Robert McCarty v. Menard, Inc.

Robert McCarty tripped over a product

display sign at a Menard’s home improvement store and

then filed suit. The district court dismissed the case at summary

judgment in favor of Menard. We affirm based on the

open and obvious doctrine which implicates the general duty

of care owed to business invitees in Illinois.

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I. Background

On February 13, 2017, McCarty and his employee, Tristan

Parks, went to the Menard’s store in Antioch, Illinois, to purchase

materials for a renovation project. McCarty and Parks

needed ¾ inch sheets of oriented strand board (“OSB”), which

are similar to plywood. They drove a pickup truck to the

store’s lumber shed and found the ¾ inch OSB behind the display

signs. The OSB piles were stacked side‐by‐side. The display

sign at issue was knee high with protruding wooden

legs.

McCarty moved a few of the top boards from a central

OSB pile over to the right side onto an adjacent pile while

searching for undamaged boards. Parks did the same on the

left side. After McCarty moved a few boards from the middle

stack to the right, he tripped over a piece of wood that was

part of the display sign in front of the right‐hand pile. The following

photograph, taken by Parks, shows the aftermath.1

1 Menard submitted this photograph in support of its Northern District

of Illinois Local Rule 56.1(a)(3) Statement of Facts. At his deposition,

Parks testified that he took the photograph within seconds of McCarty’s

fall. At oral argument, both parties referred to this photograph.

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The display sign was normally set flush against the stacks,

as were the other signs.

II. Discussion

In Illinois, landowners owe business invitees a duty of

care to keep their premises reasonably safe. Piotrowski v.

Menard, Inc., 842 F.3d 1035, 1038 (7th Cir. 2016). Illinois courts

consider four factors when deciding if a duty of care exists: (1)

the reasonable foreseeability of the harm; (2) the likelihood of

the injury; (3) the magnitude of the burden of guarding

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against the injury; and (4) the consequences of placing that

burden on the premises owner. Dunn v. Menard, Inc., 880 F.3d

899, 906 (7th Cir. 2018). The open and obvious doctrine implicates

the first two factors of the duty of care analysis. Id. 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., 665

N.E.2d 826, 832 (Ill. 1996).

Whether a hazardous condition is open and obvious is an

objective inquiry. The question is would a reasonable person

with McCarty’s knowledge of the situation appreciate and

avoid the hazardous condition? Dunn, 880 F.3d at 908. Courts

can determine if a condition is open and obvious as a matter

of law when there are no material disputes concerning the

condition’s physical nature. Bruns v. City of Centralia, 21

N.E.3d 684, 690 (Ill. 2014).

After giving the evidence careful consideration and construing

all reasonable inferences in McCarty’s favor, the district

court concluded:

A reasonable person in Mr. McCarty’s position, who saw

that there were signs, chose the stack he wanted by looking

at the signs, walked right up to the signs, was working

within a few feet of the protruding sign, and either repeatedly

stepped over it or turned toward it, would have noticed

the large sign and legs as a tripping hazard.

McCarty v. Menards, 319 F. Supp. 3d 974, 987 (N.D. Ill. 2018).

On appeal, McCarty argues that the sign was not open and

obvious as a matter of law because he was unaware of the display

sign prior to tripping.

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We review the district court’s summary judgment determination

de novo and make only reasonable inferences, not

every conceivable one, in McCarty’s favor. Skiba v. Illinois

Cent. R.R. Co., 884 F.3d 708, 717, 721 (7th Cir. 2018). “A district

court properly grants summary judgment where there is no

genuine dispute as to any material fact and the moving party

is entitled to judgment as a matter of law.” Giles v. Godinez,

914 F.3d 1040, 1048 (7th Cir. 2019).

The display sign was open and obvious. McCarty testified

at his deposition that he found the proper OSB by looking at

the display signs that identified the boards’ thickness. Parks

testified that the display signs in front of the piles clearly labeled

the OSB sizes and that he and McCarty used the signs

to figure out what boards they needed. McCarty further testified

that after he moved each sheet of OSB to a pile on the

right, he would come back and pick up another sheet. The

only reasonable conclusion is that McCarty saw the protruding

sign while standing right in front of it.

McCarty nevertheless contends that the district court

made impermissible credibility determinations by disregarding

his testimony that he was unaware of the display sign.

But, the open and obvious inquiry is an objective one. Even

when viewed in his favor, McCarty’s subjective testimony

does not create a triable issue of material fact on whether a

reasonable person in his position would have been aware of

the display sign. See Dunn, 880 F.3d at 908 (“the operative focus

is not on plaintiff himself”) (emphasis in original).2

2 McCarty argued below that the distraction exception to the open and

obvious rule applied—an argument the district court soundly rejected.

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Because the existence of an open and obvious hazard is not

an absolute bar to finding a premises owner’s legal duty, we

must also assess whether Menard owed a duty of care to

McCarty applying the traditional duty analysis. See Dunn, 880

F.3d at 909‐10; Bruns, 21 N.E.3d at 690. As to the first two factors,

“[w]here the condition is open and obvious, the foreseeability

of harm and the likelihood of injury will be slight, thus

weighing against the imposition of a duty.” Bruns, 21 N.E.3d

at 690. That leaves us with one last question—do the third and

fourth factors involving the store’s burden in guarding

against safety hazards outweigh the first two factors? Dunn,

880 F.3d at 910. They do not.

Menard’s internal policies require safety inspections to fix

tripping hazards and the record shows the store’s employees

regularly monitor and inspect the outside lumber yard and

are available to assist customers when needed. Staff routinely

clean the yard and push display signs back against the stacks

of lumber. As we held in Dunn, imposing any larger burden

on Menard to guard against safety hazards, such as constant

surveillance, would be unreasonably onerous. Id. Indeed, Illinois

courts, including this court sitting in diversity, have repeatedly

rejected imposing the duty of continuously monitoring

safety conditions in premises liability cases. See Zuppardi

v. Wal‐Mart Stores, Inc., 770 F.3d 644, 652 (7th Cir. 2014) (collecting

cases). McCarty gives us no reason why these cases

should not stand.

Because McCarty has not established that Menard owed

him a duty of care, we need not address his causation

McCarty has waived this argument because he presents it for the first time

in his reply brief. Daugherty v. Page, 906 F.3d 606, 610 (7th Cir. 2018).

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arguments. See Roh v. Starbucks Corp., 881 F.3d 969, 973 (7th

Cir. 2018) (“[U]nder Illinois law, a plaintiff must establish the

existence of a duty, the defendant’s breach of that duty, and

that the breach proximately caused the plaintiff’s resulting injuries.”).

We AFFIRM the district court’s judgment.