Judge: Menard's, retailers not expected to always keep parking lot in 'perfect condition' to avoid trip-and-falls

By John Breslin | Oct 2, 2018

CHICAGO – Home improvement retail chain Menard's cannot be held liable for an injury allegedly suffered by a woman who tripped over a crack in the parking lot of one of its northwest suburban stores, a federal judge has ruled, saying the retailer cannot be expected to keep its parking lot in "perfect condition at every moment."

U.S District Judge Rebecca R. Pallmeyer ruled Sept. 24 that the crack in a Menard's parking lot "did not pose an unreasonable risk of harm, that Menard’s had no actual or constructive notice of the risk, that Menard’s reasonably expected that customers would avoid the crack, and that it has not breached any duty of care to the plaintiff," the ruling states.

Maribel Grossman sued the retail chain after falling as she was entering the Menard's store in Carpentersville in February 2015. She alleges she suffered a right rotator cuff tear that needed surgery because of the fall.

Grossman filed the claim in the Chicago federal court because Menard Inc. is headquartered in Wisconsin and she was looking for damages of more than $75,000. Pallmeyer issued a summary judgment in favor of Menard's.

In her deposition, Grossman stated that she and her two children were walking through the parking at a "regular pace" and as they approached the store they quickened to avoid a vehicle, stepped on the crack and fell.

"It is undisputed that in the seven years prior to this incident, no person had fallen or been injured as a result of a crack in the parking lot, and no person had lodged a complaint about the cracks with store management," Pallmeyer wrote.

The judge noted the testimony of store manager, Kim Peszat, who stated "she has worked at the store for 10 years and walks through the parking lots six times per day but has never noticed any significant or potentially dangerous crack."

Under Illinois law, a plaintiff accusing a premises of negligence must prove an unreasonable risk of harm, and that the defendants should have known of this and the danger, the ruling states.

"Defendant would have to repair or warn customers of every crack in the parking lot and it would have to repave its entire lot several times a year," Pallmeyer wrote. "Plaintiff notes that defendant already performs regular repairs with lines of tar or by digging up and replacing patches of asphalt. But this regular attention to the condition of the parking lot defeats plaintiff’s negligence theory.

"To the extent plaintiff believes the law requires defendant to maintain the parking lot in perfect condition at every moment, the court disagrees. Defendant had no duty to keep the parking lot free of any crack, regardless of its size or significance," the ruling states.

Grossman is represented by attorney Lawrence P. Maya, of the firm of Deer, Stone & Maya PC, of Chicago.

Menard's is represented by attorneys W. Anthony Andrews, Ryan R. Morton and Vladimir Shuliga, of the firm of Ottosen Britz Kelly Cooper Gilbret & DiNolfo Ltd., of Naperville.

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Deer, Stone & Maya PC Menard Inc Ottosen Britz Kelly Cooper Gilbert & Dinolfo Ltd U.S. District Court for the Northern District of Illinois, Eastern Division

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