 N.E.2d 679, 682 (1st Dist.1986) is instructive. In Lohan, the plaintiff sought recovery for injuries sustained when she slipped and fell on a puddle of water in the entranceway of the defendant's store. The plaintiff said that she could see that the mats in the entryway and the floor leading up to the mats in the entranceway were wet. 140 Ill.App.3d at 172-73, 94 Ill.Dec. 680, 488 N.E.2d at 680. When she entered the vestibule of the defendant's store, she fell, sustaining injuries as she stepped off a rubber mat and onto the wet bare tile. The appellate court upheld the trial court's grant of summary judgment for the defendant, holding that the defendant had no duty to put down additional mats to cover all wet spots on the floor, even though this had been its procedure in the past. 140 Ill.App.3d at 175, 94 Ill.Dec. 680, 488 N.E.2d at 682.
Similarly, the court in Reed rejected the argument that the defendant was liable for failing to position mats to cover bare sections of wet floor in its entryway. Like
In Roberson v. J.C. Penney Co., 251 Ill.App.3d 523, 526-527, 623 N.E.2d 364, 366 (3rd Dist.1993), the plaintiff slipped in a department store entryway where the defendant had positioned two mats, but had not covered all areas of bare, wet floor. Water had been tracked into the store from outside J.C. Penney's lower level entrance. Near the interior doors inside the store, J.C. Penney had placed two four foot by eight foot non-skid mats on the floor. When Roberson entered the store, she walked upon these mats. As she stepped off the mats and onto the floor, Roberson slipped and fell. J.C. Penney then placed a third mat in the vicinity of the other two mats. The plaintiff did not allege that the mats were defective in any way. The court upheld summary judgment for the defendant, explaining that the defendant's "duty extended only to maintaining with reasonable care the mats it installed." In this regard the court emphasized "the absence of any evidence that [defendant] failed to maintain the mats with reasonable care." 251 Ill. App.3d at 526-527, 191 Ill.Dec. 119, 623 N.E.2d at 366.
These cases necessarily compel rejection of the contention implicit in the contention that the non-decorative mat covering a portion of the tile floor three feet beyond the entry to the Bank created the "subconscious impression" in Ms. Beaumont's mind that the uncovered portion of the floor was safe. (Response at 2). Moreover, the contention is unsupported by any evidence. Since the "impression" described in the Response was a "subconscious" one, Ms. Beaumont obviously could not and did not testify about it. Nor has she adduced any supportive evidence from an expert of any kind. Finally, the argument is contrary to common experience and common sense.
Murray v. Bedell Co. of Chicago, 256 Ill.App. 247 (1st Dist.1930) decisively refutes Ms. Beaumont's speculative and unsupportable argument:
The Response contains a variation of the subconscious impression argument, which runs this way: in connection with the daycare business that she ran in her home, she used mats from the front door to the kitchen area in order to cover the ceramic tile flooring. Additionally, her experience in other commercial facilities was that foyer walkways were completely covered by mats. It was this personal experience, the Response posits, which caused Ms. Beaumont "either explicitly or subliminally [to] assume[ ] or th[ink] that there was a mat present where she was stepping." (Response at 7; Pl. St. at ¶ 12). The argument is a non-starter.
The Response makes no attempt to explain how Ms. Beaumont's prior experiences are a basis on which liability can be imposed on the Bank. Negligence deals with a defendant's conduct, not with a plaintiff's subconscious or subliminal impressions, stemming from her own unique experiences. Or, put another way, since "`[p]roof of negligence in the air, so to speak, will not do,'" Palsgraf v. Long Island R. Co., 248 N.Y. 339, 341, 162 N.E. 99 (1928) (Cardozo, C.J.), neither will proof in the abstract that the plaintiff misapprehended what should have been obvious to any reasonable person because of her unique, prior experiences and her unique reactions to them.
Thus, the question in this case remains whether there was an unnatural accumulation
Finally, there is the contention that § 343 of the Restatement (Second) of Torts, which sets forth the general principles of a business owner's duty toward its invitees and which has been adopted in Illinois, trumps the natural accumulation rule and requires denial of the motion for summary judgment. That argument is foreclosed by the Illinois Supreme Court's recent decision in Krywin v. Chicago Transit Authority, supra, in which the majority, in a 5 to 2 decision, rejected the argument that the natural accumulation rule "is inconsistent with the principles stated in section 343 because it dilutes the owner's duty and undermines basic principles of public responsibility." 238 Ill.2d at 241, 345 Ill.Dec. 1, 938 N.E.2d at 455. The majority refused to have Illinois join those states, including Alaska and Michigan, that had used § 343 of the Restatement as the basis for overruling the natural accumulation rule. That policy and interpretative question having been settled by Illinois' highest court, Ms. Beaumont's argument must be rejected.
The Response to the motion for summary judgment incorrectly insists that there is no evidence oft water or moisture tracked in by Ms. Beaumont and other Bank customers from the wet sidewalk leading to the Bank. Her alternative theories of how the accident occurred are unsupported by any evidence, are hopelessly speculative, and contrary to Illinois law and to common experience as well. Ms. Beaumont not having shown that there is a genuine issue of material fact, and the Bank being entitled to judgment as a matter of law, the Bank's Motion for Summary Judgment [# 19] is GRANTED.
