In April, 2017, a Cook County motion judge granted summary judgment in favor of one of my retail clients and it is a ruling worth sharing. The retailer is a warehouse store and the plaintiff claimed he tripped and fell over the corner of a pallet that was under a large display box of watermelons.
The first argument in our motion for summary judgment asserted there was no defective condition which caused the plaintiff to fall. The second argument asserted the pallet was an open and obvious condition which put the plaintiff on notice. The plaintiff was a frequent customer of the store and was fully aware the store often displayed items on pallets. We argued the store was not liable for the plaintiff’s inattentiveness to his surroundings.
During the briefing of the motion, the plaintiff’s attorney argued the incident occurred because the plaintiff’s foot was caught in a hole in the corner of the pallet and the alleged hole was the defective condition. In response, we provided a close-up photograph of the alleged hole and proved it was a chip of wood out of the corner of the pallet, not a hole.
At the hearing, the judge was fully versed in the case and had thoroughly read all of the briefs, which is always a good sign. We argued a chip of wood out of the pallet was not a defective condition and the plaintiff was on notice that pallets were used throughout the store. In response, the plaintiff’s attorney argued the plaintiff did not see the “hole” in the pallet so it was not an open and obvious condition. Counsel also argued if it was open and obvious, the plaintiff was distracted by customers at a near by demonstration table.
The judge wholeheartedly agreed that summary judgment was appropriate for the defendant. The judge ruled the pallet was open and obvious and he did not believe the plaintiff was distracted. It was obvious the judge was swayed by the fact that the store always used pallets to display product and the plaintiff was a regular customer at the store.
The plaintiff did not file a motion to reconsider or an appeal.