IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

KATHERINE BERNARD, )

Plaintiff, )

)

v. ) 12-CV-1482

)

SUPERVALU, INC., a Delaware )

Corporation d/b/a Jewel-Osco; ) Magistrate Judge

Defendant. ) Arlander Keys

)

)

Memorandum Opinion and Order

Currently before the Court is Defendant’s motion for summary

judgment [dkt #33] in a slip and fall case. Plaintiff Katherine

Bernard, a customer of Defendant Jewel-Osco grocery store, sued

Jewel-Osco for negligence, claiming that it created a hazard, and

did not remedy it, which caused her to fall and resulted in

injury. Jewel-Osco argues that the undisputed facts fall within

the natural accumulation rule, and thus summary judgment should

be granted in its favor. For the reasons set forth below,

Defendant’s motion is granted. 

Procedural History

On March 2, 2012, Plaintiff filed a two-count complaint

against Supervalu d/b/a Jewel-Osco (“Jewel-Osco”) and New

Albertson’s, Inc., alleging negligence. Plaintiff has voluntarily

dismissed her claim as to New Albertson’s, Inc. [dkt #14].

Supervalu has answered Plaintiff’s Complaint and pled affirmative

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defenses, including comparative negligence and the natural

accumulation rule. [dkt #10]. Defendant Jewel-Osco now moves this

Court to enter an order granting summary judgment in its favor,

arguing that the natural accumulation rule precludes Plaintiff

from recovering because “the water upon which Ms. Bernard fell

was introduced onto the premises due to rainy conditions present

at the time.” (S.J. Reply at p. 1). The instant motion is

dispositive in nature as to the remaining claim against JewelOsco. The parties have consented to proceed before this Court

pursuant to 28 U.S.C. § 636(c)(1). [dkt #16].

Factual Background

The facts underlying the summary judgment proceeding are

drawn from the parties’ Local Rule 56.1 submissions. [dkt #34,

41, 43]. Each paragraph of the Local Rule 56.1 submissions must

refer to the “affidavits, parts of the record, and other

supporting materials” that substantiate the asserted facts. Local

Rule 56.1(a)(3); F.T.C. v. Bay Area Business Council, Inc., 423

F.3d 627, 633 (7th Cir.2005). Most of the facts in this case are

agreed to and undisputed. It is noted when the parties disagree. 

On June 8, 2010, Ms. Bernard was injured at the Jewel-Osco

store in Westmont, Illinois. (Defendant’s Local Rule 56.1 Filing

(“Def. St.”), ¶ 1). It was raining at the time of Ms. Bernard’s

injury. (Id. at ¶ 5). Employees of the Jewel-Osco placed mats and

cones in the entranceway of the store on days that it rains.

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(Plaintiff’s Local Rule 56.1 Add'l Facts (“Pl. Add’l. St.”), ¶

1). Employees of the Jewel-Osco store gathered shopping carts and

corralled them inside the store’s vestibule and to the left for

use by store customers. (Def. St. at ¶ 6). The shopping carts

were not dried of excess water by Jewel-Osco employees when they

were brought into the store. (Id. at ¶ 8). Jewel-Osco had in

place a procedure to mop up the water dripping off the carts that

its employees brought inside from outside in the rain.

(Plaintiff’s Response to Defendant’s Local Rule 56.1 Filing (“Pl.

Resp”), ¶ 9). The water by the carts had not been mopped up at

the time of the occurrence. (Id.) Ms. Bernard fell on water that

was on the floor in the area where the shopping carts were

parked. (Defendant’s Response to Plaintiff’s Local Rule 56.1

Add'l Facts (“Def. Rsp.”), ¶ 4). 

Prior to her injury, Ms. Bernard was dropped off at the

front door of the Jewel-Osco store by her caregiver, Ms. Cynthia

Toler. (Def. St. at ¶ 12). Ms. Bernard was wearing a walking boot

on her left foot and ankle, which had sustained a prior injury.

(Id. at ¶ 13). Ms. Bernard entered the store vestibule, where

customers can obtain a shopping cart and gain access to the

Jewel-Osco store. (Id. at ¶ 14). Ms. Bernard walked in the door

and to the left to obtain a shopping cart. (Id. at ¶ 15). She

walked between twelve and fifteen feet past the threshold of the

entryway door towards the shopping carts to her left. (Id. at ¶

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16). The carts were positioned in the area where customers would

typically come in to get a shopping cart. (Id. at ¶ 17). Ms.

Bernard fell prior to making contact with or obtaining a cart.

(Id. at ¶ 18). Plaintiff was not looking at the ground at the

time, but instead was focused upon looking for a shopping cart.

(Id. at ¶ 19).

Ms. Bernard did not observe any water on the floor of the

store in question before she sustained her injury. (Id. at ¶ 20).

Ms. Bernard slipped on water from rain and fell forward onto her

knees. (Id. at ¶ 21). As she was on the floor, she noticed that

water was dripping from the shopping carts onto the floor. (Id.

at ¶ 22). Ms. Bernard’s caregiver, Ms. Toler, observed a puddle

of water in the area where Ms. Bernard fell, and she assumed that

it was from the carts. (Id. at ¶ 23). Ms. Bernard acknowledges

that she fell in a regular customer traffic area to get to the

shopping carts. (Id. at ¶ 25). Ms. Bernard purportedly sustained

a torn ligament in her left knee as a result of her fall. (Id. at

¶ 26).

The parties agree that Ms. Bernard fell on rain water that

was on the floor in the area where the shopping carts were

parked, within the front entrance of Jewel-Osco. However, they

disagree as to where the water she slipped on originated from.

(Def. St. at ¶ 30). Ms. Bernard does not agree with Jewel-Osco’s

assertion that the water was “tracked in” by customers,

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employees, or the wheels of the shopping carts. (Plaintiff’s

Response to Defendant’s Local Rule 56.1 Filing (“Pl. Resp.”), ¶

10). Instead, she states, that when the wet carts are brought

inside by Jewel-Osco’s employees, “water would drip off of them

and onto the floor,” and that she slipped in this water. (Pl.

Resp. at ¶ 10). Ms. Bernard argues that there is an ample amount

of evidence which shows the water that caused her to fall was not

tracked in on the wheels of the carts nor by foot. (Pl. Resp. at

¶ 30).

Analysis

At the summary judgment stage, the facts must be viewed in

the light most favorable to the nonmoving party only if there is

a “genuine” dispute as to those facts. Fed. Rule Civ. Pro. 56(c);

Scott v. Harris, 550 U.S. 372, 380 (2007). Once the moving party

has made a properly supported motion for summary judgment, “its

opponent must do more than simply show that there is some

metaphysical doubt as to the material facts.... Where the record

taken as a whole could not lead a rational trier of fact to find

for the nonmoving party, there is no ‘genuine issue for trial.’”

Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S.

574, 586–87 (1986). “[T]he mere existence of some alleged factual

dispute between the parties will not defeat an otherwise properly

supported motion for summary judgment; the requirement is that

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there be no genuine issue of material fact.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247–48 (1986).

Natural Accumulation Rule

Jewel-Osco argues that the natural accumulation rule applies

in this case. Under the natural accumulation rule, a principle of

Illinois common law, a landowner or possessor of real property

has no duty to remove natural accumulations of ice, snow, or

water from its property. Krywin v. Chicago Transit Authority, 238

Ill.2d 215, 222 (2010); Reed v. Galaxy Holdings, Inc., 394

Ill.App.3d 39, 43 (1st Dist.2009). This includes “tracks or

residue left by customers who have walked through natural

accumulations of water, slush, or snow.” Pytlewski v. United

States, 991 F.Supp. 1043, 1047 (N.D.Ill.1998) (collecting cases). 

Under Illinois law, in cases involving injuries resulting

from accumulations of ice, snow or water, “in order to withstand

a motion for summary judgment, a plaintiff must come forward with

sufficient evidentiary materials to permit the trier of fact to

find that defendant was responsible for an unnatural accumulation

of water, ice or snow that caused plaintiff’s injuries.” Bloom v.

Bistro Restaurant Ltd. Partnership, 304 Ill.App.3d 707, 710 (1st

Dist. 1999). Where, as here, the nonmoving party will bear the

burden of proof at trial on a dispositive issue, Rule 56(e)

requires the nonmoving party to go beyond the pleadings and by

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her own affidavits, or by the “depositions, answers to

interrogatories, and admissions on file,” designate “specific

facts showing that there is a genuine issue for trial.” Celotex

Corp. v. Catrett, 477 U.S. 317, 324 (1986).

Jewel-Osco argues that, since the water that Ms. Bernard

slipped on was a natural accumulation, it had no duty under

Illinois law to ensure its removal or to warn Plaintiff as to its

presence. And as Ms. Bernard’s claims against Jewel-Osco are that

of negligence, Plaintiff’s inability to demonstrate any duty owed

should result in the granting of summary judgment on behalf of

Jewel-Osco.

Plaintiff responds that the water she slipped on was an

unnatural accumulation and so the natural accumulation rule does

not apply. While a landowner is not liable for injuries resulting

from natural accumulations of ice and snow, it may be liable for

unnatural or artificial accumulations or where the owner

aggravates a natural condition. Bernard v. Sears, Roebuck & Co.,

166 Ill.App.3d 533, 535 (1st Dist. 1988). In order to withstand a

motion for summary judgment, plaintiff must establish that an

unnatural accumulation of ice and snow existed, and that

defendant was responsible for the condition. Id. Ms. Bernard

argues that, since the water she slipped on was not tracked in by

customers, employees, or the wheels of the cart, but was more

likely the result of the dripping rain off the carts brought in

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by the Jewel-Osco employees, the accumulation of water was

created by Jewel-Osco and unnatural. Defendant argues that there

is no evidence in the record to support Ms. Bernard’s theory, and

nothing creating a genuine issue of material fact.

In support of her position that the accumulation in this

case was caused by Jewel-Osco and does not fall under the natural

accumulation rule, Plaintiff cites Johnson v. Sears, Roebuck &

Co., 542 N.E.2d 841, 843 (1st Dist. 1989). In Johnson, plaintiff

slipped in the entranceway of defendant's store on a mixture of

water tracked in by customers and a bag of garden soil which

defendant had stacked near the entrance. The Court in Johnson

found that the plaintiff had met her burden to withstand a motion

for summary judgment by offering an affidavit offered by the

plaintiff stating that an open bag of garden soil had spread

across the sidewalk and created a layer of mud in the area where

plaintiff fell.

Ms. Bernard did testify that she observed water dripping off

of the shopping carts, and her belief that it was that particular

source of water that caused her fall. Pl. Dep. Tr. at p. 47: 15-

22. In addition, Ms. Bernard’s caregiver testified that she

thought the water on the floor was from the shopping carts as “it

was by the shopping carts, and they were all wet.” Cindy Toler

Dep. Tr. at p. 22: 4-12.

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In response to Ms. Bernard’s argument that the water she

slipped on was not “tracked in,” but entered the building on the

carts brought in by Jewel-Osco employees, Defendant argues that

even so, the water is still considered a natural accumulation. In

Choi v. Commonwealth Edison Co., 217 Ill.App.3d 952 (1st Dist.

1991), the plaintiff was an employee of an independent contractor

engaged by the defendant landowner. The plaintiff was carrying

ice covered pipes, which had been stored outside, into

defendant's building. He was injured when he slipped on a puddle

of water which accumulated after the ice and snow on the pipes

melted. The Court in Choi rejected plaintiff's argument that

defendant's acts, storing the pipes outdoors and then requiring

that they be brought directly indoors without deicing them,

precluded the application of the general rule that a landowner is

not liable for injuries resulting from “tracked-in” water. In

ruling, the Court found that the puddles which resulted from

transporting the ice-covered pipes were a “continuation of a

natural accumulation” and that plaintiff would have had to “make

an affirmative showing of an unnatural accumulation or an

aggravation of a natural condition” to establish a duty. Choi,

217 Ill.App.3d at 957. The Choi Court specifically rejected an

argument similar to Ms. Bernard’s argument that the rule of nonliability was limited to the instances of water “tracked-in” by

pedestrian traffic. Choi, 217 Ill.App.3d at 956-57. Rather, the

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Court in Choi looked at the defendant's conduct to see whether

defendant created an unnatural accumulation or aggravated a

natural condition.

Under the natural accumulation rule, Jewel-Osco’s duty did

not extend to taking precautions against water tracked in from a

natural accumulation outside. To establish a duty, plaintiff must

make an affirmative showing of an unnatural accumulation or an

aggravation of a natural accumulation. Ms. Bernard made no such

showing in this case. The water Ms. Bernard slipped on, if it

originated on the carts as she argues, was a continuation of a

natural accumulation. There is no evidence that Jewel-Osco

aggravated this condition. Ms. Bernard has not shown that there

is a genuine issue of material fact. 

Voluntary Undertaking Exception

Plaintiff also argues that “even if Defendant did not create

the hazard, it is still liable because it undertook a duty to

remedy it.” (S.J. Response, p. 11). Although there is no duty to

remove natural accumulations of water, ice, or snow, a voluntary

undertaking may subject a defendant to liability if it is

performed negligently. Tzakis v. Dominick’s Finer Foods, Inc.,

356 Ill.App.3d 740, 746 (1st Dist. 2005). Plaintiff argues that,

since Jewel-Osco had a procedure of mopping up water on rainy

days in the area that Ms. Bernard fell, and because the employees

did not mop up the water falling from the carts that day, Jewel10

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Osco was negligent in performing its voluntary undertaking of

removing a natural accumulation. 

In response to this argument, Jewel-Osco argues that the

Court in Pytlewski v. U.S., 991 F. Supp. 1043 (N.D. Ill. 1998)

makes clear that the voluntary undertaking argument is limited

and does not apply to cases such as this. In Pytlewski, the

plaintiff made a similar argument that the defendant voluntarily

undertook a duty to mop up natural accumulations, because it had

a policy in place to do so. The Court in Pytlewski squarely

rejected the argument, reasoning that if a policy of mopping up

naturally accumulated water led to a duty to do so, “such a

finding would also create a new exception to Illinois' natural

accumulation rule, an exception which has the potential to

swallow the rule almost whole. It is not this court's role to

create such a broad exception.” Pytlewski, 991 F. Supp. at 1050.

Therefore, as in Pytlewski, the Court rejects Ms. Bernard’s

argument that the policy of mopping up and not doing so qualifies

as a voluntary undertaking negligently performed.

“Under a voluntary undertaking theory, to establish

proximate cause of the injury, the cause-in-fact component

requires a showing that a plaintiff relied on the defendant's

conduct.” Mann v. Producer’s Chemical Co., 356 Ill.App.3d 967,

973 (1st Dist. 2005). Ms. Bernard has not presented evidence that

she relied on Jewel-Osco’s supposed voluntary undertaking to

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continuously mop the floor, a necessary element where a plaintiff

attempts to employ the voluntary undertaking theory. Accordingly,

Plaintiff’s voluntary undertaking argument fails and Jewel-Osco

is entitled to summary judgment.

Conclusion

Defendant Jewel-Osco’s motion for summary judgment is

granted.

Date: November 14, 2013 E N T E R E D:

-------------------------------

MAGISTRATE JUDGE ARLANDER KEYS

UNITED STATES DISTRICT COURT

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