Blasko v. Wal-Mart Stores Inc.

          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 ...