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L.W. v. United States

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

August 20, 2019

L.W., a minor, b/n/f Addie Wilkins, Plaintiff,
v.
UNITED STATES OF AMERICA, INC., Defendant.

          DECISION AND ORDER

          William C. Griesbach, Chief Judge [*]

         Plaintiff L.W., a minor, by her next friend Addie Wilkins, filed this action in Marion County Superior Court against Defendant United Skates of America, Inc., alleging that Defendant was negligent in its supervision of patrons skating at its facility on April 1, 2018, which resulted in Plaintiff falling and breaking her leg. Defendant removed this action to federal court based on diversity jurisdiction pursuant to 28 U.S.C. § 1332. Presently before the court is Defendant's motion for summary judgment and Plaintiff's motion to strike the affidavit of Armondo Blakely filed in support of Defendant's motion for summary judgment. For the following reasons, Plaintiff's motion will be denied, Defendant's motion will be granted, and the case will be dismissed.

         PRELIMINARY MATTERS

         Before turning to Defendant's motion for summary judgment, the court must address Plaintiff's motion to strike the affidavit of Armondo Blakely, which Defendant submitted in support of its motion for summary judgment. Defendant contends that Blakely is its former employee who was present during the occurrence giving rise to Plaintiff's claims and created an affidavit based on his personal knowledge of those events. Rule 56 of the Federal Rules of Civil Procedure allows the submission of affidavits in support of a party's factual position. Fed.R.Civ.P. 56(c)(1). An affidavit used in support of a motion for summary judgment “must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4).

         There is no dispute that Blakely's statements are based on his first-hand knowledge of the events and that he is able to state what he did and what he observed. Instead, Plaintiff asserts that the affidavit should be stricken because Defendant produced and disclosed the affidavit one month after the liability discovery deadline. Rule 56 contemplates the creation of affidavits in support of a party's motion for summary judgment and does not require that the party produce the affidavit in advance of filing its motion. In this case, Defendant identified Blakely as an individual with knowledge of the circumstances of the incident in its response to Plaintiff's interrogatories. Dkt No. 32-5 at 4. That is all that is required.

         Plaintiff also argues that the affidavit is improper because it was “strategically crafted to bolster the Defendant's Motion for Summary Judgment.” Dkt. No. 32 at 2. The Seventh Circuit has foreclosed the argument that self-serving affidavits are improper, however. See Hill v. Tangherlini, 724 F.3d 965, 967 (7th Cir. 2013) (“As we have repeatedly emphasized over the past decade, the term ‘self serving' must not be used to denigrate perfectly admissible evidence through which a party tries to present its side of the story at summary judgment.”); see also Widmanr v. Sun Chem. Corp., 772 F.3d 457, 459-60 (7th Cir. 2014) (“[S]elf-serving affidavits can indeed be a legitimate method of introducing facts on summary judgment.” (citations omitted)).

         Finally, Plaintiff asserts that the court should strike the affidavit because Blakely's credibility is suspect. But any objections related to weight or credibility must be denied, as credibility concerns are not considered by the court at the summary judgment stage. See Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003) (“On summary judgment a court may not make credibility determinations, weigh the evidence, or decide which inferences to draw from the facts; these are jobs for the factfinder.” (citations omitted)). Instead, the court “has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial.” Id. (quoting Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994)). Blakely's affidavit is properly before this court. Accordingly, Plaintiff's motion to strike is denied. The court now turns to Defendant's motion for summary judgment.

         BACKGROUND

         On April 1, 2018, Addie Wilkins, Plaintiff's mother, brought Plaintiff, Plaintiff's sister, and Wilkins' ex-boyfriend's daughter to Skateland Roller Skating rink in Indianapolis, Indiana to skate during a public skate session. They arrived at Skateland between 3:00 and 3:30 p.m., and Wilkins rented skates for the three girls. Plaintiff felt “wobbly” on her skates and held onto the inside wall as she skated to ensure that she would not fall or hit something if she lost her balance. Ex. 3, 13:5-7. Surveillance video of the date of the incident shows Plaintiff skating around the rink near the inside wall from 16:36:00 until her fall at 16:37:17. Plaintiff is first seen in the video with her arms out to her sides. Two male patrons can also be seen passing a device used to assist skaters with keeping their balance, or a “Skate Mate, ” between them. The video records the boys passing the device four times. At 16:37:10, Plaintiff skates around the center of the rink into the view of the surveillance camera. The two male patrons are then observed skating by Plaintiff when she suddenly falls at 16:37:17. The boys were not holding or passing the Skate Mate near Plaintiff when she fell. Although Plaintiff claims that one of the two boys put his hands on her back and pushed her down from behind, the video only shows the boy skating near Plaintiff and does not show that the boy pushed her. At the time of the incident, there were approximately 25 to 30 people on the skating rink floor.

         Prior to the start of the surveillance video and approximately two minutes before Plaintiff's fall, floor guard and disc jockey, Armondo Blakely, observed the two male patrons passing the Skate Mate and warned them to stop. Blakely then walked over to the center of the floor to change the music that was playing at the DJ booth. Blakely asserts that he did not observe the two male patrons passing the Skate Mate after he had warned them to stop.

         Plaintiff's mother did not witness Plaintiff's fall because she was at the concession stand with her back turned away from the skating floor. Wilkins also had not observed Plaintiff skating at any point prior to the fall because she felt that the girls were “old enough to skate without supervision.” Ex. 1, 17:22-25, 18:1-4.

         Defendant posted several signs warning patrons of the risks inherent in skating and that they were skating “at your own risk” throughout Skateland, including at the front door, at the skate counter, on the DJ booth, in the café area, and near the customer lockers, and plays a two to three minute warning message over the loud speaker before each skating session begins. Defendant also employs floor guards who monitor the skating floor at all times and warn skaters about rule violations. All of Defendant's employees are required to attend mandatory quarterly training meetings. The last training meeting before the incident occurred on March 26, 2018. Although Skateland had scheduled three floor guards to be on staff on the date of the incident, at the time of Plaintiff's fall, one floor guard was out on the floor and the others were taking their breaks or managing the skate counter. Defendant inspected the floor immediately after Plaintiff's fall and noted it was clean, dry, and free of debris. Plaintiff's roller skates were also examined and nothing was noted to be wrong with them.

         LEGAL STANDARD

         Summary judgment is appropriate when the movant shows that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). In deciding a motion for summary judgment, the court must view the evidence and make all reasonable inferences that favor them in the light most favorable to the non-moving party. Johnson v. Advocate Health & Hosps. Corp., 892 F.3d 887, 893 (7th Cir. 2018) (citing Parker v. Four Seasons Hotels, Ltd., 845 F.3d 807, 812 (7th Cir. 2017)). The party opposing the motion for summary judgment must “submit evidentiary materials that set forth specific facts showing that there is a genuine issue for trial.” Siegel v. Shell Oil Co., 612 F.3d 932, 937 (7th Cir. 2010) (citations omitted). “[A] factual dispute is ‘genuine' for summary judgment purposes only when there is ‘sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.'” Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). “[A] ‘metaphysical doubt' regarding the existence of a genuine fact issue is not ...


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