CHICAGO — A federal appeals panel has handed a win to home improvement retailer Menards against a man who claimed the big-box hardware and lumber chain should pay after he was injured by a falling stack of insulation.
A panel of judges for the U.S. Court of Appeals for the Seventh District upheld a district court decision favoring Menards over plaintiff Larry Dunn who had filed a negligene suit against the store.
Seventh Circuit Judge Joel Martin Flaum wrote the Jan. 29 opinion, with judges Frank Easterbrook and Amy Barrett concurring.
Dunn had filed a suit after being injured in 2014 when a stack of insulation at a Menards store in suburban Hodgkins fell on him. According to the appellate court decision, Dunn noticed that one of the stacks was "not straight" and "leaning to the right," and he instructed his son to "keep an eye on" it.
For 15 minutes, they loaded their van with the insulation in Menards' outdoor lumber yard. When they were almost finished, the stack in question fell, striking Dunn, who allegedly hurt his right shoulder.
Dunn then filed a negligence suit against Menards in May 2015 in Cook County Circuit Court, and the case was later moved to Chicago federal court.
The district court initially ruled in favor of the home improvement center because "the stack of insulation constituted an 'open and obvious' danger and because "imposing such a [legal] duty would be excessively onerous," according to the appellate court decision.
Dunn appealed the decision, arguing the lower court had erred by excluding part of his affidavit and by ruling in favor of the store because the potential danger posed by stack of insulation was "open and obvious."
The appellate panel, however, held that the lower court's ruling was "reasonable" based on the plaintiff's deposition.
The appellate panel held the lower court did not abuse its discretion because Dunn had said he had noticed the unsafe condition of the stack before it fell, meaning that it was reasonable to conclude that the stack was an "open and obvious" danger. The judges agreed that Menards does not owe Dunn any damages because people or businesses "are not ordinarily required to foresee and protect against injuries from potentially dangerous conditions that are open and obvious.”
"[The] plaintiff’s deposition testimony indicated that, contrary to his affidavit, his opinion regarding the condition of the leaning stack 'was formed prior to when the stack fell on him as opposed to after,'" Flaum wrote in the decision. "... The fact that plaintiff monitored the insulation for five minutes before attempting to load his van and warned his son to be mindful of his surroundings serves as evidence that plaintiff formed an opinion about the condition and risk of the leaning stack prior to its collapse."
Dunn is represented by attorneys Ralph Joseph Licari and Sean C. Starr, of Chicago.
Menards is represented by attorneys Nicole D Milos, Gary Thomas Jansen and Laura Elizabeth Fahey, of the firm of Cremer, Spina, Shaughnessy, Jansen & Siegert LLC, of Chicago.