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Bickel v. Wal-Mart Stores East, LP

United States District Court, N.D. Indiana, South Bend Division

September 26, 2016

PAMELA BICKEL, Plaintiff,
v.
WAL-MART STORES EAST, LP, Defendant.

          OPINION AND ORDER

          RUDY LOZANO, Judge

         This matter is before the Court on Defendant Wal-Mart Stores, East, LP's Motion for Summary Judgment, filed on March 18, 2016 (DE #18). For the reasons set forth below, the motion (DE #18) is GRANTED. The Clerk is ORDERED to DISMISS this case WITH PREJUDICE and to CLOSE this case.

         BACKGROUND

         This case arises out of a slip and fall accident. Plaintiff, Pamela Bickel (“Bickel”), fell while shopping in a Wal-Mart owned by Defendant, Wal-Mart Stores East, LP (“Wal-Mart”) in Elkhart, Indiana. Bickel fell on a red substance that was on the floor, fractured her right knee cap, and sued in state court under a theory of negligence. On May 20, 2015, Wal-Mart removed the case to this Court. Wal-Mart now moves for summary judgment, arguing Wal-Mart had no knowledge or constructive notice of the substance prior to the fall, and thus cannot be held liable.

         DISCUSSION

         Summary judgment must be granted when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine dispute of material fact exists when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Not every dispute between the parties makes summary judgment inappropriate; “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. To determine whether a genuine dispute of material fact exists, the Court must construe all facts in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. See Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir. 2010). However, “a court may not make credibility determinations, weigh the evidence, or decide which inferences to draw from the facts; these are jobs for a factfinder.” Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003) (citations omitted).

         A party opposing a properly supported summary judgment motion may not rely on allegations in his own pleading but rather must “marshal and present the court with the evidence [he] contends will prove [his] case.” Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). “[I]nferences relying on mere speculation or conjecture will not suffice.” Stephens v. Erickson, 569 F.3d 779, 786 (7th Cir. 2009) (citation omitted). If the non-moving party fails to establish the existence of an essential element on which he bears the burden of proof at trial, summary judgment is proper. See Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006).

         Undisputed Facts

         On May 1, 2013, Bickel, her daughter (Melione), and another woman visited the Wal-Mart store on the west side of Elkhart, Indiana. Bickel and Melione were going up and down the aisles in the grocery section for “maybe half an hour” when Bickel slipped and fell. (Pamela Bickel Dep. at 32-35; Melione Bickel Dep. at 9-10.) They were in the aisle that contained detergents and air fresheners. (Pamela Bickel Dep. at 32-33; Melione Bickel Dep. at 9.) Bickel describes her fall as follows: “I was just walking along kind of beside of [Melione], talking. And all of a sudden, I took a step and it was like I stepped on glass. I thought it was water or something because my foot just went ‘shoom' right out from under me.” (Pamela Bickel Dep. at 34.)

         Initially, Bickel did not see anything around her on the floor, but when she moved her leg, she saw a “red mark.” (Pamela Bickel Dep. at 40.) Bickel felt it with her hands and it was “real slick” it was “just one streak.” (Id. at 41.) Bickel thought it was a gel air freshener. (Id. at 35.) She did not see any broken containers or spilled containers. (Id. at 43.) Bickel conceded during her deposition that she didn't know exactly where the substance came from, how long it was on the floor, or how long it was there before she fell. (Id.) In response to the question: “[y]ou didn't see any Walmart employees working in the aisle at the time you fell?” Bickel responded, “no.” (Id. at 73.)

         After her mother was placed in a wheelchair, Melanie also “noticed red stuff on the floor.” (Melanie Bickel Dep. at 12.) Melanie believes she touched it, and it was wet, red stuff on the floor. (Id. at 15-16.) Melanie also admits she did not know exactly what the substance was, how it got to be on the floor, or how long it was there before her mother fell. (Id. at 16.) When asked “[d]id you see any Walmart employees working in that area, the general area, of where the accident happened before it occurred?” Melanie answered “[n]o, I didn't.” (Id. at 20.)

         Wal-Mart has policies and procedures in place that are aimed at discovering spills. (Def.'s Ex. C, Wal-Mart Answer to Interrogatory 8.) For example, Wal-Mart corporate policies require employees to perform periodic checks for safety and cleanliness in high traffic areas in the store, known as “safety sweeps.” (Def.'s Ex. D.) The store where the incident occurred requires its employees to make visual inspections every 20 minutes in each department and maintenance personnel are required to conduct safety sweeps of the entire store every two hours. (Def.'s Ex. C; Wal-Mart Answer to Interrogatory No. 8.) Wal-Mart said it was “unknown” when any employee inspected the site prior to the accident. (Id., Interrogatory 6.)

         Bickel fractured her right knee cap, had surgery, and alleges that she continues to suffer ongoing pain and instability in her knee.

         Motion for ...


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