Reyna Cruz v. Costco Wholesale Corporation

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 24-1843
R EYNA C RUZ ,
Plaintiff-Appellant,
v.
C OSTCO WHOLESALE C ORPORATION ,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:22-cv-01535 — Gabriel A. Fuentes, Magistrate Judge.
____________________
A RGUED DECEMBER 6, 2024 — DECIDED A PRIL 21, 2025
____________________
Before HAMILTON , S CUDDER , and L EE, Circuit Judges.
HAMILTON , Circuit Judge. Plaintiff Reyna Cruz slipped, fell,
and was injured while shopping in a Costco food court. She
filed this lawsuit alleging that Costco employees negligently
failed to clean up a smoothie spilled on the food court floor.
The district court concluded that the undisputed facts showed
that Costco did not have constructive notice of the spill, so a
reasonable jury could not find that Costco breached a duty to

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2 No. 24-1843
Cruz. The court granted summary judgment to Costco on
Cruz’s negligence claim.1
On our de novo review, however, we conclude that
evidence in the record creates genuine issues of material fact
as to how long the smoothie had been on the floor—and, as a
result, as to whether Costco, exercising ordinary care, should
have known of the spill. We reverse and remand for further
proceedings.
I. Facts for Summary Judgment
Reyna Cruz fell on the floor of the Costco food court. She
injured her neck, back, knee, and wrist, and ultimately ended
up having back surgery.
Costco’s surveillance camera system filmed and recorded
the area of the fall. The recording in the record began at
approximately 12:45 pm on July 28, 2021, and ended at 1:45
pm on the same day. Cruz’s fall occurred at roughly 1:13. For
the preceding 28 minutes, the video shows customers walking
across the food court and up to the counter in roughly the area
where Cruz would later fall. The video does not show a
smoothie spill, nor any customer purchasing a smoothie from
the food court counter.
The only event of note before Cruz’s fall occurred at
roughly 1:09, when a woman pushing her daughter in a shop-
ping cart moved into roughly (although not exactly) the area
where Cruz would fall. At 1:10, the woman bent over to pick
up a red item that either she or her daughter might have
1 The parties consented to have Magistrate Judge Gabriel A. Fuentes
conduct all proceedings in this case, including entering final judgment.
See 28 U.S.C. § 636(c).

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No. 24-1843 3
dropped on the floor. It is difficult to discern what the item
was or whether it fell in the same location where Cruz fell.
Deposition testimony from several Costco employees reflects
similar uncertainty about whether this event could have been
the source of the liquid on the floor.
At 1:13 pm, Cruz fell. Her left leg slipped out from
underneath her, and she landed awkwardly on her right knee
and back. Several customers immediately came to help her.
Costco employees arrived on the scene roughly 30 seconds
later. The two employees who first came to Cruz’s aid—along
with Costco’s front-end manager, John Shapiama—later
testified that they did not remember seeing anything on the
floor. As several Costco employees helped Cruz into a chair,
two other employees wiped the floor around where she
slipped, one using a cloth and one using a mop. Neither
employee remembered later what they were cleaning. After
they finished cleaning, they put up a “wet floor” sign.
Manager Shapiama later filled out an incident report. On
the first page, he wrote that Cruz “fell by food court registers,
on smoothie that was dropped by another member.”
Shapiama also selected “yes” for whether there was a “foreign
substance or liquid on the floor” and noted that the “product
involved” was a “fruit smoothie.” Under “physical condition
of floor,” Shapiama wrote: “Smoothie drops about five on
floor.” Shapiama testified that he spoke to the first two Costco
employees on the scene before filling out the report, and that
he probably got the “smoothie drops” information from one
of them. Cruz herself later testified that after she fell, she saw
a pink substance on the floor, her shoe, and her pant leg.

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4 No. 24-1843
Cruz filed this lawsuit in state court, and Costco removed
the case to federal court under 28 U.S.C. § 1441(b).2 After most
discovery was completed, Costco filed a motion for summary
judgment, which the district court granted. The court
concluded that Cruz had not presented evidence that would
allow a reasonable jury to find that any spilled portion of a
smoothie was on the floor long enough for Costco to have had
constructive notice of its presence. Cruz v. Costco Wholesale
Corp., No. 22-cv-1535, 2024 WL 1639817, at *2–3 (N.D. Ill. Apr.
16, 2024). The court also concluded that Cruz did not present
evidence that Costco maintained a policy that regularly led to
dangerous conditions. Id. at *3–4.
II. Analysis
We review de novo a district court’s grant of summary
judgment. Washington v. City of Chicago, 98 F.4th 860, 868 (7th
Cir. 2024). We take a fresh look at the evidence and view it
(along with all reasonable inferences) in the light most
favorable to Cruz as the non-moving party. E.g., McDaniel v.
Syed, 115 F.4th 805, 816 (7th Cir. 2024).
Illinois law governs in this diversity action. See Reid v.
Kohl’s Dep’t Stores, Inc., 545 F.3d 479, 481 (7th Cir. 2008). When
an Illinois plaintiff seeks recovery based on a defendant’s
alleged negligence, the plaintiff must “prove the existence of
a duty owed by the defendant to the plaintiff, a breach of that
duty, and injury proximately resulting from the breach.”
Heider v. DJG Pizza, Inc., 2019 IL App (1st) 181173, ¶ 29, 138
2 Diversity of citizenship is complete. Cruz is a citizen of Illinois.
Costco is incorporated in Washington and has its principal place of
business there. The amount in controversy exceeds $75,000, particularly in
light of Cruz’s medical expenses.

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No. 24-1843 5
N.E.3d 934, 939 (internal quotation marks omitted), quoting
Bruns v. City of Centralia, 2014 IL 116998, ¶ 12, 21 N.E.3d 684,
688–89. A business “owes customers a duty to maintain its
premises in a reasonably safe condition to avoid injuries to
those customers.” Piotrowski v. Menard, Inc., 842 F.3d 1035,
1038 (7th Cir. 2016).
The question on appeal is whether a reasonable jury could
find that Costco breached that duty to Cruz. A business can
be liable for injuries resulting from a foreign substance on the
floor of a business if the customer establishes that “the
proprietor had constructive notice of the substance.” Hayes v.
Bailey, 80 Ill. App. 3d 1027, 1030, 400 N.E.2d 544, 546 (1980).
Constructive notice can be established in Illinois by two paths:
“by presenting evidence that the dangerous condition was
present for a sufficient length of time such that in the exercise
of ordinary care its presence should have been discovered, or
by showing that the dangerous condition was part of a pattern
of conduct or a recurring incident.” Piotrowski, 842 F.3d at
1040. Cruz argues there are genuine questions of material fact
on both paths.
A. Timing
Drawing all reasonable inferences in favor of Cruz, a jury
could find that a smoothie was on the floor long enough for
Costco to have constructive notice of the spill. We address first
the evidence indicating there actually was a spill on the floor
and then how long the spill could have been there. See
Newsom-Bogan v. Wendy’s Old Fashioned Hamburgers of New
York, Inc., 2011 IL App (1st) 092860, ¶¶ 19–27, 953 N.E.2d 427,
432–33.

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6 No. 24-1843
First, contrary to Costco’s argument on appeal, Cruz
presented evidence that there was, indeed, a smoothie spill on
the floor. To recap, Costco’s Shapiama filled out an incident
report immediately following Cruz’s fall indicating that there
were “about five” drops of “fruit smoothie” on the floor. Also,
the surveillance video shows customers and Costco
employees pointing to the ground after Cruz slipped and fell.
A reasonable jury could infer that the bystanders were
gesturing to a spill on the floor. That theory is supported by
the Costco employees’ later actions, which included mopping
and scrubbing the floor where Cruz fell and placing a “wet
floor” sign in the area. These reactions help create a triable
issue of fact as to whether Cruz slipped on smoothie droplets.
Cruz also testified in her deposition that after she fell she
saw a pink substance on the floor, her shoe, and her pant leg.
It is a reasonable inference that this “pink substance” could
have been a fruit smoothie. See Alston v. City of Madison, 853
F.3d 901, 906 (7th Cir. 2017) (on summary judgment, courts
draw all reasonable inferences for non-moving party). In
similar cases, Illinois courts have found that a plaintiff’s own
testimony about a dangerous substance on a business’s floor
can be enough to present a genuine issue of fact even if no
other witnesses corroborate her testimony. E.g., Newsom-
Bogan, 2011 IL App (1st) 092860, ¶ 19, 953 N.E.2d at 432;
accord, Payne v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003) (laying
to rest “the misconception that evidence presented in a ‘self-
serving’ affidavit is never sufficient to thwart a summary
judgment motion”). Here, Cruz’s statements do not even
stand alone. They are part of a larger evidentiary mosaic that
creates a triable issue of fact on whether there was a smoothie
on the floor.

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No. 24-1843 7
The next question is how long a jury could reasonably
conclude the spill had been on the food court floor. That’s
central to whether Costco, exercising reasonable care, should
have discovered the spill, and therefore whether it had
constructive notice before Cruz fell and was injured. See, e.g.,
Reid, 545 F.3d at 481–82.
The district court concluded that Cruz could not establish
constructive notice because “all [she] established is an
absence of evidence.” With respect, we view the evidence
differently. Cruz offered evidence that there was a smoothie
on the floor. She has also presented evidence—in the form of
the surveillance video—indicating that no spill or cleanup
occurred in the 28 minutes preceding her fall. A reasonable
jury could therefore infer that the smoothie spill had been on
the floor for longer than 28 minutes. Cf. Heider, 2019 IL App
(1st) 181173, ¶ 8, 138 N.E.3d at 941 (reversing summary
judgment for defendant; during relevant time window,
plaintiff “did not see anything that could have caused water
to get there, indicating that the dampness was there the whole
time”); Culli v. Marathon Petroleum Co., 862 F.2d 119, 124–25
(7th Cir. 1988) (collecting cases applying Illinois law; presence
of substance and timing can be “established by circumstantial
evidence”).
The 28 minutes of video evidence make this case different
from Zuppardi v. Wal-Mart Stores, Inc., 770 F.3d 644 (7th Cir.
2014), which the district court cited for the premise that a
plaintiff’s “dearth of evidence establishing placement or
notice of [a] puddle” requires a finding of no constructive
notice. Cruz, 2024 WL 1639817, at *3, quoting Zuppardi, 770
F.3d at 651–52. In Zuppardi, the plaintiff testified that she “did
not see anyone in the area prior to the fall despite having

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8 No. 24-1843
walked” straight down a store aisle into the danger zone. 770
F.3d at 651. We affirmed summary judgment for the
defendant in that case because the testimony established
“only that the spill had occurred at least a few minutes before
the accident, and there is no basis in the record for estimating
how much earlier the spill might have taken place.” Id. The
key point was that the evidence in Zuppardi affirmatively
established only that the spill could have been on the floor for
only a few minutes (the time from when the dangerous area
came into plaintiff’s view until she arrived at the end of the
aisle). See also Hresil v. Sears, Roebuck & Co., 82 Ill. App. 3d
1000, 1002, 403 N.E.2d 678, 679–80 (1980) (affirming directed
verdict for defendant when plaintiff observed dangerous area
for just ten minutes before falling).
This case is also distinguishable from Reid v. Kohl’s Dep't
Stores, Inc., 545 F.3d 479 (7th Cir. 2008). In that case, we
affirmed summary judgment for the defendant store because
the store’s manager had inspected the area roughly ten
minutes before the fall and had not seen any spilled
milkshake, establishing that the spill must have been on the
floor for less than ten minutes. That evidence imposed an
“outside limit” on the amount of time the spill could possibly
have been on the floor. Id. at 482.
Here, the surveillance video, viewed in the light most
favorable to Cruz, would allow a reasonable juror to find that
the spill must have taken place at least 28 minutes before
Cruz’s fall—substantially more than the few minutes in
Zuppardi, and without a low upper limit as in Reid.
The video is of course not conclusive proof for Cruz. A
jury might ultimately find that there was never any smoothie
on the floor at all or that a liquid came from the red item that

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No. 24-1843 9
may have been dropped by the woman with a toddler just
before Cruz’s fall. But for purposes of summary judgment,
Cruz has presented evidence indicating that (1) there was a
smoothie spill on the floor, and (2) it could have been there
for at least 28 minutes. This is enough to allow a reasonable
jury to find constructive notice and thus to preclude summary
judgment. Cf. Hurt v. Wise, 880 F.3d 831, 840 (7th Cir. 2018)
(explaining that video evidence will warrant summary
judgment only when the video is “flatly contradictory” of one
side’s view of the evidence), overruled on other grounds by
Lewis v. City of Chicago, 914 F.3d 472 (7th Cir. 2019).
A reasonable jury could find further that Costco, in “the
exercise of ordinary care,” should have discovered the
smoothie spill if it was there for 28 minutes—and that Costco
therefore had constructive notice of the danger. See Thompson
v. Economy Super Marts, Inc., 221 Ill. App. 3d 263, 265, 581
N.E.2d 885, 888 (1991). Illinois courts have emphasized that
“whether a defendant is deemed to have constructive notice
of the existence of a dangerous condition on its property is a
question of fact.” See, e.g., Heider, 2019 IL App (1st) 181173,
¶ 34, 138 N.E.3d at 940; Smolek v. K.W. Landscaping, 266 Ill.
App. 3d 226, 229, 639 N.E.2d 974, 977 (1994). We have
explained that Illinois law does not establish any conclusive,
across-the-board rule as to how long a substance must be on
the floor to allow an inference of constructive notice. Peterson
v. Wal-Mart Stores, Inc., 241 F.3d 603, 605 (7th Cir. 2001)
(rejecting argument that there is any “flat rule in Illinois that
ten minutes is always too short a period for a duty of
inspection and clean up to arise”).
Whether Costco should have discovered the spill using
ordinary care will depend on facts to be determined at trial.

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10 No. 24-1843
These may include how long the jury finds the spill to have
been on the floor, along with other facts such as customer
traffic, the probability of a slip and fall, the cost of patrolling,
and whether Costco’s inspection protocols were reasonable
and properly executed. Id. at 604–05; see also Zuppardi, 770
F.3d at 652 (considering timing question and noting that
business “was not experiencing heavy customer traffic at the
pertinent time, which lessened the likelihood of a hazardous
condition.” (citing Hresil, 82 Ill. App. 3d at 1002, 403 N.E.2d at
680)). These are classic negligence factors suitable for jury
consideration rather than rigid rules of law. See Peterson, 241
F.3d at 605 (lotion on floor for maximum of ten minutes
created “a matter to be explored at trial”); Newsom-Bogan, 2011
IL App (1st) 092860, ¶ 19, 953 N.E.2d at 432 (store’s written
manual created “duty to inspect every [fifteen] minutes”;
testimony indicating grease had been on floor for twenty
minutes created triable issue of constructive notice); Guidani
v. Cumerlato, 59 Ill. App. 2d 13, 24, 207 N.E.2d 1, 6 (1965)
(collecting cases applying Illinois law and noting that just ten
to fifteen minutes can create a jury question).
B. Pattern of Dangerous Conditions
The district court also rejected Cruz’s theory that Costco
had constructive notice of the smoothie because “it did not
conduct frequent enough inspections of the food court.” Cruz,
2024 WL 1639817, at *3, citing Piotrowski, 842 F.3d at 1040. The
district court noted that while Cruz presented evidence on the
frequency of spillage in the food court, she did not present
any evidence that Costco’s hourly floor walks were
insufficient to monitor these spills or that other customers had
been harmed by those spills. Id.

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No. 24-1843 11
On this issue, we agree with the district court. Cruz urges
that Costco’s practices should establish constructive notice
because several spills per week are found in the food court by
customers, not by Costco employees. But the fact of spills in
the food court, alone, does not establish constructive notice
for two reasons. First, Cruz has not presented evidence
indicating that Costco failed to clean up these spills promptly.
Cf. Culli, 862 F.2d at 126–27 (finding constructive notice when
defendant knew of regular spills in self-service gas pump area
but consistently did not clean those up until evening). Second,
and relatedly, Cruz has not offered evidence that Costco
typically left these spills on the floor in a way that created “a
pattern of dangerous conditions which were not attended to
within a reasonable period of time.” Id. at 126; see also
Zuppardi, 770 F.3d at 652 (rejecting argument that Illinois law
requires “continuous monitoring and patrolling of a store’s
safety conditions….”).
All the cases that Cruz cites for the premise that a fact-
finder may find constructive notice based on a pattern of
dangerous conditions involved evidence regarding how
effectively defendants resolved the issue. See, e.g., Ruda v.
Jewel Food Stores, Inc., 2024 IL App. (1st) 230582, ¶ 56, —
N.E.3d — (reversing summary judgment when employees
testified that preventive measures were not taken and there
was a two-hour gap in sweep procedures); Nicholson v. St.
Anne Lanes, Inc., 136 Ill. App. 3d 664, 668–69, 483 N.E.2d 291,
295 (1985) (affirming denial of judgment as a matter of law
when plaintiff presented evidence that bartender repeatedly
saw soap on bathroom floor and did not “check and make
sure that this soap was where it is supposed to be”); Perminas
v. Montgomery Ward & Co., 60 Ill. 2d 469, 474–75, 328 N.E.2d
290, 293–94 (1975) (reversing grant of summary judgment

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12 No. 24-1843
when plaintiff presented evidence indicating employee knew
items regularly fell on the ground and customers used them
as skateboards but defendant did not change practices). Here,
Cruz asserts only that other customers discovered spills—not
that Costco employees failed to clean them up or that the
spills were left untouched for hazardous amounts of time. In
other words, it is not enough to assert a problem without also
presenting evidence indicating that the store did not respond
effectively to that problem. Cruz has not created a genuine
issue of material fact on whether Costco maintained a pattern
of dangerous conditions.
Nonetheless, because Cruz presented sufficient evidence
to create a triable issue of fact on whether the smoothie was
on the food court floor long enough for Costco to have
constructive notice of its presence, she may proceed to trial on
her negligence claim. See Culli, 862 F.2d at 123 (analyzing
“sufficient amount of time” and “pattern of conduct” as
separate theories of constructive notice).
The judgment of the district court is REVERSED and the
case is REMANDED to the district court for further
proceedings consistent with this opinion.

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