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Leal v. TSA Stores Inc

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

April 10, 2018

MICHELLE LEAL, Plaintiff,
v.
TSA STORES, INC. d/b/a THE SPORTS AUTHORITY, Defendant.

          OPINION AND ORDER

          JAMES T. MOODY, JUDGE UNITED STATES DISTRICT COURT.

         This matter is before the court on defendant's motion for partial summary judgment. (DE # 93.) For the reasons stated below, defendant's motion will be granted.

         I. BACKGROUND

         A. Factual Background

         Plaintiff Michelle Leal originally filed her state court complaint in the Porter County Superior Court. (DE # 1.) The case was later removed to this court. (DE # 3.) Defendant TSA Stores, Inc. d/b/a The Sports Authority (“TSA”) is the only defendant remaining in this case. (See DE ## 91, 92, 105, 130.)

         The following facts are undisputed for purposes of TSA's motion. On July 27, 2011, plaintiff's husband Robert purchased a bicycle from a Sports Authority store in Merrillville, Indiana. (DE # 94 at 2; DE # 122 at 3.) At the time of purchase, the bicycle was assembled and displayed on the sales floor. (Id.) Before completing the purchase of the bicycle, a TSA sales associate performed a “point system check” of the bicycle. (Id.) On the inspection checklist the TSA employee check-marked the box that stated, “Handlebars and seat checked and tight.” (DE # 95-2 at 62.) At the time of sale, Robert signed an agreement in which TSA expressly disclaimed all warranties regarding the bicycle. (DE # 95-3 at 1.)

         Three weeks later, on August 17, 2011, plaintiff was injured while riding the bicycle. (DE # 94 at 1; DE # 122 at 3.) According to plaintiff, while she was riding the bicycle the handlebar unexpectedly shifted, causing her to fall and injure herself. (Id.)

         One issue in this case is whether TSA assembled plaintiff's bicycle. At the time of the sale, TSA was engaged in a Delivery, Assembly, and Installation Services Agreement (“Service Agreement”) with Urban Express Assembly, LLC. (DE # 95-4.) TSA and Urban Express entered into the Service Agreement on February 1, 2011. (Id. at 1.) The Service Agreement contained a “mutual exclusivity” provision (“Exclusivity Clause”) stating that Urban Express “shall be the sole and exclusive provider of Services with respect to the UX [Urban Express] Serviced Stores, including to the exclusion of Client's in-house employees . . . .” (DE # 95-4 at 2.) TSA maintains that, pursuant to this agreement, all of the bicycles sold at its Merrillville store were assembled exclusively by Urban Express. (DE # 94 at 8.)

         Plaintiff argues that there is an open question as to whether TSA assembled her bicycle. (DE # 122 at 12.) Plaintiff cites to evidence from the President of Urban Express, Arthur Lagrega, who stated that TSA retained a right under the Service Agreement to have its own employees assemble bicycles. (DE # 123-4 at 2.) Lagrega stated that, on occasion, an Urban Express contractor was unable to assemble a bicycle within the time frame TSA requested and TSA would make other arrangements for assembly, through its own employees or another third-party. (Id.) Lagrega stated that when an Urban Express contractor assembled a bicycle for TSA, the contractor would generate an invoice documenting the assembly. (Id.) However, Legrega stated that Urban Express does not have any invoice for the assembly of plaintiff's bicycle, which leads him to believe that Urban Express did not assemble the bicycle. (Id. at 3.)

         The parties both submitted affidavits from Donald Schmiege, the Merrillville store manager beginning in 2009, and during the time of the sale. (DE # 95-5; DE # 123-10.) In one affidavit Schmiege stated that no TSA employee assembled a bicycle for sale at the Merrillville store during the time frame relevant to the lawsuit. (DE # 95-5 at 1-2.) In his second affidavit, Schmiege stated, “The store in Merrillville did not have enough employees to use the sales team to assemble bicycles. Moreover, the store did not have the skill to assemble bikes except for very simple children's bikes, but on at least two separate occasions that I am aware of the store assembled a bike. It was not Mrs. Leal's bike to my knowledge.” (DE # 123-10 at 2.) Schmiege explained that when a bicycle was assembled, an assembly sticker was placed on the bicycle by the Urban Express contractor who assembled the bicycle. Schmiege was not sure why there was no such sticker on plaintiff's bicycle. (Id. at 3.) He stated that the absence of the sticker could indicate that plaintiff's bicycle was assembled at the Orland Park store and was shipped to the Merrillville store when the Orland Park location closed. (Id. at 2.) However, he did not know whether TSA employees assembled the bicycles at the Orland Park store. (Id.) Finally, Schmiege stated that while it was possible that a TSA employee could have assembled a bicycle without his knowledge, he believed that the operations team leader, Marie Caston, would have let him know if this had happened. (Id.)

         Caston was the operations team leader at the Merrillville store at the time plaintiff's bicycle was purchased. (DE # 123-3 at 3.) Caston stated that before Schmiege took over as store manager in 2009, TSA employees assembled the bicycles at the Merrillville store. (Id. at 4, 13.) Caston testified that the person who assembled a bicycle, whether a TSA employee or an Urban Express contractor, should have filled out an invoice identifying which bicycles he or she assembled. (Id. at 6.) However, no such invoice exists for plaintiff's bicycle. (Id. at 6-7.) Finally, Caston indicated that a bicycle could remain on the store floor for as long as two years if it was on clearance. (Id. at 11.) Plaintiff's bicycle was on clearance at the time of the sale. (Id. at 13.) Plaintiff argues that this evidence suggests that plaintiff's bicycle could have been assembled prior to May 2009, during the period when TSA employees assembled the bicycles. (DE # 122 at 7.)

         B. Procedural Background

         Plaintiff's second amended complaint charged TSA of: (1) breaching its duty of care to her by assembling, marketing, and selling the bicycle in an unsafe condition; and (2) breaching its implied warranty of merchantability and fitness for a particular purpose. (DE # 61 at 2-3.)

         TSA has moved for summary judgment. (DE # 93.) TSA argues that it is entitled to judgment in its favor as a matter of law because: (1) it expressly disclaimed all warranties regarding the ...


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