In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 15-3163

HANNAH PIOTROWSKI and 

JAMES M. PIOTROWSKI,

Plaintiffs-Appellants,

v.

MENARD, INC.,

Defendant-Appellee.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 13 CV 05572 — Mary M. Rowland, Magistrate Judge.

____________________

ARGUED MAY 23, 2016 — DECIDED NOVEMBER 29, 2016

____________________

Before BAUER, POSNER, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. Hannah Piotrowski was injured 

after slipping on two small rocks in the parking lot of a 

Menard store. She filed this suit alleging that her injuries were 

due to Menard’s negligence, contending that the rocks must 

have come from a planter that Menard maintained outside the 

store or from decorative rocks that the store sold in bags of at 
2 No. 15-3163

least forty pounds. We affirm the district court’s grant of summary judgment in favor of the store because Piotrowski’s belief that she fell as a result of the store’s negligence is only 

speculation, and speculation is not enough to survive summary judgment under Illinois law. That Piotrowski fell in the 

Menard’s parking lot after slipping on two rocks is not enough 

to support an inference that Menard’s negligence caused the 

fall. In addition, there is no evidence of a pattern of conduct 

or recurring incident, and the store’s general manager and 

employees regularly monitored the parking lot for unsafe 

conditions. 

I. BACKGROUND

Hannah Piotrowski and her husband went shopping at a 

Menard home improvement store in Hodgkins, Illinois on 

April 14, 2012. While walking in the parking lot toward their 

vehicle, Piotrowski stepped on one or two small rocks that she 

had not seen before stepping on them and fell, very hard. Piotrowski described the rocks as oval in shape and larger than 

marbles.

When she fell, Piotrowski was in the area outside the store 

entrance and exit used for vehicle drop-offs. About 50 to 125 

feet away, there is a large, half-moon shaped concrete planter

with a small tree and bush in the center. Decorative “river 

rock” fills the planter. The rock needed to be replenished from 

time to time, and the store’s general manager said that rock 

was added to the planter “whenever it looks a little bare.” The 

planter was near the store’s exit, and the store’s front end manager had seen children in the planter on occasion. Menard also 

sold decorative river rock in the garden center of its store in 

large bags weighing forty to fifty pounds.
No. 15-3163 3

The store’s general manager walked the store’s premises, 

including the parking lot, on a daily basis. More specifically, 

he explained that he walks “every square foot of our store, our 

parking lot, my outside yard, and our perimeter” every day 

as part of his duties as general manager. Other employees also 

walked through the parking lot throughout the day and were 

responsible for reporting any hazards. 

Piotrowski went by ambulance to the hospital after her fall

and was treated for fracture, torn ligaments, and dislocation 

of her right elbow. Her injuries required four additional hospitalizations and three more surgeries within the first year of 

the accident. 

Piotrowski and her husband filed suit in the Circuit Court 

of Cook County, Illinois against Menard, Inc. alleging negligence and loss of consortium.1 Menard removed the case to 

federal court on the basis of diversity jurisdiction. The judge

granted Menard’s motion for summary judgment, and this 

appeal followed.

II. ANALYSIS

The question on appeal, as it was before the district court,

is whether Piotrowski has set forth sufficient evidence to proceed to trial on whether Menard’s negligence caused Piotrowski’s fall. We review the grant of summary judgment to 

Menard de novo, viewing all evidence in the light most favorable to Piotrowski as the non-movant at summary judgment. 

 1 Hannah Piotrowski’s husband James is also a plaintiff and appellant in 

the suit, but for ease we will refer only to Hannah Piotrowski in this opinion. Mr. and Mrs. Piotrowski do not make any separate arguments on appeal.
4 No. 15-3163

Farrell v. Butler Univ., 421 F.3d 609, 612 (7th Cir. 2005). Summary judgment is proper 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(a). 

Illinois law governs in this diversity case. A plaintiff like 

Piotrowski who alleges that the defendant was negligent 

must show a duty owed by the defendant, a breach of that 

duty, and injury that was proximately caused by the breach. 

Newsom-Bogan v. Wendy’s Old Fashioned Hamburgers of N.Y., 

Inc., 953 N.E.2d 427, 431 (Ill. App. Ct. 2011). In Illinois, a business like Menard owes customers a duty to maintain its premises in a reasonably safe condition to avoid injuries to those 

customers. Zuppardi v. Wal-Mart Stores, Inc., 770 F.3d 644, 649 

(7th Cir. 2014). The parties agree that Menard owed Piotrowski this duty, but they dispute whether Menard 

breached its duty and also whether any breach was the proximate cause of the injuries Piotrowski suffered.

When a business’s invitee is injured by slipping on a foreign substance, the business can be liable if the invitee establishes that: (1) the substance was placed there by the negligence of the business; (2) the business had actual notice of the 

substance; or (3) the business had constructive notice of the 

substance. Id. (citing Newsom-Bogan, 953 N.E.2d at 431; Pavlik 

v. Wal-Mart Stores, Inc., 753 N.E.2d 1007, 1010 (Ill. App. Ct. 

2001)). Significantly, speculation or conjecture regarding the 

cause of an injury is not sufficient in Illinois to impose liability 

for negligence. Smith v. Eli Lilly & Co., 560 N.E.2d 324, 328 (Ill. 

1990); Furry v. United States, 712 F.3d 988, 993 (7th Cir. 2013) 

(applying Illinois law). 
No. 15-3163 5

A. No Triable Issue as to Whether Placement of Rocks

Due to Menard’s Negligence

We look first to whether there is a triable issue as to 

whether the two rocks were placed in the parking lot where 

the fall occurred due to Menard’s negligence. Piotrowski 

maintains that Menard caused the dangerous condition of 

rocks in the parking lot by maintaining a planter full of rocks 

outside the store. To prove that the defendant, rather than a 

third party, created the dangerous condition, Illinois courts 

require a plaintiff to (1) demonstrate that the foreign substance was related to the defendant’s business, and (2) offer 

“some further evidence, direct or circumstantial, however 

slight, such as the location of the substance or the business 

practices of the defendant, from which it could be inferred 

that it was more likely that defendant or his servants, rather 

than a customer, dropped the substance on the premises.” 

Zuppardi, 770 F.3d at 650 (quoting Donoho v. O’Connell’s, Inc., 

148 N.E.2d 434, 439 (Ill. 1958)). 

Our decision in Zuppardi is instructive here. There a customer slipped on a puddle of water in the back of a Wal-Mart 

store. The puddle was near where employees traveled to clock 

in and out, take breaks, and unload inventory. We ruled that 

the plaintiff had not put forth sufficient evidence to survive 

summary judgment, noting that she had not seen the water 

prior to her fall nor seen how it accumulated, there were no 

tracks leading to or from the puddle to any store display or 

freezer, and the plaintiff had not seen any store employees as 

she traveled down the aisle before the fall. Id. Even though the 

plaintiff pointed to testimony that an employee was stocking 

shelves a few aisles away in what may have been the soda and 

water aisle as a possible cause of the spill, we said that was 
6 No. 15-3163

not enough, as it was “insufficient for [the plaintiff] to solely 

provide a possible way in which a Wal-Mart employee could 

have caused the spill.” Id. at 646, 650. The plaintiff’s contention was purely speculation, and that was not enough. Id. at 

650.

Here, too, there is no direct or circumstantial evidence to 

indicate that it was more likely that a Menard employee, rather than a third party, was responsible for the two rocks’ 

presence where Piotrowski fell. It is not enough to say that 

Menard sold river rocks and used river rocks to fill a planter 

in the parking lot—that much is true. But it is not true that the 

plaintiffs have adduced evidence that the rocks’ placement in 

the parking lot was more likely caused by Menard’s negligence rather than by that of a customer or other third party. 

As even Piotrowski acknowledges, potential causes of rock 

depletion to the planter were many and included that patrons 

or children were carrying it away, power washing of the store 

front, overfill, and customers or employees setting something 

on the planter with the result that the rocks moved onto the 

surrounding parking lot when the object was pulled off the 

planter. A witness who saw Piotrowski fall testified that the 

rocks at issue may have fallen from a tire of one of the vehicles 

driving in the parking lot. 

Piotrowski did not see the rocks fall, and neither she nor 

anyone else to whom she points knew how the rocks at issue 

ended up where they did. Although she is correct that a 

Menard employee’s actions could have caused the rocks to 

spill, that this was the cause is only speculation, and speculation is not sufficient to survive summary judgment. See Ciciora 

v. CCAA, Inc., 581 F.3d 480, 483 (7th Cir. 2009); see also Thompson v. Econ. Super Marts, Inc., 581 N.E.2d 885, 888 (Ill. App. Ct. 
No. 15-3163 7

1991) (“[E]ven where there is proof that the foreign substance 

was related to the defendant’s business, but no further evidence is offered other than the presence of the substance and 

the occurrence of the injury, the defendant is entitled to a directed verdict, such evidence being insufficient to support the 

necessary inference.”).

B. No Triable Issue as to Whether Menard Had Actual 

or Constructive Notice

Piotrowski could also succeed on her negligence claim if 

she could show that Menard had actual or constructive notice 

of the dangerous condition that caused her fall. Reid v. Kohl’s 

Dep’t Stores, Inc., 545 F.3d 479, 481 (7th Cir. 2008) (citing Pavlik, 

753 N.E.2d at 1010). It is not clear whether she is pressing this 

theory on appeal, as she acknowledges that the district court 

correctly found that the record contained no evidence of actual or constructive notice of the two rocks that caused her fall 

and no evidence of how long the two rocks had been present 

at the spot in question before her fall.

Piotrowski does maintain that the district court lost sight 

of the overarching issue in the case, which to her is the permanent and dangerous condition created and maintained by 

Menard. In support, she points to cases articulating the principle that actual or constructive notice of a dangerous condition was not required to establish liability when the dangerous condition was created by the defendant or its employees.

See, e.g., Harding v. City of Highland Park, 591 N.E.2d 952, 958-

59 (Ill. App. Ct. 1992); Coffee v. Menard, Inc., No. 13 C 2726, 

2015 WL 1399049, at *4 (N.D. Ill. Mar. 25, 2015). These cases 

do not help Piotrowski, however, as unlike in those cases, 

there is no evidence here from which a jury could find that it 
8 No. 15-3163

is more probable than not that a Menard employee caused the 

dangerous condition. 

Piotrowski also stresses that Menard knew that rock was 

leaving the planter because its store manager acknowledged 

directing employees to replenish the rock as needed, and she

argues that this fact gives rise to a reasonable inference that 

rock was escaping onto the pavement where customers 

walked. Constructive notice can be established in Illinois by 

presenting evidence that the dangerous condition was present for a sufficient length of time such that in the exercise of 

ordinary care its presence should have been discovered, or by 

showing that the dangerous condition was part of a pattern of 

conduct or a recurring incident. Culli v. Marathon Petroleum

Co., 862 F.2d 119, 123 (7th Cir. 1988); Donoho, 148 N.E.2d at 

438. Piotrowski did not see the two rocks until after her fall, 

and she does not have any evidence as to how long they were 

on the pavement before her fall, so she does not press an argument based on how long the rocks were in the parking lot.

Rather, Piotrowski maintains that Menard is liable because it was aware that rock was escaping the planter since it 

would refill the planter with additional rock, yet it took no 

remedial action to halt the escape of rock from the planter. In 

support she points to our decision in Culli, where we upheld 

a jury verdict in favor of a plaintiff who slipped and fell on a 

spill at a gas station. 862 F.2d at 119. But in Culli, the gas station knew of spills on a daily basis in the area at issue yet 

swept only at night, and did so despite evidence that the volume of sales made only nightly sweeps unreasonable. Id. at 

126–27. Here, in contrast, there was no evidence of any other 

incident involving rocks in the parking lot. Nor is there any 

evidence of recurring escape of river rock from the planter 
No. 15-3163 9

onto the parking lot pavement or of any prior complaint of 

loose rock in the parking lot. And the store’s general manager 

testified that he walked every square foot of the store, parking 

lot, and perimeter every day as part of his duties as general 

manager. The store’s policies and procedures also required 

Menard employees to monitor the parking lot and to be on 

the lookout for unsafe conditions, and even Piotrowski 

acknowledges that there were “frequent inspections of the 

parking lot by the General Manager, Front Store Manager and 

other team member employees.” Under these circumstances, 

Piotrowski has not shown a pattern of dangerous conditions 

or a recurring incident which was not attended to within a 

reasonable period of time. Cf. Culli, 862 F.2d at 126. 

Piotrowski is correct that a prior injury is not necessary to 

establish a store’s negligence, as the case she cites in support, 

Ward v. Kmart Corp., 554 N.E.2d 223 (Ill. 1990), shows. There 

the Supreme Court of Illinois held that the store’s duty of reasonable care included the risk that one of its customers, while 

carrying a large, bulky item, would collide upon exiting the 

store with a post immediately outside the store’s entrance. Id. 

at 234. The court ruled that the fact that a condition (such as

the post) is open and obvious is only a factor to be considered, 

not a complete defense to liability. Id. at 228. We have no quarrel with Ward, but it does not help Piotrowski. Menard has not 

argued that the “open and obvious” doctrine applies, there is 

no evidence Piotrowski was distracted when she fell, and 

while Kmart certainly knew of its post, there is no evidence 

Menard was aware of the two rocks in the parking lot. 

That Piotrowski fell in the Menard parking lot, as painful 

as that fall was, is not enough to support an inference of negligence against Menard. We agree with Menard that she has 
10 No. 15-3163

not set forth sufficient evidence that the store breached a duty 

it owed to her. As a result, we affirm the grant of summary 

judgment in favor of Menard.

III. CONCLUSION

The judgment of the district court is AFFIRMED.