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Blackburn v. Menard, Inc.

United States District Court, N.D. Indiana, Hammond Division

November 24, 2014

GARY BLACKBURN, Plaintiff,
v.
MENARD, INC., Defendant.

OPINION AND ORDER

JAMES T. MOODY, District Judge.

This matter is before the court on defendant Menard, Inc.'s ("defendant") second motion for summary judgment on plaintiff Gary Blackburn's ("plaintiff") complaint. (DE # 59.) Plaintiff has filed a response to that motion (DE # 62), and defendant has filed a reply (DE # 64.) For the following reasons, defendant's motion is granted.

I. Facts and Procedural Background

This case arises out of plaintiff's slip and fall at defendant's Merrillville, Indiana store in January of 2008. Defendant previously moved for summary judgment on plaintiff's only claim - negligence under Indiana law. (DE # 48.) The court granted that motion in part and denied it in part, after concluding that defendant could not be liable on plaintiff's theory that defendant was negligent for failing to remove the ice that he had slipped on, but denied the motion on plaintiff's theory that defendant had failed to warn him about the ice because defendant had not addressed that theory in its motion. (DE # 58.) The court granted defendant leave to file an additional motion for summary judgment. ( Id. )

Because the court has already summarized the facts of this case, it will quote from its previous order outlining the facts, before addressing the factual disputes the parties raise in their new briefs:

On January 24, 2008, plaintiff stopped at defendant's Merrillville location on his way to work. (DE # 52-1 at 1-2.) It had snowed earlier that day ( id. at 1), but was not snowing when plaintiff pulled into the parking lot ( id. at 2). Plaintiff arrived at defendant's store at some time before 1:00 p.m., which was when plaintiff's shift at work was scheduled to start. (DE # 50-1 at 6-7.) There was snow on the sidewalk as plaintiff entered the store, but plaintiff does not remember seeing any ice and did not have any problems as he was walking into the store. (DE # 52-1 at 5.)
Plaintiff remained in the store for approximately ten to fifteen minutes. (DE # 50-1 at 8.) As he prepared to exit the store, plaintiff looked out of the glass windows at the front of the store and noticed that it had started snowing and raining outside. (DE # 52-1 at 3-4.) After exiting the store and taking two or three steps onto the sidewalk, plaintiff slipped on what he believed to be ice and injured himself. (DE # 50-1 at 12-13, 16.) Plaintiff was then carried inside the store by someone he believes was one of the store's employees. (DE # 52-1 at 7.) After his fall, plaintiff noticed that there were two of defendant's employees shoveling the sidewalk. (DE # 52 at 2; DE # 52-1 at 13.) As he was carried into the store, plaintiff heard one of the employees that had been shoveling say "we should have started at the other door, I guess." (DE # 52 at 2; DE # 52-1 at 10.)
The current manager of defendant's Merrillville store, Michael O'Dore, testified that store employees will remove snow on the store's sidewalks, apply salt if needed, and make sure that the entrances and exits are clear at all times. (DE # 52-2 at 2.) If an employee sees snow or ice, it is their job to make sure that the snow or ice is removed. ( Id. ) Inspections for snow and ice are not done on any sort of schedule (i.e. every hour, every half hour, etc.), but instead it is the responsibility of each of defendant's employees to constantly be on the lookout for the presence of snow and ice. ( Id. at 3, 5.) Additionally, O'Dore testified that two snow removal trucks had been at defendant's Merrillville store on January 24, 2008, from 1:30 a.m. to 3:00 a.m.. ( Id. at 4.)

(DE # 58 at 1-2.)

In his response to defendant's second motion for summary judgment, plaintiff disputes several facts from defendant's statement of undisputed facts, most of which the court previously found to be undisputed in its prior order. A close examination of the evidence, however, reveals that most of the facts are not actually in dispute. The court will address each one of plaintiff's arguments in turn.

In defendant's statement of undisputed facts, defendant asserts that plaintiff had no difficulty walking through or entering the store upon his arrival at the store. (DE # 60 at 2.) In response, plaintiff argues that he "could not recall if he had difficulty walking across the lot or otherwise had to be extra careful." (DE # 62 at 2-3.) Despite at one point testifying in his deposition that he could not recall whether he had any difficulty walking into the store (DE # 62-1 at 2), he later testified that he did not have any problems on his walk into the store:

Q: Okay. Now was there snow on the sidewalk as you were walking up onto the sidewalk to enter the store?
A: Yes.
Q: Okay. Was there ice on the sidewalk as you were walking into the store?
A: Going in I didn't have no problem. [sic]

(DE # 61-1 at 11.) Thus, like it did in reviewing defendant's original motion, the court will treat this fact as undisputed.

Next, defendant states in its statement of undisputed facts that prior to exiting the store, plaintiff noticed "a mixture of snow and rain began to fall and was still falling when he prepared to leave." (DE # 60 at 2.) In response, plaintiff argues that he "did not testify that he saw a mixture of snow and rain fall while he was inside the store. He testified that as he prepared to exit the store he could see snow outside, and believed it might have been snowing but could not be sure." (DE # 62 at 3.) Plaintiff directs the court to the following portion of his deposition testimony to support this argument:

Q: Do you remember looking outside the big glass wall?
A:Yes
Q: Okay. Did you see anything on the ground?
A: Yes
Q: Okay. What did you see on the ground?
A: Snow.
Q: Okay. And you believe it may have been snowing at the time?
A: Yes
Q: Okay. Do you know that for sure?
A: No.

(DE # 62-1 at 4.)

If this had been the only testimony that plaintiff had given on this issue, the court would agree with plaintiff that his testimony revealed that he was not sure whether it was snowing when he left the store, but plaintiff went on to give additional testimony about what he saw as he was exiting the store in that very same line of questioning:[1]

Q: And you believe that it may have been snowing [as you were exiting the store]?
A: Yes.
Q: Okay. Do you know that for sure?
A: No.
Q: Okay. Do you have an independent recollection of seeing precipitation?
A: Yes. I think so.
Q: Okay. Now was it snow?
A: Yes.
Q: Okay.
A: It was - there was snow and rain together.
Q: Okay. A mix?
A: There was a mix. It was right at the temperature of snow and rain. And that's what caused the problem, because it rained. And it froze on the sidewalk.
Q: Okay.
A: And then the snow landed on top of it.
Q: Okay. And this precipitation wasn't going on at the time you entered the store?
A: No. There was just snow on the ground.
Q: Okay. Now was there snow on the sidewalk as you were walking up onto the sidewalk to enter the store?
A: Yes.
Q: Okay. Was there ice on the sidewalk as you were walking ...

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