Robert McCarty v. Menard, Inc., 924 F.3d 460

Plaintiff McCarty tripped over a knee-high wooden display sign leg in Menard’s outdoor lumber yard while selecting 1/2-inch OSB sheets and sued for premises liability.
McCarty and his coworker Parks were using the display signs to identify the correct OSB piles; they were standing and working within a few feet of the sign when McCarty fell.
Parks took a photograph within seconds of the fall showing the display sign protruding in front of the lumber stack; the photograph was used by the parties and the court.
Menard’s practice was to set display signs flush against stacks and to inspect and monitor the lumber yard; employees routinely push signs back and assist customers.
The district court granted summary judgment for Menard, reasoning the hazard was open and obvious and Menard owed no duty requiring additional precautions.
McCarty appealed, arguing the sign was not open and obvious to him and invoking the distraction exception; the court rejected these arguments and affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the display sign was an open and obvious hazard	McCarty says he was unaware of the sign before tripping, so it was not open and obvious	Menard says the sign was objectively open and obvious; McCarty used the signs to find OSB and stood right in front of it	The sign was open and obvious as a matter of law
Whether the distraction exception prevents application of the open-and-obvious rule	McCarty invokes distraction exception (first argued below)	Menard argues no evidence supports the exception here	District court properly rejected the distraction exception; appellate court affirmed
Whether open-and-obvious hazard eliminates duty or whether other duty factors impose liability	McCarty argues Menard still owed a duty under traditional multi-factor analysis	Menard stresses foreseeability and likelihood of harm are slight; store policies and inspections reduce burden	Court held foreseeability/likelihood were slight and additional burdens (e.g., constant surveillance) would be unreasonable; no duty found
Whether there was a triable factual dispute precluding summary judgment	McCarty contends his subjective unawareness creates a factual dispute	Menard points to objective evidence (Parks’ photo, testimony about using signs) showing no dispute	Court held the inquiry is objective; no genuine issue of material fact existed; summary judgment affirmed

Bruns v. City of Centralia, 21 N.E.3d 684 (Ill. 2014) (courts may decide open-and-obvious status as a matter of law when no material factual dispute exists)
Daugherty v. Page, 906 F.3d 606 (7th Cir. 2018) (appellate waiver doctrine where issues raised first in reply brief are forfeited)