United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
Robert
L. Miller, Jr. Judge.
Katlyn
Blasko tore a meniscus when she slipped on what could be
found to have been spilled yogurt or smoothie in the main
aisle of a Wal-Mart store. She sues Wal-Mart for damages.
Wal-Mart has moved for summary judgment, arguing that Ms.
Blasko can't point to evidence that would let a jury find
that Wal-Mart had knowledge of the spilled liquid. The court
heard argument on the motion on February 27, and now grants
Wal-Mart's motion.[1]
II.
Standard of Review
A
summary judgment motion tests whether a trial is needed: if
the plaintiff can't win at trial even if the jury
believes all of the plaintiff's evidence, a trial is
pointless and summary judgment should be granted. The federal
courts use a summary judgment standard that is different from
the standard used in Indiana courts, so while Indiana law
governs what Ms. Blasko must prove, care is needed when
looking at Indiana summary judgment rulings to decide a
federal summary judgment motion. Austin v. Walgreen
Co., 885 F.3d 1085, 1089 (7th Cir. 2018); Jarboe v.
Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118,
123 (Ind. 1994); See also McEwen v. Delta Air Lines,
Inc., 919 F.2d 58, 60 (7th Cir. 1990).
Summary
judgment is appropriate under the federal rule when
“the pleadings, discovery materials, disclosures, and
affidavits demonstrate no genuine issue of material
fact.” Protective Life Ins. Co. v. Hansen, 632
F.3d 388, 391-92 (7th Cir. 2011). When no genuine issue of
material fact exists, “the movant is entitled to
judgment as a matter of law.” Dunkin v. Appriss,
Inc., 266 F.Supp.3d 1103, 1106 (N.D. Ind. July 18,
2017). The movant has the burden of demonstrating to the
court the basis for its motion that there exists no genuine
issue of material fact. Celotex Corp., 477 U.S. at
323. In demonstrating this burden, the evidence must be
viewed in the light most favorable to the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). When the movant has met its burden, the opposing
party cannot rely solely on the allegations in their
pleadings but must “point to evidence that can be put
in admissible form at trial, and that, if believed by the
fact-finder, could support judgment in his favor.”
Marr v. Bank of America, N.A., 662 F.3d 963, 966
(7th Cir. 2011). The non-moving party cannot rely on
conclusory allegations. Smith v. Shawnee Library
System, 60 F.3d 317, 320 (7th Cir. 1995). Instead, the
non- moving party must affirmatively demonstrate with
“specific facts” that a genuine issue
exists that require trial. Gabrielle M. v. Park
Forest-Chicago Heights, Ill. Sch. Dist. 163, 315 F.3d
817, 822 (7th Cir. 2003) (emphasis in original). Failure to
prove an essential element of the alleged activity makes
other facts immaterial. Celotex, 477 U.S. at 323;
Filippo v. Lee Publications, Inc., 485 F.Supp.2d
969, 972 (N.D. Ind. 2007) (the non-moving party “must
do more than raise some metaphysical doubt as to the material
facts; he must come forward with specific facts showing a
genuine issue for trial.”).
III.
Discussion
Viewed
as favorably to Ms. Blasko as is consistent with reason, the
summary judgment record would allow a trier of fact to find
that late on November 6, 2015, Ms. Blasko was shopping at the
Mishawaka, Indiana, Wal-Mart store. As she walked down the
main aisle, her left foot slipped and hit her shopping cart,
tearing the meniscus in her knee, and underwent surgery. She
slipped on an eight-inch (or so) spot of pink liquid, perhaps
yogurt or a smoothie. Ms. Blasko saw no containers on the
floor. Workers were stocking nearby shelves, but no Wal-Mart
employees saw her fall.
Customers
at that Wal-Mart can walk around the store with their own
liquids. Customers can buy liquids at the Subway that
operates in the Wal-Mart. Customers walk the aisles selecting
their own items for purchase, so foreign substances can be
spilled or left on the floor, causing a hazard to staff and
customers. In part for that reason, Wal-Mart employees with
brooms and mops walk the store every two hours to check for
spills. When a spill is discovered, it is promptly cleaned
up. More employees and cleaners are assigned to high traffic
areas. Wal-Mart doesn't always know when, other than
within the two-hour timespan, a specific area was inspected
for spills.
This
court's jurisdiction is based on diversity of
citizenship, and the parties agree that Indiana provides the
rule of decision in this case. To prove Wal-Mart liable under
Indiana law, Ms. Blasko must show that: (1) Wal-Mart owed her
a duty, (2) that Wal-Mart breached that duty, and that (3)
her injury was proximately caused by this breach of duty.
Ford Motor Co. v. Rushford, 868 N.E.2d 806, 810
(Ind. 2007). Her claim falls if any one of these elements
isn't satisfied. Pfenning v. Lineman, 947 N.E.2d
392, 406 (Ind. 2011). Indiana law on premises liability
defines different duties to different types of visitors.
Kopczynski v. Barger, 887 N.E.2d 928, 931 (Ind.
2008). The parties agree that Ms. Blasko was a business
invitee[2] while at the Wal-Mart, so Wal-Mart owed
her a duty of reasonable care. A foreign substance on the
floor of a business generally is the sort of thing a
landowner exercising reasonable care would remedy once the
condition was made known to them. Golba v. Kohl's
Dept. Store, Inc., 585 N.E.2d 14 (Ind.Ct.App. 1992). The
landowner's knowledge of the condition is essential to
this aspect of the duty: “A possessor of land is not
liable to his invitees for physical harm caused to them by
any activity or condition on the land whose dangers is known
or obvious to them, unless the possessor should anticipate
the harm despite such knowledge or obviousness.”
Smith v. Baxer, 796 N.E.2d 242, 244 (Ind. 2003).
This is
sometimes framed as whether a landowner had “actual or
constructive knowledge” of the alleged danger that
harmed plaintiff. Carmichael v. Kroger Co., 654
N.E.3d 1188, 1191 (Ind.Ct.App. 1995) trans denied;
Cergnul v. Heritage Inn of Ind., Inc., 785 N.E.2d
328, 333 (Ind.Ct.App. 2003). Forgoing the requirement of
actual or constructive knowledge, “would essentially
give rise to strict liability for slip-and-falls in places of
business.” Bickel v. Wal-Mart Stores E., LP,
2016 U.S. Dist. LEXIS 131221, at *6-7 (N.D. Ind. Sept. 26,
2016).
Ms.
Blasko can't point to any evidence to show (and she
doesn't seem to contend) that Wal-Mart had actual
knowledge of the pink substance on the store's floor. So
the analysis must focus on evidence of constructive
knowledge. Wal-Mart says they had no constructive knowledge
of the substance on the floor. “There is constructive
knowledge when a condition has existed for a such a length of
time and under such circumstances that it would have been
discovered in time to have prevented injury if the invitor
had used ordinary care.” Gasser Chair Co.,
v. Nordengreen, 991 N.E.2d 122, 126-127 (Ind.Ct.App.
2013). The length of time is important, and can be
circumstantial evidence of constructive knowledge. Reid
v. Kohl's Dep't Stores, Inc., 545 F.2d 479, 482
(7th Cir. 2008) (“Absent any evidence demonstrating the
length of time that the substance was on the floor, a
plaintiff cannot establish constructive notice.”); see
also Torezz v. TGI Friday's Inc., 509 F.3d 808,
811 (7th Cir. 2007); Bickel v. Wal-Mart Stores E.,
LP, 2016 U.S. Dist. LEXIS 131221 at *7-8.
Ms.
Blasko hasn't been able to find evidence of how long the
pink substance was on the floor. The summary judgment record
would be the same whether the substance was there for seconds
or for hours. Ms. Blasko cites several cases for the
proposition that the evidence, while sparse, is enough to
raise a genuine issue fact. She relies most heavily on two
cases that could support a finding of constructive notice in
light of the evidence she has.
Golba
v. Kohl's Dept. Store, Inc., 585 N.E.2d 14
(Ind.Ct.App. 1992), was decided at a time self-service stores
such as Wal-Mart seemed new to the courts. Stella Golba had
stepped on a round object on the store floor and fell,
injuring her wrist, knee, and back. She wasn't able to
find any Kohl's employee who had seen the object on the
floor either before or after she fell. She pointed to
evidence that Kohl's store policy was to sweep the floors
once a day. The Indiana Court of Appeals reversed the trial
court's grant of summary judgment because Kohl's had
not met the burden placed on it by Indiana's summary
judgment rule:
Examining the evidence in the light most favorable to Golba
and drawing all inferences in her favor, we must conclude
that there was an object on the floor upon which she slipped.
We must also infer that the object was on the floor for a
sufficient amount of time that morning such that we cannot
say as a ...