880 F.3d 899
7th Cir.2018Background
- On January 3, 2014 Larry Dunn and his son went to a Menards self-service warehouse to load 21 rolls of insulation into their van; a roughly 16-foot-high stack of rolled insulation was leaning and Dunn observed and monitored it for ~5 minutes. Dunn warned his son and did not touch the leaning stack. Neither Dunn nor his son asked employees for assistance.
- Warehouse entrances displayed safety warning signs advising customers not to pull, climb, or open packages and to call for assistance; employees routinely patrol and assist in the yards but none was observed by Dunn at the time. Two Menards employees in an adjacent bay heard the fall but were not asked for help.
- As Dunn and his son loaded the last bales (standing facing the van, ~8–10 feet from the leaning stack), the leaning stack collapsed and struck Dunn, injuring his shoulder.
- Dunn sued Menards for negligence in Illinois state court; the case was removed to federal court. After discovery, Dunn submitted a supplemental affidavit late; the district court struck several paragraphs as inconsistent with his deposition.
- The district court granted summary judgment for Menards, holding (1) the leaning stack posed an open and obvious danger; and (2) imposing a duty to further protect invitees would be unduly onerous. Dunn appealed; the Seventh Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the leaning stack was an open and obvious condition | Dunn contended he did not appreciate the risk the stack posed (or that any perceived risk required contact to be dangerous) and thus a fact question existed | Menards argued the stack’s instability was objectively open and obvious: Dunn and his son both observed and described it as leaning/unstable and warned about it | Held: The stack was an open and obvious danger as a matter of law given undisputed facts that both Dunns recognized the instability and took precautions |
| Whether an exception to the open-and-obvious rule (distraction or deliberate encounter) applied | Dunn argued exceptions applied (he was distracted or had to accept the risk) | Menards argued no distraction evidence and no economic compulsion; assistance was available but not requested | Held: Neither the distraction nor deliberate-encounter exception applied; no evidence of actual distraction or compulsion |
| Whether Menards nonetheless owed a legal duty despite the open-and-obvious condition | Dunn argued open-and-obvious is not a per se bar and duty should be determined by balancing foreseeability, likelihood, burden, and consequences | Menards argued foreseeability/likelihood were diminished by openness; burden of continuous supervision or engineering controls would be onerous and unnecessary where help was available on request | Held: No duty imposed—first two factors weighed against duty (open and obvious), and the burden/consequences of imposing additional obligations on Menards outweighed plaintiff’s position |
| Whether the district court abused its discretion in striking portions of Dunn’s supplemental affidavit | Dunn claimed the affidavit created genuine fact disputes about notice/appearance of the stack | Menards argued the affidavit contradicted deposition testimony and therefore was a sham affidavit | Held: No abuse of discretion; struck paragraphs contradicted deposition (Buckner/Russell principles), and excluded material would not change outcome |
Key Cases Cited
- Bruns v. City of Centralia, 21 N.E.3d 684 (Ill. 2014) (open-and-obvious rule and its exceptions; whether condition is open-and-obvious may be question of law when facts undisputed)
- Bucheleres v. Chicago Park Dist., 665 N.E.2d 826 (Ill. 1996) (landowner not ordinarily required to protect against open-and-obvious dangers)
- Ward v. K Mart Corp., 554 N.E.2d 223 (Ill. 1990) (duty analysis and open-and-obvious principle)
- Sollami v. Eaton, 772 N.E.2d 215 (Ill. 2002) (distraction and deliberate-encounter exceptions to open-and-obvious rule)
- Kleiber v. Freeport Farm & Fleet, Inc., 942 N.E.2d 640 (Ill. App. Ct. 2010) (no duty where plaintiff recognized open danger and assistance was available but not sought)
- Bujnowski v. Birchland, Inc., 37 N.E.3d 385 (Ill. App. Ct. 2015) (open-and-obvious rule’s effect on foreseeability and likelihood in duty analysis)
- Jackson v. TLC Assocs., Inc., 706 N.E.2d 460 (Ill. 1998) (courts must still apply traditional duty analysis even when condition is open and obvious)
- Buckner v. Sam’s Club, Inc., 75 F.3d 290 (7th Cir. 1996) (sham-affidavit doctrine: affidavits cannot contradict prior deposition testimony to create fact issues)
- Russell v. Acme-Evans Co., 51 F.3d 64 (7th Cir. 1995) (affidavit may be disregarded when it contradicts deposition unless plausible explanation for discrepancy)