Torrez, Alejandro v. T.G.I. Friday's ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
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No. 07-1107
ALEXANDER TORREZ, also known as ALEJANDRO TORREZ,
Plaintiff-Appellant,
v.
TGI FRIDAY’S, INC.,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 C 45—Blanche M. Manning, Judge.
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ARGUED NOVEMBER 2, 2007—DECIDED DECEMBER 3, 2007
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Before EASTERBROOK, Chief Judge, and POSNER and RIPPLE,
Circuit Judges.
POSNER, Circuit Judge. In this suit for personal injury,
governed by Illinois law, the district judge granted sum-
mary judgment in favor of the defendant, and the plaintiff
appeals. Federal jurisdiction is based on diversity of
citizenship, though we were able to ascertain this only
by directing the parties to file supplemental jurisdic-
tional memoranda; for the jurisdictional statement in the
plaintiff’s opening brief failed to identify the state in
which the defendant, a corporation, is incorporated, and
2 No. 07-1107
the jurisdictional statement in the defendant’s brief stated
that the plaintiff’s jurisdictional statement was complete
and correct, though it was neither.
The plaintiff was injured while cleaning the hood over a
fryer exhaust fan at the defendant’s restaurant in Batavia,
Illinois. He was employed not by the defendant, TGI
Friday’s (had he been, he could not have brought this suit
but would have been remitted to an administrative pro-
ceeding under the state’s workers’ compensation law),
but by a cleaning service, Facilitec, hired by the defendant.
He was working at night because he had to wait to enter
the restaurant until its employees had finished taking
inventory and were about to close the restaurant for the
night. Inside the fryer hood were five light bulbs, each
encased in a transparent glass globe. The bulbs and their
globes were not visible unless one looked under the hood,
which the plaintiff did not do. Instead he reached inside
to clean the inside of the hood—and felt a sudden pinch
in his arm. The pinch turned out to be a serious wound,
severing several tendons and disabling the plaintiff from
regular employment. He had cut his arm on one of the
globes, but the record is silent on whether it was a
cracked globe that broke apart when his arm touched it
or a globe that was broken before he reached into the hood.
The record contains no picture of the fryer or even
identification of the brand or model. The plaintiff’s lawyer
told us that he could not gain access to the restaurant to
look at the fryer and hood, which is absurd; hasn’t he
heard of pretrial discovery? (See Fed. R. Civ. P. 34(a)(2).)
Well, maybe not, because he conducted no discovery at all.
As a result, nothing is known about the source of the
crack in the globe, or, if the globe was already broken
when the plaintiff’s arm touched it, the cause of its being
No. 07-1107 3
broken. The globe could have been defectively designed
by the manufacturer, defectively installed or manhandled
by the manufacturer of the fryer hood, damaged in ship-
ment, damaged by an employee of the restaurant, damaged
by another employee of the plaintiff’s company or by the
plaintiff himself on a prior visit to clean the hood. We
shall never know.
The plaintiff has litigated the case as if it were a slip and
fall case, where for example a customer accidentally
knocks a bottle containing liquid off a shelf in the defen-
dant’s store, another customer slips on it and injures
himself, and the suit charges that the store should have
detected and removed the danger before the accident. E.g.,
Perminas v. Montgomery Ward & Co., 328 N.E.2d 290, 291-92
(Ill. 1975); Donoho v. O’Connell’s, Inc., 148 N.E.2d 434, 437-
41 (Ill. 1958); Peterson v. Wal-Mart Stores, Inc., 241 F.3d 603(7th Cir. 2001); Saldana v. Kmart Corp., 260 F.3d 228, 231-32
(3d Cir. 2001). At the same time and inconsistently he
argues that the globe was cracked or broken by the restau-
rant’s employees. These are two quite different theories,
requiring different proof. If an employee of the defendant
creates a hidden danger (maybe, as claimed in Howard v.
Wal-Mart Stores, Inc., 160 F.3d 358 (7th Cir. 1998), a store’s
employee rather than another customer knocked the bottle
off the shelf and failed to notice the spillage or report it or
clean it up), such as a cracked or broken glass globe in a
place into which the employee should know someone
will be likely to reach his arm without awareness of the
danger, the employee is negligent and his negligence is
imputed to his employer. Donoho v. O’Connell’s, Inc., supra,
148 N.E.2d at 437. But there is as we said no evidence of
who broke or cracked the globe, and specifically no
evidence that one of the restaurant’s employees did it.
4 No. 07-1107
If the danger was created by someone other than an
employee of the restaurant, the restaurant is liable only
if it would have detected and removed the danger had it
been exercising due care to make its premises safe for its
employees and for any business invitees (which would
include the members of the outside cleaning staff as well
as any customer or inspector invited into the kitchen)
who were within the zone of danger. In the case of slip
and fall accidents in stores, due care requires the store-
owner to keep the floor reasonably safe for customers by
cleaning it frequently and by directing its employees to do
a certain amount of patrolling of the aisles with their eyes
directed at the floor. As we explained in the Peterson
case, “The store’s duty is not merely to prevent careless
spillage by its employees but also to be on the lookout for
spillage by whomever caused and to clean it up promptly.
Satisfaction of the latter half of this duty, the duty of
inspection and clean up, does not require continuous
patrolling of the aisles; the cost would be disproportionate
to the benefit. But it may require, in self-service stores
where customer traffic is heavy and the probability of a
slip and fall therefore high (both because there are many
people using the aisles, who are customers rather than
employees, and because the probability that a customer
through spillage or otherwise will create a hazardous
condition is a function of the number of customers per
square foot of floor), frequent and careful patrolling. The
cost of such patrolling to the store need not be high.
Employees have frequent occasion to be in the store’s
aisles in any event; they have only to be alert to the possi-
bility of spillage to notice it and clean it up promptly.” 241
F.3d at 604-05 (citations omitted). Of critical importance is
whether “the substance [that caused the accident] was
there a length of time so that in the exercise of ordinary
No. 07-1107 5
care its presence should have been discovered.” Tomczak
v. Planetsphere, Inc., 735 N.E.2d 662, 667 (Ill. App. 2000);
see also Martin v. Wal-Mart Stores, Inc., 183 F.3d 770, 774-
75 (8th Cir. 1999); Porche v. Winn-Dixie Louisiana, Inc., 644
So. 2d 699, 702 (La. App. 1994); compare Hresil v. Sears,
Roebuck & Co., 403 N.E.2d 678, 679-80 (Ill. App. 1980). If
there is a comparable duty on the part of restaurateurs to
inspect fryer hoods for cracked or broken glass globes,
this is not so obvious as to enable a suit to go forward on
the basis of res ipsa loquitur—that the accident must have
been due to the defendant’s negligent management of
something within its control.
Determining whether a defendant has failed to use due
care to prevent an accident requires a comparison between
the cost of the precaution that would have prevented it
and the cost of the accident that occurred as a result of
the absence of the precaution, discounted by the probabil-
ity of an accident if the precaution was not taken. If an
accident if it occurs would cause on average a $10,000
loss, and the probability that the accident would occur
unless a particular precaution was taken was 1 percent,
and the precaution would have cost only $50, then the
failure to take it was indeed negligence. For an expected
loss of $100 (1 percent of $10,000) could have been pre-
vented at a cost of only $50. Rarely in an actual negligence
case are the factors that determine whether a precaution
is cost justified actually quantified. But if the case is
properly litigated there will at least be evidence of a
general nature about whether the probability of an ac-
cident was high or low, the loss if the accident occurred
would be great or small, and the measures that would
have prevented the accident would have cost a lot or a
little, and such general information will usually suffice to
6 No. 07-1107
resolve the issue of negligence satisfactorily. But the rec-
ord of this case contains absolutely no evidence concern-
ing these magnitudes. How likely is a globe in a fryer
hood to be cracked or broken? How easily could such a
defect be determined by inspection (for the globes,
being placed behind a lip in the hood, resist easy inspec-
tion)? How frequent and, on average, how serious is the
type of accident that befell the plaintiff? Was he perhaps
in the best position to inspect, since it was his duty to
clean the bulbs? Indeed, was it reckless for him to try to
clean a surface from which (as he must have known, as
there is no suggestion that this was the first time he had
tried to clean the fryer hood) hollow glass globes protruded
that he could not see? In the absence of some evidence
on these points—there is none—no reasonable jury could
find that the plaintiff’s injury was due to negligence on
the part of employees of the restaurant. Summary judg-
ment was therefore rightly granted in favor of the defen-
dant.
AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-3-07