United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
William C. Lee, Judge
matter is before the Court on the motion for summary judgment
filed by Defendant Wal-Mart Stores East, LP, on August 21,
2018 (ECF 65). Plaintiff Donna McKee filed a response in
opposition to the motion on December 13, 2018 (ECF 79) and
Wal-Mart filed a reply on December 20 (ECF 82). For the reasons
explained below, the motion is DENIED.
judgment is appropriate when the record shows that there is
“no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of
law.” Fed.R.Civ.P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). Disputes concerning
material facts are genuine where the evidence is such that a
reasonable jury could return a verdict for the non-moving
party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). In deciding whether genuine issues of
material fact exist, the court construes all facts in a light
most favorable to the non-moving party and draws all
reasonable inferences in favor of the non- moving party.
See Id. at 255. However, neither the “mere
existence of some alleged factual dispute between the
parties, ” id., 477 U.S. at 247, nor the
existence of “some metaphysical doubt as to the
material facts, ” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986), will
defeat a motion for summary judgment. Michas v. Health
Cost Controls of Ill., Inc., 209 F.3d 687, 692 (7th Cir.
judgment is not a substitute for a trial on the merits nor is
it a vehicle for resolving factual disputes. Waldridge v.
Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994).
Therefore, after drawing all reasonable inferences from the
facts in favor of the non-movant, if genuine doubts remain
and a reasonable fact-finder could find for the party
opposing the motion, summary judgment is inappropriate.
See Shields Enterprises, Inc. v. First Chicago
Corp., 975 F.2d 1290, 1294 (7th Cir. 1992); Wolf v.
City of Fitchburg, 870 F.2d 1327, 1330 (7th Cir. 1989).
However, if it is clear that a plaintiff will be unable to
satisfy the legal requirements necessary to establish his or
her case, summary judgment is not only appropriate, but
mandated. See Celotex, 477 U.S. at 322; Ziliak
v. AstraZeneca LP, 324 F.3d 518, 520 (7th Cir. 2003).
McKee filed this personal injury suit against Wal-Mart in
state court and Wal-Mart removed it to this Court on the
basis of diversity jurisdiction. See Notice of
Removal (ECF 1); Complaint (ECF 5). The facts giving rise to
this lawsuit are straightforward and mostly undisputed. McKee
alleges that the incident unfolded as follows:
This matter arises out of an incident that occurred on
October 24, 2013, when the Plaintiff, Donna McKee . . ., was
at the Marion, Indiana Wal-Mart to purchase a small sewing
machine that weighed approximately 4 pounds[.]
When Mrs. McKee arrived at the particular aisle where the
sewing machines were displayed, she saw that netting was
erected by Wal-Mart employees to prevent shoppers from
entering the aisle due to the fact that Wal-Mart employees
had been mopping or cleaning the aisle. . . . Mrs. McKee had
a shopping cart with her. . . . She also noticed that there
were two men working in the aisle on the other side of the
netting. . . . She then asked one of the Wal-Mart employees
if he could hand her the small sewing machine that she
wanted, which he agreed to do. . . . She specifically told
the employee which machine she wanted. . . . When the
employee retrieved the box, Mrs. McKee noticed that the box
was larger than the box that she believed she wanted, and
assumed that the manufacturer may have changed the packaging.
. . . Unbeknownst to Mrs. McKee, the Wal-Mart employee
retrieved the wrong machine. . . . The Wal-Mart employee
retrieved a computerized quilting machine instead of the
sewing machine that Mrs. McKee asked him to retrieve. . . .
The machine that the employee retrieved weighed 14 to 15
pounds more than machine that Mrs. McKee wanted. . . . The
Wal-Mart employee then asked Mrs. McKee if he could hand the
box to her over the netting that blocked the aisle and she
agreed, not anticipating that it would weigh more than she
expected. . . . Mrs. McKee had to reach up over the netting
and above her head to retrieve the box from the employee. . .
. When the employee asked Mrs. McKee if she had the box he
was handing to her, she said yes because she did not know it
was the wrong machine or that it weighed as much as it did. .
. . She was not able to handle the box due to its weight, and
it fell toward her, striking her mouth and face, and knocking
her backwards causing injuries[.] . . . The Wal-Mart employee
told Mrs. McKee that a stock person had put the computerized
quilting machine in the wrong place. . . . Mrs. McKee opines
that the machine that was handed to her should have been
placed directly in her cart due its weight. . . .
Response Brief (ECF 81), pp. 1-2 (citations to McKee
deposition and discovery responses omitted). Wal-Mart's
slightly more concise recitation of the facts is as follows:
On October 24, 2013, Plaintiff arrived at the Marion Walmart
at approximately 2:00 AM to purchase a sewing machine. . . .
She had not researched sewing machines before going to the
store and did not have a particular make and model of sewing
machine in mind that she wanted to purchase. . . .
When Plaintiff arrived at the sewing machine aisle, there was
netting up because Walmart employees were cleaning and
mopping. . . .This netting prevented Plaintiff from
going into the aisle. . . . At the same time there
were two Walmart employees behind the netting. . . .
Plaintiff pointed out the box containing the item that she
wanted and asked one of the Walmart employees to hand it to
her and the Walmart employee retrieved it from the shelves.
. . . The Walmart employee asked if Plaintiff was
okay with him handing her the box, and the Plaintiff said
that was fine. . . . The Walmart employee then
brought the box over to the Plaintiff, who was standing
behind the netting, and asked if she was ready for him to
hand it to her, which, after she placed her hands on the box,