Cook County Record

Tuesday, October 22, 2019

Who left the pallet jack in the aisle? Judge says enough evidence exists to let suit continue vs Home Depot

By David Hutton | Oct 24, 2017

CHICAGO — A federal judge has rejected Home Depot's attempt to dismiss a personal injury and liability complaint against the retailer and a vendor brought by a woman who claimed she was hurt when she fell over a pallet jack in the home improvement chain's Joliet store.

Suzanne Barnum sued Home Depot and Glenn Walters Nursery Inc. after she claims she was injured on Nov. 15, 2013.

Magistrate Judge Susan E. Cox wrote the opinion, which was filed in the U.S. District Court for the Northern District of Illinois.

According to the complaint, Glenn Walters Nursery employees were present at the store at the time of the accident, though nursery employees stated that they did not use the pallet jack.

Home Depot employees, though, pointed the finger at nursery employees. Evidence indicates an employee of either entity could have been responsible for leaving the pallet jack in the aisle.

Home Depot and Glenn Walters Nursery requested summary judgment, arguing Barnum’s claims are “based on speculation and, therefore, have not created a genuine issue of material fact showing that either defendant breached its duty of ordinary care to plaintiff,” Cox wrote.

Cox noted that summary judgment is appropriate in cases where a plaintiff has failed to demonstrate it cannot prove key elements of a claim.

Cox said Barnum must show the defendants were negligent in a duty owed to her and that a breach of that duty occurred, causing damages.

“In this case, the court finds that plaintiff has pointed to sufficient evidence in the record from which it can be inferred that either defendant was more likely than not to have left the pallet jack in the aisle of the garden center,” Cox wrote. 

The judge said witness statements suggest nursery employees used the pallet jack on the morning of the incident and could have left it in the aisle.  

There also is evidence that a Home Depot employee may have used the equipment to help nursery employees that morning.

As a result, Cox said Barnum has provided enough "evidence to overcome Home Depot’s motion for summary judgment."

Home Depot and Glenn Walters Nursery also based their arguments on Piotrowski v. Menard Inc

In that case, an individual tripped over two stones, which may have been part of a planter outside a Menard’s store.

The U.S. Seventh Circuit Court of Appeals agreed with the district court’s decision to grant summary judgment in that case, saying plaintiffs could not prove their argument that a Menard’s employee was responsible for the stones spilling from the planter.

In Piotrowski, there were a number of reasons that could have led to the stones being moved from the planter.

In this case, however, Cox said there are a limited number of explanations for the pallet jack being left in the aisle. She noted customers are not allowed to use them and their use is limited to Home Depot employees and vendors.

“Glenn Walters Nursery’s internal communications suggest that it was a Home Depot employee, which is sufficient evidence to infer that it was more likely than not Home Depot that was responsible for leaving the pallet jack in the aisle, thereby defeating its motion for summary judgment,” Cox wrote.

Because nursery employees still could have used the equipment, their motion for summary judgment also was rejected.

A status conference was scheduled to discuss a settlement or set a trial schedule.

Barnum is represented in the action by the firm of Goldberg Weisman Cairo, of Chicago.

Home Depot is defended by the firm of Cremer Spina Shaughnessy Jansen & Siegert LLC, of Chicago, and Glen Walters Nursery is represented by the firm of Wolf Law Ltd., of Chicago. 

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Organizations in this Story

Cremer, Kopon, Shaughnessy and Spina, LLC Goldberg Weisman Cairo The Home Depot U.S. District Court for the Northern District of Illinois Wolf Law Ltd.