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Wingate v. Wal-Mart Stores, LP

United States District Court, Southern District of Indiana, New Albany Division

February 10, 2014

FERN E. WINGATE, Plaintiff,


Tanya Walton Pratt, Judge

This matter is before the Court on the Motion for Summary Judgment (Dkt. 41) filed by Defendant, Wal-Mart Stores East, LP (“Wal-Mart”), and the Motion in which Defendant Abitibibowater, Inc., now known as Resolute Forest Products, Inc. (“RFP”) has joined (Dkt. 44). Plaintiff, Fern E. Wingate (“Ms. Wingate”), brought this action in the Dearborn Superior Court of Indiana against Defendants, alleging that their negligence caused her serious injuries. Defendants jointly removed this action to federal court under the Court’s diversity jurisdiction. For the reasons set forth below, Wal-Mart’s and RFP’s (collectively, “the Defendants”) Motions for Summary Judgment are DENIED.


The facts are undisputed and considered in the light most favorable to Ms. Wingate as the non-moving party. On June 21, 2011, Ms. Wingate was placing recyclable materials into a recycling dumpster located on Wal-Mart’s premises. The dumpster, owned by RFP, was placed twenty-one feet from the entrance of the parking lot in the driving lane. Ms. Wingate’s car was parked next to the dumpster. At that same time, a car driven by non-party Kathleen Turner (“Ms. Turner”) struck the dumpster and Ms. Wingate’s car. Ms. Turner had intended to pull beside Ms. Wingate’s parked car to use the dumpster; however, instead of pressing the brake pedal, Ms. Turner pressed the accelerator pedal. The dumpster then struck Ms. Wingate, pinning her beneath and causing severe injury. A witness to the accident heard Ms. Turner’s car engine roar and tires squeal as she accelerated, instead of braking. After the crash, Ms. Turner exclaimed “I thought I hit my brake!”


Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Hemsworth v. Quotesmith.Com, Inc., 476 F.3d 487, 489-90 (7th Cir. 2007). In ruling on a motion for summary judgment, the court reviews “the record in the light most favorable to the nonmoving party and draw[s] all reasonable inferences in that party’s favor.” Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (citation omitted). However, “[a] party who bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial.” Hemsworth, 476 F.3d at 490 (citation omitted). “In much the same way that a court is not required to scour the record in search of evidence to defeat a motion for summary judgment, nor is it permitted to conduct a paper trial on the merits of a claim.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001) (citation and internal quotations omitted). Finally, “neither the mere existence of some alleged factual dispute between the parties nor the existence of some metaphysical doubt as to the material facts is sufficient to defeat a motion for summary judgment.” Chiaramonte v. Fashion Bed Grp., Inc., 129 F.3d 391, 395 (7th Cir. 1997) (citations and internal quotations omitted).


Under Indiana law, to prevail on a negligence claim, a plaintiff must prove: (1) a duty owed by the defendant to the plaintiff; (2) a breach of that duty by the defendant; and (3) an injury to the plaintiff proximately caused by the breach. Robertson v. B.O., 977 N.E.2d 341, 344 (Ind. 2012). Ms. Wingate was an invitee of Wal-Mart, and thus it owed her the “highest duty” under premises law: “a duty to exercise reasonable care for [her] protection while [she] is on the landowner’s premises.” Burrell v. Meads, 569 N.E.2d 637, 639 (Ind. 1991) (relying on the Restatement (Second) of Torts § 343 (1965)). The Restatement defines the duty as follows:

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, 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. Restatement (Second) of Torts § 343 (1965).

Ms. Wingate’s’ Complaint alleges that “Defendants carelessly and negligently located the recycling bin near the main entrance and within the travel portion of the driveway that serves the parking lot owned by Defendant, [Wal-Mart].” Dkt. 1-1 at 11. Ms. Wingate argues that placement of the dumpster in the driving lane of the parking lot created an unreasonably dangerous condition. She has designated the expert opinion of Jerry Pigman, P.E., who states that the location of the recycling dumpster increased the likelihood of accidents in the area and that the proximity of the dumpster to the entrance of the parking lot caused the accident. Wal- Mart, and by association RFP, contend that Ms. Turner’s conduct was an intervening act that severs any liability of Defendants. Accordingly, causation is the sole issue before the Court on summary judgment.

“Generally, causation, and proximate cause in particular, is a question of fact for the jury’s determination.” Correll v. Indiana Dept. of Transp., 783 N.E.2d 706, 707. “An indispensable element of an action for negligence is that the act complained of must be the proximate cause of the accident producing the injury.” Havert v. Caldwell, 452 N.E.2d 154, 158 (Ind. 1983). The key to holding a defendant’s act or omission “to be the proximate cause of the injury is that the ultimate injury be one that was foreseen, or reasonably should have been foreseen, as the natural and probable consequence of the act or omission.” Id. Along this line of reasoning, an intervening act may sever the liability of “one whose original act or omission sets in motion the chain of events or circumstances leading to an injury.” Id. “If the intervening cause was not reasonably foreseeable, the original negligent actor is relieved of any and all liability resulting from the original negligent act.” Humphrey v. Duke Energy Ind., Inc., 916 N.E.2d 287, 292 (Ind.Ct.App. 2009) (citation omitted). “Although the issue of proximate cause is often ...

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