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Buford v. Cushman & Wakefield U.S., Inc.

United States District Court, S.D. Indiana, Indianapolis Division

November 9, 2018



          Tim A. Baker, United States Magistrate Judge

         I. Introduction

         Plaintiff Indinar Buford alleges she suffered a concussion when the cover of a paper towel dispenser unexpectedly swung open, hitting her in the head and causing her to jerk her head backward in surprise. Defendants Cushman & Wakefield U.S., Inc., Castleton Park Indianapolis, LP (“CPI”), and Castleton Park Indianapolis Management, LLC (“CPIM”) move for summary judgment with respect to all claims, and separately seek to strike portions of an affidavit Buford relies on in her summary judgment response. For the reasons set forth below, the Court grants Cushman & Wakefield, CPI, and CPIM's motion for summary judgment [Filing No. 85] and denies Cushman & Wakefield's motion to strike as moot. [Filing No. 92.][1]

         II. Background

         The basis for Buford's suit is an alleged incident on July 22, 2015, at 5920 Castleway West Drive. Buford worked in that building, which has a common area restroom shared by Buford's employer and two other companies that rent space in the building. At around 6 p.m., Buford used this restroom, washed her hands, and then went to the paper towel dispenser. Buford alleges that she reached for a paper towel with both hands, leaning slightly forward. She claims that when she pulled out a paper towel, the cover on the dispenser suddenly swung forward and hit her in the head above her left temple. Buford says the sudden surprise caused her to jerk her head backward in a futile attempt to avoid the impact. No. one else was in the restroom when it happened. Buford asserts the incident gave her a concussion, and that she still has post-concussion syndrome.

         Buford claims to have experienced a labyrinthine concussion with vestibular symptoms, i.e., a concussion in the inner ear causing vertigo, dizziness, imbalance, and changes in vision, hearing, and cognition. She also alleges that her post-concussion syndrome caused a later fall that injured her shoulder. Buford sought treatment a few days after the July 22 incident. Roughly a year later, Buford began seeing Kuimil Mohan, MD, for treatment. Dr. Mohan is an experienced, board-certified neurologist, and he diagnosed Buford with a labyrinthine concussion and post-concussion syndrome, including vestibular ocular reflex disorder, post-concussion headache, and vertigo. Buford continues to treat with Dr. Mohan.

         CPI owns the building where the incident happened, but neither CPI nor its management entity, CPIM, have a representative with a day-to-day presence there. Rather, Cushman & Wakefield manages the building and is responsible for maintenance and repairs, including the restroom where the incident occurred.[2] Cushman & Wakefield employs building engineers to do daily walkthroughs of its buildings. However, Cushman & Wakefield does not require its building engineers to perform walkthroughs of common area restrooms, including the one where the incident allegedly happened. On the day of the incident, a male building engineer was assigned to the building, and he was not supposed to enter the female restroom absent a report of a maintenance or repair issue. Cushman & Wakefield contracted with CCS to provide janitorial services for the common area bathrooms, including daily restocking of the paper towel dispenser at issue. Both CCS and Cushman & Wakefield's building engineer's supervisor have a key to open the dispenser.

         III. Discussion

         Cushman & Wakefield, CPI, and CPIM move for summary judgment, [3] arguing that Buford lacks sufficient evidence of knowledge and causation to get this case before a jury. Cushman & Wakefield first argues Buford fails to show any facts that would charge it with actual or constructive knowledge of any danger posed by the dispenser. Without showing such knowledge, Cushman & Wakefield contends, Buford cannot satisfy one of the essential elements necessary to prove her claim. Buford responds that a jury could reasonably find that Cushman & Wakefield failed to exercise reasonable care.

         Cushman & Wakefield next argues that Buford cannot show the incident proximately caused her alleged injuries because the impact from the dispenser cover could not have caused her to have a concussion. Cushman & Wakefield relies on its expert's affidavit and report and moves to strike portions of Dr. Mohan's expert affidavit that concern causation. Buford responds that Dr. Mohan can properly offer an opinion regarding causation, which creates a disputed fact for the jury to resolve.

         a. Actual or Constructive Knowledge

          Under Indiana law, [4] the elements of negligence are: “(1) a duty owed to the plaintiff by the defendant, (2) a breach of the duty, and (3) an injury proximately caused by the breach of duty.” Yost v. Wabash College, 3 N.E.3d 509, 515 (Ind. 2014) (quoting Pfenning v. Lineman, 947 N.E.2d 392, 398 (Ind. 2011)). “It is well settled that absent a duty, there can be no breach. And whether a duty exists is a question of law for the court to decide.” Rogers v. Martin, 63 N.E.3d 316, 321 (Ind. 2016) (internal citation omitted). With regard to premises liability, Indiana determines the duty owed by a possessor of land by classifying entrants onto land as invitees, licensees, or trespassers, Burrell v. Meads, 569 N.E.2d 637, 639 (Ind. 1991), and by looking to whether a condition or an activity on the land caused the risk. Rogers, 63 N.E.3d at 321-22.

         The parties agree that Buford was an invitee and that the incident involved a condition on the land. Accordingly, Section 343 of the Restatement (Second) of Torts applies and provides:

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect ...

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