Bulduk v. Walgreen Co.
2016 IL App (1st) 150166-B
| Ill. App. Ct. | 2016Background
- On April 28, 2010 Saime Bulduk was browsing cosmetics in a Walgreen store when a large, plugged‑in floor‑cleaning machine in the middle of the aisle struck her; she alleges permanent back, neck, and leg pain.
- The cleaning machine was owned/operated by Brite Site, an independent contractor Walgreen hired to clean the store; Walgreen’s manager testified store policy prohibited running machines while the store was open and restricted placement near entrances.
- Bulduk sued Walgreen (negligence, negligent spoliation of evidence, res ipsa loquitur, and loss of consortium); Walgreen moved for summary judgment on negligence, spoliation, and res ipsa; trial court granted those motions.
- On appeal the court considered (1) whether Walgreen owed a duty despite the condition being open and obvious (distraction exception), and (2) whether Walgreen negligently spoliated surveillance footage that would have shown the incident.
- The appellate court reversed summary judgment on negligence (finding a triable issue as to the distraction exception/duty), affirmed summary judgment on negligent spoliation (surveillance did not record the incident), and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Duty/negligence — open & obvious danger and distraction exception | Bulduk: she was distracted while reaching for items on the shelf; Walgreen should have foreseen distracted customers and prevented machines from being present/operated while store was open | Walgreen: machine was open and obvious; Brite Site controlled machines; no duty because danger was open and obvious and Walgreen did not control the contractor | Reversed trial court: triable issue exists whether distraction exception and duty apply; jury must decide |
| Negligent spoliation of evidence (failure to preserve surveillance) | Bulduk: multiple cameras could have captured the incident; Walgreen only produced limited footage and failed to preserve relevant tapes | Walgreen: store footage was reviewed; cameras covering cosmetics area did not record the incident; no foreseeable duty to preserve footage that did not capture the accident | Affirmed trial court: summary judgment for Walgreen because lost footage could not have prevented Bulduk from proving her case when it did not record the event |
| Res ipsa loquitur (alternative theory) | Bulduk: machine under Walgreen’s control and operators left the country, supporting res ipsa | Walgreen: denied control and duty | Not reached as a necessary basis for decision on appeal; appellate disposition reversed negligence and affirmed spoliation and remanded |
Key Cases Cited
- Ward v. Kmart Corp., 136 Ill. 2d 132 (Ill. 1990) (business owes invitees reasonable care; distraction exception to open-and-obvious rule where possessor should anticipate inattentive entrants)
- Bruns v. City of Centralia, 2014 IL 116998 (Ill. 2014) (distraction exception requires evidence a plaintiff was actually distracted by a circumstance defendant could reasonably foresee)
- Boyd v. Travelers Ins. Co., 166 Ill. 2d 188 (Ill. 1995) (duty to preserve evidence arises if a reasonable person would foresee the evidence’s materiality to potential litigation)
- True v. Greenwood Manor West, Inc., 316 Ill. App. 3d 676 (Ill. App. Ct. 2000) (distraction exception does not apply where plaintiff presents no evidence of actual distraction)
- Kleiber v. Freeport Farm & Fleet, Inc., 406 Ill. App. 3d 249 (Ill. App. Ct. 2010) (discusses known-and-obvious rule and limited distraction exception)