                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 07-3916

L ENORA R EID ,
                                                  Plaintiff-Appellant,
                                  v.

K OHL’S D EPARTMENT S TORES, INCORPORATED ,
a Delaware Corporation licensed to do business
in Illinois,

                                                 Defendant-Appellee.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
                No. 06 C 472—James B. Zagel, Judge.



      A RGUED JUNE 4, 2008—D ECIDED S EPTEMBER 16, 2008




  Before B AUER, W OOD and W ILLIAMS, Circuit Judges.
  B AUER, Circuit Judge. Lenora Reid slipped and fell on the
floor of a retail store owned and operated by Kohl’s
Departments Stores, Inc. She subsequently brought this
action against Kohl’s. The district court granted summary
judgment in favor of Kohl’s, and Reid appealed. For the
reasons set forth below, we affirm.
2                                               No. 07-3916

  On December 7, 2003, Reid and her friend Anthony
Adkins visited Kohl’s to shop for men’s dress shirts.
After perusing items in the men’s section of the store, Reid
lost interest and decided to walk over to the women’s
pajamas section; the men’s section was carpeted and
separated from the other section by a tile floor. As Reid
stepped off of the carpet into the aisle, she slipped and
fell, sustaining mild injuries. She saw near the spot of her
fall a pink milkshake spilled from a large cup in a pool on
the tile floor. Adkins described the scene: “the floor was
wet with something that looked like a strawberry milk
shake, like ice cream and a big puddle on the floor with
a cup and a straw, and it was open.”
  The manager on duty at the store, Kelly Rizzo, arrived at
the scene to assist Reid. She too saw the “pink smoothie,
milkshaky ice cream type of thing,” as well as a cup, a lid,
and a straw on the floor near Reid when she arrived.
However, Rizzo did not see the spilled milkshake on the
floor during an inspection of the aisle area shortly before
the fall. According to Rizzo, Kohl’s had a routine proce-
dure for inspecting the premises at the Kohl’s store. That
practice involved a continuous walk-through by the
manager on duty to ensure that the store was clean and
safe. Rizzo testified that she had followed this procedure
on December 7, 2003. During her walk-through, she
passed the aisle where Reid had fallen at the most ten
minutes prior to the fall and had not seen the spilled
milkshake. She further testified that no employees or
customers reported the spill prior to Reid’s accident.
Reid filed a complaint against Kohl’s in an Illinois court
on November 1, 2005, and Kohl’s removed the case to
No. 07-3916                                                     3

federal court on January 6, 2006. The district court granted
Kohl’s motion for summary judgment on September 19,
2007, finding that Kohl’s had no actual or constructive
notice of the spill prior to Reid’s fall and that the spilled
milkshake was an open and obvious condition that Kohl’s
owed no legal duty to protect against. This timely appeal
followed.
  We review a district court’s grant of summary judg-
ment de novo. Darst v. Interstate Brands Corp., 512 F.3d 903,
907 (7th Cir. 2008). Summary judgment is appropriate
when there is no genuine issue as to any material fact
and the moving party is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(c). We view the record in the
light most favorable to the non-moving party and draw
all reasonable inferences in that party’s favor. Darst,
512 F.3d at 907.
  Illinois law governs the extent of Kohl’s liability in this
diversity action.1 In Illinois, businesses owe their invitees


1
  A brief note on jurisdiction: there is no question that the
parties are diverse—Reid is an Illinois citizen and Kohl’s is a
Delaware corporation with its principal place of business in
Wisconsin. As far as the jurisdictional amount, there is little in
the record (but ultimately enough) that establishes that the
amount in controversy exceeds $75,000. In her complaint, Reid
claimed that she suffered “severe and debilitating injuries” that
required “a large sum of money for medical, hospital and doctor
care and attention.” She did not attach an ad damnum clause.
In her deposition, Reid discussed her injuries to her back and
side, as well as the physical therapy to address these injuries,
                                                  (continued...)
4                                                  No. 07-3916

a duty to maintain the premises in a reasonably safe
condition to avoid injuring them. Marshall v. Burger King
Corp., 222 Ill.2d 422, 305 Ill.Dec. 897, 856 N.E.2d 1048, 1057-
58 (2006); Thompson v. Economy Super Marts, Inc., 221
Ill.App.3d 263, 163 Ill.Dec. 731, 581 N.E.2d 885, 888 (1991);
Peterson v. Wal-Mart Stores, Inc., 241 F.3d 603, 604 (7th Cir.
2001) (applying Illinois law); Restatement (Second) of Torts
§§ 343, 344 (1965). Liability can be imposed when a busi-
ness’s invitee is injured by slipping on a foreign sub-
stance on its premises if the invitee establishes that the
business had actual or constructive notice of the danger-
ous condition that caused the fall. Pavlik v. Wal-Mart
Stores, Inc., 323 Ill.App.3d 1060, 257 Ill.Dec. 381, 753 N.E.2d
1007, 1010 (2001); Tomczak v. Planetsphere, Inc., 315
Ill.App.3d 1033, 249 Ill.Dec. 58, 735 N.E.2d 662, 666 (2000).
  Reid argues that she presented evidence from which a
trier of fact could determine that Kohl’s had constructive
knowledge of the spill. Where constructive knowledge
is alleged, “[o]f critical importance is whether the sub-
stance that caused the accident was there a length of time
so that in the exercise of ordinary care its presence


1
  (...continued)
but did not state the specific amount of her damages. Prior to
removing the case to federal court, Kohl’s served Reid with a
request to admit that she sought damages in excess of $75,000.
Reid admitted that she did. In its notice of removal, Kohl’s
stated its good faith belief that the amount in controversy
exceeded the jurisdictional amount. Based on this (albeit scant)
record, we are satisfied that the jurisdictional amount has
been met, and we may proceed to the merits vel non.
No. 07-3916                                                 5

should have been discovered.” Torrez v. TGI Friday’s, Inc.,
509 F.3d 808, 811 (7th Cir. 2007) (quoting Tomczak, 315
Ill.App.3d 1033, 735 N.E.2d at 667) (internal quotations
and alterations omitted); Thompson,221 Ill.App.3d 263, 581
N.E.2d at 888 (noting that in establishing constructive
notice, the time element is the material factor). Absent
any evidence demonstrating the length of time that the
substance was on the floor, a plaintiff cannot establish
constructive notice. Tomczak, 315 Ill.App.3d 1033, 249
Ill.Dec. 58, 735 N.E.2d at 668; Hayes v. Bailey, 80 Ill.App.3d
1027, 36 Ill.Dec. 124, 400 N.E.2d 544, 546-47 (1980).
   In this case, Reid fails to meet her burden of showing
Kohl’s constructive notice—that is, that the foreign sub-
stance had been on the floor for such a length of time
that Kohl’s should have discovered it. Reid presented
photographs of the partially melted milkshake taken
shortly after the accident which suggest, according to
Reid, that it had been on the floor for an extended period
of time. Reid testified that though she could not tell exactly
how long the milkshake was on the floor prior to her fall,
“[i]t appeared to me that it may have been down there
for some time because it was starting to get liquid in
some areas of the spillage. It was liquid and running a
little bit.” She further described the consistency of the
substance on the ground by noting that “some of it was
thick and the other part was more liquid.” Adkins also
opined on how long the milkshake had been melting on
the floor, though he reached a different conclusion after
viewing the scene. He testified that it looked as if the spill
had “just happened [because] it seemed to be ice cream,
and it hadn’t melted yet.”
6                                                No. 07-3916

   Neither the testimony of Reid and Adkins nor the
photographs of the spillage indicate with any degree of
certainty how long the milkshake had been on the floor.
Though Reid argues that a fact-finder could infer from the
texture of the melted beverage that it had been on the
floor for an extended period of time, this inference is far
too speculative to warrant much consideration. We know
little about the substance that caused Reid to slip other
than its color. Reid presented no evidence regarding its
origin or its composition—perhaps its original owner
ordered it extra thin or thick; perhaps the milkshake came
from a vendor known for particularly heavy or light
milkshakes; perhaps the milkshake was not a milkshake
at all, but rather frozen yogurt or a fruit smoothie. The
record is devoid of any facts which would have given
insight into the relevant time frame. Reid also failed to
establish that the milkshake melted on the floor specifi-
cally, and not in the cup, before its owner unwittingly (or
deliberately) tossed it on the floor. Reid might have been
aided by expert testimony, perhaps on the dynamics of
melting objects or the viscosity of milk-based frozen
beverages. Without any of this, Reid’s cursory conclusion
that the milkshake must have been on the ground “for
some time” falls flat.
  So the only affirmative statement regarding the length
of time came from Rizzo, who stated that the milkshake
was in the aisle for at most ten minutes prior to the fall.
Because Reid failed to prove otherwise, we, as did the
district court, treat that ten minutes as the outside limit of
time. See Peterson, 241 F.3d at 604.
No. 07-3916                                                 7

   Under the circumstances of this case, no reasonable
person could conclude that ten minutes was enough time
to give Kohl’s constructive notice of the spilled substance.
Illinois law recognizes that there is no bright-line rule
indicating the requisite time to establish notice, though
periods in excess of ten minutes have failed the test. See,
e.g., Hayes, 80 Ill.App.3d 1027, 400 N.E.2d at 546-47. Rather
we look to the circumstances of the particular case to
determine if the length of time gave rise to notice.
Peterson, 241 F.3d at 605. Here, Rizzo testified that on the
afternoon of the accident, very few customers were in
the store, which lessened the likelihood of the hazardous
condition. See Hresil v. Sears, Roebuck & Co., 82 Ill.App.3d
1000, 38 Ill.Dec. 447, 403 N.E.2d 678, 680 (1980). Were
customer traffic heavy, the onus would have been on
Kohl’s to provide frequent and careful patrolling.
Peterson, 241 F.3d at 604-05. The store was almost empty,
so the duty to inspect the premises accordingly decreased.
In addition, the Kohl’s store’s internal procedure for
monitoring for spills and other dangerous conditions
appropriately addressed the threat of such issues. Hresil,
403 N.E.2d at 680; see also Peterson, 241 F.3d at 604-05.
Considering these conditions as a whole, ten minutes
was not enough to give Kohl’s constructive notice of the
spill.
  Reid argues that the district court misapplied
Peterson and held, contrary to Illinois law, that ten
minutes was de facto not enough time to establish con-
structive notice. To the contrary, the district court properly
addressed Peterson and Illinois law by examining the
specific circumstances of the case and conditions of the
8                                               No. 07-3916

store at the time of the fall. It acknowledged the absence
of a bright-line rule on the appropriate length of time to
establish constructive notice, distinguished the facts of
Peterson, and likened Reid’s case to that in Hresil. Nothing
in the district court’s analysis of the constructive notice
issue ran afoul of Illinois law.
  By failing to meet her burden in establishing constructive
notice, Reid’s claim must fail.2 The district court’s grant
of summary judgment is A FFIRMED.




2
  Because we find that Kohl’s had no notice of the spilled
substance, we need not address the district court’s other
holding that the condition was open and obvious.



                           9-16-08
