In the

United States Court of Appeals

For the Seventh Circuit

No. 07-3916

LENORA REID,

Plaintiff-Appellant,

v.

KOHL’S DEPARTMENT STORES, INCORPORATED,

a Delaware Corporation licensed to do business

in Illinois,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 06 C 472—James B. Zagel, Judge.

ARGUED JUNE 4, 2008—DECIDED SEPTEMBER 16, 2008

Before BAUER, WOOD and WILLIAMS, Circuit Judges.

BAUER, Circuit Judge. Lenora Reid slipped and fell on the

floor of a retail store owned and operated by Kohl’s

Departments Stores, Inc. She subsequently brought this

action against Kohl’s. The district court granted summary

judgment in favor of Kohl’s, and Reid appealed. For the

reasons set forth below, we affirm.
2 No. 07-3916

On December 7, 2003, Reid and her friend Anthony

Adkins visited Kohl’s to shop for men’s dress shirts.

After perusing items in the men’s section of the store, Reid

lost interest and decided to walk over to the women’s

pajamas section; the men’s section was carpeted and

separated from the other section by a tile floor. As Reid

stepped off of the carpet into the aisle, she slipped and

fell, sustaining mild injuries. She saw near the spot of her

fall a pink milkshake spilled from a large cup in a pool on

the tile floor. Adkins described the scene: “the floor was

wet with something that looked like a strawberry milk

shake, like ice cream and a big puddle on the floor with

a cup and a straw, and it was open.”

The manager on duty at the store, Kelly Rizzo, arrived at

the scene to assist Reid. She too saw the “pink smoothie,

milkshaky ice cream type of thing,” as well as a cup, a lid,

and a straw on the floor near Reid when she arrived.

However, Rizzo did not see the spilled milkshake on the

floor during an inspection of the aisle area shortly before

the fall. According to Rizzo, Kohl’s had a routine procedure for inspecting the premises at the Kohl’s store. That

practice involved a continuous walk-through by the

manager on duty to ensure that the store was clean and

safe. Rizzo testified that she had followed this procedure

on December 7, 2003. During her walk-through, she

passed the aisle where Reid had fallen at the most ten

minutes prior to the fall and had not seen the spilled

milkshake. She further testified that no employees or

customers reported the spill prior to Reid’s accident.

Reid filed a complaint against Kohl’s in an Illinois court

on November 1, 2005, and Kohl’s removed the case to
No. 07-3916 3

A brief note on jurisdiction: there is no question that the 1

parties are diverse—Reid is an Illinois citizen and Kohl’s is a

Delaware corporation with its principal place of business in

Wisconsin. As far as the jurisdictional amount, there is little in

the record (but ultimately enough) that establishes that the

amount in controversy exceeds $75,000. In her complaint, Reid

claimed that she suffered “severe and debilitating injuries” that

required “a large sum of money for medical, hospital and doctor

care and attention.” She did not attach an ad damnum clause.

In her deposition, Reid discussed her injuries to her back and

side, as well as the physical therapy to address these injuries,

(continued...)

federal court on January 6, 2006. The district court granted

Kohl’s motion for summary judgment on September 19,

2007, finding that Kohl’s had no actual or constructive

notice of the spill prior to Reid’s fall and that the spilled

milkshake was an open and obvious condition that Kohl’s

owed no legal duty to protect against. This timely appeal

followed.

We review a district court’s grant of summary judgment de novo. Darst v. Interstate Brands Corp., 512 F.3d 903,

907 (7th Cir. 2008). Summary judgment is appropriate

when there is no genuine issue as to any material fact

and the moving party is entitled to judgment as a matter

of law. Fed. R. Civ. P. 56(c). We view the record in the

light most favorable to the non-moving party and draw

all reasonable inferences in that party’s favor. Darst,

512 F.3d at 907.

Illinois law governs the extent of Kohl’s liability in this

diversity action. In Illinois, businesses owe their invitees

1
4 No. 07-3916

(...continued) 1

but did not state the specific amount of her damages. Prior to

removing the case to federal court, Kohl’s served Reid with a

request to admit that she sought damages in excess of $75,000.

Reid admitted that she did. In its notice of removal, Kohl’s

stated its good faith belief that the amount in controversy

exceeded the jurisdictional amount. Based on this (albeit scant)

record, we are satisfied that the jurisdictional amount has

been met, and we may proceed to the merits vel non.

a duty to maintain the premises in a reasonably safe

condition to avoid injuring them. Marshall v. Burger King

Corp., 222 Ill.2d 422, 305 Ill.Dec. 897, 856 N.E.2d 1048, 1057-

58 (2006); Thompson v. Economy Super Marts, Inc., 221

Ill.App.3d 263, 163 Ill.Dec. 731, 581 N.E.2d 885, 888 (1991);

Peterson v. Wal-Mart Stores, Inc., 241 F.3d 603, 604 (7th Cir.

2001) (applying Illinois law); Restatement (Second) of Torts

§§ 343, 344 (1965). Liability can be imposed when a business’s invitee is injured by slipping on a foreign substance on its premises if the invitee establishes that the

business had actual or constructive notice of the dangerous condition that caused the fall. Pavlik v. Wal-Mart

Stores, Inc., 323 Ill.App.3d 1060, 257 Ill.Dec. 381, 753 N.E.2d

1007, 1010 (2001); Tomczak v. Planetsphere, Inc., 315

Ill.App.3d 1033, 249 Ill.Dec. 58, 735 N.E.2d 662, 666 (2000).

Reid argues that she presented evidence from which a

trier of fact could determine that Kohl’s had constructive

knowledge of the spill. Where constructive knowledge

is alleged, “[o]f critical importance is whether the substance that caused the accident was there a length of time

so that in the exercise of ordinary care its presence
No. 07-3916 5

should have been discovered.” Torrez v. TGI Friday’s, Inc.,

509 F.3d 808, 811 (7th Cir. 2007) (quoting Tomczak, 315

Ill.App.3d 1033, 735 N.E.2d at 667) (internal quotations

and alterations omitted); Thompson,221 Ill.App.3d 263, 581

N.E.2d at 888 (noting that in establishing constructive

notice, the time element is the material factor). Absent

any evidence demonstrating the length of time that the

substance was on the floor, a plaintiff cannot establish

constructive notice. Tomczak, 315 Ill.App.3d 1033, 249

Ill.Dec. 58, 735 N.E.2d at 668; Hayes v. Bailey, 80 Ill.App.3d

1027, 36 Ill.Dec. 124, 400 N.E.2d 544, 546-47 (1980).

In this case, Reid fails to meet her burden of showing

Kohl’s constructive notice—that is, that the foreign substance had been on the floor for such a length of time

that Kohl’s should have discovered it. Reid presented

photographs of the partially melted milkshake taken

shortly after the accident which suggest, according to

Reid, that it had been on the floor for an extended period

of time. Reid testified that though she could not tell exactly

how long the milkshake was on the floor prior to her fall,

“[i]t appeared to me that it may have been down there

for some time because it was starting to get liquid in

some areas of the spillage. It was liquid and running a

little bit.” She further described the consistency of the

substance on the ground by noting that “some of it was

thick and the other part was more liquid.” Adkins also

opined on how long the milkshake had been melting on

the floor, though he reached a different conclusion after

viewing the scene. He testified that it looked as if the spill

had “just happened [because] it seemed to be ice cream,

and it hadn’t melted yet.”
6 No. 07-3916

Neither the testimony of Reid and Adkins nor the

photographs of the spillage indicate with any degree of

certainty how long the milkshake had been on the floor.

Though Reid argues that a fact-finder could infer from the

texture of the melted beverage that it had been on the

floor for an extended period of time, this inference is far

too speculative to warrant much consideration. We know

little about the substance that caused Reid to slip other

than its color. Reid presented no evidence regarding its

origin or its composition—perhaps its original owner

ordered it extra thin or thick; perhaps the milkshake came

from a vendor known for particularly heavy or light

milkshakes; perhaps the milkshake was not a milkshake

at all, but rather frozen yogurt or a fruit smoothie. The

record is devoid of any facts which would have given

insight into the relevant time frame. Reid also failed to

establish that the milkshake melted on the floor specifically, and not in the cup, before its owner unwittingly (or

deliberately) tossed it on the floor. Reid might have been

aided by expert testimony, perhaps on the dynamics of

melting objects or the viscosity of milk-based frozen

beverages. Without any of this, Reid’s cursory conclusion

that the milkshake must have been on the ground “for

some time” falls flat.

So the only affirmative statement regarding the length

of time came from Rizzo, who stated that the milkshake

was in the aisle for at most ten minutes prior to the fall.

Because Reid failed to prove otherwise, we, as did the

district court, treat that ten minutes as the outside limit of

time. See Peterson, 241 F.3d at 604.
No. 07-3916 7

Under the circumstances of this case, no reasonable

person could conclude that ten minutes was enough time

to give Kohl’s constructive notice of the spilled substance.

Illinois law recognizes that there is no bright-line rule

indicating the requisite time to establish notice, though

periods in excess of ten minutes have failed the test. See,

e.g., Hayes, 80 Ill.App.3d 1027, 400 N.E.2d at 546-47. Rather

we look to the circumstances of the particular case to

determine if the length of time gave rise to notice.

Peterson, 241 F.3d at 605. Here, Rizzo testified that on the

afternoon of the accident, very few customers were in

the store, which lessened the likelihood of the hazardous

condition. See Hresil v. Sears, Roebuck & Co., 82 Ill.App.3d

1000, 38 Ill.Dec. 447, 403 N.E.2d 678, 680 (1980). Were

customer traffic heavy, the onus would have been on

Kohl’s to provide frequent and careful patrolling.

Peterson, 241 F.3d at 604-05. The store was almost empty,

so the duty to inspect the premises accordingly decreased.

In addition, the Kohl’s store’s internal procedure for

monitoring for spills and other dangerous conditions

appropriately addressed the threat of such issues. Hresil,

403 N.E.2d at 680; see also Peterson, 241 F.3d at 604-05.

Considering these conditions as a whole, ten minutes

was not enough to give Kohl’s constructive notice of the

spill.

Reid argues that the district court misapplied

Peterson and held, contrary to Illinois law, that ten

minutes was de facto not enough time to establish constructive notice. To the contrary, the district court properly

addressed Peterson and Illinois law by examining the

specific circumstances of the case and conditions of the
8 No. 07-3916

Because we find that Kohl’s had no notice of the spilled 2

substance, we need not address the district court’s other

holding that the condition was open and obvious.

9-16-08

store at the time of the fall. It acknowledged the absence

of a bright-line rule on the appropriate length of time to

establish constructive notice, distinguished the facts of

Peterson, and likened Reid’s case to that in Hresil. Nothing

in the district court’s analysis of the constructive notice

issue ran afoul of Illinois law.

By failing to meet her burden in establishing constructive

notice, Reid’s claim must fail. The district court’s grant

2

of summary judgment is AFFIRMED.