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Gannon v. Menard, Inc.

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

March 29, 2019

JEREMY GANNON, Plaintiff,
v.
MENARD, INC., Defendant.

          ENTRY

          Hon. Jane Magnus-Stinson, Chief Judge

         The outcome of some motions turns not on the resolution of complicated issues of substantive law or multilayered evidentiary objections, but instead on a common-sense assessment of how reasonable jurors may react to the presentation of evidence. This is such a motion. The law is clear, and the evidence is largely uncontroverted: Jeremy Gannon attempted to take vertically-stacked, ten-foot-long flashing off of an elevated shelf at a store belonging to Menard, Inc. (“Menards, ” referring to both Defendant and the store as context dictates). A piece of flashing fell from the shelf, stabbing Mr. Gannon in the leg and severing a tendon. The issue is whether Menards exercised reasonable care as a matter of law in its storage and display of the flashing. Because a reasonable jury could find that Menards did not act reasonably, summary judgment is inappropriate, and the Court therefore DENIES Menards' Motion seeking such for the reasons set forth below.

         I. Legal Standard

         A motion for summary judgment asks the Court to find that a trial is unnecessary because there is no genuine dispute as to any material fact and, instead, that the movant is entitled to judgment as a matter of law. SeeFed. R. Civ. P. 56(a). As the current version of Rule 56 makes clear, whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Fed.R.Civ.P. 56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1)(B). Affidavits or declarations must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed.R.Civ.P. 56(c)(4). Failure to properly support a fact in opposition to a movant's factual assertion can result in the movant's fact being considered undisputed, and potentially in the grant of summary judgment. Fed.R.Civ.P. 56(e).

         In deciding a motion for summary judgment, the Court need only consider disputed facts that are material to the decision. A disputed fact is material if it might affect the outcome of the suit under the governing law. Hampton v. Ford Motor Co., 561 F.3d 709, 713 (7th Cir. 2009). In other words, while there may be facts that are in dispute, summary judgment is appropriate if those facts are not outcome determinative. Harper v. Vigilant Ins. Co., 433 F.3d 521, 525 (7th Cir. 2005). Fact disputes that are irrelevant to the legal question will not suffice to defeat summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         On summary judgment, a party must show the Court what evidence it has that would convince a trier of fact to accept its version of the events. Johnson v. Cambridge Indus., 325 F.3d 892, 901 (7th Cir. 2003). The moving party is entitled to summary judgment if no reasonable factfinder could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th Cir. 2009). The Court views the record in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. Darst v. Interstate Brands Corp., 512 F.3d 903, 907 (7th Cir. 2008). It cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the fact-finder. O'Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011). The Court need only consider the cited materials, Fed.R.Civ.P. 56(c)(3), and the Seventh Circuit Court of Appeals has “repeatedly assured the district courts that they are not required to scour every inch of the record for evidence that is potentially relevant to the summary judgment motion before them, ” Johnson, 325 F.3d at 898. Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir. 2010).

         II. Facts for Summary Judgment

         The following factual background is set forth pursuant to the standards detailed above.[1]The facts stated are not necessarily objectively true, but as the summary judgment standard requires, the undisputed facts and the disputed evidence are presented in the light most favorable to “the party against whom the motion under consideration is made.” Premcor USA, Inc. v. American Home Assurance Co., 400 F.3d 523, 526-27 (7th Cir. 2005).

         A. The Incident

         On April 15, 2016, Mr. Gannon visited an Indianapolis Menards to buy some building materials, including flashing, for his garage. [Filing No. 67-4 at 19-20.] He paid for the materials and was told to drive to the back of the building to pick them up. [Filing No. 67-4 at 21.] An employee checked Mr. Gannon's ticket and told Mr. Gannon that he would pick up the other materials while Mr. Gannon selected the flashing. [Filing No. 67-4 at 24.] After being told where to go, Mr. Gannon walked to the flashing aisle. [Filing No. 67-4 at 24.1 There were no employees in the area. [Filing No. 67-4 at 24.]

         The flashing shelf "was a complete bird's nest, of bent pieces, broken pieces," [Filing No. 67 at 5], perhaps appearing (as depicted in a private investigator's photographs of other Menards locations) something like this:

         (Image Omitted)

[Filing No. 67-1 at 13; see Filing No. 67-5 at 5 (Menards' interrogatory response stating that "metal flashing was generally displayed in a similar manner at each store").]

         (Image Omitted)

[Filing No. 67-1 at ...


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