In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 07-1107

ALEXANDER TORREZ, also known as ALEJANDRO TORREZ,

Plaintiff-Appellant,

v.

TGI FRIDAY’S, INC.,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 05 C 45—Blanche M. Manning, Judge.

____________

ARGUED NOVEMBER 2, 2007—DECIDED DECEMBER 3, 2007

____________

Before EASTERBROOK, Chief Judge, and POSNER andRIPPLE,

Circuit Judges.

POSNER, Circuit Judge. In this suit for personal injury,

governed by Illinois law, the district judge granted summary judgment in favor of the defendant, and the plaintiff

appeals. Federal jurisdiction is based on diversity of

citizenship, though we were able to ascertain this only

by directing the parties to file supplemental jurisdictional memoranda; for the jurisdictional statement in the

plaintiff’s opening brief failed to identify the state in

which the defendant, a corporation, is incorporated, and
2 No. 07-1107

the jurisdictional statement in the defendant’s brief stated

that the plaintiff’s jurisdictional statement was complete

and correct, though it was neither.

The plaintiff was injured while cleaning the hood over a

fryer exhaust fan at the defendant’s restaurant in Batavia,

Illinois. He was employed not by the defendant, TGI

Friday’s (had he been, he could not have brought this suit

but would have been remitted to an administrative proceeding under the state’s workers’ compensation law),

but by a cleaning service, Facilitec, hired by the defendant.

He was working at night because he had to wait to enter

the restaurant until its employees had finished taking

inventory and were about to close the restaurant for the

night. Inside the fryer hood were five light bulbs, each

encased in a transparent glass globe. The bulbs and their

globes were not visible unless one looked under the hood,

which the plaintiff did not do. Instead he reached inside

to clean the inside of the hood—and felt a sudden pinch

in his arm. The pinch turned out to be a serious wound,

severing several tendons and disabling the plaintiff from

regular employment. He had cut his arm on one of the

globes, but the record is silent on whether it was a

cracked globe that broke apart when his arm touched it

or a globe that was broken before he reached into the hood.

The record contains no picture of the fryer or even

identification of the brand or model. The plaintiff’s lawyer

told us that he could not gain access to the restaurant to

look at the fryer and hood, which is absurd; hasn’t he

heard of pretrial discovery? (See Fed. R. Civ. P. 34(a)(2).)

Well, maybe not, because he conducted no discovery at all.

As a result, nothing is known about the source of the

crack in the globe, or, if the globe was already broken

when the plaintiff’s arm touched it, the cause of its being
No. 07-1107 3

broken. The globe could have been defectively designed

by the manufacturer, defectively installed or manhandled

by the manufacturer of the fryer hood, damaged in shipment, damaged by an employee of the restaurant, damaged

by another employee of the plaintiff’s company or by the

plaintiff himself on a prior visit to clean the hood. We

shall never know.

The plaintiff has litigated the case as if it were a slip and

fall case, where for example a customer accidentally

knocks a bottle containing liquid off a shelf in the defendant’s store, another customer slips on it and injures

himself, and the suit charges that the store should have

detected and removed the danger before the accident. E.g.,

Perminas v. Montgomery Ward & Co., 328 N.E.2d 290, 291-92

(Ill. 1975); Donoho v. O’Connell’s, Inc., 148 N.E.2d 434, 437-

41 (Ill. 1958); Peterson v. Wal-Mart Stores, Inc., 241 F.3d 603

(7th Cir. 2001); Saldana v. Kmart Corp., 260 F.3d 228, 231-32

(3d Cir. 2001). At the same time and inconsistently he

argues that the globe was cracked or broken by the restaurant’s employees. These are two quite different theories,

requiring different proof. If an employee of the defendant

creates a hidden danger (maybe, as claimed in Howard v.

Wal-Mart Stores, Inc., 160 F.3d 358 (7th Cir. 1998), a store’s

employee rather than another customer knocked the bottle

off the shelf and failed to notice the spillage or report it or

clean it up), such as a cracked or broken glass globe in a

place into which the employee should know someone

will be likely to reach his arm without awareness of the

danger, the employee is negligent and his negligence is

imputed to his employer. Donoho v. O’Connell’s, Inc., supra,

148 N.E.2d at 437. But there is as we said no evidence of

who broke or cracked the globe, and specifically no

evidence that one of the restaurant’s employees did it.
4 No. 07-1107

If the danger was created by someone other than an

employee of the restaurant, the restaurant is liable only

if it would have detected and removed the danger had it

been exercising due care to make its premises safe for its

employees and for any business invitees (which would

include the members of the outside cleaning staff as well

as any customer or inspector invited into the kitchen)

who were within the zone of danger. In the case of slip

and fall accidents in stores, due care requires the storeowner to keep the floor reasonably safe for customers by

cleaning it frequently and by directing its employees to do

a certain amount of patrolling of the aisles with their eyes

directed at the floor. As we explained in the Peterson

case, “The store’s duty is not merely to prevent careless

spillage by its employees but also to be on the lookout for

spillage by whomever caused and to clean it up promptly.

Satisfaction of the latter half of this duty, the duty of

inspection and clean up, does not require continuous

patrolling of the aisles; the cost would be disproportionate

to the benefit. But it may require, in self-service stores

where customer traffic is heavy and the probability of a

slip and fall therefore high (both because there are many

people using the aisles, who are customers rather than

employees, and because the probability that a customer

through spillage or otherwise will create a hazardous

condition is a function of the number of customers per

square foot of floor), frequent and careful patrolling. The

cost of such patrolling to the store need not be high.

Employees have frequent occasion to be in the store’s

aisles in any event; they have only to be alert to the possibility of spillage to notice it and clean it up promptly.” 241

F.3d at 604-05 (citations omitted). Of critical importance is

whether “the substance [that caused the accident] was

there a length of time so that in the exercise of ordinary
No. 07-1107 5

care its presence should have been discovered.” Tomczak

v. Planetsphere, Inc., 735 N.E.2d 662, 667 (Ill. App. 2000);

see also Martin v. Wal-Mart Stores, Inc., 183 F.3d 770, 774-

75 (8th Cir. 1999); Porche v. Winn-Dixie Louisiana, Inc., 644

So. 2d 699, 702 (La. App. 1994); compare Hresil v. Sears,

Roebuck & Co., 403 N.E.2d 678, 679-80 (Ill. App. 1980). If

there is a comparable duty on the part of restaurateurs to

inspect fryer hoods for cracked or broken glass globes,

this is not so obvious as to enable a suit to go forward on

the basis of res ipsa loquitur—that the accident must have

been due to the defendant’s negligent management of

something within its control.

Determining whether a defendant has failed to use due

care to prevent an accident requires a comparison between

the cost of the precaution that would have prevented it

and the cost of the accident that occurred as a result of

the absence of the precaution, discounted by the probability of an accident if the precaution was not taken. If an

accident if it occurs would cause on average a $10,000

loss, and the probability that the accident would occur

unless a particular precaution was taken was 1 percent,

and the precaution would have cost only $50, then the

failure to take it was indeed negligence. For an expected

loss of $100 (1 percent of $10,000) could have been prevented at a cost of only $50. Rarely in an actual negligence

case are the factors that determine whether a precaution

is cost justified actually quantified. But if the case is

properly litigated there will at least be evidence of a

general nature about whether the probability of an accident was high or low, the loss if the accident occurred

would be great or small, and the measures that would

have prevented the accident would have cost a lot or a

little, and such general information will usually suffice to
6 No. 07-1107

resolve the issue of negligence satisfactorily. But the record of this case contains absolutely no evidence concerning these magnitudes. How likely is a globe in a fryer

hood to be cracked or broken? How easily could such a

defect be determined by inspection (for the globes,

being placed behind a lip in the hood, resist easy inspection)? How frequent and, on average, how serious is the

type of accident that befell the plaintiff? Was he perhaps

in the best position to inspect, since it was his duty to

clean the bulbs? Indeed, was it reckless for him to try to

clean a surface from which (as he must have known, as

there is no suggestion that this was the first time he had

tried to clean the fryer hood) hollow glass globes protruded

that he could not see? In the absence of some evidence

on these points—there is none—no reasonable jury could

find that the plaintiff’s injury was due to negligence on

the part of employees of the restaurant. Summary judgment was therefore rightly granted in favor of the defendant.

AFFIRMED.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—12-3-07