### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 18

‐ 3069

R OBERT M C C ARTY

, Plaintiff

‐ Appellant

,

v.

M ENARD

, I NC

., Defendant

‐ Appellee

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:17

‐ cv

‐ 3261— Jeffrey Cole, Magistrate Judge

.

____________________

A RGUED M ARCH 29, 2019

— D ECIDED M AY 20, 2019

____________________

Before H AMILTON

, B ARRETT

, and S T

. E VE

, Circuit Judges

.

S T

. E VE

, Circuit Judge

. Robert McCarty tripped over a prod

‐

uct display sign at a Menard’s home improvement store and

then filed suit. The district court dismissed the case at sum

‐

mary judgment in favor of Menard. We affirm based on the

open and obvious doctrine which implicates the general duty

of care owed to business invitees in Illinois.2 No. 18

‐ 3069

I. Background

On February 13, 2017, McCarty and his employee, Tristan

Parks, went to the Menard’s store in Antioch, Illinois, to pur

‐

chase materials for a renovation project. McCarty and Parks

needed 3⁄4 inch sheets of oriented strand board (“OSB”), which

are similar to plywood. They drove a pickup truck to the

store’s lumber shed and found the 3⁄4 inch OSB behind the dis

‐ play signs. The OSB piles were stacked side

‐ by

‐ side. The dis

‐ play sign at issue was knee high with protruding wooden

legs.

McCarty moved a few of the top boards from a central

OSB pile over to the right side onto an adjacent pile while

searching for undamaged boards. Parks did the same on the

left side. After McCarty moved a few boards from the middle

stack to the right, he tripped over a piece of wood that was

part of the display sign in front of the right

‐ hand pile. The fol

‐ lowing photograph, taken by Parks, shows the aftermath. 1

1 Menard submitted this photograph in support of its Northern Dis

‐

trict of Illinois Local Rule 56.1(a)(3) Statement of Facts. At his deposition,

Parks testified that he took the photograph within seconds of McCarty’s

fall. At oral argument, both parties referred to this photograph.No. 18

‐ 3069 3

The display sign was normally set flush against the stacks,

as were the other signs.

II. Discussion

In Illinois, landowners owe business invitees a duty of

care to keep their premises reasonably safe. Piotrowski v.

Menard, Inc.

, 842 F.3d 1035, 1038 (7th Cir. 2016). Illinois courts

consider four factors when deciding if a duty of care exists: (1)

the reasonable foreseeability of the harm; (2) the likelihood of

the injury; (3) the magnitude of the burden of guarding4 No. 18

‐ 3069

against the injury; and (4) the consequences of placing that

burden on the premises owner. Dunn v. Menard, Inc.

, 880 F.3d

899, 906 (7th Cir. 2018). The open and obvious doctrine impli

‐

cates the first two factors of the duty of care analysis. Id

. When

the doctrine applies “[t]he open and obvious nature of the

condition itself gives caution and therefore the risk of harm is

considered slight; people are expected to appreciate and

avoid obvious risks.” Bucheleres v. Chicago Park Dist.

, 665

N.E.2d 826, 832 (Ill. 1996).

Whether a hazardous condition is open and obvious is an

objective inquiry. The question is would a reasonable person

with McCarty’s knowledge of the situation appreciate and

avoid the hazardous condition? Dunn

, 880 F.3d at 908. Courts

can determine if a condition is open and obvious as a matter

of law when there are no material disputes concerning the

condition’s physical nature. Bruns v. City of Centralia

, 21

N.E.3d 684, 690 (Ill. 2014).

After giving the evidence careful consideration and con

‐ struing all reasonable inferences in McCarty’s favor, the dis

‐

trict court concluded:

A reasonable person in Mr. McCarty’s position, who saw

that there were signs, chose the stack he wanted by looking

at the signs, walked right up to the signs, was working

within a few feet of the protruding sign, and either repeat

‐ edly stepped over it or turned toward it, would have no

‐

ticed the large sign and legs as a tripping hazard.

McCarty v. Menards

, 319 F. Supp. 3d 974, 987 (N.D. Ill. 2018).

On appeal, McCarty argues that the sign was not open and

obvious as a matter of law because he was unaware of the dis

‐ play sign prior to tripping.No. 18

‐ 3069 5

We review the district court’s summary judgment deter

‐

mination de novo and make only reasonable inferences, not

every conceivable one, in McCarty’s favor. Skiba v. Illinois

Cent. R.R. Co.

, 884 F.3d 708, 717, 721 (7th Cir. 2018). “A district

court properly grants summary judgment where there is no

genuine dispute as to any material fact and the moving party

is entitled to judgment as a matter of law.” Giles v. Godinez

,

914 F.3d 1040, 1048 (7th Cir. 2019).

The display sign was open and obvious. McCarty testified

at his deposition that he found the proper OSB by looking at

the display signs that identified the boards’ thickness. Parks

testified that the display signs in front of the piles clearly la

‐

beled the OSB sizes and that he and McCarty used the signs

to figure out what boards they needed. McCarty further testi

‐

fied that after he moved each sheet of OSB to a pile on the

right, he would come back and pick up another sheet. The

only reasonable conclusion is that McCarty saw the protrud

‐ ing sign while standing right in front of it.

McCarty nevertheless contends that the district court

made impermissible credibility determinations by disregard

‐ ing his testimony that he was unaware of the display sign.

But, the open and obvious inquiry is an objective one. Even

when viewed in his favor, McCarty’s subjective testimony

does not create a triable issue of material fact on whether a

reasonable person in his position would have been aware of

the display sign. See Dunn

, 880 F.3d at 908 (“the operative fo

‐

cus is not on plaintiff himself”) (emphasis in original). 2

2 McCarty argued below that the distraction exception to the open and

obvious rule applied—an argument the district court soundly rejected.6 No. 18

‐ 3069

Because the existence of an open and obvious hazard is not

an absolute bar to fi nding a premises owner’s legal duty, we

must also assess whether Menard owed a duty of care to

McCarty applying the traditional duty analysis. See Dunn

, 880

F.3d at 909

‐ 10; Bruns

, 21 N.E.3d at 690. As to the fi rst two fac

‐

tors, “[w]here the condition is open and obvious, the foresee

‐ ability of harm and the likelihood of injury will be slight, thus

weighing against the imposition of a duty.” Bruns

, 21 N.E.3d

at 690. That leaves us with one last question—do the third and

fourth factors involving the store’s burden in guarding

against safety hazards outweigh the fi rst two factors? Dunn

,

880 F.3d at 910. They do not.

Menard’s internal policies require safety inspections to fix

tripping hazards and the record shows the store’s employees

regularly monitor and inspect the outside lumber yard and

are available to assist customers when needed. Staff routinely

clean the yard and push display signs back against the stacks

of lumber. As we held in Dunn

, imposing any larger burden

on Menard to guard against safety hazards, such as constant

surveillance, would be unreasonably onerous. Id. Indeed, Illi

‐

nois courts, including this court sitting in diversity, have re

‐ peatedly rejected imposing the duty of continuously monitor

‐ ing safety conditions in premises liability cases. See Zuppardi

v. Wal

‐ Mart Stores, Inc.

, 770 F.3d 644, 652 (7th Cir. 2014) (col

‐ lecting cases). McCarty gives us no reason why these cases

should not stand.

Because McCarty has not established that Menard owed

him a duty of care, we need not address his causation

McCarty has waived this argument because he presents it for the first time

in his reply brief. Daugherty v. Page

, 906 F.3d 606, 610 (7th Cir. 2018).No. 18

‐ 3069 7

arguments. See Roh v. Starbucks Corp., 881 F.3d 969, 973 (7th

Cir. 2018) (“[U]nder Illinois law, a plaintiff must establish the

existence of a duty, the defendant’s breach of that duty, and

that the breach proximately caused the plaintiff’s resulting in

‐ juries.”).

We AFFIRM the district court’s judgment.