Case Studies

The following is a summary of noteworthy cases I have handled throughout my practice:

Summary Judgment Granted Based On Lack Of Notice

Stacy Fulco represented a grocery store in DuPage County, Illinois and the plaintiff claimed he slipped and fell in a large puddle of a thick, clear substance near the store entrance.  The plaintiff slipped just after entering the store so he did not know how long the puddle was present and he did not know the source of the substance.  A store employee testified he did not see anything on the floor after the incident but a scuff mark. He also stated the store did not have formal inspection policies but the area at issue would have typically been inspected by employees 3 times an hour, or every twenty minutes.  Based on that testimony, the court ruled there was no basis to find the store had constructive notice of the substance and summary judgment was granted.

Appellate Court Reverses Lower Court, Rejecting Tender Denial And Requiring Full Indemnification

Stacy Fulco and her partner Brian O’Gallagher represented a grocery store that was sued following a gang shooting in the store parking lot which resulted in one dead and another paralyzed. Early in the case, the store tendered its defense and indemnification to the property landlord but the tender was denied.  The landlord then settled out of the case for $40,000.  Following years of litigation and dispositive motion practice, the store settled at the start of trial for $1.3 million.  After the underlying case was settled, we sued the insurance carrier for the landlord on behalf of the store, requesting a declaration of coverage.  Cross-motions for summary judgment were filed and the trial court granted the carrier’s motion and denied the store’s motion.  On appeal, the Illinois Appellate Court reversed the trial court, ruling the insurance carrier had a duty to defend and indemnify under the relevant language of the insurance policy.

Appellate Court Upholds Summary Judgment Ruling

Stacy Fulco secured a favorable appellate court ruling in the First District in a case involving the safe ingress and egress into an office building. The plaintiff claimed she tripped and fell on a hidden stump in a landscaped area of a parking lot where she worked.  The plaintiff walked through the landscaped area rather than take the clear and unobstructed sidewalk and she claimed her path was sufficiently used by others so that it created an accepted means of ingress and egress.  Summary judgment for the property owner and manager was obtained by Brian P. Shaughnessy and Stacy Fulco handled the matter on appeal.  The appellate court agreed the plaintiff intentionally walked through the landscaped area rather than using the designated path and the court also agreed the defendants did not have notice of the alleged stump.

Summary Judgment Granted Based On Unproven Defect & Notice

Stacy Fulco represented a grocery store in Kankakee County, Illinois and the plaintiff claimed she slipped and fell in front of a meat cooler. The plaintiff never saw water but claimed she slipped and fell in water.  The manager who investigated the incident also never saw water and he testified the coolers were not leaking.  The entire incident was caught on surveillance footage and it showed the plaintiff walk back and forth over the area of her fall multiple times before going to the floor.  She testified she never saw or felt water as she repeatedly walked over the area.  The court granted summary judgment because the plaintiff could not prove there was a defective condition and the store had no notice of any condition.  The plaintiff did not appeal.  As a side note, a counter-claim for fraud was filed against the plaintiff based on the surveillance footage.

Summary Judgment Granted Based On Open & Obvious Doctrine

Stacy Fulco represented a warehouse store in Cook County and obtained summary judgment for her client. The plaintiff claimed he tripped and fell over the corner of a pallet that was holding a large display of produce.  The display was multiple pallets long and wide and the produce was held in large boxes that covered the pallets.  The store was known to display most of its product on pallets.  The plaintiff claimed he was distracted by a large crowd of customers at a nearby display table and that caused him to trip and fall.  The plaintiff also claimed he not only tripped, but his foot caught in a hole in the pallet so the pallet was defective.  A photograph of the pallet taken just after the incident was shown to the court and the judge agreed there was no indication of a hole, just a small piece of wood missing from the pallet.  The court ruled the pallet was clearly open and obvious, especially considering the store and the environment, the pallet was not defective and the court did not believe the testimony or evidence supported that the plaintiff was distracted.  Summary judgment was granted for the defendant and no appeal was filed.

Summary Judgment Granted Based On De Minimus Rule

Stacy Fulco represented a retail store in Cook County and obtained summary judgment for her client. The plaintiff claimed she tripped and fell on a crack in the store’s parking lot as she walked back to her car.  Photographs showed the crack was flat and flush but testimony from the plaintiff and her daughter, who witnessed the fall, indicated the crack may have had a height differentiation of up to an inch.  The plaintiff argued there were aggravating factors because the parking lot was a busy commercial area.  The court agreed that no aggravating factors existed and the crack clearly fell within the de minimus rule.  Summary judgment was granted for the defendant and no appeal was filed.

Summary Judgment Granted Based On Natural Accumulation Doctrine

Stacy Fulco represented a fast-food chain in Winnebago County and obtained summary judgment for her client. The plaintiff was a passenger in a car in the drive-thru lane when she realized she forgot to order an item s so she exited the car and planned to go into the restaurant to place an order.  The weather was very bad all day and while the plaintiff drove to the restaurant it was sleeting.  The plaintiff walked with caution because the ground was slippery but after taking 5 steps she slipped and fell on ice.  After falling, the plaintiff saw the entire parking lot was coated in clear ice.  She admitted she fell because of the ice and the only cause of the ice was the weather.  The plaintiff’s husband, who was in the car, confirmed her testimony about the weather conditions.  The plaintiff’s attorney argued the fall was caused by a slope in the parking lot pavement and that said slope caused an excess of ice to develop.  A store employee admitted there was  a slope and there was one area where water and ice occasionally built-up, but she did not say this occurred that day and the photographs marked by the plaintiff and the employee confirmed the plaintiff did not fall by that area.  The judge agreed the plaintiff did not fall by the slope and the only cause of the fall was the inclement weather and ice so the natural accumulation doctrine applied.  Counsel’s theory about the slope causing the fall was not supported by any evidence.  Summary judgment was granted in favor of the restaurant.

Summary Judgment Granted Based On Unknown Cause Of Fall

Stacy Fulco represented a fast-food chain in DuPage County and obtained summary judgment for her client. The plaintiff fell in the restaurant dining room and was severely injured.  She offered several potential causes of her fall including tripping on a chair, slipping on food or a liquid substance or possibly the floor was recently mopped.  The only witness to the fall saw it out of the corner of her eye and she believed the plaintiff tripped on a chair.  The medical records shortly after the fall noted the plaintiff said she tripped on a chair.  The plaintiff’s attorney argued there was a material question of fact as to the cause of the fall because several theories existed.  Counsel also argued an employee possibly spilled coffee on the floor and the employees failed to inspect the area within a proper period of time.  The judge confirmed that Illinois law requires the plaintiff to know the cause of her fall and her alternative theories do not create a question of fact.  Since the cause was not known, there was no known defect and there could not have been notice.  Summary judgment was granted.

Summary Judgment Granted In A Slip And Fall Case Involving A Vendor

Stacy Fulco represented a grocery store and a vendor claimed he slipped and fell in the back receiving room, while delivering product to the store.  The plaintiff claimed he stepped over the corner of an empty pallet and his foot slipped on a loose strawberry on the side of the pallet.  The plaintiff admitted he did not need to step over the pallet, as there was room to push his load.  The court ruled the store did not have constructive notice of the strawberry and summary judgment was granted.  The plaintiff did not appeal.

Favorable Appellate Court Ruling Regarding A Duty To Defend Under A Self-Insured Retention

Stacy Fulco’s retail client tendered its defense and indemnification to a floor mat vendor after being sued for negligence in a trip and fall case involving a floor mat. The vendor denied the tender and its carrier denied the tender because of a $1 million self-insured retention.  After winning summary judgment in the underlying case and having it upheld on appeal, Stacy’s client filed a breach of contract action against the vendor.  Cross motions for summary judgment were filed and the circuit court ruled the vendor had no duty to defend based on the allegations in the complaint.  The appellate court reversed, holding the vendor breached the contract because it was self-insured for $1 million rather than having commercial general liability coverage as was required by the contract. Dominick’s Finer Foods, LLC v. Eurest Services, Inc., 2015 IL App (1st) 150369-U.

Summary Judgment Upheld On Appeal For Fitness Club  

Stacy Fulco had a summary judgment ruling upheld on appeal by the Illinois Appellate Court, First District. The appellate court upheld a summary judgment ruling in favor of a fitness club following a member’s alleged injury from the use of an exercise resistance tube that broke.  The plaintiff and his wife filed a complaint sounding in negligence, spoliation of evidence and willful and wanton conduct and the circuit court granted summary judgment on all counts.  The Appellate Court ruled there was no genuine issue of material fact and summary judgment was affirmed because: the fitness membership agreement was valid and enforceable; exculpatory provisions in the agreement barred the plaintiffs’ negligence claims; exculpatory provisions in the agreed barred the plaintiff’s spoliation claims because they were mere derivatives of the negligence claims; and there was no genuine issue of material fact regarding whether the fitness center’s conduct constituted an utter indifference to or conscious disregard for a patron’s safety. Keevil v. Life Time Fitness, Inc., et al., 2016 IL App (1st) 151551-U.

Defense Verdict At Trial In Slip/Fall Case At Grocery Store

Stacy Fulco received a defense verdict in a jury trial in Will County. The plaintiff claimed that she tripped on a metal strip in the floor of a grocery store which caused her to suffer an ankle fracture and a knee sprain. During the case Stacy made multiple attempts to settle the case for a nominal amount but the plaintiff refused and demanded a trial. Once the trial date approached, the plaintiff wanted to settle but that option was gone. The plaintiff then used delay tactics by having the trial continued several times. The case ultimately went to trial and it took the jury just the lunch period to return with a defense verdict. No appeal followed.

Defense Verdict At Binding Arbitration Hearing In A Floor Mat Case

Stacy Fulco received a defense verdict at a binding arbitration hearing. The plaintiff alleged that a floor mat was improperly placed in a public walk-way and that it caused her to stumble and become injured. Summary judgment was denied by the court in Will County so the parties agreed to binding arbitration rather than proceed to trial. The plaintiff sought $160,000 in damages at the hearing. The defense submitted a pre-hearing motion to strike an arbitration submission by the plaintiff as the plaintiff submitted an affidavit from a treating physician in her submission, even though the doctor had already given sworn deposition testimony. The arbitrator granted the motion and struck the affidavit because it contradicted the doctor’s deposition testimony. Even so, the arbitrator’s finding for the defense was based on there being no liability as the arbitrator found that the mat was not improperly placed and that it did not create a dangerous condition.

Summary Judgment In Cook County Floor Mat Case Upheld On Appeal

Stacy Fulco obtained summary judgment in a trip and fall case on a floor mat in Cook County. The plaintiffs sued the store and the store manager personally and summary judgment was granted on all counts. The plaintiffs claimed that the floor mat was defective and contained a buckle that caused the plaintiff to trip and they also claimed that the floor mat should have been secured to the floor and should not have been used because there was no inclement weather. The case law and evidence supported that there was no duty for the defendants to secure the mat to the floor and there was a reason for the mat to be in use, other than inclement weather. To support their claim that the mat was defective, the plaintiffs had an expert inspect the mat more than two years after the incident and he opined that the mat had a permanent defect/buckle that was present before the incident. The court ruled that the plaintiffs did not show that the plaintiff tripped at the location of the purported defect. The court ruled that there was no evidence to show that the alleged buckle actually caused the plaintiff’s fall so summary judgment was granted. The plaintiffs appealed the court’s ruling and it was upheld by the First District Appellate Court.  (Delaney, et al. v. Dominick’s Finer Foods, LLC, et al., 2014 IL App (1st) 133384-U).

Summary Judgment Ruling In A Retail Case Based On Notice Upheld On Appeal

Stacy Fulco obtained summary judgment in a case where the plaintiff slipped and fell in water that was on the floor of a retail establishment, resulting in a lumbar compression fracture. Using store surveillance footage, Stacy was able to prove to the court that there was no constructive notice of water on the floor to the store employees and not enough time had passed since the last employee inspected the area to impose notice. Summary judgment was also obtained on the allegation that the store should have had a “slip-free” surface because the plaintiff failed to provide any evidence to support that allegation. The plaintiff appealed the court’s ruling and it was upheld by the Second District Court.  (Pydo v. Dominick’s Finer Foods LLC, 2012 Il App (2d) 110155-U).

Summary Judgment Upheld On Appeal Based On Natural Accumulation Of Water & Barring Of Plaintiff’s Expert As To Unreasonably Dangerous Condition

In one premises liability case, Stacy Fulco won summary judgment on two distinct issues in the circuit court and had the plaintiff’s liability expert barred and then those decisions were all upheld on appeal by the First District Appellate Court of Illinois in Sabah Kawash v. Dominick’s Finer Foods, et al. (Court No. 1-07-1664). In this case, the plaintiff slipped and fell due to water on the floor of a Dominick’s grocery store. The first of the summary judgment rulings that was upheld was based on the natural accumulation doctrine. Once that motion was granted, the plaintiff alleged a new claim that the tile floor was unreasonably dangerous and unreasonably slippery when wet. Stacy filed a motion to bar the plaintiff’s expert who supported that theory and the motion was granted. She then moved for summary judgment since the plaintiff could no longer support the theory and summary judgment was granted, which disposed of the entire case. The third party defendants, Armstrong World Industries and C.E. Korsgard Company joined in our appellate brief and were summary judgment as to them was also upheld.  (Kawash v. Dominick’s Finer Foods, Inc., et al., No. 1-07-1664).

Summary Judgment Upheld On Appeal Based On Lack Of Notice With Store Surveillance Footage As The Basis For The Ruling

Stacy Fulco was lead counsel in a premises liability case where summary judgment was upheld on appeal in front of the First District Appellate Court of Illinois. In this case an elderly woman slipped and fell on a banana peel that was on the floor of the meat department of the grocery store. The incident was caught on surveillance video. Utilizing the video, a motion for summary judgment was filed arguing that there was no constructive notice of the banana because the surveillance video showed the last inspection of the area by a store employee and it showed when the banana was dropped on the floor by a customer. Summary judgment was granted and the plaintiff appealed. The Appellate Court agreed that there was no constructive notice to the store based on the surveillance footage and summary judgment was upheld. The plaintiff filed a petition to appeal to the Illinois Supreme Court and the petition was denied.  (Stewart v. Dominick’s Finer Foods, No. 1-08-0588).

Summary Judgment Upheld On Appeal In Case Involving An  Attack By A Third Party In A Parking Lot

Stacy Fulco was lead counsel in a case involving the criminal attack by a third party in the parking lot of a store where summary judgment was granted and the First District Appellate Court of Illinois upheld the ruling. An elderly woman was walking through the store parking lot when she was attacked and beaten by an unknown assailant. A motion for summary judgment was filed by Dominick’s arguing that there was no reasonable foreseeability of the attack as no such incidents had ever taken place in the area and there was no basis to hold the store had a duty to provide security in the parking lot. The motion for summary judgment was granted and the plaintiff appealed. The Appellate Court upheld the granting of summary judgment because the attack was not reasonably foreseeable.  (Vuksanovic v. Dominick’s Finer Foods, No. 1-07-2294).

Summary Judgment Upheld By The Seventh Circuit In A Section 1983 Claim Involving Medical Care

Stacy Fulco was part of the defense team that successfully won summary judgment in federal court and then had that ruling upheld by the Seventh Circuit Court of Appeal. The plaintiff was a county jail inmate who sued the jail’s medical staff for a Section 1983 violation of deliberate indifference to his serious medical need. The claim was that the plaintiff was not allowed to keep his asthma inhaler in his cell. The jail had a policy that all medication was to be secured. The district court granted summary judgment and it was upheld by the Seventh Circuit.

Appellate Court Upheld Ruling And Refused To Create A Private Cause Of Action Under The Unified Code Of Corrections

Stacy Fulco represented an Illinois prison warden, the prison medical director and several nurses and prison staff in a suit filed by a prisoner who was trying to create a new theory of liability against the prison staff under the Unified Code of Corrections. In this Will County case,  the plaintiff alleged that the prison staff committed a tortuous act by providing inadequate medical care. A motion for summary judgment was granted and the case was appealed. The Appellate Court upheld the ruling and agreed that the Unified Code of Corrections did not imply a private right of action for an inmate who allegedly received inadequate medical care, thereby preventing a new cause of action against the prison staff.  (McNeil v. Lamark Carter, et al., 318 Ill.App.3d 939, 742 N.E.2d 1277 (3rd Dist. 2001)).

Musician’s Case Dismissed With Prejudice After Proving Plaintiff’s Fraudulent Discovery Practices

Stacy Fulco was successful in getting a case dismissed with prejudice after using an expert to investigate the plaintiff’s suspected fraudulent claim in Egypt. The plaintiff claimed that he was the keyboardist for the most famous belly dancer in Egypt and that a fall incident ended his career. Both his lost wage claim and injury claim were quite significant. Stacy believed that the lost wage claim was fraudulent and that the CD produced by the plaintiff was doctored so an expert in Egyptian music obtained a real copy of the CD from Egypt and proved that the plaintiff was not actually the keyboardist for the CD as claimed. A motion to dismiss the case as a sanction was filed, the plaintiff’s attorney withdrew from the case and the case was ultimately dismissed with prejudice.

Cervical Fusion Case Dismissed With Prejudice After Counter-Claim And Affirmative Defense For Fraud Filed Against Plaintiff

In a case involving a likely fraudulent claim, Stacy Fulco’s investigation revealed that the plaintiff was lying about her past medical history. She claimed a significant injury to her neck following a fall that required a cervical fusion. Stacy discovered that the plaintiff’s past medical history was filled with prior neck problems and recommended surgery. The motion judge denied a motion for sanctions and advised this issue would go to weight at trial. Stacy then filed an affirmative defense and counter-claim based on fraud/misrepresentation. The plaintiff immediately agreed to drop the entire case with prejudice if we agreed to dismiss the counter-claim so the case was dismissed.

Summary Judgment Obtained In Retail Litigation Matter Involving Slip/Fall In Water

Stacy Fulco obtained summary judgment in a retail litigation matter pending in Cook County, Illinois. The plaintiff slipped and fell due to water on the floor of a store. As a result of the fall, the plaintiff suffered an ankle fracture that required surgery. Stacy argued that summary judgment was warranted because the plaintiff provided no evidence of the source of the water, the length of time the water was on the floor and no evidence of notice to the store. Using store surveillance footage, Stacy proved that the store inspected the area minutes before the incident and no water was found.  Using the footage she also argued that the only possible source of the water was a customer’s water bottle.  The court agreed with all of the defense arguments and granted summary judgment.

Summary Judgment Granted In Retail Liability Matter Involving Slip/Fall In Produce Department

Stacy Fulco obtained summary judgment for her retail client in Cook County. The plaintiff claimed she slipped and fell in the produce department of a grocery store due to leaves and water on the floor.  The store employees testified there were only green beans on the floor after the incident, as shown in the photographs, so the plaintiff amended the complaint to assert that green beans and water caused the fall.   A produce clerk also testified she inspected the fall area five minutes before the fall and it was clean, dry and free of any type of debris.  The summary judgment motion argued the store and its employees did not have notice of any defect on the floor, the sprinklers were  not in use and not the cause of the water and there was no duty to use a floor mat in the area.  The court granted summary judgment based on the arguments but the court also focused heavily on the plaintiff’s amendment to her complaint regarding the defect involved.  The court was troubled that the plaintiff testified leaves were the cause yet the complaint was amended based solely on the store employee testimony.  The court also indicated this discrepancy was a basis for summary judgment.  The plaintiff did not file an appeal.

Summary Judgment Obtained Based On Store’s Lack Of Notice

Arguing lack of constructive notice, Stacy Fulco obtained summary judgment in a case where water was on the floor of a grocery store at the beginning of a check-out lane. The evidence showed that 25 minutes before the fall a store employee inspected the floors throughout the store and there was no water on the floor at that time. The court agreed that 25 minutes from the time of inspection until the time of the incident did not create constructive notice because the area of the fall was not visible by any other store employee. The plaintiff did not appeal this ruling, even though she was claiming substantial damages and injuries as a result of the fall.

Summary Judgment Obtained Based On Proximate Cause And Natural Accumulation

Stacy Fulco obtained summary judgment in a case where an elderly man fell in front of a grocery store and suffered significant injuries, totaling approximately $150,00 in medical specials. The complaint alleged that ice from a faulty building drainage system caused the fall but the plaintiff did not see ice and no witnesses saw the fall or saw where the plaintiff fell. Stacy argued that the plaintiff could not prove his case because he did not know what caused him to fall or where he fell. In the alternative, Stacy argued that any ice on the sidewalk was a natural accumulation as there was no evidence of a problem with the building. The court agreed with both arguments and granted summary judgment.

Summary Judgment Obtained Based On The De Minimus Rule

Using the de minimus rule, Stacy Fulco successfully had a case dismissed. The plaintiff tripped and fell on a curb that had a small piece of cement missing. She fell and significantly injured her wrist, hands and knee. A motion for summary judgment was filed after all fact discovery but the motion was denied. The case then went to mandatory arbitration. Stacy again argued the de minimus rule and the panel found in favor of her client. The plaintiff did not reject the award.

Summary Judgment Obtained In Wrongful Death Trucking Case

While a vendor was backing up off a street to deliver milk to a store, a 20 year old was driving down the road intoxicated and tired when the 20 year old’s car collided head first into the front of the semi-truck. The driver of the car ultimately died and his parents filed suit. Stacy Fulco obtained summary judgment for the store owner based on lack of duty. The court agreed that the store did not instruct the truck driver as to the maneuver to use when making a delivery so the store had no duty of care to the plaintiff’s’-decedent. The property managers filed a similar motion but that motion was denied. The plaintiffs did not appeal the ruling.

Summary Judgment Obtained In A Failure To Train Case

Stacy Fulco obtained summary judgment for her client where the plaintiff alleged that she was injured at work by a malfunctioning coffee brewer. The plaintiff alleged that she was not properly trained or warned about the risks of being burned by a coffee brewer. The manufacturer of the coffee brewer also filed a summary judgment motion but was voluntarily dismissed after the motion was filed. The court granted summary judgment holding that the plaintiff was properly trained on how to use the coffee brewer and advised about the risks of the coffee brewer and her training did not proximately cause the incident.

Full Tender Accepted By Plaintiff’s Employer After Years Of Litigation

In a case involving a vendor’s employee injured on a store’s premises, Stacy Fulco tendered the defense and indemnification of the case to the plaintiff’s employer based on a contract. The tender was denied and the case continued. The plaintiff claimed that the initial fall resulted in a torn meniscus and aggravation of arthritis. The plaintiff underwent arthroscopic knee surgery and later had a knee replacement which he also claimed was related to the fall. Approximately 2 ½ years after the incident the plaintiff’s knee gave out causing him to strain his back. This aggravated his pre-existing back problems and arthritis leading to a back fusion. The plaintiff claimed the knee gave out because of the aggravation of the arthritis caused by the fall at Dominick’s. The plaintiff was ultimately unable to return to work because of his knee replacement. The plaintiff demanded $2.2 million for settlement. Stacy filed a declaratory judgment action against the plaintiff’s employer based on the denial of tender. Immediately before mediation, the plaintiff’s employer’s insurer accepted the tender of defense and indemnification of Stacy’s client without reservation. The mediation went forward and the carrier had Stacy appear at the mediation to argue the case on its behalf, even though it had counsel in the matter. Also, after settlement, Stacy was able to get full reimbursement of prior litigation expenses for its client since the date of tender.

Food Borne Illness Case Dismissed With Prejudice Based On Treating Physician’s Testimony

Stacy Fulco was successful in getting a product liability claim dismissed against her client. The plaintiff claimed a food borne illness caused her to become ill. There was no evidence to support the claim so after completing fact discovery the plaintiff’s doctor was deposed. The plaintiff’s doctor testified that the plaintiff suffered from the flu, not a food borne illness, and the case was dismissed.

Defense Verdict In Medical Malpractice Case Involving Death Of Newborn Child

Stacy Fulco was part of the defense team that won at trial in DuPage County in a medical malpractice case that involved the death of a newborn child. The plaintiff was pregnant and incarcerated and claimed that she experienced pain throughout the day, but this claim was disputed. She was examined at the end of the day and it was discovered that she was bleeding and in pain. The plaintiff was immediately transferred to the hospital where it was discovered that she was suffering from placental abruption. This resulted in a significant lack of oxygen to the baby and the baby died. The jury found in favor of Stacy’s client, the medical staff at the facility, and that her client acted timely and appropriately.

Defense Verdict In Medical Malpractice Case Involving Severely Injured Newborn Child

Stacy Fulco was part of the defense team that won at trial in Lake County in a medical malpractice case against a doctor, her practice and a hospital.  The plaintiff alleged that her medical care and the delivery of her child caused injury to her child.  The plaintiff was seeking to obtain the record high verdict in a medical malpractice case in Lake County but the jury found  in favor of the defense.