Clear the aisle: Bulduk v. Walgreen Co.

Bulduk v. Walgreen Co., 2015 IL App (1st) 150166

Plaintiff appeals grant of summary judgment in defendant’s favor because plaintiff argues that a genuine issue of material fact existed as to whether a dangerous condition was open and obvious.

While shopping at a Walgreens, the plaintiff noticed and walked around a large, plugged-in cleaning machine in the middle of the aisle. As she was looking for a particular product, without warning or notice, the cleaning machine hit her lower back, causing severe and permanent injuries. The plaintiff sued Walgreens alleging, among other counts, negligence. Walgreens argued that it did not owe the plaintiff a duty because it was using a third-party cleaning company as an independent contractor and therefore exercised no control over their employees.

It is well settled that there is no common law duty to protect invitees against dangers that are either known to them or that are open and obvious. Ward v. K mart Corp., 136 Ill. 2d 132, 142 (1990). However, an exception arises when the land owner has reason to expect that the invitee may become distracted and therefore not discover the open and obvious danger, forget that the danger is there or fail to protect himself or herself from the danger. Id. at 149-50. The supreme court in Ward held that the questions of whether the dangerous condition itself gave enough notice to the invitee, or whether the defendant was required to provide additional precautions, are questions of fact for the jury. Id. at 156.

Here, the plaintiff alleged that she was distracted and failed to notice any danger the cleaning machine posed because she was focused on finding the item she wanted to buy. The Court found it reasonably foreseeable for a customer to be distracted by searching for products and not notice the danger posed by a machine left in the middle of the aisle. The Court determined that the jury should determine whether Walgreens was negligent; a reasonable jury could draw different conclusions from the facts in this case. The Court in part reversed the order granting summary judgment on the negligence count.

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