United States District Court, S.D. Indiana, Evansville Division
B.F. a minor, KIM FIELDS and KENNY FIELDS as the natural parents and legal guardians of B.F., Plaintiffs,
THE BUCKLE, INC., Defendant.
ENTRY ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND MOTION TO STRIKE PORTIONS OF PLAINTIFFS' AFFIDAVIT
RICHARD L. YOUNG, Chief District Judge.
This case originated in Vanderburgh Circuit Court, where Plaintiffs, B.F., a minor, and his parents, Kim and Kenny Fields, filed suit against Defendant, The Buckle, Inc., seeking damages for personal injuries that B.F. suffered during a visit to The Buckle's retail clothing store. Pursuant to 28 U.S.C. §§ 1332(a) and 1441(a), The Buckle removed the action to this court based upon diversity jurisdiction and now moves for summary judgment and to strike portions of Kenny Fields's affidavit. For the reasons set forth below, the court GRANTS both motions.
Mr. and Mrs. Fields and their then four-year-old son, B.F., visited The Buckle, a retail clothing store located in the Eastland Mall in Evansville, Indiana. The Buckle's surveillance camera captured the incident giving rise to this action. The video initially shows B.F. sitting on his father's shoulders. Mr. Fields then placed B.F. on the ground beside a clothing rack. The clothing rack, an oblong rectangle in shape, has two hanger rails that constitute the long sides of the rack. The short ends of the rack consist of a horizontal bar that supports a shelf separating the hanger rails. ( See Filing No. 44-1). As Plaintiffs describe it, the clothing rack has "open ends." (Filing No. 33 at 3).
Once on the ground, B.F. grabbed hold of and hung from the support bar at the end of the rack before disappearing between the rows of hanging clothes. Only seconds thereafter, Mr. Fields heard his son scream and appear from within the clothing rack with a hanger caught in his eye. (Filing No. 33-2, Affidavit of Kenny Fields ("Fields Aff.") at 1). The undisputed evidence establishes that a metal-tipped hanger within the clothing rack caused a full-thickness eyelid laceration and a canalicular laceration to B.F.'s left lower lid. (Filing No. 33 at 2; Filing No. 33-4 at 2).
Plaintiffs bring this negligence action on a premises liability theory, claiming that The Buckle breached its duty to protect B.F. from dangerous conditions on its premises. The Buckle moved for summary judgment only one month after discovery commenced and before either party conducted any depositions. (Filing No. 33 at 4). Plaintiffs lament this fact in their Brief in Opposition to Defendant's Motion for Summary Judgment, but they neglected to move for relief pursuant to Rule 56(d). Thus, the court rules on The Buckle's motions despite the regrettable dearth of admissible evidence in the record.
Under the Erie doctrine, federal courts exercising diversity jurisdiction apply state substantive law and federal procedural law. Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 428, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996). Therefore, the court applies the federal standard for summary judgment and Indiana substantive law with respect to Plaintiffs' premises liability claim.
A. Motion to Strike
In opposition to summary judgment, Plaintiffs rely exclusively on the affidavit of Kenny Fields. ( See Filing No. 33 at 4-8). The Buckle challenges certain portions of the affidavit on the grounds that the affiant lacks the requisite personal knowledge to testify about the factual issues in dispute. ( See Filing No. 43). Specifically, The Buckle moves to strike the following statements:
7. I have been to other stores in the Eastland Mall and found that racks are closed or designed to keep children out in many locations and some plastic hangers are used in other locations. Exhibit A is attached with the photographs of other locations in Eastland Mall that I observed, which are constructed in such a manner to prevent an occurrence as my son experienced.
10. No one had been checking on the racks and status of same [ sic ] during this time in the store.
12. The Buckle, Inc.'s store located in the Eastland Mall in Evansville, Indiana serves a young group of shoppers known to ...