A “sudden, traumatic event” involves “force or violence,” such that a court can presume “the event immediately placed the plaintiff on notice of her injury and a right of action” regardless of whether any latent conditions arise over time.
How later courts described this case
- A “sudden, traumatic event” involves “force or violence,” such that a court can presume “the event immediately placed the plaintiff on notice of her injury and a right of action” regardless of whether any latent conditions arise over time.
- describing the “sham affidavit rule”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
CHARLES MOJAPELO, )
)
Plaintiff, )
)
v. ) Case No. 20-cv-1094-JES-JEH
)
WAL-MART STORES, INC., )
)
Defendant. )
ORDER AND OPINION
This matter is now before the Court on Defendant Walmart Inc.’s Motion (Doc. 19) for
Summary Judgment and Memorandum (Doc. 20) in Support; Plaintiff’s Responses in Opposition
(Docs. 26-28); Defendant’s Reply (Doc. 29); and Plaintiff’s Sur-Reply (Doc. 30). For the reasons
set forth below, Defendant’s Motion (Doc. 19) is GRANTED.
LEGAL STANDARD
Summary judgment is appropriate where the movant shows, through “materials in the
record, including depositions, documents, electronically stored information, affidavits or
declarations, stipulations … admissions, interrogatory answers, or other materials” that “there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56. When presented with a motion for summary judgment, the Court must
construe the record “in the light most favorable to the nonmovant.” Payne v. Pauley, 337 F.3d
767, 770 (7th Cir. 2003). “The court has one task and one task only: to decide, based on the
evidence of record, whether there is any material dispute of fact that requires a trial.” Waldridge
v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). In order to overcome the undisputed
facts set forth in a defendant’s motion for summary judgment, a plaintiff cannot rest on the
allegations in his complaint but must point to affidavits, depositions, or other evidence of an
admissible sort that a genuine dispute of material fact exists between parties. Fed. R. Civ. P.
56(e)(2); Behrens v. Pelletier, 516 U.S. 299, 309 (1996). “[I]f the non-movant does not come
forward with evidence that would reasonably permit the finder of fact to find in her favor on a
material question, then the court must enter summary judgment.” Waldridge, 24 F.3d at 920.
DISCUSSION
Plaintiff filed his Complaint on November 14, 2019, alleging that he had been injured on
November 14, 2017, when he slipped, fell, and hit his head on a candy stand at a self-checkout
area in Defendant’s store. Doc. 1-2, at 1. Two of Defendant’s employees, Karen Snow and Josh
Palacios, have signed affidavits stating that the incident occurred at least a week or two before
November 12, 2017, based on Plaintiff’s verbal reports to them. See Doc. 20-1 at 1; 20-2, at 1.
For the purposes of deciding this Motion for Summary Judgment, the sole issue is whether the
undisputed evidence demonstrates that Plaintiff’s claim is time-barred based on Illinois’ two-year
statute of limitations period for personal injuries. See Ill. Comp. Stat. § 5/13-202 (2021).
Defendant contends it is entitled to summary judgment because there is no genuine issue of
material fact that Plaintiff failed to file his Complaint within two years of the alleged injury. Doc.
20, at 4 (citing Skridla v. General Motors Co., 2015 IL App (2d) 141168, ¶¶ 3, 16-20). Plaintiff
does not disagree that Illinois law applies or that the applicable limitations period for his claim is
two-years. His Responses in opposition generally asks the Court to ignore the affidavits and
business records from November 12, 2017, provided by Defendant because they include
inadmissible hearsay and are untrustworthy. See Docs. 26-28. He also asserts that the formal
incident report Defendant issued on November 14, 2017, demonstrates unequivocally that he was
injured on that date. Id.
As indicated above, Plaintiff has filed four documents in support of his position that the
Court should deny Defendant’s Motion. See Docs. 26-28, 30. However, Plaintiff has failed to
point to evidence of an admissible sort to demonstrate that a genuine dispute of material fact
exists between the Parties – namely that he filed this suit within the statute of limitations. See
Fed. R. Civ. P. 56(e)(2); Pelletier, 516 U.S. at 309. In fact, Plaintiff’s own response to
interrogatories refutes his conclusory allegation that he was injured on November 14, 2017.
As articulated in the Federal Rules of Civil Procedure, representations to the Court,
including those in a complaint, are to be based on “the best of the person’s knowledge,
information, and belief, formed after an inquiry reasonable under the circumstances.” Fed. R.
Civ. P. 11(b). Considering Plaintiff was the party allegedly injured, the date of his abrupt injury
should have been within his own knowledge. See Hollander v. Brown, 457 F.3d 688, 692 (7th
Cir. 2006) (A “sudden, traumatic event” involves “force or violence,” such that a court can
presume “the event immediately placed the plaintiff on notice of her injury and a right of action”
regardless of whether any latent conditions arise over time.). And Plaintiff’s response to
Defendant’s First Supplemental Interrogatories from June 2020 demonstrates just that. See Doc.
20-4, at 1-2. Although he claimed to be disoriented on the date of injury, he admittedly recalled,
they asked me to come back in the evenings when the manager was available as it
was only the manager who could conduct an investigation and issue a report. After
several diligent attempts, the plaintiff finally got hold of the manager and talked
with him. He, the manager, told the plaintiff that he had been away for several days
when I came into the store several times looking for him to ask for an incident
report; and that the staff had already briefed him about the incident; and that he was
still doing the investigation and I should come back in a few days when he would
have completed the investigation . . . [f]inally, after conducting an investigation,
and after talking to his staff and satisfying himself to the occurrence of the incident,
the manager agreed to the issuance of the incident report on November 14, 2017.
Id. at 2. This admission by Plaintiff indicates he visited Walmart several days in the evenings
following the injury to no avail because the manager had been gone during those times that he
visited over several days and the manager was the only one who could issue a report. Even when
Plaintiff spoke to the manager, he still waited several more days before the manager would
ultimately issue the formal incident report on November 14. Notably, Plaintiff’s interrogatory
response appears to be based on his personal knowledge, not Walmart’s reporting. Thus, Plaintiff
knew that he had returned to Walmart repeatedly before the store ultimately issued the November
14 report, so he cannot fault Walmart for “misleading” him as to the date of his injury.1
Assuming Plaintiff was innocently mistaken about the date of his injury when he filed
this lawsuit, once being confronted with Defendant’s internal reporting on the incident, including
earlier employee statements from November 12, and Plaintiff’s own recollection described in his
response to interrogatories, he remained free to withdraw his Complaint. See Fed. R. Civ. P.
41(a). But he didn’t—he continued to litigate his claim through summary judgment and still
maintains that this case should proceed to trial. Plaintiff does not even supply an affidavit from
himself to refute Defendant’s evidence but rather cites a formal incident report that no one attests
to including the correct date of injury. As indicated in the sworn affidavit from Josh Palacios, the
manager who completed the formal incident report, he listed the date and time of the injury, as
November 14, 2017 in the report because Plaintiff was unable to provide a date of the incident.
Other witness statements similarly stated that the customer was unsure, on November 12 as to
when the incident happened but that he reportedly hit his head and informed Karen Snow. See
Docs. 20-2, at 7; 28, at 19. Although Plaintiff accuses Palacios of providing a “contradictory”
1 It also forecloses Plaintiff’s underdeveloped argument regarding equitable tolling. Equitable tolling of a limitations
period is appropriate “if despite all due diligence [the plaintiff] is unable to obtain vital information bearing on the
existence of his claim. However, if a reasonable person in the plaintiff’s position would have been aware within the
limitations period of the possibility that its rights have been violated, then equity does not toll the limitations
period.” Chapple v. Nat’l Starch & Chem. Co., 178 F.3d 501, 505-06 (7th Cir. 1999). Based on the above, Plaintiff
admittedly knew that he was injured at Walmart before November 14, 2017. Although he did not need a formal
incident report from Walmart to file his lawsuit (nor did he attach one to his Complaint), he also does not claim he
could not attain access to Defendant’s internal reports regarding his verbal statements to them or that he exercised
due diligence but was unable to bring this lawsuit as early as practicable.
statement, his affidavit does not contradict prior deposition or other sworn testimony. See James
v. Hale, 959 F.3d 307, 315 (7th Cir. 2020) (describing the “sham affidavit rule”). Yet, Palacios’
original statement regarding the event was executed on November 12, 2017, wherein he
described being approached and told by a customer that he hit his head on the shelf at self-
checkout a couple of weeks prior and did not want to fill out paperwork on November 12 but
came back on November 14 to do so. Doc. 20-2, at 1-2.
Beyond employee affidavits and the November 14 incident report, Defendant also
provides records of “witness statement[s]” that appeared to be authored on November 12, 2017,
by the same employees that provided affidavits. Defendants contend that these reports further
corroborate the employees’ affidavits that the customer (Plaintiff) reported this injury to them,
and that this injury occurred a few weeks prior to November 12, 2017. Plaintiff attempts to attack
Defendant’s internal business records on grounds of hearsay. Even if the Court considered
Plaintiff’s argument, it does not matter. At summary judgment, a party asserting that a fact
cannot be genuinely disputed, can support such assertions by citing to particular parts of
materials in the record, including interrogatory answers. Fed. R. Civ. P. 56(c)(1)(A). A party can
also use cited materials in the record to demonstrate that “an adverse part cannot produce
admissible evidence to support the fact” – i.e. that Plaintiff’s injury occurred on November 14.
Fed. R. Civ. P. 56(c)(1)(B). The Court need not look any further than Plaintiff’s own words in his
response to supplemental interrogatories to conclude this incident occurred several days, if not
weeks, before November 14, 2017. Moreover, Plaintiff’s Response does not offer evidence2 to
2 Plaintiff does reference his medical records in his Response that “specifically refer to the Walmart accident.” Doc.
28, at 8. However, the report from November 21, 2017 that he provides does not discuss anything about a self-
reported injury date or the nature of any injury. It simply states Plaintiff was treated for a headache and shoulder
pain. Id. at 21. In contrast, Defendant provided a copy of a medical report from October 30, 2017, wherein Plaintiff
was treated for a head injury from a “direct blow” that occurred 4-5 days prior and did not involve a loss of
consciousness but resulted in disorientation and memory loss. Doc. 20-3, at 1. Regardless, neither report describes
his injury as having occurred at Walmart, therefore, the Court does not find them relevant to its holding.
refute his and Defendant’s assertion that the allegedly injury occurred well before November 14.
See also Fed. R. Civ. P. 56(e)(2),(3)(“[i]f a party fails to properly support an assertion of fact or
fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may
. . . consider the fact undisputed for purposes of the motion; [or] grant summary judgment if the
motion and supporting materials — including the facts considered undisputed — show that the
movant is entitled to it[.]”).
Thus, the Court finds it is undisputed that Plaintiff failed to file his claim within the
applicable two-year statute of limitations period as the incident occurred at least a few days or
weeks before November 14, 2017. Therefore, Plaintiff’s claim is time-barred and the Court
grants summary judgment in Defendant’s favor. Skridla, 2015 IL App (2d) 141168, ¶¶ 3, 16-20;
Stark v. Johnson & Johnson, 10 F.4th 823, 829 (7th Cir. 2021) (citing Witherell v. Weimer, 421
N.E.2d 869, 874 (Ill. 1981)).
CONCLUSION
For the reasons set forth above, Defendant’s Motion (Doc. 19) for Summary Judgment is
GRANTED. The Clerk is directed to close this case.
Signed on this 25th day of January, 2022.
s/ James E. Shadid
James E. Shadid
United States District Judge