Leonhardt

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

ROCK ISLAND DIVISION

JEFFREY LEONHARDT, )

)

Plaintiff, )

)

v. ) Case No. 4:25-cv-04010-SLD-RLH

)

MENARD, INC., d/b/a MENARDS STORE )

NO. 3285, A FOREIGN CORPORATION )

)

Defendant. )

ORDER

In this slip-and-fall case, Plaintiff Jeffrey Leonhardt seeks compensation for injuries

caused by a fall on the premises of Defendant Menard, Inc., d/b/a Menards Store No. 3285

(“Menards”). He seeks to recover on grounds that Menards negligently designed, constructed,

and maintained the store property such that the premises presented an unreasonable risk of harm

to store patrons. Before the Court is Menards’s motion for summary judgment, ECF No. 20, and

Leonhardt’s motion to strike Exhibit 9 to Menards’s motion for summary judgment, ECF No. 28.

Because Menards did not have a duty to protect Leonhardt from the store condition at issue,

Menards’s motion for summary judgment is GRANTED. As this order does not rely on Exhibit

9, Leonhardt’s motion to strike is MOOT.

BACKGROUND1

On September 15, 2021, Leonhardt and his son visited the Menards store in Moline,

Illinois, to return approximately ten sheets of 3/4 inch particleboard. Menards has been doing

business at its store in Moline since the store opened in 2012. Design of the building began in

November 2001, when the Menard, Inc. Planning and Development Department crafted the

blueprints for the Moline Menards, including the front entrance and threshold. The threshold at

the Moline Menards is a metal strip that runs the length of the doorway under the path of sliding

entry doors.

Upon arriving, Leonhardt entered the store to retrieve a blue flat cart (a “blue cart”) to

transport the particleboard into the store. He wheeled the cart to his son’s truck, parked near the

door, without issue. After loading the particleboard onto the cart, Leonhardt began pushing the

now heavy cart towards the store entrance. As he attempted to push the cart through the

doorway, the cart caught on the threshold, tipped forward, and the particleboard began sliding

off. The cart then propelled backward and knocked Leonhardt to the ground. Three Menards

employees responded to the scene, reloading the boards onto the same cart and pushing the cart

over the threshold and into the store without incident.

1 At summary judgment, a court “constru[es] the record in the light most favorable to the nomovant and avoid[s] the

temptation to decide which party’s version of the facts is more likely true.” Payne v. Pauley, 337 F.3d 767, 770 (7th

Cir. 2003). The facts related here are, unless otherwise noted, taken from Menards’s statement of undisputed

material facts, Mot. Summ. J. 2–6; Leonhardt’s response thereto and statement of additional material facts, Resp.

Mot. Summ. J. 1–7, ECF No. 27; Menards’s reply to Leonhardt’s additional material facts, Reply Supp. Mot. Summ.

J. 1–5, ECF No. 31; and the exhibits to the filings. Where the parties disagree about the facts, the Court views the

evidence in the light most favorable to Leonhardt and draws all reasonable inferences in his favor. McCann v.

Iroquois Mem’l Hosp., 622 F.3d 745, 752 (7th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986)).

Menards suggests that the Court should deem its statement of facts admitted for the purposes of summary

judgment because Leonhardt did not properly respond under Civil Local Rule 7.1(D)(2)(b). Reply Supp. Mot.

Summ. J. 5–6. The Court does not find it necessary to do so because, despite its improper form, Leonhardt’s

response establishes clearly enough the points at which he disputes Menards’s account.

Two of the Menards employees who responded to the incident were First Assistant

General Manager Jim Smashey, and Assistant Front-End Manager Regan Johnston. Smashey

had worked at the Moline Menards for two-and-a-half years, and Johnston had also worked at the

store for at least two years. As the general manager on duty, Smashey would have been

responsible for inspecting the entrance doorway on the morning of September 15, 2021. After

the incident, Smashey did not observe any issues with the threshold, and Leonhardt did not

examine the threshold. Neither Smashey nor Johnston were aware of any similar prior incidents

at the store, but a Menards employee spoke with Leonhardt after the incident and told him “that’s

why we don’t use these carts to move material like that.” Leonhardt Dep. 78:22–79:9, Mot.

Summ. J. Ex. 1, ECF No. 20-1. A Menards employee also told Leonhardt’s son that they had

other carts designed to prevent material like particleboard from sliding off. According to

Smashey, Menards has several types of carts, including rail carts, some of which are more

appropriate for returning particleboard. However, Menards does not provide guidance to either

customers or employees on which cart to use for any given task.

On December 9, 2024, Leonhardt filed a complaint in Illinois state court alleging that

Menards negligently placed and maintained the metal threshold in a manner that it knew or

should have known posed an unreasonable risk of harm to store patrons. Compl. 1, 3–4, Not.

Removal Ex. 1, ECF No. 1-1. The Complaint also alleges that Menards failed to provide a safe

means of entry to the store, failed to provide, inspect, and maintain carts in a manner that would

make them safe to pass over the threshold, and failed to warn customers of the dangers

associated with using the carts to pass over the threshold while returning goods. Id. at 4. On

January 13, 2025, Menards removed the case to federal court. See generally Not. Removal, ECF

No. 1.

After conducting discovery, Menards moved for summary judgment. See generally Mot.

Summ. J. It seeks summary judgment for three reasons: “(1) Plaintiff cannot establish the

existence of a condition presenting an unreasonable risk of harm; (2) Plaintiff cannot establish

that Defendant had actual or constructive notice of a condition presenting an unreasonable risk of

harm; and (3) Plaintiff’s claim is time barred by the Illinois construction statute of repose.” Mot.

Summ. J. 6.

DISCUSSION

I. Legal Standard

Summary judgment is appropriate “if the movant shows 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(a). At summary judgment, the court determines whether a trial is necessary due to the

existence of any genuine factual issues that could be reasonably resolved in favor of either party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). At summary judgment, the court

must “construe the facts and draw all reasonable inferences in the light most favorable to the

nonmoving party.” Foley v. City of Lafayette, 359 F.3d 925, 928 (7th Cir. 2004). But it need not

turn a blind eye to necessary factual conclusions drawn from the evidence. See Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (“When the moving party has carried

its burden under Rule 56(c), its opponent must do more than simply show that there is some

metaphysical doubt as to the material facts.” (footnote omitted)). Summary judgment must be

granted unless “a reasonable jury could find for the party opposing the motion based on the

record as a whole.” Pipitone v. United States, 180 F.3d 859, 861 (7th Cir. 1999) (quotation

marks omitted).

The movant bears the initial burden of production to “demonstrate the absence of a

genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). This burden

can be met by showing “that there is an absence of evidence to support the nonmoving party’s

case.” Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013) (quotation marks omitted).

The burden then shifts to the nonmovant to present evidence of specific facts showing that there

is a genuine issue for trial. Celotex, 477 U.S. at 324. To prove that a fact is or cannot be

genuinely disputed, a party must “cit[e] to particular parts of materials in the record” or “show[]

. . . that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P.

56(c)(1).

II. Analysis

Menards argues that summary judgment is appropriate both because Leonhardt cannot

satisfy the essential elements of a premises liability claim and because his claim is barred by the

Illinois construction statute of repose. Mot. Summ. J. 6. Before proceeding to the merits of

Leonhardt’s claim, the Court first addresses whether it is barred by the statute of repose.

a. Illinois Construction Statute of Repose

The Illinois construction statute of repose reads in relevant part:

No action based upon tort, contract or otherwise may be brought against any person

for an act or omission of such person in the design, planning, supervision,

observation or management of construction, or construction of an improvement to

real property after 10 years have elapsed from the time of such act or omission.

735 ILCS 5/13-214(b). “This statute applies whenever (1) the product at issue is an

improvement to real property and (2) the defendant's activities fall within those listed in the

statute.” Ryan v. Commonwealth Edison Co., 885 N.E.2d 544, 548 (Ill. App. Ct. 2008).

Menards argues that Leonhardt’s claim expired in November 2011 because he seeks recovery for

negligent design of the threshold, which is an improvement to real property that was designed

and planned in November 2001. Mot. Summ. J. 15. Leonhardt responds that the statute of

repose does not bar his claim because it arises out of Menards’s use and maintenance of the

building, not its involvement in the store’s construction or design. Resp. Mot. Summ. J. 17–20,

ECF No. 27. He does not contest that the threshold is an improvement to real property within the

meaning of the statute. See id.

For the statute of repose to apply, Menards’s activities must fall within those listed in the

statute. Ryan, 885 N.E.2d at 548. Those activities include only “the design, planning,

supervision, observation or management of construction, or construction of an improvement to

real property.” 735 ILCS 5/13-214(b). Illinois courts have recognized that the statute of repose

“protect[s] activity rather than status.” Ryan, 885 N.E.2d at 550. That is, for a defendant to be

protected by the statute, it is not enough for the defendant to have participated in the

construction; “liability must rest on construction-related activity.” Travelers Cas. & Sur. Co. v.

Bowman, 893 N.E.2d 583, 589 (Ill. 2008); see also Stanley v. Ameren Ill. Co., 982 F. Supp. 2d

844, 861 (N.D. Ill. 2013) (“[A]cts unrelated to the initial construction of the improvement . . . are

not protected.” (citing MBA Enters., Inc. v. N. Ill. Gas Co., 717 N.E.2d 849, 852 (Ill. App. Ct.

1999)). For example, “if an installer of an improvement to real property violates a duty arising

from its activity as an inspector, rather than its activity as an installer, then it can be held liable

for breach of that duty regardless of the statute of repose.” Ryan, 885 N.E.2d at 552.

Leonhardt’s claim does not arise out of the construction of the threshold. Instead, “[t]he

hazard alleged here arises from the combination of the entrance threshold and Menards’[s]

operational use of heavy carts by customers, not merely from the original design of the building

decades earlier.” Resp. Mot. Summ. J. 19. As such, the negligent act or omission underlying

Leonhardt’s premises liability claim is not necessarily the negligent construction or design of the

threshold—based on Leonhardt’s claim, the unreasonable risk of harm may also have been

avoided through an adequate warning or through the use of different carts. His injury was, of

course, caused in part by the nature of the threshold, but his claim does not regard the improper

construction of the threshold, but the improper operation of the store given the threshold’s

design. Because the statute of repose “bars only those claims regarding the construction of an

improvement to real property,” MBA Enters., Inc., 717 N.E.2d at 852, it does not affect

Leonhardt’s claim.

b. Premises Liability

i. Legal Framework

To prevail in a premises liability action, a plaintiff must prove six things:

(1) the existence of a condition that presents an unreasonable risk of harm to

persons on the premises; (2) that the defendants knew, or should have known, that

the condition posed an unreasonable risk of harm; (3) that the defendants should

have anticipated that individuals on the premises would fail to discover or recognize

the danger or otherwise fail to protect themselves against it; (4) a negligent act or

omission on the part of the defendant; (5) an injury suffered by the plaintiff; and

(6) that the condition of the property was a proximate cause of the injury to the

plaintiff.

Parker v. Four Seasons Hotels, Ltd., 845 F.3d 807, 811 (7th Cir. 2017) (citing Jordan v. Nat’l

Steel Corp., 701 N.E.2d 1092, 1094 (Ill. 1998); Mueller v. Phar-Mor, Inc., 784 N.E.2d 226, 231

(Ill. App. Ct. 2000)). Menards contends that summary judgment is appropriate because there is

no evidence that the first or second elements are satisfied. Mot. Summ. J. 7–11.

Under Illinois law, the relationship between ordinary negligence and premises liability

claims is somewhat undefined. Premises liability emerged from and “is a subset of common-law

negligence.” Reyes v. Menard, Inc., No. 21 CV 359, 2022 WL 2757666, at *2 (N.D. Ill. July 14,

2022); see also Restatement (Second) of Torts ch. 13 (A.L.I. 1965) (nesting “liability for

condition and use of land” under the general topic of “negligence”)

In the premises liability context, the Illinois Supreme Court has relied extensively on the

Restatement (Second) of Torts. See, e.g., Genaust v. Ill. Power Co., 343 N.E.2d 465, 472 (Ill.

1976); Ward v. K Mart Corp., 554 N.E.2d 223, 229 (Ill. 1990); Deibert v. Bauer Bros. Constr.

Co., 566 N.E.2d 239, 241 (Ill. 1990). Section 343 of the Restatement (“Dangerous Conditions

Known to or Discoverable by Possessor”) articulates a three-part test for liability:

A possessor of land is subject to liability for physical harm caused to his invitees

by a condition on the land, but only if, he

(a) knows or by the exercise of reasonable care would discover the condition, and

should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger, or will fail to

protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger.

Id. § 343. In this section, the Restatement reflects a traditional common law distinction between

invitees, licensees, and trespassers. See id. ch. 13 topic 1 (outlining distinct rules for liability to

different classes of entrants). The Illinois legislature abolished this common law distinction by

statute, so the duty owed to all entrants is now that of “reasonable care under the circumstances.”

740 ILCS 130/2. Accordingly, Illinois courts incorporate the principles from section 343 of the

Restatement into a general consideration of whether a landowner’s duty of reasonable care

extends to the circumstances at issue. See Ward, 554 N.E.2d at 229 (applying section 343 to a

consideration of “whether [the] defendant’s general duty of reasonable care extended to the risk

encountered by [the] plaintiff”). These principles from the Restatement help courts analyze the

four considerations that guide all duty analyses: “(1) the reasonable foreseeability of the injury,

(2) the likelihood of the injury, (3) the magnitude of the burden of guarding against the injury,

and (4) the consequences of placing that burden on the defendant.” Bruns v. City of Centralia,

21 N.E.3d 684, 689 (Ill. 2014); see also Simpkins v. CSX Transp., Inc., 965 N.E.2d 1092, 1097

(Ill. 2012); Forsyth v. Clark USA, Inc., 864 N.E.2d 227, 232 (Ill. 2007).

Relevant to this duty consideration is the question of whether a property condition can be

considered “open and obvious.” See Bucheleres v. Chi. Park Dist., 665 N.E.2d 826, 832–36 (Ill.

1996). As a general matter under this “open and obvious exception” to liability, “a party who

owns or controls land is not required to foresee and protect against an injury if the potentially

dangerous condition is open and obvious.” Rexroad v. City of Springfield, 796 N.E.2d 1040,

1046 (Ill. 2003). As applied to the duty framework, if a potentially dangerous condition is open

and obvious, then “[t]he likelihood and foreseeability of an injury are considered slight, negating

a duty to protect.” Van Gelderen v. Hokin, 958 N.E.2d 1029, 1037 (Ill. App. Ct. 2011); Bruns,

21 N.E.3d at 690. Once again, Illinois courts look to the Restatement when considering how to

apply this doctrine. See Deibert, 566 N.E.2d at 242 (applying section 343A and the comments

thereto). The Restatement provides: “A possessor of land is not liable to his invitees for physical

harm caused to them by any activity or condition on the land whose danger is known or obvious

to them, unless the possessor should anticipate the harm despite such knowledge or

obviousness.” Restatement (Second) of Torts § 343A(1) (A.L.I. 1965).

Because premises liability cases raise distinct issues with respect to whether a duty exists,

some courts, using language from the Restatement, began articulating a unique premises liability

test. From this line emerged Jordan, 701 N.E.2d at 1094, Parker, 845 F.3d at 811, and the six

premises liability factors outlined supra. The Illinois pattern jury instructions for premises

liability claims reflect the same six-factor test. Ill. Pattern Jury Instr. Civ. 120.08. However,

many courts, including the Illinois Supreme Court, continue evaluating premises liability claims

using the general negligence framework. See, e.g., Rusch v. Leonard, 927 N.E.2d 316, 321 (Ill.

App. Ct. 2010) (“To prevail on a claim for premises liability, a plaintiff must allege and prove

the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury

proximately caused by that breach of duty.”); Bruns, 21 N.E.3d at 688–95 (considering a

traditional negligence action based on injury caused by an uneven sidewalk). The two

frameworks appear to be different ways of asking the same threshold question: does a condition

present such a risk of harm that the property possessor should be required to protect visitors

against it?

To the Court’s knowledge, Illinois courts have not provided a neat explanation of how

the open and obvious exception fits into a six-element premises liability analysis. However, it is

likely appropriate to consider the principles of the open and obvious exception with respect to

each of the first three elements: the existence of a dangerous condition, the defendant’s

knowledge of the risk posed by that condition, and the defendant’s anticipation that individuals

on the premises would fail to protect themselves against the risk. This is the case for several

reasons. First, the Restatement’s description of the open and obvious exception uses language

reflecting each of these three elements. See Restatement (Second) of Torts § 343A(1) (“A

possessor of land is not liable to his invitees for physical harm caused to them by any activity or

condition on the land whose danger is known or obvious to them, unless the possessor should

anticipate the harm despite such knowledge or obviousness.”). Second, the likelihood and

reasonable foreseeability of the injury—the duty considerations impacted by the open and

obvious exception in the basic negligence context—significantly overlap with these three

elements of a premises liability claim. And third, as discussed, these three elements are

essentially an elaboration of the basic duty test and, by consequence, the issues relevant to a duty

analysis will also be relevant to their resolution.

In many cases, courts decide to use either the negligence or premises liability framework

as a consequence of how the parties present the case. See, e.g., Deibert, 566 N.E.2d at 240

(“Plaintiff . . . brought a negligence suit[.]”); Bruns, 21 N.E.3d at 687 (“Plaintiff . . . filed a

negligence action[.]”). Because the two frameworks answer the same basic question of whether

a landowner is responsible for protecting entrants against a condition on the property, the Court

finds it appropriate to use whichever framework best addresses the arguments raised by the

parties. Although both parties adopt the six-element premises liability test and frame their

arguments using that language, see Mot. Summ. J. 7; Resp. Mot. Summ. J. 10, they also both cite

cases decided using a “duty” analysis and dispute the proper application of the open and obvious

exception. See, e.g., Resp. Mot. Summ. J. 11–13 (arguing that the open and obvious exception

should not bar liability and relying on various cases applying the standard negligence

framework); Reply Supp. Mot. Summ. J. 7, ECF No. 31 (citing Piotrowski v. Menard, Inc., 842

F.3d 1035 (7th Cir. 2016), which applied a standard negligence framework). And since Menards

disputes several of the duty-related premises liability prongs, the Court finds that it essentially

presents cross-cutting arguments that go to the issue of whether it had a duty to Leonhardt under

the circumstances. Further, Leonhardt’s complaint plainly utilizes the language of negligence to

make his claims. See Compl. 3–4 (seeking compensation for injuries caused by “negligent acts

or omissions” by Menards). Because it allows for a more wholistic assessment of the parties’

arguments and a clearer application of the open and obvious exception, the Court elects to

proceed under a traditional negligence framework, beginning with a duty analysis. Where

appropriate, the Court will still consider cases decided under the six-prong premises liability test.

ii. Duty

In Illinois, a landowner does not have a duty to an individual entering its property unless

the “defendant and plaintiff stood in such a relationship to one another that the law imposed upon

[the] defendant an obligation of reasonable conduct for the benefit of [the] plaintiff.” Ward, 554

N.E.2d at 226. Courts evaluate four factors in determining whether a duty exists: “(1) the

reasonable foreseeability of the injury, (2) the likelihood of the injury, (3) the magnitude of the

burden of guarding against the injury, and (4) the consequences of placing that burden on the

defendant.” Bruns, 21 N.E.3d at 689. The Restatement articulates specific considerations in

cases such as this: whether the landowner “(a) [k]nows or by the exercise of reasonable care

would discover the condition, and should realize that it involves an unreasonable risk of harm to

such invitees, and (b) [s]hould expect that they will not discover or realize the danger, or will fail

to protect themselves against it . . . .” Restatement (Second) of Torts § 343 (A.L.I. 1965). The

open and obvious exception is also relevant, see id. § 343A(1); Ward, 554 N.E.2d at 229; Bruns,

21 N.E.3d at 689–90, and impacts the Court’s assessment of the foreseeability and likelihood of

the injury, Van Gelderen, 958 N.E.2d at 1037; Bruns, 21 N.E.3d at 690.

Generally, under the open and obvious exception, “a party who owns or controls land is

not required to foresee and protect against an injury if the potentially dangerous condition is

open and obvious.”2 Rexroad, 796 N.E.2d at 1046. Whether a condition is open and obvious is

determined objectively—what matters is whether a visitor “exercising ordinary perception,

intelligence, and judgment” would recognize both the condition and its risk. Bruns, 21 N.E.3d at

690 (quotation marks omitted). Leonhardt contends that “[a] reasonable jury could conclude that

2 There are exceptions to the open and obvious exception—such as the “distraction exception” and the “deliberate

encounter exception,” Bruns, 21 N.E.3d at 691—that are not relevant here. Neither party mentions the deliberate

encounter exception. See generally Mot. Summ. J.; Resp. Mot. Summ. J.; Reply Supp. Mot. Summ. J. And insofar

as Leonhardt argues that the distraction exception applies, see Resp. Mot. Summ. J. 16–17, the Court does not find

his reasoning persuasive. While Ward holds that the distraction exception could apply when customers are carrying

goods that would distract them from an otherwise obvious condition, it did so in the context of a customer who

forgot that a pole was located immediately in front of the exit door. Ward, 554 N.E.2d at 233. Given the nature and

layout of the store and exit area, the court held that “[i]t was . . . reasonably foreseeable that a customer carrying a

large item which he had purchased in the store might be distracted and fail to see the post upon exiting through the

door.” Id. It stretches credibility to argue that a customer crossing a doorway would forget about the existence of a

threshold—an element of nearly every doorway. Indeed, in this case, Leonhardt makes no argument that he forgot

the threshold existed, nor even that he forgot about the danger it posed. See Resp. Mot. Summ. J. 16–17. In short,

neither the facts of the case nor the parties’ arguments suggest that the distraction exception applies here.

while the threshold was physically visible, its tendency to stop a loaded cart and cause a

dangerous shift of materials was not readily apparent to customers using the entrance in the

ordinary manner intended by Menards.” Resp. Mot. Summ. J. 12.

The Court disagrees; in this case, the risk was open and obvious. It is common

knowledge that cart wheels can get stuck on uneven surfaces, especially when the cart is heavy.

Metal thresholds, like cracks in the pavement or stones on the ground, create an uneven surface.

Further, two smooth materials placed together, like the particleboard resting on top of the blue

cart, see Security Footage 0:56–1:10, Mot. Summ. J. Ex. 7, ECF No. 21, generate very little

friction and will slide easily. Each of these principles is known to a reasonable person, and a

visitor exercising ordinary care would appreciate the risk these principles present when

combined. These realities do, of course, pose a real risk for those pushing carts laden with

heavy, smooth material over a metal threshold. Unfortunately, in this case, that risk was realized.

However, the fact that the risk existed does not mean it was not readily apparent to a visitor

exercising ordinary judgment.

This case is similar to others in which courts found that a danger was open and obvious.

In Bruns the court affirmed a grant of summary judgment for the defendant because an uneven

sidewalk presented an open and obvious risk. Bruns, 21 N.E.3d at 694–95. The Illinois

Supreme Court has also found that a tire rut in front of a bathroom, see Deibert 566 N.E.2d at

243, and a concrete post outside a store’s entrance, Ward, 554 N.E.2d at 232, were open and

obvious. Like the conditions in each of those cases, the threshold was not “concealed or hidden

in any way.” Deibert, 566 N.E.2d at 243. And as discussed above, like the risk of running into a

concrete post or tripping over a cracked sidewalk, the risk of a heavy cart being obstructed by a

threshold is obvious. Leonhardt argues that the risk posed by the threshold was not open and

obvious because the threat of tripping or obstruction was greater when the materials on the cart

were heavy. See Resp. Mot. Summ. J. 11–13. However, the fact that the risk of obstruction

might be minor in some circumstances and more substantial in others does not mean the risk

posed by the threshold was not open and obvious. Notably, the conditions assessed by the

Illinois Supreme Court in Bruns, Deibert, and Bruns also presented risks that were more grave in

certain conditions—a crack in a sidewalk, for example, would pose a greater risk to an individual

who shuffled because of a past leg injury; a concrete post at a store entrance would pose a greater

risk to an individual carrying bulky merchandise. Similarly, the threshold at Menards may have

presented a risk that was particularly acute when traversed with a heavy cart. However, the fact

that the gravity of the risk posed by the threshold was not identical in all circumstances does not

affect the conclusion that the risk was open and obvious.

This conclusion is reinforced by cases finding that a condition did not pose an

“unreasonable risk of harm” under the six-factor premises liability framework. Under this

element, “[a] plaintiff must prove more than a risk of harm existed; the risk must have been

unreasonable.” Grossman v. Menard, Inc., No. 17 C 2242, 2018 WL 4563071, at *2 (N.D. Ill.

Sept. 24, 2018) (citing Van Gelderen, 958 N.E.2d at 1035). A risk is generally unreasonable if it

is “hidden, unusual, or not to be expected.” Id. (quoting Horcher v. Guerin, 236 N.E.2d 576, 579

(Ill. App. Ct. 1956)). Applying this test, courts have held that unobstructed stairs with nothing

“extraordinary” about them did not present an unreasonable risk of harm, see Alcorn v.

Stepzinski, 540 N.E.2d 823, 826 (Ill. App. Ct. 1989); Glass v. Morgan Guar. Tr. Co., 606 N.E.2d

384, 386–87 (Ill. App. Ct. 1992), and that a 1-inch deep crack in parking lot did not present an

unreasonable risk of harm because there was nothing hidden, unusual, or unexpected about it,

see Grossman, 2018 WL 4563071, at *2. On the contrary, conditions present an “unreasonable”

risk of harm if they are hidden or if there is something preventing the plaintiff from avoiding the

danger they present. See, e.g., Van Gelderen, 958 N.E.2d at 1036 (concluding that evidence

supported a jury finding that a staircase presented an unreasonable risk of harm because an

expert testified that it was positioned so near a doorway that there was “not enough room to

protect from injury people . . . who step to the right when leaving through . . .[the] door”). In this

case, there is no reason to believe that Menards’s threshold was “extraordinary” in any way or

that there was anything hidden, unusual, or unexpected about it. Nor does Leonhardt articulate a

reason he was prevented from avoiding the risk posed by the threshold.

Leonhardt offers no expert testimony to support his claim that the threshold was unusual

or that it had a hidden, unusual, or unexpected character. Expert testimony is not necessary to

establish the existence of a duty, but it can provide critical evidence of the unreasonableness of a

risk. Compare Van Gelderen, 958 N.E.2d at 1036 (finding a triable issue of fact on the basis of

expert testimony that the location of a stairwell created an unreasonably dangerous condition),

with Grossman, 2018 WL 4563071, at *2 (finding lack of expert testimony relevant in granting

summary judgment to defendant), and Glass, 606 N.E.2d at 386 (same). Expert testimony would

be especially helpful in this case because Leonhardt brings a relatively specific claim in the

premises liability context: that a dangerous condition is created when a heavy load is placed onto

an otherwise safe cart and pushed over an otherwise safe threshold.3

Because the risk in this case was open and obvious, the likelihood and foreseeability of

Leonhardt’s injury was low. See Bruns, 21 N.E.3d at 690. Leonhardt presents scant evidence to

the contrary. He testifies to the facts of his accident, but the facts of this case alone cannot

3 Leonhardt does not argue that pushing a blue cart over the threshold poses any risk at all unless the cart is weighed

down with heavy merchandise. See Resp. Mot. Summ. J. 10 (stating that a jury could find the threshold poses a

dangerous condition “to customers pushing loaded carts” (emphasis added)); id. at 11 (describing Leonhardt’s

testimony that “he had no difficulty pushing the car through the doorway when the cart was empty”).

establish the objective likelihood and foreseeability of the incident—if that were so, the inquiry

would be entirely superfluous since every premises liability case is brought in response to a

specific incident. The only other evidence he identifies is a statement by a Menards employee

that “[t]hat’s why we don’t use these [blue] carts to move material like that.” Leonhardt Dep.

79:7–9. While this statement tends to show that the Menards employees were aware of some risk

and had alternative ways to transport similar heavy supplies, the fact that this practice developed

without formal training or instruction, see Smashey Dep. 32:19–33:8, Mot. Summ. J. Ex. 6, ECF

No. 20-6, suggests that the risk was not hidden, unusual, or unexpected. Leonhardt provides no

evidence that the threshold in this case, see Threshold Photo, Mot. Summ. J. Ex. 8, ECF No. 20-

7, poses any type of risk inconsistent with those presented by thresholds found in other

commercial buildings. There is no evidence that the threshold was damaged or otherwise not

functioning properly. There is similarly no evidence that an unreasonable risk is created when a

blue cart is pushed over the threshold: Leonhardt concedes that the blue cart was not defective,

see Resp. Mot. Summ. J. 4, and there is no evidence that it is unusual to cross the threshold with

blue carts, or that the blue cart Leonhardt used differed relevantly in character from other carts

used regularly at this store or others. He also presents no direct evidence of past similar

occurrences.4 See generally Resp. Mot. Summ. J.; see Trimble v. Olympic Tavern, Inc., 606

4 Leonhardt argues that the employee’s statement, “[t]hat’s why we don’t use these carts to move material like that,”

Leonhardt Dep. 79:7–9, is an indication that similar incidents had happened in the past. Resp. Mot. Summ. J. 7–8.

Even drawing all reasonable inferences in Leonhardt’s favor, the employee’s statement does not show that there

were past similar occurrences. A plaintiff’s burden is not merely to show that the evidence is consistent with his

proffered theory, but to present evidence to support his case. See Celotex Corp., 477 U.S. at 324. In this case, there

is simply a lack of evidence that would allow a finding of similar accidents at the Moline Menards. Even assuming

the employee was discussing the specific risk of rolling a heavy blue cart over the threshold, there is no evidence

that the employee’s knowledge of the risk was based on observation instead of intuition. Further, there is no

evidence that the employee even had the threshold in mind—he could have been addressing only the propensity of

the particleboard to slide when placed on the blue cart. As such, crediting Leonhardt’s testimony and drawing all

reasonable inferences from it, there is still not enough evidence to support a finding that there had been past similar

occurrences at the Moline Menards. Even were Leonhardt’s testimony sufficient to show similar accidents in the

past, it would be insufficient to overcome the otherwise utter lack of evidence showing that his accident was likely

or foreseeable.

N.E.2d 1276, 1279 (Ill. App. Ct. 1993) (“[S]imilar accidents are relevant to show the existence of

a particular danger.”).

In sum, because the risk posed by the threshold was open and obvious, and because the

threshold and cart did not present a risk that was hidden, unusual, or unexpected, the Court finds

that the first two factors of the duty analysis favor Menards. Though the parties do not address

the third and fourth factors—the burden of guarding against the injury and the consequences of

placing that burden on the defendant, Bruns, 21 N.E.3d at 689—these factors similarly do not

favor imposing a duty on Menards. Posting a warning would presumably entail little cost, but

the Court notes that a warning alone would likely have little effect since the risk is already open

and obvious. Cf. Sollami v. Eaton, 772 N.E.2d 215, 225 (Ill. 2002) (finding that burdens such as

providing warnings “are unjustified, given the open and obvious nature of the risk involved in

this case”). Other precautions, such as replacing the threshold or redesigning the entrance,

would involve greater cost and would be similarly unjustified given the open and obvious nature

of the hazard. See Hillsamer v. Walmart, Inc., No. 20 C 6753, 2022 WL 4079451, at *4 (N.D. Ill.

Sept. 6, 2022) (“Establishing a duty for Walmart to guard against all conceivable customer

injuries from obvious [hazards] at all times would impose too great a burden in such

circumstances.”). The consequences of placing the burden on Menards could also be significant

given the number of Menards stores across the country. Cf. Bruns, 21 N.E.3d at 695 (finding that

the consequence of placing the burden of guarding against a cracked sidewalk on the city may be

significant because “[t]he City has miles of sidewalk to maintain”). On the whole, the Court

holds that under the circumstances, Menards did not have a duty to guard against the particular

injury suffered by Leonhardt.

Since Menards did not have a duty to protect Leonhardt against the open and obvious risk

presented by the threshold, Menards is entitled to judgment as a matter of law.

CONCLUSION

Accordingly, Defendant Menard Inc. d/b/a Menards Store No. 3285’s motion for

summary judgment, ECF No. 20, is GRANTED. Because this order does not rely on Exhibit 9

to Menards’s motion, Leonhardt’s motion to strike, ECF No. 28, is MOOT. The Clerk is

directed to enter judgment and close the case.

Entered this 24th day of April, 2026.

s/ Sara Darrow

SARA DARROW

UNITED STATES DISTRICT JUDGE