JEFFREY COLE, District Judge.
The plaintiff has filed a Motion for Reconsideration under Fed.R.Civ.P. 59(e) of the court's Memorandum Opinion and Order ("Opinion") granting Menards' Motion for Summary Judgment. [Dkt. #72]. See McCarty v. Menards, ___ F.Supp.3d ___, 2018 WL 3751843 (N.D.Ill. 2018). The Motion misapprehends the limited purpose of motions for reconsideration, the function of Local Rule 56.1, and the reasons summary judgment was granted in this case. And, as we discuss infra, it also puts out of view the obligations and responsibilities the movant has in cases such as this.
While motions for reconsideration can serve a valuable function by helping, under appropriate circumstances, to ensure judicial accuracy, Seymour v. Hug, 413 F.Supp.2d 910, 934 (N.D.Ill.2005), motions for reconsideration are generally disfavored. Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1191 (7th Cir.1990); Roane v. Gonzales, 832 F.Supp.2d 61, 64 (D.D.C. 2011); Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 4478 (2nd ed. 2002). And for good reason. The power to reconsider a prior decision is to be exercised only in the rarest of circumstances and only where there is a compelling reason—for example, a change in, or clarification of, law that makes clear that the earlier ruling was erroneous, Solis v. Current Development Corp., 557 F.3d 772, 780 (7th Cir.2009); Santamarina v. Sears, Roebuck & Co., 466 F.3d 570, 571-72 (7th Cir.2006), or where the court made a significant mistake. United States v. Ligas, 549 F.3d 497, 501 (7th Cir.2008). It is not a mechanism that allows a party to revisit strategic decisions that prove to be improvident, to make arguments that could and should have been made in prior briefing, to express mere disagreement with a decision of the court, or to reprise or "rehash" arguments that were rejected. Goplin v. WeCONNECT, Inc., 893 F.3d 488 (7
Not surprisingly, a motion for reconsideration under Rule 59(e), like any motion for reconsideration, also serves a limited function. It must be based on a manifest error of law or fact or on newly discovered evidence. Lightspeed Media Corp. v. Smith, 830 F.3d 500, 505-06 (7th Cir. 2016); Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 954 (7th Cir. 2013); Blue v. Hartford Life & Accident Ins. Co., 698 F.3d 587, 598 (7th Cir.2012). It is not an opportunity "to advance arguments or theories that could and should have been made before the district court rendered its judgment." Miller v. Safeco Ins. Co. of America, 683 F.3d 805, 813 (7th Cir. 2012). See also Cehovic-Dixneuf v. Wong, 895 F.3d 927, 932 (7th Cir. 2018); Winfield v. Dorethy, 871 F.3d 555, 559 (7th Cir. 2017).
Nonetheless, motions for reconsideration continue to be routinely filed, prompting the Seventh Circuit to remind the Bar that "in a passage quoted by other courts literally hundreds of times, as the late Judge Shadur wrote thirty years ago `[a] court's opinions are not intended as mere first drafts, subject to revision and reconsideration at a litigant's pleasure.'" Cehovic-Dixneuf v. Wong, 895 F.3d 927, 932 (7th Cir. 2018). Significantly and tellingly, nowhere in the plaintiff's 12-page brief is there a mention of the phrase "manifest error of law" or any reference to "newly discovered evidence." There is merely the insistence that the court got it all wrong, and that the grant of summary judgment to Menards was a serious mistake. As we show below, the motion for reconsideration is, at bottom, nothing more than an improper cry for a "do-over." Hall v. Village of Flossmoor, Ill., 520 Fed.Appx. 468 (7
The plaintiff's first objection to the summary judgment Opinion has to do with his admitted failures to follow Local Rule 56.1. As discussed at length in the Summary Judgment Opinion, plaintiff's initial Local Rule 56.1 submission glaringly and admittedly violated the Rule. It was a rambling, thirty-page document that did not directly or simply respond to the defendant's straightforward, eight-page Statement of Uncontested Facts. The plaintiff's response did not include the defendant's factual assertions — which is customary but not required, Local Rule 56.1(b)(3)(a) — meaning the quite excessive length of the Response by comparison to the defendant's straightforward Factual Statement was entirely the plaintiff's handiwork.
To be sure, perhaps one could parse any individual paragraph in isolation and pick out a pertinent fact. But for a party, in essence, to demand that the court do this over thirty pages of a rambling response to a Statement of Material Fact subverts the very purpose of the Local Rule, which, as discussed at length in the Opinion, is to insure that judges need not sift through the record hunting for facts on a party's behalf, like a pig hunting for truffles. United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991); Friend v. Valley View Cmty. Unit Sch. Dist. 365U, 789 F.3d 707, 711 (7th Cir. 2015). All the plaintiff's tactic did is make it more difficult for the court to rule in anyone's favor, let alone the plaintiff's. See Dal Pozzo v. Basic Mach. Co., 463 F.3d 609, 613 (7th Cir. 2006)("An advocate's job is to make it easy for the court to rule in his client's favor. . . ."). When the asserted fact is, "it was noon," a primer on how clocks work is not a concise or proper response.
Of course, the court could have simply deemed all of the defendant's factual assertions in his noncompliant response to Menards' Statement of Facts admitted. See, e.g., v. Aramark Unif. Servs., Inc., 368 F.3d 809, 817-18 (7th Cir. 2004); Cichon v. Exelon Generation Co., 401 F.3d 803, 809 (7th Cir. 2005). Courts are entitled to expect strict compliance with the Local Rule regarding summary judgment. Thornton v. M7 Aerospace LP, 796 F.3d 757, 769 (7th Cir. 2015); Yancick v. Hanna Steel Corp., 653 F.3d 532, 537 (7th Cir.2011); Schmidt v. Eagle Waste & Recycling, Inc., 599 F.3d 626, 630 (7th Cir.2010).
The Opinion provided a handful of examples of admitted Rule violations by the plaintiff; but, contrary to the contentions in the Motion for Reconsideration, allowing his counsel as a matter of the court's discretion to file a document that in essence sought to correct the pervasive mistakes in plaintiff's original filing did not somehow sanitize the original violations. (Transcript of hearing of 5/30/18). The discretionary decision to allow, over Menards' strenuous objection, the filing of a Rule-compliant response to Menards' Local Rule 56 statement did not mean the balance of the seriously flawed initial submission was fine. [Dkt. #74, at 2]. Indeed, even "[s]ubstantial compliance is not strict compliance." Ammons, 368 F.3d at 817. To accept the plaintiff's present contention would have required the court to have picked among a long series of admittedly noncompliant factual submissions and to decide on its own which, if any, were compliant with the Local Rule. But that would have impermissibly required the court to become in effect a lawyer in the case, and thus would be contrary to the adversary nature of our system of justice. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 596 (1993); United States v. Williams, 892 F.3d 242, 247 (7
Local rules like Local Rule 56 serve an important purpose in ensuring that the adversary system functions as it should. Herman v. City of Chicago, 870 F.2d 400, 404 (7th Cir.1989). A court does a disservice to the system, and to one party when it assists the other party in the presentation of its case. Even if a judge were to endeavor to assist both sides, it could never do so equally, and some unfairness would result. Judge Kleinfeld has put the matter in proper perspective:
Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1031 (9
At the hearing on the Motion on May 30, 2018, Menards objected to the plaintiff's request to excuse "strict compliance with Rule 56" and his request that he be allowed to file a Rule-compliant factual statement.
8). And that is what he was allowed to do with a new filing. It bears repeating that the court never intended that not only could plaintiff's counsel file a Rule-compliant Statement of Facts, but that, in addition, that which was admittedly not done in accordance with the Local Rule would also now be deemed proper and that the initial document would be considered as though it were Rule-compliant. Meaning, of course, is determined by context, Hawks v. Hammill, 288 U.S. 52, 57 (1933)(Cardozo, J,); (7
The plaintiff's argument overlooks the normal meaning to the word "supplement." A "supplement" is "[s]omething added to complete a thing, make up for a deficiency" or "`[a] section added to a ... document to give further information or to correct errors.' The American Heritage Dictionary of the English Language, 1292 (1981)." In re Olde Prairie Block Owner, LLC, 2010 WL 5141354, at *3 (Bankr. N.D. Ill. 2010)(Emphasis supplied). Accord DCK TTEC, LLC v. Postel Indus., Inc., 602 F. App'x 895, 897 (3rd Cir. 2015)(supplementation is required to correct statements or disclosures when the information that has been provided by a litigant proves to be incomplete or incorrect); WPS Inc. v. Am.Honda Motor Co. Inc., 2017 WL 4216159, at *2 (D.S.C. 2017). Supplementation under the Federal Rules of Civil Procedure generally means correcting inaccuracies. Mullin v. Hyatt Residential Grp., Inc., 2015 WL 1502379, at *3 (D. Colo. 2015).
It was in the sense of correcting admittedly manifest and pervasive errors in the plaintiff's summary judgment submission that the plaintiff was given permission to "supplement" his initial faulty filing. Indeed, it bears repeating that the plaintiff's own motion "recognized [plaintiff's counsel's errors]" and asked "for permission to correct those errors." [Dkt. #65 at ¶ 5](emphasis supplied). No one could have legitimately thought that the use of the word "supplement" required the court to go back and scour the admittedly improper initial submission to see whether any part of it was Rule-compliant. The purpose of allowing the additional filing was to allow for the correction of errors in an admittedly rule-deviant document, not to force a review to see what, if anything, could be salvaged from the admittedly faulty first document. That would be foolish and self-defeating — apart from improperly giving the plaintiff two bites of the apple.
The plaintiff's semantic argument carefully puts out of view the basic truth that words derive their meaning from the context in which they are used. Livingston v. Trustguard Ins., 558 F. App'x 681, 683 (7th Cir. 2014). Or, as Justice Holmes put it: "A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used." Towne v. Eisner, 245 U.S. 418, 425 (1918).
That the plaintiff's pervasive, noncompliance with the Local Rule did not end with paragraphs 8-10, 11-12, and 54 of the initial Statement of Uncontested Fact, is shown by the following:
The initial sentence of the plaintiff's response is compliant with the Local Rule; the balance is not as is evidenced by even a casual reading of the contents, which is preceded by the words "admit with supplement." (Emphasis supplied). Other paragraphs were equally flawed. For example:
This is a three-paragraph response to a simple statement, and only the first sentence — or perhaps the first two — actually addresses the statement.
Downstocking involves the use of a fork lift to replenish a pile of boards that is low. The sign in front of the pile is first moved out of the way by the driver who then using the fork lift removes the low pile of boards, placing them aside. The fork lift driver then obtains a larger pile of boards of the same size and places them in the vacated spot. The driver then using the fork lift retrieves the smaller pile of boards that had been placed aside and now places them on top of the new, larger pile of boards. The sign is then to be replaced where it originally was. (Ex. F, pgs. 78-79)." [Dkt. #62, ¶47].
As already indicated, there are 30 pages of this.
While it is perhaps true, as plaintiff now says, that, among those 30 rambling pages, there are a number of shorter 2- or 3-sentence responses, even many of them are not compliant with the Rule. For example, when the defendant, correctly, states that Mr. McCarty testified that he does not know who pulled out the sign [Dkt. #55, ¶ 44], plaintiff neither admits nor denies unequivocally that fact, although whether he did or he didn't so testify is an undeniable fact. Rather, as was done throughout, he "admit[s] with supplement," (emphasis supplied), and then summarizes the testimony of one of the store employees regarding how he conjectured the sign might have been left askew. [Dkt. #62, ¶ 44]. But this defeats the very purpose of Local Rule 56.
This sort of equivocal approach to a simple statement of facts is not what the Local Rule contemplates or allows. It is certainly unhelpful to the achievement of the clarity that is the desideratum of the Rule. Mr. McCarty should have either admitted he didn't know how the sign got out of place or said he did. Local Rule 56.1 makes no allowance for anything like the plaintiff's most common qualified response, "admit with supplement." The plaintiff's strategy in this case defeats the very purpose of the Rule and confuses rather than simplifies. When the asserted fact is, "it was 12:00 p.m.," a primer on how clocks work is not a concise — or proper — response.
The preceding additional examples and commentary demonstrate that plaintiff's extensive misapprehensions and violations of Local Rule 56.1, which ultimately set the stage for the granting of defendant's summary judgment.
From the discussion of his admitted failure to follow Local Rule 56.1, the plaintiff moves on to what he claims are 20 supposed factual errors in the Opinion. [Dkt. #74, at 2-6].
It must be emphasized that summary judgment was not granted to Menards because of the plaintiff's extensive violations of Local Rule 56. And, nowhere does the plaintiff, although referring to his initial response to the defendant's Statement of Uncontested Facts, point out what alleged fact or paragraph in that document would, if considered by the court, have made improper the grant of summary judgment to Menards. Instead, there is simply a blanket referral to plaintiff's initial, noncompliant, rambling, supposed response to Menards' Statement of Facts. But, that is not enough to show that manifest error — indeed any error — was committed by the court in ruling on Menards' Motion for Summary Judgment. In other words, even if a line-by-line review of the plaintiff's second submission had not been undertaken, reconsideration would still be improper.
It cannot be too strongly stressed that the plaintiff's Motion for Reconsideration has not even attempted to show that one or more statements in the extensive, admittedly improper response to the defendant's Statement of Uncontested Facts made or might have made improper the grant of summary judgment to Menards. That omission is all the more significant given that the burden is on the plaintiff as the party claiming error to show some prejudice. Puckett v. United States, 556 U.S. 129, 141 (2009). Absent a showing of prejudice, reversal is improper. McNary v. Lemke, 708 F.3d 905, 921 (7th Cir. 2013). Here, the plaintiff's counsel has done nothing to show that his client has in fact been affected by the court's claimed non-consideration of the admittedly improper and discursive response to the defendant's Statement of Uncontested Fact. There is simply a claim of error without the slightest attempt to demonstrate that the claimed omission by the court had any effect on the consideration of Motion for Summary Judgment. Phrased differently, the plaintiff has not shown that the claimed failure of the court to slog through his initial, discursive, admittedly noncompliant response to Menards' Statement of Uncontested Fact affected the outcome of the case. Indeed, he has made no meaningful attempt to do so. Cf.,Glickenhaus & Co. v. Household Int'l, Inc., 787 F.3d 408, 414 (7th Cir. 2015)("a new trial is warranted only if an instructional error caused prejudice.); Leprino Foods Co. v. DCI, Inc., 727 F. App'x 464, 474-75 (10th Cir. 2018)("Because Leprino has `failed to show any prejudice from the district court's failure,' `we grant no relief.'"). United States v. Ledesma, 632 F.2d 670, 678 (7th Cir. 1980)("a failure to hold an instruction conference is not reversible error unless prejudice is shown.").
Having already addressed the facts in the record in the 25-page prior Opinion in this case, we shall not re-address each of these points in order to rule on the plaintiff's Rule 59(e) motion. As with the discussion regarding the plaintiff's lack of compliance with Local Rule 56.1, no more than a few examples should serve to demonstrate that the plaintiff's issues are not the proper stuff of a Rule 59(e) motion.
Plaintiff begins by misreading the Opinion and claiming that the "Court stated at page 11 of its Memorandum Order stating [sic] that McCarty likely took 5 or 6 steps to the right whereby he would have encountered the legs, writing in the footnote: `That certainly does not rule out stepping from stack to stack. Quite the contrary.'" But nowhere on page 11 does it say that Mr. McCarty "likely took five or six steps." [Dkt. #72, at 11]. Indeed, the Opinion stated more than once that the record evidence showed that McCarty either stepped over the legs "at least once" — he testified specifically that he did at the end of moving the boards — or perhaps as many as five or six times. [Dkt. #72, at 21, 22]. Mr. Parks, it will be recalled, testified that he stepped back and forth from pile to pile five or six times, and that McCarty did the same. [Dkt. #72, at 11]. Mr. McCarty testified that, each time he moved a board to the stack on the right, he would then "come back and pick up another sheet . . ." [Dkt. # 72, at 11 n.2](Emphasis supplied). As was stated in the Opinion, moving from stack to stack does not rule out stepping from stack to stack. Quite the contrary. And there is no dispute that Mr. McCarty negotiated the legs of the sign at least once, as the Opinion stated, and as Mr. McCarty concedes in his Rule 59(e) brief. [Dkt. #74, at 3].
Plaintiff also takes issue with the statement that "[Mr.] McCarty would have passed different piles of boards and both [Mr.] McCarty and [Mr.] Parks `had to see' the protruding sign and legs." [Dkt. # 74, at 3]. As stated in the Opinion, the two looked at the signs as they drove through the shed in order to find the OSB they wanted. They testified to as much in their depositions. And, as the Opinion further said, plaintiff had to be right next to the sign and stepping over it at least once while he moved the boards. The sign was knee-high and the legs were four inches wide. [Dkt. #72, at 18-19]. All this went to the obviousness of the hazard.
While plaintiff concedes that Mr. Lannert testified that there were inspections for tripping hazards every day and that when discovered they were taken care of, he complains that the court failed to note that there were "no inspection procedures" for tripping hazards and there was no specific policy about how signs were to be pushed back. [Dkt. #74, at 4-5]. This argument borders on the ridiculous. If the evidence is, as plaintiff concedes, that there were daily inspections for tripping hazards and they were taken care of, what possible difference could it make in the end whether there were specific instructions — presumably written, but the plaintiff does not say — on how to push a sign in? What the Supreme Court said in the different context of Simon & Schuster, Inc. v. Members of New York State Crime Victims Bd., 502 U.S. 105, 115-116 (1991) could apply here equally: "[it is] so `obvious' as to not require explanation."
Plaintiff also criticizes the photo included in the Opinion to show the layout of the incident. He argues that the court should have considered other photos in the record which did not show the sign's legs. [Dkt. #74, at 4]. The court did consider those photos, but they are not taken from the perspective of a man standing right next to the sign and stepping over it once or multiple times. They are taken from several feet directly in front of the sign and accurately show the location of the three relevant stacks of lumber and the sign. They were the plaintiff's own exhibits.
Plaintiff claims that the court said that Mr. Lannert "testif[ied] that he guessed a team member had left the sign and legs out." [Dkt. #74, at 4](Emphasis supplied). That's correct, because there is no evidence how the sign was left askew or who was responsible. But as a guess is not evidence as the Opinion explained at length, Mr. Lannert repeated seven or eight times that he had no idea how the sign got that way. Indeed, no one did, as the Opinion made clear. When repeatedly pressed, Mr. Lannert finally yielded and said it was likely an employee did it if he had been down-stocking. [Dkt. # 72, at 13-15]. But, as the Opinion stated, there was no evidence that any down-stocking had occurred that day. Mr. Anderson testified that everything was in its proper place first thing in the morning. [Dkt. # 72, at 15-16]. He testified that he didn't know of any down-stocking that occurred after that, and there probably wasn't any. [Dkt. 55-6, at 159]. Notably, plaintiff fails to acknowledge the evidence that customers had left signs askew in the past. [Dkt. #72, at 16, 23, 25]. He did say he couldn't swear there wasn't any down-stocking that day, but, as the Opinion pointed out, that's not evidence there was.
Mr. Lannert's testimony that he didn't recall there being any down-stocking during that day, but that there could have been, is speculation, [Dkt. #62-12, at 122], and speculation does not count. See Ray v. Clements, 700 F.3d 993, 1017 (7
Indeed, underlying almost the entirety of the Motion for Reconsideration is the plaintiff's failure to acknowledge the significant difference between evidence and speculation and hunches. The law does not recognize mere possibilities as a basis for liability. Kansas v. Carr, ___ U.S. ___, 136 S.Ct. 633, 643 (2016). The same principle also finds expression in the repeated holdings that the law does not deal with mere possibilities, Cannon v. Lockhart, 850 F.2d 437, 441 (8
On summary judgment, once a movant has put forward factual material in support of an argument, it must be countered with more than speculation or "metaphysical" possibilities." DiStiso v. Cook, 691 F.3d 226, 230 (2d Cir.2012). See also Great Am. Ins. Co. v. USF Holland Inc., 937 F.Supp.2d 376, 385 (S.D.N.Y. 2013). Summary judgment looks to objective standards, not theoretical possibilities. Matsushita Elec. Ind. U.S. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). That is a principle that was emphasized in the Opinion — and which case after case has held. [Dkt. # 72, at 2, 17, 23, 24 25]. In addition to the cases cited above and in n. 5, see Hamer v. Neighborhood Housing Svcs of Chicago, 897 F.3d 835, 840 (7th Cir. 2018)("Speculative assertions about decision makers' knowledge are insufficient to establish a genuine dispute about a material fact.")(Emphasis supplied); Piotrowski v. Menard, Inc., 842 F.3d 1035, 1038 (7
Menards is correct in asserting that the evidence in this case does not support the plaintiff's speculative and tendentious guess as to what happened. There is no evidence that an employee was down-stocking at some earlier time in the day or that an employee left the sign askew. There was evidence that customers had left signs askew in the past, although the plaintiff ignores that fact. And, even if there had been down-stocking that day, the mere possibility that an employee was responsible for the improper location of the sign would not carry the day for the plaintiff.
Contrast the record here with the recent case of Pollak-Becker v. Kmart Stores of Illinois, LLC, 2018 WL 3965317 (2
Plaintiff also suggests that Mr. Andersen was lying when he testified that the sign was not out of place the morning of February 13
The plaintiff's motion for reconsideration continues in this vein, relying on gossamer and abstract speculation but not coming forward with any evidence. In that respect, it is no different than his original response. But, as all the cases hold, a party cannot avoid summary judgment by relying on speculation about what could have happened. And a party cannot employ a Rule 59(e) motion to simply rehash arguments already raised and rejected in the court's ruling. Vesely, 762 F.3d at 666. And that is all the plaintiff has done.
We need not dwell on the portion of the plaintiff's current brief entitled "Analysis." Aside from Dunn v. Menards and Barrios v. Fashion Gallery, none of the cases were cited in the original brief. [Dkt. # 61]. As the case law applicable to Rule 59(e) motions makes plain, a Rule 59(e) motion is not a vehicle for raising new arguments. Cehovic-Dixneuf, 895 F.3d at 932; Winfield, 871 F.3d at 559; Miller, 683 F.3d at 813.
It is unclear what is meant by the plaintiff's allegation that the court did not deal with his negligence claim. [Dkt. #74, at 7]. In fact, 25 pages of the Opinion dealt with it. If the Motion for Reconsideration is attempting to demonstrate a manifest error of law — again, the Motion ignores that requirement and the applicable law — it is unsuccessful. A manifest error occurs when the district court commits a wholesale disregard, misapplication, or failure to recognize controlling precedent. Burritt v. Ditlefsen, 807 F.3d 239, 253 (7th Cir. 2015). Manifest error is not demonstrated by the disappointment of the losing party. Oto v. Metropolitan Life Ins. Co., 224 F.3d 601, 606 (7th Cir.2000). Instead of making the required showing, the plaintiff impermissibly relies on speculation about how the sign might have been left out of place by an employee if there had been downsizing. But, as has been said, speculation is insufficient to stave off summary judgment.
The plaintiff's Motion also demonstrates a misapprehension of the law as to whether a hazard is open and obvious. It is an objective, as opposed to subjective, standard. Racky v. Belfor USA Grp., Inc., 2017 Ill.App. 153446, 83 N.E.3d 440, 467 (1
Moreover, as the Opinion pointed out, the plaintiff was no longer engaged in moving the boards or straightening them when he tripped. His distracting task of moving back and forth between the stacks as he moved the lumber was at an end. When he finally tripped he was neither straightening boards nor moving them. He was walking and, perhaps, not looking down as was the case with the woman in Bruns v. City of Centralia, 2014 Ill. 116998, 21 N.E.3d 684, 691 (2014), who tripped on an uneven sidewalk while focusing on steps and a door. There was no liability there, of course, because as the Opinion pointed out, "the mere fact of looking elsewhere does not constitute a distraction." [Dkt. #21]; Dunn, 880 F.3d at 909; Bruns, 21 N.E.3d at 692.
Plaintiff complains the court incorrectly characterized him as insisting on constant surveillance for tripping hazards. [Dkt. # 74, at 10]. But, as the Opinion explained, that is the ultimate logic of his position. There is no evidence as to when or how the sign got out of place. It could have been askew shortly after 5 a.m. or right before Mr. McCarty tripped over it. Thus, nothing but near constant patrolling could have saved Mr. McCarty from tripping over the open and obvious hazard. [Dkt. #72, at 23]. Peterson v. Wal-Mart Stores, Inc., 241 F.3d 603, 605 (7th Cir. 2001) — which the plaintiff cites for the first time in his Rule 59(e) motion — is not to the contrary. It notes that patrols need not be "official" because "[e]mployees have frequent occasion to be in the store's aisles in any event; they have only to be alert to the possibility of spillage to notice it and clean it up promptly." 241 F.3d at 605. That's very much like what employees like Mr. Lannert and Mr. Anderson testified happened at Menards.
Plaintiff continues to argue that the defendant must be liable because it did not follow a specific tripping hazard inspection procedure. [Dkt. #74, at 10]. As the Opinion stated, the plaintiff failed to cite any cases to support his theories of liability. And even if an inspection were performed and recorded the morning of February 13
The reason for the holding in Barrios is apparent from even a cursory reading of that Opinion:
Barrios, 255 F. Supp. 3d at 734 (Emphasis supplied)(Parentheses in original).
As the Opinion explained, the evidence in this case does not support the plaintiff's speculative and tendentious guess as to what thinks happened. While it is "possible" that there had been down-stocking that day — anything is possible — there is no evidence there was, and the evidence was that there probably wasn't. The plaintiff's belief, speculation, and conjecture are inadequate to defeat Menards' Motion for Summary Judgment. [Dkt. # 72, at 2, 17, 23, 24 25]. See also Hamer v. Neighborhood Housing Svcs of Chicago, 897 F.3d 835, 840 (7th Cir. 2018). The plaintiff's motion for reconsideration under Fed.R.Civ.P. 59(e) is denied.
