UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

JANET HICKEY, 

 Plaintiff, 

 v. 

TARGET CORPORATION, 

 Defendant. 

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No. 12 CV 4180 

Magistrate Judge Young B. Kim 

April 1, 2014 

 

MEMORANDUM OPINION and ORDER

 Before the court is the motion of Defendant Target Corporation (“Target”) for 

summary judgment pursuant to Federal Rule of Civil Procedure 56. For the 

following reasons the motion is granted in part and denied in part: 

Background 

 Janet Hickey filed a complaint in state court against Target in April 2012 

alleging that Target’s negligence caused her to slip and fall in one of its retail 

stores. (R. 1, Ex. A, Compl.) Target removed the case to federal court in May 2012 

on the basis of diversity, (id.), and the parties then consented to this court’s 

jurisdiction, (R. 16). Both sides have completed non-medical fact discovery, and 

Target filed the current motion for summary judgment on November 13, 2013. 

(R. 54.) Hickey filed her response on February 27, 2014, (R. 70), and Target filed its 

reply on March 13, 2014, (R. 76). 
2

Facts1

 On May 1, 2010, Hickey and her husband, William Hickey (“William”), went 

to the Target store located at 1154 South Clark Street in Chicago, Illinois (“the 

store”), to shop. (R. 55, Def.’s Facts ¶¶ 5-6.) When the Hickeys approached a 

checkout lane to pay for their purchases, Hickey entered the lane ahead of William 

and placed their items on the checkout counter. (Id. ¶ 8.) While they were waiting 

in line, the cashier, Jaynell Richardson, informed the Hickeys that she could not 

process their purchases because she was experiencing problems with her register. 

(R. 71, Pl.’s Facts ¶ 11.) She motioned for the Hickeys to switch over to the adjacent 

checkout lane on their right. (R. 55, Def.’s Facts ¶¶ 8, 10 & Ex. C; R. 71, Pl.’s Facts 

¶ 10.) 

 The Hickeys were still standing in their original checkout lane when 

Guadalupe Tovar, another Target employee, entered the lane from the end opposite 

from where the Hickeys entered. (R. 55, Def.’s Facts ¶ 13.) Although neither party 

knows exactly when or how it got there, (id., Ex. A at 33:3-12 & Ex. D at 25:4-6, 

26:4-6), there was a puddle of spilled laundry detergent on the floor near the 

checkout lane “endcap,” which is a product stand located at the end of an aisle, (id. 

¶¶ 15-16). This endcap displayed shelves of laundry detergent bottles between the 

Hickeys’ lane and the neighboring lane Richardson directed them to enter. (Id. 

 

1 These facts are undisputed unless otherwise indicated. Target’s Local Rule (“LR”) 

56.1(a) Statement of Material Facts is cited as “Def.’s Facts ¶ __.” Hickey’s 

Response to Target’s LR 56.1(a) Statement of Facts is cited as “Pl.’s Fact Resp. ¶ 

__.” Hickey’s LR 56.1(b)(3)(C) Statement of Additional Material Facts is cited as 

“Pl.’s Facts ¶ __.” Target’s Response to Hickey’s Statement of Additional Material 

Facts is cited as “Def.’s Fact Resp. ¶ __.” 
3

¶¶ 15, 21.) Tovar passed the Hickeys as she walked through the lane, (id., Ex. C), 

and upon reaching the endcap, stopped immediately to guard the spill by standing 

with her back to the spilled detergent and facing the sales floor. (R. 71, Pl.’s Facts 

¶ 9; R. 55, Def.’s Facts ¶ 19.) 

 Meanwhile the Hickeys had begun moving out of their lane to get to the 

neighboring checkout aisle. (R. 55, Def.’s Facts ¶ 19.) William walked in front of 

Hickey to the area where Tovar was standing. (Id. ¶ 21.) William took a wider left 

turn walking between the endcap and Tovar and did not step in the spill, but 

Hickey took a sharper turn around the endcap than William, slipped in the 

detergent, and fell. (R. 71, Pl.’s Facts ¶ 12.) Hickey testified that she felt pain in 

her right knee, left elbow, and right wrist immediately after the fall, (R. 55, Def.’s 

Facts, Ex. A at 48:17-49:4), and that she later experienced neck pain in the weeks 

following the accident, (id. at 50:20-51:18). 

 The store’s security video system captured the fall, along with portions of 

time before and after it happened.2 (R. 55, Def.’s Facts ¶ 9 & Ex. C.) According to 

the video, approximately 10 seconds elapsed between when Richardson asked the 

Hickeys to move to the next lane and when Hickey fell. (Id., Ex. C.) Tovar also 

 

2 Although Hickey asserts that the video does not show the occurrence in real time, 

in violation of Local Rule 56.1(b)(3)(C) she has failed to submit any evidence 

supporting this claim aside from statements made by her attorney. (R. 71, Pl.’s 

Facts ¶ 19). As such, this court disregards her assertion. See Cichon v. Exelon 

Generation Co., L.L.C., 401 F.3d 803, 809-10 (7th Cir. 2005) (“A district court does 

not abuse its discretion when, in imposing a penalty for a litigant’s non-compliance 

with Local Rule 56.1, the court chooses to ignore and not consider the additional 

facts that a litigant has proposed.”). 
4

walked through the aisle and stopped at the spill site during the same 10-second 

period. (Id.) 

 The Hickeys testified that when they first entered the checkout lane, they did 

not see any spilled detergent or bottles on the floor. (R. 55, Def.’s Facts ¶ 25, Ex. A 

at 32:3-7 & Ex. B at 18:7-19:14.) Starla Nesbitt, another Target employee, testified 

that she saw a bottle of detergent on the floor with a broken cap when she arrived 

at the scene just after Hickey fell. (R. 72, Pl.’s Fact Resp., Ex. F at 43:14-16.) The 

spilled detergent was clear or very light in color, which made it difficult to see. 

(R. 71, Pl.’s Facts ¶ 15.) A photograph taken of the endcap after Hickey’s fall shows 

that the bottom shelf was not equipped with a silver railing used to keep products 

on the shelf. (R. 71, Pl.’s Facts ¶ 32 & Ex. J.) 

 Target’s policies and procedures require employees to guard a spill, stay with 

it once discovered, and warn customers of the spill. (Id. ¶¶ 5, 25.) It is undisputed 

that Tovar did not warn Hickey in the time that elapsed between Tovar’s arrival at 

the spill and when Hickey slipped and fell. (Id. ¶ 31.) Tovar testified that she did 

not expect anyone to approach the spill from behind her from the checkout lane, but 

stated she knew that customers sometimes move from one checkout lane to another. 

(R. 71, Pl.’s Facts, Ex. D at 44:8-45:25.) The parties disagree about whether Tovar 

used her walkie-talkie to call for clean-up assistance upon reaching the spill. (R. 71 

Pl.’s Facts ¶ 26; R. 55 Def.’s Facts ¶ 15.) 

 
5

Analysis

 Summary judgment is appropriate where “there is no genuine dispute as to 

any material fact and the movant is entitled to judgment as a matter of law.” Fed. 

R. Civ. P. 56(a). Target bears the initial burden of demonstrating that there is no 

genuine dispute of material fact. See Kramer v. Vill. of N. Fond du Lac, 384 F.3d 

856, 861 (7th Cir. 2004). If Target meets this burden, Hickey “may not simply rest 

upon the pleadings but must instead submit evidentiary materials that ‘set forth 

specific facts showing there is a genuine issue for trial.’” See Jones v. City of 

Elkhart, Ind., 737 F.3d 1107, 1112-13 (7th Cir. 2013) (quoting Fed. R. Civ. P. 56(e)). 

 In reviewing Target’s motion for summary judgment, this court draws all 

reasonable inferences from the evidence in the light most favorable to Hickey, the 

nonmoving party. See Carmichael v. Village of Palatine, Ill., 605 F.3d 451, 456 (7th 

Cir. 2010). Summary judgment is not “a vehicle for resolving factual disputes.” 

Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). This court “may 

not make credibility determinations, weigh the evidence, or decide which inferences 

to draw from the facts; these are jobs for the factfinder.” See Payne v. Pauley, 337 

F.3d 767, 770 (7th Cir. 2003) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). Rather, this court must examine the 

admissible evidence to decide whether there is any material dispute of fact that 

requires a trial. See Kodish v. Oakbrook Terrace Fire Prot. Dist., 604 F.3d 490, 507 

(7th Cir. 2010). 
6

 This court applies federal procedural law and Illinois substantive law. See, 

e.g., Reynolds v. CB Sports Bar, Inc., 623 F.3d 1143, 1148 (7th Cir. 2010). To 

prevail on an ordinary negligence claim under Illinois law, a plaintiff must prove 

that: (1) the defendant owed a duty of reasonable care to the plaintiff; (2) the 

defendant breached that duty; and (3) the breach proximately caused the plaintiff’s 

injury. Galbreath v. Wal-Mart Stores, Inc., No. 10-2065, 2011 WL 1560669, at *4-5 

(C.D. Ill. Apr. 25, 2011). The Illinois Premises Liability Act, 740 ILCS 130/2 (1995), 

provides that “[t]he duty owed [invitees] is that of reasonable care under the 

circumstances regarding the state of the premises or acts done or omitted on them.” 

Where a business invitee is injured by slipping on a foreign substance, the 

defendant business may be liable if the substance was placed on the premises by the 

negligence of the proprietor or its agents. Olinger v. Great Atl. & Pac. Tea Co., 173 

N.E.2d 443, 445 (Ill. 1961). 

 If the substance was on the premises through acts of third parties or there is 

no showing regarding how it got there, the business may still be liable under a 

premises liability theory if the proprietor or his agent knew or should have known 

of its presence and failed to exercise reasonable care to protect invitees against the 

danger. Id.; see also Genaust v. Illinois Power Co., 343 N.E.2d 465, 472 (Ill. 1976) 

(citing Restatement (Second) of Torts § 343 (1965)). At the same time, landowners 

are not the insurers of their invitees’ safety. Marshall v. Burger King Corp., 856 

N.E.2d 1048, 1069 (Ill. 2006). 
7

 Neither party disputes that Target owed Hickey a duty to exercise reasonable 

care to see that the store was reasonably safe. See 740 ILCS 130/2. Hickey alleges 

that Target breached this duty under both ordinary negligence and premises 

liability theories. (R. 1, Ex. A, Compl. ¶¶ 3, 6-9.) Even though Hickey’s response to 

Target’s motion focuses on premises liability, (R. 70, Pl.’s Resp. at 7), because her 

complaint can be read to include an ordinary negligence theory, this court will also 

review Target’s arguments with respect to that theory, see Galbreath, 2011 WL 

1560669, at *2.

A. Ordinary Negligence 

 Hickey alleges that Target’s negligence contributed to the presence of 

detergent on the floor, but she does not contend that it was actually spilled by a 

Target employee. (R. 70, Pl.’s Resp. at 8-9.) Rather she argues that the missing 

silver railing on the bottom shelf of the endcap display was one of the proximate 

causes of the spill, and that this alone prevents summary judgment. (Id. at 9.) Yet 

Hickey presents no evidence indicating when or how the railing went missing, or 

that a detergent bottle fell and leaked because of the railing’s absence. Although 

this court construes the facts in a light most favorable to Hickey, inferences that are 

only supported by speculation or conjecture will not defeat a summary judgment 

motion. Bell v. Duperrault, 367 F.3d 703, 707 (7th Cir. 2004). The fact that the 

missing railing could have been a contributing cause of the spill is also insufficient 

by itself to prevent summary judgment without some showing that Target was 

negligent for failing to ensure a railing was in place. See Perminas v. Montgomery 
8

Ward & Co., 60 Ill. 2d 469, 476 (1975) (“[l]iability must be founded on fault”); 

Olinger, 173 N.E.2d at 445. The railing’s absence, without additional evidence, does 

not indicate negligence and is insufficient to create a question for a jury. 

Accordingly, Target’s motion is granted as it pertains to Hickey’s ordinary 

negligence claim. 

B. Premises Liability 

 Target could still be liable under a premises liability theory if it (or its 

employees) knew about the spill and failed to exercise reasonable care to protect 

Hickey from falling. See Olinger, 173 N.E.2d at 445. Target does not dispute that it 

had actual notice of the spill, but argues that under the circumstances, “there was 

nothing else Target or Ms. Tovar could reasonably be expected to have done to 

prevent what can only be described as a fluke accident occurring within a very short 

timeframe.” (R. 56, Def.’s Mem. at 10.) Hickey contends that a factfinder should 

decide whether Tovar failed to properly guard the spill and whether Target had 

notice of the spill before Tovar reached it. (R. 70, Pl.’s Resp. at 8-10.) 

 This court agrees with Hickey. She argues that contrary to Target’s policies 

and procedures, Tovar made no verbal warnings about the detergent on the floor, 

stood too far away from the spill, and did not guard the area from anyone 

approaching the spill from behind her. (Id. at 4, 8.) Target correctly notes that a 

company’s internal guidelines or policies do not govern whether a duty is created. 

(R. 76, Def.’s Reply at 4-5); see, e.g., Fillpot v. Midway Airlines, Inc., 261 Ill. App. 3d 

237, 244 (4th Dist. 1994) (defendant’s policy manual requiring that employees keep 
9

walkways free of ice or snow did not create a legal duty). But Target’s policies 

aside, when construing the facts in a light favorable to Hickey, a reasonable 

factfinder could determine that Tovar should have positioned or conducted herself 

differently to guard the spill. Tovar did not warn Hickey in the time that elapsed 

between Tovar’s arrival at the spill and when Hickey slipped and fell. (R. 71, Pl.’s 

Facts ¶ 31.) There was enough space between Tovar and the spill for William to 

walk through without slipping. (Id. ¶ 12.) Tovar also knew that customers 

sometimes switch from one checkout lane to another, meaning customers could have 

approached the spill from behind her. (See id., Ex. D at 45:3-45:25.) Given this 

evidence, reasonable minds could differ as to whether Tovar’s actions were 

sufficient to fulfill Target’s duty of care, precluding summary judgment. 

 As for the issue of notice, Target spends much of its briefing arguing that the 

several seconds between when Tovar arrived at the spill and when Hickey fell did 

not afford Target sufficient opportunity to remedy the dangerous condition. (R. 56, 

Def.’s Mem. at 10-13; R. 76, Def.’s Reply at 1, 6-9.) Target bases its contention on 

the premise that it first obtained notice of the spill when Tovar reached the endcap, 

and her testimony supports this premise. (R. 55, Def.’s Facts ¶ 14 & Ex. D at 18:25-

19:3.) In response, Hickey points to the video footage and the testimony of other 

Target employees to argue that Target had notice of the spill prior to Tovar’s arrival 

at the site of the spill, and that Tovar was responding to an alert issued by another 

employee or a customer. (See R. 70, Pl.’s Resp. at 9; R. 72, Pl.’s Fact Resp. ¶¶ 14-15, 

17, 24, 27.) Hickey cites to Richardson’s testimony that she was “pretty sure 
10

someone called [Tovar] over the walkie” and that Tovar “responded to the spill.” 

(R. 55, Def.’s Facts, Ex. E at 43:17-22.) Hickey also cites to the testimony of 

Enrique Meta, the store manager on duty during the occurrence, who stated that 

the reason Tovar “went out there” was to warn people of the spill, and that Tovar 

“appeared to be covering the spill.” (Id., Ex. H at 54:17-20, 60:14-17.) 

 This court agrees with Target that Richardson’s and Meta’s statements do 

not conclusively indicate that Tovar knew of the spill before she approached it, and 

it is unclear whether their testimony is based on personal knowledge. (See R. 75, 

Def.’s Fact Resp. ¶¶ 9, 24.) However, for purposes of this motion, it is unnecessary 

to rely on their testimony because the video footage itself casts doubt on Target’s 

assertion that Tovar first discovered the spilled detergent when she reached the 

endcap. (R. 55, Def.’s Facts ¶¶ 15, 17.) The parties do not dispute that when Tovar 

arrived at the endcap, she stopped “instantly” to guard the spill. (R. 71, Pl.’s Facts 

¶ 9.) A reasonable factfinder could conclude, based on Tovar’s immediate reaction 

to the spill as captured in the video, that she already knew the spill was there 

before she arrived. This would contradict Tovar’s testimony that she did not know 

about the spill before walking through the checkout aisle, and that no one asked her 

to go guard the spill. (R. 55, Def.’s Facts ¶ 14 & Ex. D at 18:25-19:3, 23:13-19.) In 

deciding a motion for summary judgment, this court will not choose between 

competing reasonable inferences or balance the relative weight of conflicting 

evidence. See Stokes v. Bd. of Educ., 599 F.3d 617, 619 (7th Cir. 2010). Whether 

Tovar’s testimony is credible is a question for the jury. 
11

 Target maintains that even if Tovar knew there was a spill before she arrived 

at the endcap, her actions “would be no less reasonable.” (R. 76, Def.’s Reply at 8.) 

But if Tovar already knew about the spill before reaching the endcap, then 

questions arise as to how long Target had notice of the situation, and whether 

Target could have taken swifter, more comprehensive action to remedy and warn of 

the spill’s dangers. See Ishoo v. Gen. Growth Props., 966 N.E.2d 1160, 1165 (Ill. 

App. Ct. 2012) (“[S]ufficient notice of a dangerous condition may give rise to a 

breach of duty by the defendants if the condition is left uncorrected.”). Because 

Hickey submitted admissible evidence from which a reasonable jury could conclude 

that Tovar already knew of the spill, Hickey has identified a triable issue of 

material fact precluding summary judgment.

Conclusion

 For the foregoing reasons, Target’s motion for summary judgment is granted 

in part and denied in part. The motion is granted with respect to Hickey’s claim 

that Target’s negligence caused the detergent to spill. The motion is denied as to 

Hickey’s premises liability claims. 

 ENTER:

 

 ____________________________________ 

 Young B. Kim 

 United States Magistrate Judge