IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

GWENDOLYN WALKER, )

)

Plaintiff, ) No. 20 C 3936

)

v. ) Magistrate Judge Jeffrey Cole

)

MENARDS, INC., )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

On July 7, 2018, the plaintiff was shopping with her husband for spray paint at the

defendant’s Joliet store. As she was carrying several spray paint cans in a five-gallon bucket down

one of the main aisles in the store, she says she tripped and fell over a metal plate fastened to, but

not flush with, the floor. The plaintiff filed suit for damages for her injury under theories of

negligence and premises liability, and the defendant has moved for summary judgment. 

I. 

SUMMARY JUDGMENT

A. 

Fed.R.Civ.P. 56

“The court shall grant summary judgment if the movant shows that 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). The court must construe the evidence and all inferences that reasonably can be drawn

from it in the light most favorable to the nonmoving party. Allin v. City of Springfield, 845 F.3d 858,

861 (7th Cir. 2017); Chaib v. Geo Grp., Inc., 819 F.3d 337, 340 (7th Cir. 2016). But, the court

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makes “only reasonable inferences, not every conceivable one.” Spitz v. Proven Winners N. Am.,

LLC, 759 F.3d 724, 730 (7th Cir. 2014). Not every purported factual dispute precludes summary

judgment; the dispute must be material and genuine. Alston v. City of Madison, 853 F.3d 901, 910

(7th Cir. 2017). A factual dispute is “genuine” only if a reasonable jury could find for either party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Alston, 853 F.3d at 910 (7th Cir. 2017).

If the opponent – here, the plaintiff – “ ‘fails to make a showing sufficient to establish the existence

of an element essential to that party's case, and on which that party will bear the burden of proof at

trial,’ summary judgment must be granted.” Blow v. Bijora, Inc., 855 F.3d 793, 797-98 (7th Cir.

2017). See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[T]o survive summary judgment,

the nonmoving party must present evidence sufficient to establish a triable issue of fact on all

essential elements of [his] case.” Burton v. Kohn Law Firm, S.C., 934 F.3d 572, 579 (7th Cir. 2019).

When considering a motion for summary judgment, a court “must resist the trap of assessing the

credibility of witnesses, choosing between competing inferences or balancing the relative weight

of conflicting evidence.” Orton-Bell v. Indiana, 759 F.3d 768, 773 (7th Cir. 2014). Sometimes a

party makes that task difficult – perhaps by lodging speculative claims or attempting to obscure the

facts, but the court must remain true to its task. Khan v. Midwestern Univ., 879 F.3d 838, 840 (7th

Cir. 2018).

B. 

Local Rule 56.1

As always, the facts underlying this summary judgment proceeding are drawn from the parties'

Local Rule 56.1 submissions. “For litigants appearing in the Northern District of Illinois, the Rule

56.1 statement is a critical, and required, component of a summary judgment proceeding.” Sojka v.

Bovis Lend Lease, Inc., 686 F.3d 394, 398 (7th Cir.2012). Local Rule 56.1 requires a party seeking

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summary judgment to include with its motion “a statement of material facts as to which the ...party

contends there is no genuine issue and that entitle the...party to a judgment as a matter of law.” Local

Rule 56.1(a)(3); Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 643 (7th Cir.2008). Each

paragraph 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).

The party opposing summary judgment must then respond to the movant's statement of

proposed material facts; that response must contain both “a response to each numbered paragraph

in the moving party's statement,” Local Rule 56.1(b)(3)(B), and a separate statement “consisting of

short numbered paragraphs, of any additional facts that require the denial of summary judgment.”

Local Rule 56.1(b)(3)(C); Ciomber, 527 F.3d at 643. Again, each response, and each asserted fact,

must be supported with a reference to the record. Local Rule 56.1(b)(3)(B); Cracco v. Vitran Exp.,

Inc., 559 F.3d 625, 632 (7th Cir.2009); Bay Area Business Council, Inc., 423 F.3d at 633.

The district court is entitled to enforce strict compliance with its local rules regarding

summary judgment motions. Mendoza v. Herrera, 2020 WL 3975468 (N.D.Ill. 2020). See also

Thornton v. M7 Aerospace LP, 796 F.3d 757, 769 (7th Cir. 2015)(“This court has repeatedly held

that the district court is within its discretion to strictly enforce compliance with its local rules

regarding summary-judgment....”); Yancick v. Hanna Steel Corp., 653 F.3d 532, 537 (7th Cir.2011);

Schmidt v. Eagle Waste & Recycling, Inc., 599 F.3d 626, 630 (7th Cir.2010). Responses and facts

that are not set out properly and appropriately supported in a Rule 56.1 filing will not be considered.

See Shaffer v. American Medical Association, 662 F.3d 439, 442 (7th Cir.2011); Bay Area Business

Council, 423 F.3d at 633. Moreover, when a responding party's statement fails to dispute the facts

set forth in the moving party's statement in the manner the rule demands, those facts may be deemed

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admitted for purposes of the motion. Curtis v. Costco Wholesale Corp., 807 F.3d 215, 218 (7th Cir.

2015); Cracco v. Vitran Express, Inc., 559 F.3d 625, 632 (7th Cir. 2009).

II. 

FACTS

First, the culprit. It’s a 12-inch-by-12-inch square, metal plate, silver in color. [Dkt. #28,

Par. 48; #33, Par. 48]. The metallic silver in color causes the plates to stand out against the floor,

which is a matte finish, and dark beige. [Dkt. #29-9; #29-10]. There are several such plates situated

along the sides of the main aisle where plaintiff fell. [Dkt. #29-10]. So, do they present a tripping

hazard? Here’s what the assistant general manager of the store had to say about that:

Q: Is the plate flush with the floor?

A: Yes.

Q: It doesn’t stick up at all?

A: Not really, no.

Q: Not really or no?

A: No, it – no. The scrubber goes right over it. It’s minute. I – I don’t know.

Q: If you were to run your hand over it, does the plate rise at all from the rest of the

floor around it?

A: Yes.

Q: How much?

A: I don’t know. It’s rather minute, so I couldn’t measure it. I don’t know the

measurement.

Q: But, I mean, it’s fair to say – 

A:What an electrical plate is, whatever the width of an electrical plate would be. It’s

– 

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Q: Okay. Fair to say though, it’s not flush with the concrete floor – 

A: Yes.

[Dkt. # 29-3, at 47-48]. If it sticks up minutely, it’s not flush, of course. But defendants assert in

their statement of facts that the rise is minute [Dkt. #28, Par. 49], and so – because plaintiff cites no

evidence to support her disagreement with that characterization [Dkt. #28, Par. 49] – minute is the

characterization to be employed. Curtis, 807 F.3d at 218; Cracco, 559 F.3d at 632. The photos in

the record don’t contradict that assessment. [Dkt. #29-9; #29-10]. One would think someone,

especially from the plaintiff’s side, would have measured it, as it is the reason for everything the

parties have done in this case so far and the work they have asked the court to do in this proceeding.

But that did not occur.

Then there’s the fall. The only evidence we have about plaintiff’s fall is the deposition

testimony from the plaintiff. There were a number of “distractions” in that deposition that prevented

defendant’s counsel from zeroing in on this issue. Some were relevant; many, at least in hindsight,

were not. But given the nature of depositions as necessarily exploratory devices, the questioning

made sense. Counsel wanted to know, for example, where plaintiff lived, why she took baby aspirin

before her injury, who her cardiologist is, where that doctor’s office is, where she went to high

school, her insurance card number, where she went for primarycare before she lived in Bolingbrook,

what doctor she saw for bunions, where her daughter lives, who is her daughter’s stepfather, when

that gentleman died [Dkt. #29-6, at 1-25], and a number of other background. Counsel then turned 

to the specific matter at hand: Plaintiff and her husband were at Menard’s, shopping for spray paint,

and plaintiff had a bucket with spray paint in it in her hand. [Dkt. #29-6, at 26]. She said she wasn’t

looking at her phone. [Dkt. #29-6, at 27].Counsel wondered if she still had the same phone; plaintiff

didn’t think so, but she had the same carrier. [Dkt. #29-6, at 28]. 

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Then there were pages of questions dealing with where plaintiff had worked, what she did

in that job, medical treatment, a previous lawsuit regarding a bus accident, that she filed bankruptcy

23 years ago, then back to her symptoms from her injury, and treatment she underwent, and

activities she could no longer do. [Dkt. #29-6, at 27-113]. Counsel asked a few questions about

plaintiff’s footwear– little white sandals. [Dkt. #29-6, at 38-40]. Finally, counsel returned to the

incident:

Q: All right. What you all want to talk about is the Menard event. I understand that

you went there to get some paint and some other things, and you were with your

husband, and you were on your way out when this happened. Is that true?

A: I was on my way to the register.

Q: You were right with him at the time?

A: Yes.

Q: He was right by your side; correct?

A: We were together. I don’t know if that’s –

Q: Was he ahead of you, behind you?

A: I don’t know.

Q: Did you or he have a cart?

A: Not that I remember. We didn’t have a cart. I didn’t have a cart.

Q: Might you have had two buckets of paint in your hand?

A: A bucket with paint in the bucket.

[Dkt. #29-6, at 113-14]. The questioning then turned to the shoes plaintiff was wearing:

Q: If you’re from the front of the store facing the paint [department], it’s on the left

of the store?

A: I’m in the front of the store. The paint is in the back to the right.

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Q: And you’re wearing white sandals?

A: I don’t know what color my shoes were.

Q: Do you still own a pair of white, kind of strappy sandals?

A: I don’t know.

Q: Too many shoes to keep track of?

A: I just don’t remember which shoes I had on and if I still own them.

[Dkt. #29-6, at 116]. The questioning then turned to the incident:

A: I know that’s what caused me to fall. I fell right beside it. When I sat up, that’s

what was there.

Q: Right. You didn’t see the plate on the floor before you tripped over it?

A: No.

Q: All right. And if you had seen it, you might have stepped over it or on it, not right

on the edge of it; true?

A: Correct.

Q: And you didn’t see any other of those just like that in the store before or after?

A: I wasn’t paying attention to any plates on the floor.

Q: Do you know how many other deviations in elevation or grade there are in that

store other than those metal plates that are in the concrete path?

A: Do I know how many?

Q: Yeah.

A: No.

Q: Do you know how many transitions there are from tile to carpet where there’s a

half-inch piece of molding you have to clear?

A: No.

Q: Do you know how many electrical plates of a cylindrical kind that are in that store

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that you have to clear when you walk around?

A: No.

Q: Do you know whether or not these codes were in compliance with the building

code at the time?

A: I do not. 

[Dkt. #29-6, at 121-22]. 

The questioning moved on to what employees were there and how they responded, and

concluded shortly thereafter. A day before she filed her response to defendant’s motion for summary

judgment, plaintiff swore out a brief affidavit in which she said:

2. While shopping in the store leading up to and just prior to my fall, in addition to

my immediate surroundings, I was also paying attention to making my way to the

cash registers, signage on the floor, signage on the shelves, merchandise displays and

other signage in the store and other customers and employees in my vicinity.

3. Though Iwas reasonablycareful, my attention was distracted from exclusive focus

on the walkway immediately in front of me, by this other activity, displays, and

advertisements with the store. 

[Dkt. #32-1].

III. 

ANALYSIS 

Plaintiff has decided to proceed under an ordinary negligence theory rather than a premises

liabilty theory. [Dkt. #32, at 3]. Under that theory, we begin with the premise that landowners owe

business invitees a duty of care to keep their premises reasonably safe. McCarty v. Menard, Inc., 927

F.3d 468, 471 (7th Cir. 2019); Piotrowski v. Menard, Inc., 842 F.3d 1035, 1038 (7th Cir. 2016); 

Ward v. K Mart Corp., 136 Ill. 2d 132, 141 (1990). Illinois courts consider four factors when

deciding if a duty of care exists: (1) the reasonable foreseeability of the harm; (2) the likelihood of

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the injury; (3) the magnitude of the burden of guarding against the injury; and (4) the consequences

of placing that burden on the premises owner. McCarty, 927 F.3d at 471; Dunn v. Menard, Inc.,

880 F.3d 899, 906 (7th Cir. 2018). 

Plaintiff has failed to establish that defendant failed to keep its premises reasonably safe. 

The plates, protruding only minutely, present no foreseeable risk of harm. There is no evidence that

anyone ever tripped over them before, and all deponents – workers at the defendants’ store that day–

testified theywere unaware of anyone ever having done so. [Dkt. #28, Pars. 28, 33, 51-54; Dkt. #33,

Pars. 28, 33, 51-54]. The plaintiff submits that the mere fact that she tripped [Dkt. #32, at 4] means

the plate was unreasonably dangerous [Dkt. #32, at 4]; but that’s inaccurate: “That [plaintff] fell in

the Menard [store], as painful as that fall was, is not enough to support an inference of negligence

against Menard.” Piotrowski, 842 F.3d at 1041. “[A] temporal sequence does not show causation.

Post hoc ergo propter hoc is the name of a logical fallacy, not a means to prove causation.”

Loudermilk v. Best Pallet Co., 636 F.3d 312, 314 (7th Cir. 2011).

Beyond the mere fact of the fall, all plaintiff has is the testimony of a former sales associate

[Dkt. #32, at 4]:

Q: What is this metal plate?

A: I don’t know.

***

Q: Do you know what it’s made of?

A: No.

***

Q: How much does this metal plate stick out from the floor?

A: I don’t know.

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Q: It’s not flush with the floor though, is it?

A: No. 

Q: If you were to run you’re hand over it, you would feel the edge – feel its edge?

A: Yes.

***

Q: Do you know if anything could be done to put tape or paint around the metal plate

to make it more apparent?

A: No, I don’t.

Q: Do you have an opinion as to whether the walkway is as safe as it could possibly

be with that metal plate being there?

A: It probably isn’t, but I don’t see a way you could do – what else you could do

about it.

Q: Why do you say, “It probably isn’t”?

A: Because it’s sticking out. It’s not flush with the floor, but it’s not – it has like –

it’s beveled. It’s not – it’s not something like – like some – like some wheels could

still roll over it, you know, from the carts. And I normally – I have never seen

anyone trip over it before this.

[Dkt. #29-8, at 19-20]. 

A former sales associate saying “it probably isn’t as safe as it could possibly be” is weak

sauce and, in fact, it’s no sauce at all for our purposes here. The defendant does not have a duty to

make the premises “as safe as they could possibly be.” As the Illinois Supreme Court put it in Ward

v. K Mart Corp., 136 Ill. 2d 132, 141–42 (1990), “[defendant] did not have to actually remove all

dangers from his premises in order to avoid liability.” See also Alcorn v. Stepzinski, 185 Ill. App.

3d 1, 7 (1989)(“To hold otherwise would make every landowner an absolute insurer . . . .”); 

Grossman v. Menard, Inc., 2018 WL 4563071, at *2 (N.D. Ill. 2018)(“A plaintiff must prove more

than a risk of harm existed; the risk must have been unreasonable.”). It only has a duty to make the

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premises “reasonably safe.” With all deference, the plaintiff has no evidence – and really, no

argument – that defendant failed to do that here.

That is enough to grant summary judgment to the defendant; but, for the sake of

thoroughness, we shall proceed a bit further with the analysis. Even if plaintiff had some evidence

that the plate with the minute rise and beveled edge was not reasonably safe, given its size and color

against the rest of the floor, it was an “open and obvious” condition. The “open and obvious”

doctrine implicates the first two factors of the duty of care analysis. McCarty, 927 F.3d at 471; 

Dunn v. Menard, Inc., 880 F.3d 899, 906 (7th Cir. 2018). When the doctrine applies “[t]he open and

obvious nature of the condition itself gives caution and therefore the risk of harm is considered

slight; people are expected to appreciate and avoid obvious risks.” Bucheleres v. Chicago Park

Dist., 171 Ill.2d 435, 665 N.E.2d 826, 832 (1996); McCarty, 927 F.3d at 471.

Where no dispute exists as to the physical nature of the condition, whether the dangerous

condition is open and obvious is a question of law. Bruns v. City of Centralia, 21 N.E.3d 684, 690,

386 Ill.Dec. 765, 771 (2014). The inquiry is objective; “[t]he question is would a reasonable person

with [plaintff’s] knowledge of the situation appreciate and avoid the hazardous condition?” 

McCarty v. Menard, Inc., 927 F.3d 468, 471 (7th Cir. 2019). Plaintiff does not argue that the plates

were not open and obvious. [Dkt. #32, at 6]. As already noted, they are metallic silver against a dull,

dark beige floor. Plaintiff had been to the defendant’s store many times [Dkt. #28, Par. 9; #33, Par.

9], and, on the day, walked down that aisle empty handed before walking all the way back with her

bucket of spraypaint to the cash registers. [Dkt. #28, Pars. 10, 11; #33, Pars. 10, 11; #29-10].

Compare Buchaklian v. Lake Cty. Fam. Young Men's Christian Ass'n, 314 Ill. App. 3d 195, 202

(2000)(“The evidence in the record can support a reasonable inference that the defect in the mat was

difficult to discover because of its size, the lack of significant color contrast between the defect and

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the surrounding mat, or merely the short time that a person has in which to discover the defect as

he or she takes a few steps toward the mat.”). Plaintiff testified that she didn’t see the plate and

wouldn’t have tripped if she had. But, she argues that the “distraction” exception applies. Again,

the argument is not persuasive.

The distraction exception applies “where the possessor [of land] has reason to expect that

the invitee's attention may be distracted, so that he will not discover what is obvious, or will forget

what he has discovered, or fail to protect himself against it.” Bruns, 21 N.E.3d at 691. “[T]he

distraction exception will only apply,” however, “where evidence exists from which a court can infer

that plaintiff was actually distracted.” Id. Importantly, “the mere fact of looking elsewhere does not

constitute a distraction.” Bruns, 21 N.E.3d at 692. 

Here, the plaintiff claims that she:

was distracted by the many items in its store tugging at her attention. Importantly,

the floor that [she] tripped on had decals amidst the protruding metal plates that

tripped her. Even if the protruding metal plates were not inherently dangerous, they

were unreasonably dangerous in these circumstances. 

[Dkt. #32, at 8]. So, plaintiff’s position is that there were items for sale in the store and the floor had

decals on it. If plaintiff was looking at the floor to see the decals, the plates were then clearly

visible. Moreover, there are items for sale – and signs – in every store. If we were to accept

plaintiff’s version of the distraction exception, it would be a rule of nearly strict liability for all

stores. The exception cannot be applied in the manner the plaintiff suggests. 

A good example of how it is and ought to be applied is found in the Seventh Circuit’s

decision to uphold a grant of summary judgment to the defendant store in Phillips v. Supervalu

Holdings, Inc., 172 F.3d 53 (7th Cir. 1999). The facts are rather similar, right down to the footwear. 

In that case, the plaintiff:

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entered the brightly lit premises of a Cub Foods store on a September morning,

wearing open-toed leather sandals. Her husband had dropped her off at the front

entrance. [Plaintiff] passed through a set of automatic doors and through a vestibule,

then started through another set of automatic doors. No one was in her immediate

vicinity. As she walked through the second set of doors, she was looking at a soft

drink display immediately in front of her. She also noticed the sale papers for the

store set out on a table to her right. There was a mat on the cement floor, but

[plaintiff] did not then observe the mat. It was dark in color and had the words “Cub

Foods” printed on it. It also had a raised edge or deformation. It was the practice of

the store to remove and dispose of mats which became buckled or curled, but this

particular mat had not been removed.

When [plaintiff] entered through the second pair of automatic doors, she took a few

steps and felt a “tug” on her right foot as if her foot had caught on something. The

sandal on her right foot came off. She then fell forward onto her right knee and was

gravely hurt. Her right leg was lying from the knee down on what felt like a mat. She

did not see what caused the tug on her right foot because she was not looking down.

[Plaintiff] assumed that she had slipped on the mat on which her right leg was lying.

She noticed at the time that its surface felt different from the cement, although she

had not seen the mat. She told the store manager and the assistant manager that she

had slipped on a rug and fallen. [Plaintiff’s husband] observed the mat when he came

to his wife's aid immediately after the fall. At that time he saw a bend or curl in the

mat right beside the place where [plaintiff’s] shoe lay, a buckling that was

discernible in a photograph of the mat taken a year later which [plaintiff’s husband]

identified at his deposition.

Id. at 53.

The plaintiff in Phillips was not even looking at the floor, as plaintiff was here, as she noted

the decals. In upholding summary judgment for the store, the court observed that “[u]nder Ward

Illinois courts would rate a bad entryway mat as a very obvious danger and a soft drink display as

not much of a distraction.” Phillips v. Supervalu Holdings, Inc., 172 F.3d 53 (7th Cir. 1999). The

silver metallic plates are very obvious – especially when you are admittedly looking at the floor –

and the decals on the floor and products on shelves are not much of a distraction, if at all. Summary

judgment is still appropriate.

Nevertheless, it is worthwhile looking at the third and fourth factors: the burden that

defendant would incur and the consequences of imposing that burden. McCarty, 927 F.3d at 471; 

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Dunn v. Menard, Inc., 880 F.3d 899, 906 (7th Cir. 2018). The plaintiff does not mention these

factors, but does proffer some suggestions for the defendant:

The Defendant could have taken many simple actions to make its walkway safe for

its customers. The Defendant could have placed its protruding metal plates in an area

with less foot traffic. The Defendant could have put its protruding metal plates under

shelving or displays. The Defendant could have used a metal plate that does not

protrude from the floor. The Defendant could have put paint or tape around the

protruding metal plate to make its appearance more apparent. 

[Dkt. #32, at 4]. There is no evidence that defendant could have placed the metal plates in another

aisle or under a shelf. Plaintiff did not conduct a Fed.R.Civ.P. 30(b)(6) deposition, so the record

includes no statement from the defendant as to where the plates could be located or really, what they

were for – although there is employee testimony that they were access points for electrical wiring.

1

Similarly, there is no evidence that defendant could have used a metal plate that does not protrude

above the floor at all, as opposed to minutely. Again, there is nothing in the record regarding what’s

beneath the plates so, perhaps, the plates must protrude minutely. Plaintiff offers only speculation

and conjecture, which is insufficient to withstand summary judgment. See FKFJ, Inc. v. Vill. of

Worth, 11 F.4th 574, 585 (7th Cir. 2021)(A party “must present more than mere speculation or

conjecture to defeat a summary judgment motion.”); Bishop v. Air Line Pilots Ass'n Int'l, 5 F.4th

684, 693 (7th Cir. 2021)(“We also need not consider inferences that are supported by only

speculation or conjecture, which cannot defeat summary judgment.”). As for paint or tape making

the plates more visible, they are already “obvious”: metallic silver against a darker, matte

1 Plaintiff makes a handful of assertions in which she refers to the defendant’s knowledge, but points

only to statements of employees testifying as individuals. [Dkt. # 33, Pars. 58, 61, 66, 77]. A deposition of

an individual, of course, is not the equivalent of a deposition of an organization under Rule 30(b)(6). DSM

Desotech Inc. v. 3D Sys. Corp., 2011 WL 117048, at *10 (N.D. Ill. 2011); Ball Corp. v. Air Tech of Michigan,

Inc., 329 F.R.D. 599, 604 (N.D. Ind. 2019); Bison Advisors LLC v. Kessler, 2015 WL 4509158, at *2 (D.

Minn. 2015); DHL Express(USA), Inc. v. Express Save IndustriesInc., 2009 WL 3418148, at *1 n. 4 (S.D.Fl. 

2009); Sabre v. First Dominion Capital, LLC, 2001 WL 1590544, at *1 (S.D.N.Y. 2001).

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background. None of this is adequate to withstand summary judgment.2

CONCLUSION

For the foregoing reasons, the defendant’s motion for summary judgment [Dkt. #26] is

granted.

ENTERED: 

UNITED STATES MAGISTRATE JUDGE

DATE: 1/31/22

2 Moreover, it is not lost on the court that plaintiff’s first two suggestions regarding placement of the

metal plates elsewhere would require some fairly major reconstruction. Defendant would have defendant rip

up the floor, cement over the metallic plates – and whatever is under them, wires apparently – and do so in

every store. All that because – based the evidence here and the only testimony presented – a single person

tripped over one of the plates because, she claims, she was distracted and not paying attention. See, e.g.,

Dunn, 880 F.3d at 910 (even “less onerous safeguards than continuous surveillance, ... would not be justified

given the open and obvious nature of the risk involved.”). 

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