Tall Leaning Stack is Open and Obvious
by Sara Palmer
A Hodgkins Illinois Menards store has been found not responsible for injuries received from a falling stack of insulation.
On January 3rd, 2014 at approximately 7:00pm Larry Dunn and his adult son, Erik Dunn went to
purchase rolled insulation at Menards, specifically the Hodgkins, Illinois center.
After purchasing 21 rolls of the insulation in the main store, the plaintiff was instructed to drive
around the back to one of the self-service warehouses when a security
guard directed him to the warehouse containing the insulation. The two entrances to the
insulation warehouse have warning signs that state: "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." Neither the plaintiff nor his son recall noticing the signs but they
do not dispute that the signs were there at the time of the incident.
Exiting his vehicle, Mr. Dunn noticed that one of the stacks of insulation was leaning and
appeared to be unstable. Instead of seeking help from employees, the plaintiff opted
to study the leaning stack for approximately five minutes to decide whether "it was safe to
proceed." A smaller stack was in front of the unstable one, and after counting the
rolls, Mr. Dunn determined that there was enough insulation there that he did not need to touch
the unsafe stack. The plaintiff and his son then proceeded to load their
vehicle with insulation for approximately ten to fifteen minutes. As they were loading the final
rolls of insulation, the leaning stack fell, despite neither the plaintiff
or his son touching it. As a result of the falling insulation, the plaintiff was struck in the right
shoulder, allegedly injuring him.
Immediately after the incident, Mr. Dunn and his son went back to the main store and reported
the accident to the front office manager. As the incident report was being
filled, the manager learned that two employees were in the bay next to the plaintiff at the time of
the incident. Although neither employee saw Mr. Dunn enter the warehouse,
both heard the insulation fall. The front office manager was also notified that Mr. Dunn did not
ask for assistance from either employee. It was noted that "as a general
practise, the general manager of the Hodgkins Menards patrols both the store and warehouses
three times by 5:00pm in order to look for potential hazards. In addition, the
yard shipping and receiving managers, and individual team members routinely monitor the
self-service warehouses for potential safety issues."
On the 6th of May, 2015 Mr. Dunn, the plaintiff, filed a negligence suit against Menards at the
Circuit Court of Cook County. The case was moved to the Northern District of
Illinois by Menards, and was assigned to District Judge Sara L. Ellis. On February 22nd, 2016
the plaintiff provided Menards with a "supplemental 14-paragraph personal
affidavit. Menards moved to strike the affidavit on the grounds that it contradicted plaintiff's prior
deposition testimony" which occured on September 23rd, 2015. "Following
an in-court hearing, the district court granted Menard's motion in part and struck paragraphs 3
through 10 and 14."
On November 18th, 2016, the court came to the conclusion that Menards did not owe a legal
duty to the plaintiff "because the leaning stack of insulation that fell on him
constituted an open and obvious condition". As a result the plaintiff filed a motion to reconsider
but it was denied.
The appeal that followed had three issues that were presented. The first two were "the open and
obvious nature of the leaning stack of insulation and whether Menards owed
plaintiff a legal duty." The third issue was in regards to the affidavit. Specifically, the district
court's exclusion of paragraphs 3 through 10 and 14 of the affidavit was
to be reviewed for "an abuse of discretion."
For the first issue, it was decided that the district court correctly determined that the leaning
stack was indeed “an open and obvious danger that a reasonable person with Dunn’s
knowledge would have appreciated.” The plaintiff attempted to dispute the decision by stating
that he did not appreciate the risk that the unstable stack posed and “that his apprehension
applied only to a scenario where either he or his son touched the stack.” The court decided that
the evidence did not point to that assertion. It was felt that the plaintiff would not have studied
the leaning stack for five minutes if he did not fear that it may spontaneously fall.
In regards to the second issue, the plaintiff felt that Menard’s owed him a legal duty even though
the stack was clearly in “an open and obvious condition.” While “the existence 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 the
defendant”, in this case it was agreed that the company did not owe the plaintiff a legal duty as
the stack was indeed a safety hazard and that Mr. Dunn did not seek out assistance. The district
court had felt that more safeguards being put in place would be onerous for Menards and the
appeal court agreed, feeling that more security measures would not be justified.
For the third and final issue the appeal court also agreed with the district court’s decision that
paragraphs three through to ten and fourteen did indeed contradict the plaintiff’s earlier
Therefore the appeal court affirmed the judgement of the district court.
(Dunn v. Menard, Inc., No. 17-1870 (7th Cir. 2018))
Decision: January 2018
Published: January 2018