In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17‐1870
LARRY D. DUNN,
Plaintiff‐Appellant,
v.
MENARD, INC.,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:15‐cv‐4552 — Sara L. Ellis, Judge.
____________________
ARGUED JANUARY 17, 2018 — DECIDED JANUARY 29, 2018
____________________
Before FLAUM, EASTERBROOK, and BARRETT, Circuit Judges.
FLAUM, Circuit Judge. Plaintiff‐appellant Larry Dunn filed
a negligence suit against defendant‐appellee Menard, Inc.
(“Menards”) after he was injured by a falling stack of rolled
insulation at a Menards store in Hodgkins, Illinois. The dis‐
trict court granted summary judgment to Menards, finding
that it did not owe plaintiff a legal duty because: (1) the stack
of insulation constituted an “open and obvious” danger; and
(2) imposing such a duty would be excessively onerous under
2 No. 17‐1870
the circumstances. Plaintiff now appeals the district court’s
ruling. We affirm.
I. Background
A. Factual Background
Menards is a chain of home improvement centers located
in the Midwestern United States. At approximately 7:00 PM on
January 3, 2014, plaintiff Larry Dunn and his adult son, Erik
Dunn, visited a Menards in Hodgkins, Illinois to purchase
rolled insulation. This was not the first time plaintiff had fre‐
quented the Hodgkins Menards; he went to the store on a
monthly basis to purchase personal home improvement sup‐
plies.
After plaintiff paid for twenty‐one rolls of insulation in‐
side the main store, a cashier instructed him to pick up his
merchandise in one of the store’s surrounding self‐service
warehouses, where customers loaded their purchased mate‐
rials. Plaintiff drove his Dodge Grand Caravan to the
Menards “yard,” and a security guard directed him to the
warehouse containing insulation.
Both entrances to the insulation warehouse displayed
warning signs stating, “For your safety, caution, do not cut
bandings, do not open packages, do not pull, do not climb,
and if you need assistance, please call.” Although neither
plaintiff nor Erik recall seeing the warning signs, they do not
dispute that they were posted on the date of the incident.
Plaintiff did not observe any Menards employees inside
the warehouse. However, he had witnessed employees assist
customers in the self‐service warehouses in the past, and un‐
derstood he could ask for assistance if needed.
No. 17‐1870 3
Plaintiff parked his van next to the supply of rolled insu‐
lation, which was organized in vertical stacks. Upon exiting
his vehicle, plaintiff noticed that one stack of insulation, ap‐
proximately sixteen feet in height, “was not straight” and was
“leaning to the right.” During his deposition, plaintiff testified
that the stack “seemed too high,” and that “it was pretty ob‐
vious” the stack “was leaning and unstable.” As a result,
plaintiff told his son to “keep an eye” on the stack.
Despite the leaning stack, plaintiff did not seek assistance
from any Menards employees. Instead, he observed the insu‐
lation for approximately five minutes to determine whether
“it was safe to proceed.” After counting the rolls of insulation
in front of the leaning stack, plaintiff concluded he could ob‐
tain the insulation he needed without utilizing the unstable
batch. Plaintiff decided it was safe to proceed as long as nei‐
ther he nor his son touched the leaning stack. Nevertheless,
plaintiff instructed Erik to “be wary of where [he was] and
what [he was] moving” and to “be cautious” and “careful”
while loading.
Plaintiff and Erik proceeded to load their van with insula‐
tion for approximately ten to fifteen minutes. Plaintiff faced
his van as they loaded, with the leaning stack approximately
eight to ten feet behind him. The parties agree that, during
this time, neither plaintiff nor Erik directly or indirectly
touched the leaning stack. Still, as they loaded the final bales
of insulation, the leaning stack fell. Some of the falling insula‐
tion struck plaintiff and forced him to the ground, allegedly
injuring his right shoulder.
After the incident, plaintiff and Erik immediately returned
to the Menards main store and notified the front office man‐
4 No. 17‐1870
ager. While preparing an incident report, the front office man‐
ager learned that two Menards employees were working in
the bay next to plaintiff at the time of the accident. The em‐
ployees told the front office manager that, although they did
not see plaintiff enter the warehouse, they heard the insula‐
tion fall. They further told the front office manager that they
were never asked for assistance.
As a general practice, the general manager of the Hodg‐
kins Menards patrols both the store and warehouses three
times by 5:00 PM in order to look for potential hazards. In ad‐
dition, the yard shipping and receiving manager, the assistant
yard shipping and receiving managers, and individual team
members routinely monitor the self‐service warehouses for
potential safety issues.
B. Procedural Background
On May 6, 2015, plaintiff filed a negligence suit against
Menards in the Circuit Court of Cook County. Menards re‐
moved the case to the Northern District of Illinois, where the
matter was assigned to District Judge Sara L. Ellis.
Plaintiff was deposed on September 23, 2015 and non‐
medical fact discovery closed on November 20, 2015. On Feb‐
ruary 22, 2016, five months after plaintiff’s deposition, three
months after the close of non‐medical fact discovery, and four
days before the deadline for Menards’s summary judgment
brief, plaintiff provided Menards with a supplemental 14‐par‐
agraph personal affidavit. Menards moved to strike the affi‐
davit on the grounds that it contradicted plaintiff’s prior dep‐
osition testimony. Following an in‐court hearing, the district
court granted Menards’s motion in part and struck para‐
graphs 3 through 10 and 14.
No. 17‐1870 5
The district court granted summary judgment to Menards
on November 18, 2016. The court found Menards did not owe
a legal duty to plaintiff because the leaning stack of insulation
that fell on him constituted an open and obvious condition,
and imposing such a duty would be excessively onerous un‐
der the circumstances. Plaintiff subsequently filed a motion to
reconsider, which was denied. This appeal followed.
II. Discussion
The first two issues presented in this appeal—the open
and obvious nature of the leaning stack of insulation and
whether Menards owed plaintiff a legal duty—are subject to
de novo review. See C.G. Schmidt, Inc. v. Permasteelisa N. Am.,
825 F.3d 801, 805 (7th Cir. 2016). Summary judgment is appro‐
priate if the movant shows there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law. Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055,
1060 (7th Cir. 2014). A genuine dispute of material fact exists
if “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). We “consider all of the evidence
in the record in the light most favorable to the non‐moving
party, and we draw all reasonable inferences from that evi‐
dence in favor of the party opposing summary judgment.” Fe‐
liberty v. Kemper Corp., 98 F.3d 274, 276–77 (7th Cir. 1996).
The third issue on appeal—the district court’s exclusion of
portions of plaintiff’s supplemental affidavit—is reviewed for
an abuse of discretion. See Griffin v. Foley, 542 F.3d 209, 217
(7th Cir. 2008). Under this standard of review, “the relevant
inquiry is not how the reviewing judges would have ruled if
they had been considering the case in the first place.” Id. at
218 (quoting Wheeler v. Sims, 951 F.2d 796, 802 (7th Cir. 1992)).
6 No. 17‐1870
“Rather, the district court’s decision is to be overturned only
if no reasonable person would agree with the trial court’s rul‐
ing.” Id.
A. The stack of insulation that fell on plaintiff consti‐
tuted an open and obvious condition.
“[S]tate law provides the substantive law in a diversity ac‐
tion.” Maroules v. Jumbo, Inc., 452 F.3d 639, 645 (7th Cir. 2006).
Thus, “our task is to predict how the Illinois Supreme Court
would decide the issues presented here.” Nationwide Agribusi‐
ness Ins. Co. v. Dugan, 810 F.3d 446, 450 (7th Cir. 2015). “Where
the Illinois Supreme Court has not ruled on an issue, decisions
of the Illinois Appellate Courts control, unless there are per‐
suasive indications that the Illinois Supreme Court would de‐
cide the issue differently.” Id.
To establish a cause of action for negligence under Illinois
law, a plaintiff must prove: “(1) a duty owed to the plaintiff
by the defendant; (2) a breach of that duty; and (3) an injury
proximately caused by the breach.” Wilfong v. L.J. Dodd Con‐
str., 930 N.E.2d 511, 519 (Ill. App. Ct. 2010). Here, plaintiff’s
arguments relate to the first element.
Whether a duty exists is a question of law to be deter‐
mined by the court. Fulk v. Ill. Cent. R. Co., 22 F.3d 120, 125
(7th Cir. 1994); see also Mayer v. Gary Partners & Co., 29 F.3d
330, 333 (7th Cir. 1994) (holding that the allocation of duties
between judge and jury is governed by federal law). Put
broadly, “[d]uty is determined by asking ‘whether defendant
and plaintiff stood in such a relationship to one another that
the law imposed upon defendant an obligation of reasonable
conduct for the benefit of plaintiff.’” Bucheleres v. Chi. Park
Dist., 665 N.E.2d 826, 831 (Ill. 1996) (quoting Ward v. K Mart
No. 17‐1870 7
Corp., 554 N.E.2d 223, 226 (Ill. 1990)). As a matter of practical
application, however, “the concept of duty in negligence
cases is very involved, complex and indeed nebulous.” Ward,
554 N.E.2d at 226 (quoting Mieher v. Brown, 301 N.E.2d 307,
310 (Ill. 1973)). “The four factors courts typically consider in
determining whether a duty exists are: (1) the reasonable fore‐
seeability of injury; (2) the likelihood of injury; (3) the magni‐
tude of the burden of guarding against injury; and (4) the con‐
sequences of placing that burden on the defendant.” Wilfong,
930 N.E.2d at 519; see also LaFever v. Kemlite Co., 706 N.E.2d
441, 446 (Ill. 1998).
“In Illinois, the open and obvious doctrine is an exception
to the general duty of care owed by a landowner.” Park v. Ne.
Ill. Reg’l Commuter R.R. Corp., 960 N.E.2d 764, 769 (Ill. App. Ct.
2011). This is because “persons who own, occupy, or control
and maintain land are not ordinarily required to foresee and
protect against injuries from potentially dangerous condi‐
tions that are open and obvious.” Bucheleres, 665 N.E.2d at
832; see also Ward, 554 N.E.2d at 230 (“Certainly a condition
may be so blatantly obvious and in such position on the de‐
fendant’s premises that he could not reasonably be expected
to anticipate that people will fail to protect themselves from
any danger posed by the condition.”). Thus, “[i]n cases in‐
volving obvious and common conditions … the law generally
assumes that persons who encounter these conditions will
take care to avoid any danger inherent in such condition.”
Bucheleres, 665 N.E.2d at 832. “The open and obvious nature
of the condition itself gives caution and therefore the risk of
harm is considered slight; people are expected to appreciate
and avoid obvious risks.” Id.
8 No. 17‐1870
Often, “[w]hether a dangerous condition is open and ob‐
vious may present a question of fact.” Bruns v. City of Centra‐
lia, 21 N.E.3d 684, 690 (Ill. 2014). However, “where no dispute
exists as to the physical nature of the condition, whether the
dangerous condition is open and obvious is a question of
law.” Id. The district court found the latter applied here.
Plaintiff claims the district court’s ruling was improper be‐
cause he and his son “each had a different interpretation of
the physical nature of the stack of insulation that fell.” This
argument, however, misstates the record. During plaintiff’s
deposition, he testified that he “noticed that one stack of in‐
sulation did not look stable.” When asked for further details,
plaintiff stated that it was “pretty obvious” that the stack was
“leaning” and “not straight.” In comparison, plaintiff’s son
testified that it was “obvious” that the stack was “uneven”
and “somewhat” unstable.
Plaintiff asserts this testimony evinces “different opinions
and interpretation[s]” of how the leaning stack appeared. We
disagree. True, plaintiff described the stack as “leaning,”
while Erik testified the stack was “uneven.” In our view, how‐
ever, this is a semantic distinction without a meaningful dif‐
ference. More importantly, both plaintiff and his son agreed
the stack was “unstable,” and both witnesses testified that the
physical condition of the stack was “obvious.” Indeed, the
parties’ Joint Statement of Undisputed Material Facts (the
“Joint Statement”) explicitly states that “[t]he uneven stacking
was obvious to Erik Dunn and his father” and “Plaintiff and
Erik Dunn were both aware of the obvious condition of the
No. 17‐1870 9
stack” (emphases added). These accounts are sufficiently con‐
sistent to make application of the open and obvious doctrine
a question of law.1
Moving on, “‘[o]bvious’ means that ‘both the condition
and the risk are apparent to and would be recognized by a
reasonable man, in the position of the visitor, exercising ordi‐
nary perception, intelligence, and judgment.’” Bruns, 21
N.E.3d at 690 (quoting Restatement (Second) of Torts § 343A
cmt. b, at 219 (1965)); see also Deibert v. Bauer Bros. Constr. Co.,
566 N.E.2d 239, 241 (Ill. 1990) (noting that Illinois has adopted
§ 343A). “Thus, the determination of whether the condition is
open and obvious depends not on plaintiff’s subjective
knowledge but, rather, on the objective knowledge of a rea‐
sonable person confronted with the same condition.” Racky v.
Belfor USA Grp., Inc., 83 N.E.3d 440, 467 (Ill. App. Ct. 2017). In
other words, “if a reasonable person with the plaintiff’s
knowledge of the situation would have appreciated and
avoided a hazard created by the defendant’s actions, then
from the defendant’s perspective the plaintiff’s injuries were
neither foreseeable nor likely.” Smith v. MHI Injection Molding
Mach., Inc., No. 10‐cv‐8276, 2014 WL 1516592, at *5 (N.D. Ill.
Apr. 18, 2014).
1 In further support of his argument, plaintiff claims that Kyle Krause, the
Hodgkins Menards general manager, also had an inconsistent description
of the leaning stack. Plaintiff’s assertion, however, is wholly unsupported
by the record. During Krause’s deposition, plaintiff’s own counsel
acknowledged that Krause “[did not] recall the incident or any stacks
prior to the incident.” Thus, Krause did not present an account of the
physical nature of the stack at all, let alone one that conflicted with that of
plaintiff or Erik Dunn.
10 No. 17‐1870
Here, the district court correctly determined that “the un‐
disputed evidence allows for only one conclusion: … the lean‐
ing and unstable stack posed an open and obvious danger
that a reasonable person with Dunn’s knowledge would have
appreciated.” It is undisputed that “[p]rior to the incident,
Plaintiff noticed that one stack of insulation did not look sta‐
ble.” Specifically, the stack “was not straight” and “was lean‐
ing to the right.” The parties’ Joint Statement goes so far as to
say “[i]t was obvious to Plaintiff that the stack was leaning
and unstable,” so much so that plaintiff told his son to “be
careful,” “keep an eye on the stack of insulation,” and “be
wary of where [he was] and what [he was] moving.” Pre‐
sented with these circumstances, a reasonable person would
have taken sufficient care to avoid the primary danger inher‐
ent in the stack’s condition: that the stack might fall over.
Plaintiff devotes a significant portion of his brief to a dis‐
cussion of his own recognition of this inherent risk. Specifi‐
cally, he argues that although he observed the condition of the
leaning stack of insulation, he did not appreciate the risk the
condition posed. Although plaintiff’s claim stems from a cor‐
rect interpretation of the law, see Racky, 83 N.E.3d at 467 (“The
open and obvious doctrine applies only where both the condi‐
tion and the risk are apparent to and would be recognized by
a reasonable person.”), it is at odds with the undisputed rec‐
ord. Had plaintiff truly believed the leaning stack posed no
danger, he would have had no reason to monitor the insula‐
tion for five minutes to determine whether “it was safe to pro‐
ceed with loading the insulation in the van.” Nor would he
have needed to warn his son to be mindful of his surround‐
ings.
No. 17‐1870 11
Plaintiff counters that his apprehension applied only to a
scenario where either he or his son touched the stack, and it is
undisputed that neither of them made contact with the stack
prior to its collapse. Once again, the evidence belies plaintiff’s
assertion. Plaintiff observed the leaning stack for five minutes
before attempting to load his van. From this, it is reasonable to
infer that plaintiff at least initially feared the stack might
spontaneously fall, even without any additional disturbance.
Regardless, plaintiff seeks to split hairs. See Bujnowski v.
Birchland, Inc., 37 N.E.3d 385, 388 (Ill. App. Ct. 2015) (“[T]he
test of openness and obviousness [is] not what the plaintiff
actually knew at the time, but what he had reason to suspect
and could have learned.”). Moreover, the operative focus is
not on plaintiff himself, but on a reasonable person with plain‐
tiff’s knowledge of the situation, and whether such an indi‐
vidual, after exercising ordinary perception, intelligence, and
judgment, would have appreciated and avoided the hazard.
See Smith, 2014 WL 1516592, at *5; Bruns, 21 N.E.3d at 690.
Viewed from this perspective, a reasonably prudent person
would not have stood underneath a sixteen‐foot stack of “ob‐
vious[ly]” “unstable” insulation, even if that person ventured
to avoid physical contact. Therefore, the leaning stack of insu‐
lation constituted an open and obvious condition.
Of course, we must also consider whether an exception to
the open and obvious rule applies. “Exceptions to the rule
make provision for cases in which ‘the possessor of land can
and should anticipate that the dangerous condition will cause
physical harm to the invitee notwithstanding its known or ob‐
vious danger.’” Bruns, 21 N.E.3d at 691 (quoting Restatement
(Second) of Torts § 343A cmt. f, at 220 (1965)). “Illinois law
recognizes two such exceptions” in cases involving premises
12 No. 17‐1870
liability: “the ‘distraction exception,’ and the ‘deliberate en‐
counter exception.’” Id. (quoting Sollami v. Eaton, 772 N.E.2d
215, 224 (Ill. 2002)). “Where an exception to the open and ob‐
vious rule applies, the outcome of the duty analysis … is ‘re‐
versed.’” Id. (quoting Belluomini v. Stratford Green Condo.
Ass’n, 805 N.E.2d 701, 705 (Ill. App. Ct. 2004)). That is,
“[w]hereas operation of the open and obvious rule negatively
impacts the foreseeability and likelihood of injury, applica‐
tion of an exception to the rule positively impacts the foresee‐
ability and likelihood of injury.” Id.
Neither exception applies here. The deliberate encounter
exception only applies “where the possessor [of land] has rea‐
son to expect that the invitee will proceed to encounter the
known or obvious danger because to a reasonable man in his
position the advantages of doing so would outweigh the ap‐
parent risk.” Id. (alteration in original) (quoting Sollami, 772
N.E.2d at 223). “The deliberate encounter exception has most
often been applied in cases involving some economic compul‐
sion,” Sollami, 772 N.E.2d at 224, such as when a plaintiff “is
forced to choose between facing danger and neglecting his
duties” to an employer. Atchley v. Univ. of Chi. Med. Ctr., 64
N.E.3d 781, 791 (Ill. App. Ct. 2016); see also Kleiber v. Freeport
Farm & Fleet, Inc., 942 N.E.2d 640, 648 (Ill. App. Ct. 2010) (“The
deliberate‐encounter exception recognizes that individuals
will make deliberate choices to encounter hazards when faced
with employment concerns and that those encounters are rea‐
sonably foreseeable by possessors of property.”). No such
compulsion is present here.
This conclusion is supported by the Illinois Appellate
Court’s opinion in Kleiber. There, the plaintiff was loading
bags of topsoil into her vehicle from a pallet located outside
No. 17‐1870 13
the front of a Farm and Fleet store. Kleiber, 942 N.E.2d at 642.
In order to obtain the bags of topsoil, the plaintiff walked
across an empty wooden pallet lying on the ground. Id. Plain‐
tiff’s foot went through one of the slats in the pallet and she
fell, injuring her leg. Id. at 642–43. On appeal, the court held
that, even if “there was no other way to access the topsoil ex‐
cept by crossing the empty pallet,” the deliberate encounter
exception did not apply. Id. at 649. According to the court,
“despite the location of the topsoil, plaintiff had another op‐
tion available. Plaintiff could have gone into the store and
asked for assistance.” Id. The same reasoning applies here.
The distraction exception is also inapposite. The distrac‐
tion exception applies “where the possessor [of land] has rea‐
son to expect that the invitee’s attention may be distracted, so
that he will not discover what is obvious, or will forget what
he has discovered, or fail to protect himself against it.” Bruns,
21 N.E.3d at 691 (alteration in original) (quoting Sollami, 772
N.E.2d at 223). “[T]he distraction exception will only apply,”
however, “where evidence exists from which a court can infer
that plaintiff was actually distracted.” Id. Here, the parties’
Joint Statement explicitly states that “Plaintiff did not do an‐
ything to distract himself at the time of the accident.”
Admittedly, the parties agree that immediately prior to
the accident, plaintiff “was facing the van where he was load‐
ing insulation” and “talking to Erik Dunn.” However, “the
mere fact of looking elsewhere does not constitute a distrac‐
tion.” Id. at 692 (holding that the fact a pedestrian was looking
at the front door of her destination when she tripped on a
sidewalk defect did not constitute a distraction). Nor do “self‐
created distractions” that are “solely within the plaintiff’s
14 No. 17‐1870
own creation.” Whittleman v. Olin Corp., 832 N.E.2d 932, 936
(Ill. App. Ct. 2005).
In sum, the district court did not err when it ruled the stack
of insulation that fell on plaintiff constituted an open and ob‐
vious condition under Illinois law.
B. Menards did not owe plaintiff a legal duty.
Plaintiff next argues Menards owed him a legal duty even
if an open and obvious condition existed. True, “[t]he exist‐
ence of an open and obvious danger is not an automatic or per
se bar to the finding of a legal duty on the part of a defendant.”
Bruns, 21 N.E.3d at 690. Rather, “[i]n assessing whether a duty
is owed, the court must still apply traditional duty analysis to
the particular facts of the case.” Jackson v. TLC Assocs., Inc., 706
N.E.2d 460, 463 (Ill. 1998).
“Application of the open and obvious rule affects the first
two factors of the duty analysis: the foreseeability of injury,
and the likelihood of injury.” Bruns, 21 N.E.3d at 690; see also
Belluomini, 805 N.E.2d at 707 (“[T]he open and obvious doc‐
trine covers, in substance, the first two factors of the duty
test.”). “[I]f the danger is open and obvious … that
means … that the first two factors favor the defendant.” Bu‐
jnowski, 37 N.E.3d at 395. In other words, “[w]here the condi‐
tion is open and obvious, the foreseeability of harm and the
likelihood of injury will be slight, thus weighing against the
imposition of a duty.” Bruns, 21 N.E.3d at 690. Indeed, the Bu‐
jnowski court noted that “[n]o published premises‐liability
negligence case … [has] held both (1) that the open‐and‐obvi‐
ous rule applied without exception and (2) that the defendant
nonetheless owed the plaintiff a duty.” 37 N.E.3d at 397.
No. 17‐1870 15
“This leaves one more inquiry: do the third and fourth fac‐
tors—the burden that defendant would incur, and the conse‐
quences of imposing that burden—favor plaintiff to the extent
that they outweigh the first two factors and thus call for im‐
posing a duty?” Id. The district court found “Menards em‐
ployees already perform regular inspections of the warehouse
and are available to assist customers if requested.” In the
court’s view, imposing an additional duty to monitor the
stacks of insulation “would be onerous, requiring [Menards]
to expend significant resources to have employees constantly
stationed in the warehouse to oversee its customers.” The dis‐
trict court found this was particularly true here because plain‐
tiff “did not request assistance despite recognizing the risk
and knowing such an option was available.” See also Kleiber,
942 N.E.2d at 650 (holding that imposing a burden on the de‐
fendant to monitor pallets in front of a store would be unrea‐
sonable “where the plaintiff never sought assistance from an‐
yone in the store, despite having recognized the open and ob‐
vious danger”).
We agree with the district court’s reasoning. We also add
that less onerous safeguards than continuous surveillance,
such as building a frame to prevent tall stacks of rolled insu‐
lation from tipping over or stacking rolled insulation at lower
heights, would not be justified given the open and obvious
nature of the risk involved.
C. The exclusion of plaintiff’s supplemental affidavit
does not warrant reversal.
Finally, plaintiff argues that the excluded portions of his
supplemental affidavit create genuinely disputed issues of
material fact regarding the open and obvious nature of the
leaning stack of insulation.
16 No. 17‐1870
The district court struck paragraphs 3 through 10 and 14
of plaintiff’s supplemental affidavit on the grounds that they
contradicted plaintiff’s prior deposition testimony. “As a gen‐
eral rule … this circuit does not permit a party to create an
issue of fact by submitting an affidavit whose conclusions
contradict prior deposition or other sworn testimony.” Buck‐
ner v. Sam’s Club, Inc., 75 F.3d 290, 292 (7th Cir. 1996); see also
Bank of Ill. v. Allied Signal Safety Restraint Sys., 75 F.3d 1162,
1168 (7th Cir. 1996) (“We have long followed the rule that par‐
ties cannot thwart the purposes of Rule 56 by creating ‘sham’
issues of fact with affidavits that contradict their prior depo‐
sitions.”). Thus, where deposition testimony and an affidavit
conflict, “the affidavit is to be disregarded unless it is demon‐
strable that the statement in the deposition was mistaken, per‐
haps because the question was phrased in a confusing manner
or because a lapse of memory is in the circumstances a plau‐
sible explanation for the discrepancy.” Russell v. Acme‐Evans
Co., 51 F.3d 64, 67–68 (7th Cir. 1995). In the alternative, sup‐
plemental affidavits can be employed “to clarify ambiguous
or confusing deposition testimony.” Buckner, 75 F.3d at 292.
1. Paragraphs 3 through 5
Paragraphs 3 through 5 of plaintiff’s post‐deposition affi‐
davit state the following:
3. During [my prior visits to the Hodgkins
Menards outside warehouse], I observed stacks
of insulation that were both the same and simi‐
lar in size as the stacks of insulation that I pur‐
chased and that fell on top of me and injured me
on January 3, 2015, which were located within
the warehouse both at and near the location
where I was injured.
No. 17‐1870 17
4. On all of these prior occasions, the stacks of
insulation were stacked akin and leaning simi‐
larly to the way they were stacked on the day I
was injured.
5. What is more, I have observed other products
consistently stacked in such a manner at De‐
fendant’s MENARD store.
The district court found these paragraphs were directly
contradicted by the following portion of plaintiff’s deposition
testimony, which involved a discussion of a photograph
taken in the immediate aftermath of plaintiff’s accident. The
photograph depicted not only the rolled insulation that had
fallen to the ground, but also other surrounding stacks that
remained intact:
Q. Now, let’s look at Plaintiff’s Exhibit 1. Can
you take a look at that photo? In the top right
corner there is two bales of insulation, far right
and right next to it. Do you see those?
A. Yes.
Q. And when you talked about the insulation
leaning to the right, would the picture of the in‐
sulation in the right corner, is that what you
were referring to, leaning into the right?
A. Similarly. It was more kind of haphazardly
stacked. It wasn’t as nice and neat as those are.
According to the district court, considered collectively,
paragraphs 3 through 5 of plaintiff’s affidavit state that “the
leaning stack of insulation on the day that [plaintiff] was in‐
jured looked similar to all of the stacks … that he’d seen on
18 No. 17‐1870
prior occasions.” In contrast, plaintiff’s deposition testimony
suggested “that actually it was more haphazardly stacked,
that it wasn’t as nice and neat as it was in the photographs
that he was shown.”
Plaintiff argues this conclusion is misguided. In plaintiff’s
view, Plaintiff’s Exhibit 1 (discussed during his deposition)
depicted stacks of insulation that were present on the date
plaintiff was injured. Thus, when plaintiff suggested that the
stack that fell on him was “more haphazardly stacked” and
not “as nice and neat” as those shown in the photograph, he
was comparing the leaning stack to other stacks that were pre‐
sent on the same date. In contrast, plaintiff’s affidavit compared
the leaning stack to stacks he had observed during prior visits,
which were never discussed during his deposition.
However, even assuming arguendo that plaintiff’s tech‐
nical interpretation is correct, it does not alter the summary
judgment analysis. If anything, the addition of paragraphs 3
through 5 reinforces plaintiff’s knowledge of the open and ob‐
vious condition prior to his accident. See Bruns, 21 N.E.3d at
687 (noting that, during prior visits to location of accident, the
plaintiff “definitely” noticed the defect in sidewalk that later
caused her to fall). The exclusion of these paragraphs, there‐
fore, does not warrant reversal.
2. Paragraphs 6 through 10
Paragraphs 6 through 10 of plaintiff’s post‐deposition af‐
fidavit state the following:
6. At my discovery deposition on September 23,
2015, I was asked why I believed the stack of in‐
sulation fell and I responded that “… it was not
stacked properly.” I was then asked “how do
No. 17‐1870 19
you know it was not stacked properly?” My re‐
sponse was that “[i]n my opinion it seemed to
[sic] high and it was not stacked straight.” I
formed this opinion after I was injured.
7. Prior to being injured, I did not believe the
stack of insulation would fall unless it was
pushed or moved by someone.
8. I formed the opinion that the stack would not
fall, absent being pushed or moved, because it
was stacked the same as stacks of insulation that
I encountered on my previous visits to
MENARD and because I am a professional who
is highly experienced in working with and
around building materials.
9. While the stack of insulation was leaning and
did not appear to be stable, I perceived no obvi‐
ous risk to my son or myself because, as stated,
I believed that the insulation could only fall
over if, and only if, someone were to push or
move the tall stack of insulation.
10. I did not recognize any obvious risk to my
son or myself because I did not believe that in‐
sulation was potentially dangerous as is.
According to the district court, plaintiff’s deposition testi‐
mony indicated that, contrary to his affidavit, his opinion re‐
garding the condition of the leaning stack “was formed prior
to when the stack fell on him as opposed to after.”
The district court’s reasoning mirrors our analysis above:
the fact that plaintiff monitored the insulation for five minutes
before attempting to load his van and warned his son to be
20 No. 17‐1870
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. Thus, the district court’s ruling was
reasonable. Therefore, the exclusion of paragraphs 6 through
10 was not erroneous.
3. Paragraph 14
Paragraph 14 of plaintiff’s post‐deposition affidavit states,
“When the leaning stack fell on me I was distracted from look‐
ing at it because I was focused on loading insulation into the
van.”
The district court found these paragraphs were directly
contradicted by the following portion of plaintiff’s deposition
testimony:
Q. Did you do anything to distract you prior to
your incident?
A. No.
Here, the district court’s decision was clearly reasonable,
as plaintiff’s affidavit directly contradicts his deposition testi‐
mony. The court’s exclusion of paragraph 14, therefore, did
not constitute an abuse of discretion.
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the
district court.