To prevail on a negligence claim, a plaintiff must establish “(1) a duty owed to the plaintiff by the defendant; (2) a breach of that duty; and (3) an injury proximately caused by the breach.” Wilfong v. L.J. Dodd Const., 930 N.E.2d 511, 519 (Ill. App. Ct.
2010).2 Menard argues that it did not owe a duty of care to Holland to prevent him from tripping on the cord. The Court agrees. Generally, a business owner owes his invitees a duty to exercise reasonable care to “maintain his premises in a reasonably safe condition for use by the invitees.” Ward v. K Mart Corp., 554 N.E.2d 223, 227 (Ill. 1990). To determine whether a duty of care exists, the Court considers “(1) the reasonable foreseeability of the injury, (2) the likelihood of the injury, (3) the magnitude of the burden of
guarding against the injury, and (4) the consequences of placing that burden on the defendant.” Bruns v. City of Centralia, 21 N.E.3d 684, 689 (Ill. 2014) (citations omitted). Whether a duty exists is a question of law. Id. However, businesses “are not ordinarily required to foresee and protect against injuries from potentially dangerous conditions that are open and obvious.” Geleta v. Meijer, Inc., No. 11 CV 6567, 2013 WL 6797111, at *5 (N.D. Ill. Dec. 23, 2013) (citing
Buchaklian v. Lake County Family YMCA, 732 N.E.2d 596, 600 (Ill. App. Ct. 2000)). “For a condition to be open and obvious, an invitee must reasonably be expected to discover it and protect himself against it.” Id. The obviousness of a condition is “determined by the objective knowledge of a reasonable person, not the plaintiff's subjective knowledge.” Buchaklian, 732 N.E.2d at 602. Whether a condition is open
2 The parties agree that Illinois law governs this diversity case. and obvious is a question of law when “no dispute exists as to the physical nature of the condition.” Bruns, 21 N.E.3d at 690. “The 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.” Id. (citations omitted). Rather, it makes the first two factors of the duty analysis — foreseeability and likelihood of the injury — “slight,” and “weigh[s] against the imposition of a duty.” Id. (citations omitted). Here, there is no dispute about the condition that allegedly caused Holland’s injury — it was a black cord lying on a white or off-white floor. Other courts have determined that similar conditions are open and obvious. See, e.g., Reid v. Kohl's Dept. Stores, Inc., No. 06-cv-472, 2007 WL 2778639, at *3 (N.D. Ill. Sept. 19,
2007), aff'd on other grounds, 545 F.3d 479 (7th Cir. 2008) (pink milkshake spilt on white tile floor was open and obvious); Hillsamer v. Walmart, Inc., No. 20 C 6753, 2022 WL 4079451, at *3 (N.D. Ill. Sept. 6, 2022) (light-colored substance spilled on dark-colored floor was open and obvious); Southerland v. Wal-Mart Stores, Inc., 848 P.2d 68, 69-70 (Okla. Ct. App. 1993) (orange cord on a white tile floor was open and obvious). Further, courts have found that even very small conditions are open and
obvious when they contrast in color with the floor. See, e.g., Davis v. Wal-Mart Stores, Inc., 70 F.3d 123 (10th Cir. 1995) (no liability where plaintiff turned a corner and slipped on open and obvious substance despite that the substance was only four and half inches in diameter and two and have inches in height). As in the above cases, the contrasting color and size of the cord makes the condition open and obvious. A reasonable person would be expected to see the cord and take steps to protect themselves from being harmed by it. Under Illinois law, the effect of an open and obvious condition is mitigated if the
distraction exception applies. 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, 21 N.E.3d at 691 (cleaned up). But the distraction exception does not apply when the distraction is “self-made.” Id. at 693. If a court finds that the distraction exception applies to an otherwise open and obvious condition, “the outcome of the duty analysis with respect to the first two factors is
‘reversed,’” and the foreseeability and likelihood of the injury weigh in favor of finding a duty. Id. at 691 (citing Belluomini v. Stratford Green Condominium Ass'n, 805 N.E.2d 701, 705 (Ill. App. Ct. 2004)). Holland argues the distraction exception applies because at the time he tripped on the cord, he was looking for his wife and wanting to check out the items he had picked up to purchase. In Holland’s view, because Menard chose the layout of its
checkout aisles and Menard expected its customers to use those aisles, the “distraction created by the check-out lane is ultimately attributable to Menard.” [74] at 6. In Bruns, the Illinois Supreme Court rejected a similar argument. There, the plaintiff sued the city of Centralia after she tripped on a defective sidewalk on her way to a clinic. Bruns, 21 N.E.3d at 687. The plaintiff did not contest that the defective sidewalk was an open and obvious condition, but she argued that the distraction exception should apply because at the time she fell, she was looking at the door of the clinic that she was headed towards. Id. The Illinois Supreme Court
conducted a thorough review of its own caselaw and rejected the plaintiff’s argument, holding that “the mere fact of looking elsewhere does not constitute a distraction.” Id. at 692. Rather, there must be “some circumstance . . . that require[s] the plaintiff to divert his or her attention from the open and obvious danger, or otherwise prevent[s] him or her from avoiding this risk.” Id. at 693; see also Deibert v. Bauer Bros. Const. Co., 566 N.E.2d 239, 244 (Ill. 1990) (distraction exception applied where plaintiff tripped on a deep tire rut at a construction site while he was looking up to avoid
construction material thrown off a nearby balcony); Am. Nat. Bank & Tr. Co. of Chicago v. Nat'l Advert. Co., 594 N.E.2d 313, 320 (Ill. 1992) (distraction exception applied where billboard painter came into contact with a high-voltage power line because he had to look downwards to balance on a narrow walk-rail); Ward v. K Mart Corp., 554 N.E.2d 223, 233 (Ill. 1990) (applying the distraction exception when a customer at a store walked into a concrete post he could not see because he was
carrying large merchandise that obscured his vision); see also Restatement (Second) of Torts § 343A cmt. e, illus. 1, at 220 (1965) (liability should not attach when plaintiff is injured by an encounter with open and obvious plate glass door where the customer was “preoccupied with his own thoughts”). Here, there was no circumstance that required Holland to divert his attention away. Rather, as in Bruns, Holland was walking down a path that the defendant expected him to use, and while he was looking for his wife, he tripped on an open and obvious obstruction. And as in Bruns, Menard is not responsible for a distraction of the plaintiff’s own making. The distraction exception thus does not apply.
The Court next addresses the last two duty factors: the magnitude of the burden of guarding against the injury and the consequences of placing that burden on the defendant. Generally, stores do not have a duty to continuously monitor aisles for obstructions, as “the cost would be disproportionate to the benefit.” Peterson v. Wal- Mart Stores, Inc., 241 F.3d 603, 605 (7th Cir. 2001). Holland argues that Menard need not continuously monitor every aisle to prevent injuries like his, and that the store’s employees could have simply tied up the cord. Holland may be right, and the burden
of tying up cords in a checkout aisle may be relatively slight. But that slight burden does not outweigh the effect of the open and obvious nature of the hazard. See Grosch v. Anderson, 2018 WL 4362751, at *6 (Ill. App. Ct. Sept. 12, 2018) (defendant did not owe plaintiff a duty where condition was open and obvious even when final two factors favored plaintiff); Bujnowski v. Birchland, Inc., 37 N.E.3d 385, 397 (Ill. App. Ct. 2015) (noting that “no published case” has ever held that a defendant owed a plaintiff a
duty where the condition as open and obvious and no exception applied). Having considered all four factors, the Court holds that Menard did not have a duty to Holland. Because duty is an essential element of a negligence claim, Menard is entitled to summary judgment on Count I. II. Premises Liability In Count II, Holland seeks relief under a theory of premises liability. Under Illinois law, “a claim for premises liability requires proof of the three elements of ordinary negligence, plus proof that (1) there was a condition on the property that
presented an unreasonable risk of harm, (2) the defendant knew or reasonably should have known of the condition and the risk, and (3) the defendant could reasonably have expected people on the property would not realize, would not discover, or would fail to protect themselves from the danger.” Martin v. City of Chicago, 229 N.E.3d 986, 991 (Ill. App. Ct. 2023) (citing Hope v. Hope, 924 N.E.2d 581 (Ill. 2010). Because Holland cannot succeed on his premises liability claim without establishing that Menard owed him a duty, Menard is also entitled to summary judgment on Count II.
III. Spoliation of Evidence In Count III, Holland seeks relief for Menard’s alleged spoliation of evidence. “Under Illinois law, spoliation of evidence is a form of negligence; proof of spoliation requires a showing that the defendant owed the plaintiff a duty to preserve evidence, breached that duty, and thereby proximately caused the plaintiff to be unable to prove the underlying cause of action.” Brian J. Wanca, J.D., P.C. v. Oppenheim, 226 N.E.3d
732, 745 (Ill. App. Ct. 2023) (emphasis added). “A plaintiff must allege that ‘a reasonable person in the defendant's position should have known the evidence would be material to potential civil litigation.’” Id. (quoting Jones v. O'Brien Tire & Battery Service Center, Inc., 871 N.E.2d 98 (Ill. App. Ct. 2007)). “The plaintiff must also prove that but for the destruction of these records, she would have had a reasonable probability of succeeding in her case.” Id. (internal quotation omitted). Holland’s spoliation claim is premised on Menard’s failure to preserve security camera footage from more than a minute before Holland tripped on the cord. Holland argues that Menard had a duty to preserve additional footage that might show how
the cord came to be in the aisle, which could be relevant to proving causation. Holland may well be correct, but because the Court has found that Menard is entitled to summary judgment on Holland’s negligence and premises liability claims, the point is moot. Holland does not argue that the destroyed video evidence could or should affect the Court’s duty analysis, so Holland cannot establish that but for its destruction, he “would have a reasonable probability of succeeding in [his] case.” Oppenheim, 226 N.E.3d at 745; see also Natale v. Gottlieb Mem'l Hosp., 733 N.E.2d
380, 385 (Ill. App. Ct. 2000) (awarding summary judgment to defendant on plaintiff’s negligent spoliation claim where plaintiff could not prove elements of the underlying claim). Holland was not harmed by any spoliation of evidence because Holland would not succeed in his case even if the evidence wasn’t spoliated. Menard is thus entitled to summary judgment on Count III. CONCLUSION
For the stated reasons, Defendant’s motion for summary judgment [66] is granted. The Clerk is directed to enter judgment in Defendant’s favor and against Plaintiff and terminate the case. All pending deadlines are stricken. ENTER:
JA Dated: May 15, 2025 Wb bsg Vf bt L MARY M. ROWLAND United States District Judge