Argued September 16, 2014
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:12--cv-00704-Christopher A. Nuechterlein, Magistrate Judge.
For CAROL ANN MAURER, Plaintiff - Appellant: Jerome McKeever, Richard W. Morgan, PFEIFER, MORGAN & STESIAK, South Bend, IN.
For SPEEDWAY, LLC, #5487, Defendant - Appellees: Darren A. Craig, Thomas L. Davis, FROST BROWN TODD LLC, Indianapolis, IN.
Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.
BAUER, Circuit Judge.
This appeal is from a judgment entered on a jury verdict in favor of defendant-appellee, Speedway, LLC (" Speedway" ). Plaintiff-appellant, Carol Ann Maurer (" Maurer" ), instituted a premises liability action against Speedway in Indiana state court for personal injuries sustained when she fell outside a Speedway gas station convenience store while trying to maneuver around a retail display of windshield washer fluid. Speedway removed the case to the United States District Court for the Northern District of Indiana on the basis of diversity of citizenship. Prior to trial, the district court granted a motion in limine filed by Speedway, excluding as evidence a municipal ordinance which Maurer sought to introduce at trial in order to prove
Speedway had notice that its retail display created an unreasonably dangerous condition by narrowing the adjacent walkway down to a width of 24 inches. The sole issue Maurer raises on appeal is whether the district court erroneously excluded the municipal ordinance. For the reasons set forth below, we affirm.
On the afternoon of October 17, 2011, Maurer left her home to visit a nearby Speedway gas station convenience store. She had been to that Speedway store many times before; it was where she regularly purchased gasoline for her car. After parking in front of the store, Maurer walked along the sidewalk to the store's front entrance. A permanent retail display, which housed windshield wiper fluid at the time, sat on the sidewalk to the left of the double door entrance and narrowed the adjacent walking area to a width of 24 inches. As Maurer approached the entrance, she saw the display, stepped around it, and walked down the narrowed length of sidewalk. As she neared the end of the narrowed path she rolled her ankle off the sidewalk curb and fell, seriously injuring her left shoulder.
On July 16, 2012, Maurer filed a complaint for damages against Speedway in Indiana state court. The complaint alleged that Maurer slipped and fell and sustained physical injuries as a result of the carelessness and negligence of Speedway. The district court conducted a pre-trial conference and set the deadline to complete discovery for July 15, 2013.
Five days prior to the close of discovery, Maurer informed Speedway via email that she was amending her witness list to include the City of South Bend Building Commissioner to authenticate " the City building code that incorporates the OSHA requirement for an unobstructed sidewalk of at least 36 inches." Five days later, on the close of discovery, Maurer filed her final list of witnesses and exhibits, which included the South Bend Building Commissioner, who would testify regarding the city building code, and an exhibit described: " Portion of the City of South Bend Building Code concerning unobstructed sidewalks." Maurer did not provide any further details regarding the building code provision until the pre-trial conference, 15 days before trial, when she gave Speedway a copy of South Bend Municipal Code Article 2 § 6-5(a)(1)(b) (the " Ordinance" ). The Ordinance incorporates the Indiana Administrative Code (" IAC" ), which incorporates the American National Standard Institute (" ANSI" ) requirements for accessible and usable buildings, specifically ANSI A117.1-2003. Chapter 4 of the ANSI requirements, entitled " Accessible Routes," provides at § 403.5 that the clear ...