                               In the

    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________
No. 18‐3069
ROBERT MCCARTY,
                                                  Plaintiff‐Appellant,
                                 v.

MENARD, INC.,
                                                 Defendant‐Appellee.
                     ____________________

         Appeal from the United States District Court for the
           Northern District of Illinois, Eastern Division.
          No. 1:17‐cv‐3261— Jeffrey Cole, Magistrate Judge.
                     ____________________

     ARGUED MARCH 29, 2019 — DECIDED MAY 20, 2019
               ____________________

   Before HAMILTON, BARRETT, and ST. EVE, Circuit Judges.
    ST. EVE, Circuit Judge. Robert McCarty tripped over a prod‐
uct display sign at a Menard’s home improvement store and
then filed suit. The district court dismissed the case at sum‐
mary judgment in favor of Menard. We affirm based on the
open and obvious doctrine which implicates the general duty
of care owed to business invitees in Illinois.
2                                                             No. 18‐3069

                              I. Background
    On February 13, 2017, McCarty and his employee, Tristan
Parks, went to the Menard’s store in Antioch, Illinois, to pur‐
chase materials for a renovation project. McCarty and Parks
needed ¾ inch sheets of oriented strand board (“OSB”), which
are similar to plywood. They drove a pickup truck to the
store’s lumber shed and found the ¾ inch OSB behind the dis‐
play signs. The OSB piles were stacked side‐by‐side. The dis‐
play sign at issue was knee high with protruding wooden
legs.
    McCarty moved a few of the top boards from a central
OSB pile over to the right side onto an adjacent pile while
searching for undamaged boards. Parks did the same on the
left side. After McCarty moved a few boards from the middle
stack to the right, he tripped over a piece of wood that was
part of the display sign in front of the right‐hand pile. The fol‐
lowing photograph, taken by Parks, shows the aftermath.1




    1  Menard submitted this photograph in support of its Northern Dis‐
trict of Illinois Local Rule 56.1(a)(3) Statement of Facts. At his deposition,
Parks testified that he took the photograph within seconds of McCarty’s
fall. At oral argument, both parties referred to this photograph.
No. 18‐3069                                                     3




   The display sign was normally set flush against the stacks,
as were the other signs.
                         II. Discussion
   In Illinois, landowners owe business invitees a duty of
care to keep their premises reasonably safe. Piotrowski v.
Menard, Inc., 842 F.3d 1035, 1038 (7th Cir. 2016). Illinois courts
consider four factors when deciding if a duty of care exists: (1)
the reasonable foreseeability of the harm; (2) the likelihood of
the injury; (3) the magnitude of the burden of guarding
4                                                     No. 18‐3069

against the injury; and (4) the consequences of placing that
burden on the premises owner. Dunn v. Menard, Inc., 880 F.3d
899, 906 (7th Cir. 2018). The open and obvious doctrine impli‐
cates the first two factors of the duty of care analysis. Id. When
the doctrine applies “[t]he 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.” Bucheleres v. Chicago Park Dist., 665
N.E.2d 826, 832 (Ill. 1996).
    Whether a hazardous condition is open and obvious is an
objective inquiry. The question is would a reasonable person
with McCarty’s knowledge of the situation appreciate and
avoid the hazardous condition? Dunn, 880 F.3d at 908. Courts
can determine if a condition is open and obvious as a matter
of law when there are no material disputes concerning the
condition’s physical nature. Bruns v. City of Centralia, 21
N.E.3d 684, 690 (Ill. 2014).
    After giving the evidence careful consideration and con‐
struing all reasonable inferences in McCarty’s favor, the dis‐
trict court concluded:
    A reasonable person in Mr. McCarty’s position, who saw
    that there were signs, chose the stack he wanted by looking
    at the signs, walked right up to the signs, was working
    within a few feet of the protruding sign, and either repeat‐
    edly stepped over it or turned toward it, would have no‐
    ticed the large sign and legs as a tripping hazard.
McCarty v. Menards, 319 F. Supp. 3d 974, 987 (N.D. Ill. 2018).
On appeal, McCarty argues that the sign was not open and
obvious as a matter of law because he was unaware of the dis‐
play sign prior to tripping.
No. 18‐3069                                                           5

    We review the district court’s summary judgment deter‐
mination de novo and make only reasonable inferences, not
every conceivable one, in McCarty’s favor. Skiba v. Illinois
Cent. R.R. Co., 884 F.3d 708, 717, 721 (7th Cir. 2018). “A district
court properly grants summary judgment where there is no
genuine dispute as to any material fact and the moving party
is entitled to judgment as a matter of law.” Giles v. Godinez,
914 F.3d 1040, 1048 (7th Cir. 2019).
    The display sign was open and obvious. McCarty testified
at his deposition that he found the proper OSB by looking at
the display signs that identified the boards’ thickness. Parks
testified that the display signs in front of the piles clearly la‐
beled the OSB sizes and that he and McCarty used the signs
to figure out what boards they needed. McCarty further testi‐
fied that after he moved each sheet of OSB to a pile on the
right, he would come back and pick up another sheet. The
only reasonable conclusion is that McCarty saw the protrud‐
ing sign while standing right in front of it.
   McCarty nevertheless contends that the district court
made impermissible credibility determinations by disregard‐
ing his testimony that he was unaware of the display sign.
But, the open and obvious inquiry is an objective one. Even
when viewed in his favor, McCarty’s subjective testimony
does not create a triable issue of material fact on whether a
reasonable person in his position would have been aware of
the display sign. See Dunn, 880 F.3d at 908 (“the operative fo‐
cus is not on plaintiff himself”) (emphasis in original).2




   2 McCarty argued below that the distraction exception to the open and

obvious rule applied—an argument the district court soundly rejected.
6                                                          No. 18‐3069

    Because the existence of an open and obvious hazard is not
an absolute bar to finding a premises owner’s legal duty, we
must also assess whether Menard owed a duty of care to
McCarty applying the traditional duty analysis. See Dunn, 880
F.3d at 909‐10; Bruns, 21 N.E.3d at 690. As to the first two fac‐
tors, “[w]here the condition is open and obvious, the foresee‐
ability 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. That leaves us with one last question—do the third and
fourth factors involving the store’s burden in guarding
against safety hazards outweigh the first two factors? Dunn,
880 F.3d at 910. They do not.
    Menard’s internal policies require safety inspections to fix
tripping hazards and the record shows the store’s employees
regularly monitor and inspect the outside lumber yard and
are available to assist customers when needed. Staff routinely
clean the yard and push display signs back against the stacks
of lumber. As we held in Dunn, imposing any larger burden
on Menard to guard against safety hazards, such as constant
surveillance, would be unreasonably onerous. Id. Indeed, Illi‐
nois courts, including this court sitting in diversity, have re‐
peatedly rejected imposing the duty of continuously monitor‐
ing safety conditions in premises liability cases. See Zuppardi
v. Wal‐Mart Stores, Inc., 770 F.3d 644, 652 (7th Cir. 2014) (col‐
lecting cases). McCarty gives us no reason why these cases
should not stand.
   Because McCarty has not established that Menard owed
him a duty of care, we need not address his causation


McCarty has waived this argument because he presents it for the first time
in his reply brief. Daugherty v. Page, 906 F.3d 606, 610 (7th Cir. 2018).
No. 18‐3069                                                    7

arguments. See Roh v. Starbucks Corp., 881 F.3d 969, 973 (7th
Cir. 2018) (“[U]nder Illinois law, a plaintiff must establish the
existence of a duty, the defendant’s breach of that duty, and
that the breach proximately caused the plaintiff’s resulting in‐
juries.”).
   We AFFIRM the district court’s judgment.
