Dunn v. Menard, Inc.
Dunn v. Menard, Inc.
Opinion of the Court
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 bécauSe: (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
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.
Both entrances to the insulation warehouse displayed warning signs stating, “For your safety, caution, do not cut band-ings, 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.
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.
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.
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.
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 Me-nards 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.
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 was deposed on September 23, 2015 and non-medical fact discovery closed on November 20, 2015. On February 22, 2016, five months after plaintiffs 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 plaintiffs 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.
II. Discussion
The 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.,
The third issue on appeal—the district court’s exclusion of portions of plaintiffs supplemental affidavit—is reviewed for an abuse of discretion. See Griffin v. Foley,
A. The stack of insulation that fell on plaintiff constituted an open and obvious condition.
“[S]tate law provides the substantive law in a diversity action.” Maroules v. Jumbo, Inc.,
Whether a duty exists is a question of law to be determined by the court. Fulk v. Ill. Cent. R. Co.,
“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.,
Often, “[w]hether a dangerous condition is open and obvious may present a question of fact.” Bruns v. City of Centralia,
Plaintiff 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 plaintiffs 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
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.
Moving 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,
Here, 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.
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 con
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 plaintiffs 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.,
Of 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,
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.”
This 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,
The 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,
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.”
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.
B. Menards did not owe plaintiff a legal duty.
Plaintiff 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,
“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,
“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?”
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.
C. The exclusion of plaintiffs 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.
The district court struck paragraphs 3 through 10 and 14 of plaintiffs supplemental affidavit on the grounds that they contradicted plaintiffs 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.,
1. Paragraphs 3 through 5
Paragraphs 3 through 5 of plaintiffs post-deposition affidavit state the following:
3. During [my prior visits to the Hodg-kins 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.
5. What is more, I have observed other products 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 plaintiffs deposition testimony, which involved a discussion of a photograph taken in the immediate aftermath of plaintiffs 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 Plaintiffs 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?
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?
A Similarly. It was more kind of haphazardly stacked. It wasn’t as nice and neat as those are.
According to the district court, considered collectively, paragraphs 3 through 5 of plaintiffs 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, plaintiffs, 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 plaintiffs view, Plaintiffs 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, plaintiffs 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 plaintiffs technical interpretation is correct, it does not alter the summary judgment analysis. If anything, the addition of paragraphs 3 through 5 reinforces plaintiffs knowledge of the open and obvious condition prior to his accident. See Bruns,
Paragraphs 6 through 10 of plaintiffs 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.
7. Prior to being injured, I did not believe the 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 ME-NARD 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.
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.
According to the district court, plaintiffs 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.
S. Paragraph H
Paragraph 14 of plaintiffs 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 plaintiffs deposition testimony:
Q. Did you do anything to distract you prior to your incident?
A. No.
Here, the district court’s decision was clearly reasonable, as plaintiffs 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.
. In further support of his argument, plaintiff claims that Kyle Krause, the Hodgkins Menards general manager, also had an inconsistent description of the leaning • stack. Plaintiffs assertion, however, is wholly unsupported by the record. During Krause’s deposition, plaintiffs own counsel acknowledged that Krause “[did not] recall the incident or any stacks prior to the incident," Thus, Krause did not present an account of the physical nature of the stack at all, let alone one that conflicted with that of plaintiff or Erik Dunn.
Reference
- Full Case Name
- Larry D. DUNN v. MENARD, INC.
- Cited By
- 200 cases
- Status
- Published