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Simms v. The Millard Group, Inc.

United States District Court, S.D. Indiana, New Albany Division

May 9, 2019

JAMES W. SIMMS, III, Plaintiff,



         This is a premises liability suit. Plaintiff James W. Simms, III slipped and fell at the Green Tree Mall in Clarksville, Indiana. He fell in a common area in the mall's interior after exiting from the Texas Roadhouse restaurant where he and his wife had dined. Mr. Simms sued the owner of the restaurant (with which he has now settled) and defendant The Millard Group, Inc., the company that performed maintenance services for the mall's common area.

         Defendant Millard Group has filed a motion [Dkt. 46] for summary judgment on the claims against it. For the reasons stated below, the motion is DENIED.

         Summary Judgment Standard

          Summary judgment is appropriate only where there are no genuine disputes of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The Court does not weigh the evidence or evaluate credibility but must view the facts and the reasonable inferences flowing from them in the light most favorable to the nonmovant. McConnell v. McKillip, 573 F.Supp.2d 1090, 1097 (S. D. Ind. 2008). “[I]f genuine doubts remain and a reasonable fact-finder could find for the party opposing the motion, summary judgment is inappropriate.” Olayan v. Holder, 2011 WL 6300615 at *5 (S.D. Ind. Dec. 15, 2011).


         The designated admissible evidence, with all reasonable inferences drawn and all evidentiary conflicts resolved in Mr. Simms's favor, reveals the following.

         On Sunday, January 15, 2017, Mr. Simms and his wife had dinner at the Texas Roadhouse restaurant located inside the Green Tree Mall in Clarksville, Indiana. The restaurant has two separate entrance/exit doors for entering or leaving the restaurant's premises. One set of two doors is accessible to and from the mall's interior space. The other entrance/exit is on the mall's exterior building, i.e., from the parking lot. Mr. Simms and his wife entered the restaurant at about 5:15 p.m. After finishing dinner, at around 7:00 p.m., Mrs. Simms exited through the exterior egress to the parking lot to smoke a cigarette and Mr. Simms went to use the restroom inside the restaurant. The restroom is located near the doors to the mall's interior space, or common area. After Mr. Simms left the restroom, he exited the restaurant through the nearby doors to the mall's interior space. The two doors were wide open. He walked a step or two on dark tile covering a small foyer area immediately outside the doors and his feet then stepped onto the mall's light-tiled interior common area. That tile was slick with water. The mall was closed to public access for the day with the entrances/exits closed to visitors arriving from the outside. The Zamboni cleaning of the concourses was underway. Mr. Simms slipped on the water that had been applied as part of the cleaning process, fell hard to the ground, and broke his hip.

         Though the Texas Roadhouse restaurant was still open for business-and would be for a few more hours-when Mr. Simms exited into the mall about 7:00 p.m., as previously noted the mall itself had closed at 6:00 p.m. Mr. Simms did not realize the mall was closed, and there were no warnings that the mall had closed that were visible to him as he exited Texas Roadhouse into the mall. The restaurant had posted permanently-installed signs on each of its two doors leading into the mall which read “Mall Closed Please Exit Through Front Doors Thanks.” Though Texas Roadhouse typically closed those doors after the mall closed, which would put the signs in the line of sight of a person facing the doors, on this occasion the doors were left open after the mall had closed and the signs were not in Mr. Simms's line of sight as he exited into the mall, intending to leave through the mall's doors to the parking lot. There were no other signs or other indications outside the restaurant into the mall's interior visible to Mr. Simms to indicate the mall itself was closed.

         Millard Group maintenance employees who clean the mall's interior spaces after the mall closes have noticed on multiple occasions that the restaurant's doors are open into the mall's interior after the mall has closed. Texas Roadhouse's lease with the mall owners grants Texas Roadhouse and its customers permission to use the mall's common areas for their intended purposes. In addition, Millard Group's maintenance personnel had a “major issue” generally with customers walking through the mall when they were trying to clean, tasks that they did not usually even start until at least 15 minutes after the mall closed.

         The water that was puddled on the floor where Mr. Simms stepped causing him to slip and fall had come from a malfunctioning floor cleaning machine, a Zamboni-type machine, that was operated by an employee (Trenton Cole) of defendant Millard Group. The floor-cleaning machine is used by driving it-like a Zamboni. It works by laying down a streak of water that then comes into contact with a floor scrubber/squeegee device attached to the machine. If the squeegee falls off the machine, then the amount of water released from the machine flows out in a much greater volume; it puddles and is not squeegeed. Millard Group's cleaning personnel knew at the time of Mr. Simms's fall that if the squeegee falls off, the machine leaves a lot of water on the floors and anyone who walked on them could slip. The scrubber/squeegee is not supposed to fall off the machine, but when that equipment has become old or deteriorated, it routinely falls off. The scrubber/squeegee was in poor condition on the night of January 15, 2017, and Millard Group's maintenance/cleaning personnel had told their superiors that the squeegee needed to be replaced. Millard Group had not replaced it.

         Trenton Cole, who was driving the Zamboni-cleaning machine on January 15, 2017, did that job while wearing headphones and watching YouTube videos on his cell phone. That was Mr. Cole's practice when operating the machine and his employer knew it. If the driver of the cleaning machine is paying attention to the operational sounds of the machine and if the scrubber/squeegee falls off (as it was wont to do), the driver can perceive immediately that the equipment has fallen off and can reattach it. On January 15, Mr. Cole did not realize the scrubber/squeegee had fallen off until long after the machine had left large trails of water all over the floor. While Mr. Cole was nearby but had passed the location of the Texas Roadhouse restaurant, he realized the scrubber/squeegee had fallen off and radioed a co-employee who was working in another section of the mall to ask whether that employee had seen the equipment. That employee, Steven Thompson, located the equipment on the floor and then walked through the mall to give it to Mr. Cole. Had Mr. Cole been paying attention while operating the cleaning machine near the Texas Roadhouse restaurant, he would likely have realized that large trails of water had been left on the floor just outside that restaurant because of the malfunctioning equipment, and he would likely have also seen that the doors from the restaurant into the mall were wide open. Mr. Cole told his co-employee, Mr. Thompson, that he had, indeed, noticed that the Texas Roadhouse restaurant's doors were open.


         Millard Group argues that because the mall had closed at 6:00 p.m., it inexorably follows that when Mr. Simms left the restaurant at about 7:00 p.m. through its open doors into the mall's interior space, he was a “trespasser” as a matter of law. As a trespasser, Millard Group asserts that its only duty to Mr. Simms was to refrain from “intentionally injuring him after discovering his presence” on the mall's interior ...

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