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Bell v. Wal-Mart Stores East LP

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

March 14, 2019

SANDRA BELL, Plaintiff,
Wal-Mart Stores East LP, et al., Defendants.



         Plaintiff Sandra Bell filed this lawsuit in state court, alleging one count of negligence after a merchandise display fell on her while shopping at a Wal-Mart store. Defendants then removed the action to this Court [DE 1] and eventually filed the instant motion for summary judgment. [DE 14] Also pending is Defendants' Rule 56 motion to strike portions of an affidavit submitted by Ms. Bell. [DE 20] For the reasons stated herein, the Court will deny both motions.


         On summary judgment, the moving party bears the burden of demonstrating that 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 “material” fact is one identified by the substantive law as affecting the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine issue” exists with respect to any material fact when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. Where a factual record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial, and summary judgment should be granted. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing Bank of Ariz. v. Cities Servs. Co., 391 U.S. 253, 289 (1968)). In determining whether a genuine issue of material fact exists, this Court must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in that party's favor. Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir. 2008); King v. Preferred Tech. Grp., 166 F.3d 887, 890 (7th Cir. 1999).

         Under Indiana law, disposition of negligence actions via summary judgment “is rarely appropriate … because they are particularly fact sensitive and are governed by a standard of the objective reasonable person, which is best applied by a jury after hearing all the evidence.” Winfrey v. NLMP, Inc., 963 N.E.2d 609, 612 (Ind.Ct.App. 2012) (citing Rhodes v. Wright, 805 N.E.2d 382, 387 (Ind. 2004)). “Nonetheless, summary judgment is appropriate when the undisputed material evidence negates one element of a negligence claim.” Id.


         On September 11, 2015, Ms. Bell visited a Wal-Mart store located in Mishawaka, Indiana. While shopping, she used a motorized scooter provided by the store due to her chronic obstructive pulmonary disease. She proceeded to the women's clothing section, where she took a pair of jeans from a shelf situated along the length of an aisle. Deciding to try the jeans on for size, Ms. Bell drove her scooter toward the fitting rooms, but when she reached the end of the aisle, an endcap shelving unit to her right fell over on her, without warning. The shelving itself fell on top of her, knocking her from the scooter and onto the floor. [Deposition of Sandra Bell 20:22-21:3] Ms. Bell does not know how or why the endcap fell on her. Id. at 24:20-23, 76:22-77:2. Nor did she observe any customers or employees in the vicinity at the time of her accident. Id. at 24:11-19.

         The store's assistant manager, Mark Robinson, responded to the scene and found Ms. Bell lying on the floor with the endcap on top of her. [Affidavit of Mark Robinson ¶ 4] He did not notice any damage to the endcap. Id. ¶¶ 5-6. Mr. Robinson and others then “reattached” the endcap and inspected its stability by “proceed[ing] to kick and shake it.” Id. ¶ 7. The endcap remained “stable and in place.” Id. Mr. Robinson then inspected the scooter and similarly did not notice any damage. As a result of this “investigation, ” Mr. Robinson and others “determined that Sandra Bell had ran into the end cap with her electric cart, dislodging it from its base and knocking it over onto herself.” Id. ¶ 11.


         To succeed on a negligence claim under Indiana law, Ms. Bell must show: (1) that Defendants owed her a duty; (2) that Defendants breached that duty by allowing their conduct to fall below the applicable standard of care; and (3) that Defendants' breach proximately caused Ms. Bell's injury. King v. Ne. Sec., Inc., 790 N.E.2d 474, 484 (Ind. 2003). When, as here, negligence is based on premises liability, the duty owed depends on plaintiff's status while on the landowner's property: whether a trespasser, licensee, or invitee. Winfrey v. NLMP, Inc., 963 N.E.2d 609, 612 (Ind.Ct.App. 2012) (citations omitted). The parties do not dispute that Ms. Bell was an invitee in Defendants' store. As such, Defendants owed her a “duty to exercise reasonable care for [her] protection” from any dangerous conditions while she shopped at their store. Henderson v. Reid Hosp. & Healthcare Servs., 17 N.E.3d 311, 315 (Ind.Ct.App. 2014). A landowner, however, must have actual or constructive knowledge that the dangerous condition exists on the premises before liability can be imposed for any breach of this duty. Schulz v. Kroger Co., 963 N.E.2d 1141, 1144 (Ind.Ct.App. 2012).

         Defendants maintain that no genuine issues of fact exist regarding the existence of an unreasonably dangerous condition or whether they had any actual or constructive knowledge of any such alleged danger. They also argue that the doctrine of res ipsa loquitor cannot save Ms. Bell's negligence claim from summary judgment. Ms. Bell does not oppose Defendants' arguments regarding dangerous conditions and requisite knowledge; she only contends that her claim should advance based on res ipsa loquitor. “Res ipsa loquitur is a rule of evidence which permits an inference of negligence to be drawn based upon the surrounding facts and circumstances of the injury.” Rector v. Oliver, 809 N.E.2d 887, 889 (Ind.Ct.App. 2004) (citing K-Mart Corp. v. Gipson, 563 N.E.2d 667, 669 (Ind.Ct.App. 1990)). “The doctrine operates on the premise that negligence, like any other fact or condition, may be proved by circumstantial evidence.” Id. at 890. To create such an inference by way of res ipsa loquitor, a plaintiff must eventually show: (1) that the injuring instrumentality was within the exclusive management and control of the defendant; and (2) that the accident is of the type that does not ordinarily happen if those who have the management and control exercise proper care. Id. Defendants have not shown, however, that no genuine issue of material fact exists as to either of these requirements, and so their motion for summary judgment must be denied.

         a. Exclusive Control

          “The element of ‘exclusive control' is an expansive concept which focuses upon who has the right or power of control and the opportunity to exercise it, rather than actual physical control.” Vogler v. Dominguez, 624 N.E.2d 56, 61 (Ind.Ct.App. 1993) (internal citations omitted). “Exclusive control is satisfied if the defendant had control at the time of the alleged negligence.” Id. at 61-62; see also Whiteco Indus., Inc. v. Non-Stop Creativity Corp., 2015 WL 8957852, at *3 (N.D. Ind. Dec. 15, 2015) (“A defendant need not control the causative instrumentality at the exact moment of injury, provided that the defendant was the last person in control.”) (citations omitted). “[P]roof in a res ipsa loquitur case seldom points to a single specific act or omission; typically, it points to several alternative explanations involving negligence without indicating which of them is more probable than the other.” Vogler, 624 N.E.2d at 62 (citing New York, Chicago & St. Louis R.R. v. Henderson, 146 N.E.2d 531 (Ind. 1957)). Because of this, Ms. Bell need not “eliminate with certainty all other possible causes and inferences[.]” Id.

         Defendants first argue as a matter of law that they could not have had exclusive control over the endcap because “[i]t is common knowledge that customers will peruse the racks and shelves of retail stores like Walmart while shopping, and in doing so may move merchandise around the store.” [DE 16 at 14] (emphasis added). Defendants' theory misses the mark. This case is not about whether Defendants had exclusive control over the merchandise in their store- Ms. Bell was knocked from her scooter by a toppling endcap, a piece of otherwise stationary shelving, not by falling merchandise or other movable objects. For this reason, many of the cases cited by Defendants do not apply here, such as Reddick v. Dillard's Inc., Civil No. 08-844, 2010 WL 1752555 (S.D. Ill. Apr. 30, 2010) (holding res ipsa loquitor inapplicable where plaintiff tripped over a shoe department foot stool and defendant's employees testified to observing customers and children move the stools prior to the accident); Curry v. J.C. Penny Corp., Civil Action No. 09-830, 2010 WL 972430 (D. Md. Mar. 12, 2010) (finding defendant store did not have exclusive control over merchandise that fell from shelf onto plaintiff's head because nothing prevented customers from removing or ...

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