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Thomas v. Menard, Inc.

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

August 30, 2019

REBECCA THOMAS, Plaintiff,
v.
MENARD, INC., Defendant. MENARD, INC., Third Party Plaintiff,
v.
SECURITAS SECURITY SERVICES USA, INC., Third Party Defendant.

          ENTRY ON PENDING MOTIONS

          TANYA WALTON PRATT, JUDGE

         This matter is before the Court on three pending motions: (1) Defendant Menard, Inc.'s (“Menard”) Motion to Strike Plaintiff's Affidavit (Filing No. 59) and Motion for Summary Judgment (Filing No. 40); and (3) Third Party Defendant Securitas Security Services USA, Inc.'s (“Securitas”) Motion for Summary Judgment (Filing No. 42). After tripping on a cord and becoming injured while working security at a Menard's hardware store and lumber yard, Plaintiff Rebecca Thomas (“Thomas”) brought this suit in state court against Menard to recover damages she incurred for her injuries. (Filing No. 1-1.) Menard removed the case to federal court (Filing No. 1) and filed a third-party complaint seeking indemnification from Securitas (Filing No. 19).

         On February 20, 2019, both Menard and Securitas moved for summary judgment. (Filing No. 40; Filing No. 42). Attached to Thomas's response to Menard's Summary Judgment Motion was an affidavit signed by Thomas dated March 27, 2019 (Filing No. 56-1.) Menard moved to strike that affidavit. (Filing No. 59.) For the following reasons, Menard's Motion to Strike Plaintiff's Affidavit is denied. Menard's Motion for Summary Judgment is denied. Securitas's Motion for Summary Judgment is granted.

         I. BACKGROUND

         The following facts are not necessarily objectively true, but as required by Federal Rule of Civil Procedure 56, the facts are presented in the light most favorable to Thomas as the non-moving party. See Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

         In January 2016, Thomas provided security services in the “guard shack” at the Menard's store in Camby, Indiana. (Filing No. 41-1 at 2-3.) She was not employed by Menard; rather, she was employed by Securitas, who had contracted with Menard to provide security at the Camby store. Id. at 2. Thomas's job duties included checking customers in and out of Menard's lumber yard, which involved occasionally exiting and reentering her guard shack with a digital tablet to inventory merchandise purchased by customers. Id. at 2, 6.

         The weather on January 19, 2016 was cold, and the heater in the guard shack where Thomas worked was malfunctioning. (Filing No. 56-1 at 2.) Menard's First Assistant General Manager Brandy Keller provided Thomas with a replacement space heater and an extension cord for the guard shack at Thomas request. (Filing No. 56-3 at 6.) Keller handed the heater and extension cord to Thomas so that she could plug the heater in anywhere in the guard shack. (Filing No. 41-1 at 8; Filing No. 56-3 at 6.) Thomas placed the space heater in a position that resulted in the extension cord laying on the floor in front of and across the door that she used for ingress and egress when checking customers in or out of the lumber yard. (Filing No. 41-3 at 5:25:41.) None of Menard's employees made any effort to replace the space heater or cord that day or overnight so that it would not be hazardous. (Filing No. 56-1 at 3.)

         The next morning, as Thomas exited the guard shack to attend to a customer, she tripped over the extension cord. Id. As a result of that fall, she suffered injuries to her left ankle, left wrist, and left knee. Id. Security camera footage of the fall shows that as she was exiting the guard shack, Thomas stepped over the cord with her right foot and picked up her tablet, but then caught her left foot on the cord, which caused her to fall. (Filing No. 41-4 at 8:54:05.)

         On January 19, 2018, Thomas filed a Complaint against Menard in the Marion Superior Court, and this Court granted Menard's petition for removal. (Filing No. 1.) Menard answered the Complaint and, on August 22, 2018, filed a Third-Party Complaint against Securitas, seeking to have Securitas indemnify it for any liability. (Filing No. 19.) Securitas answered the Complaint on October 15, 2018 (Filing No. 26), and on February 20, 2019, both Menard and Securitas moved for summary judgment. (Filing No. 40; Filing No. 42.)

         II. LEGAL STANDARD

         Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 489-90 (7th Cir. 2007). In ruling on a motion for summary judgment, the court reviews “the record in the light most favorable to the non-moving party and draw[s] all reasonable inferences in that party's favor.” Zerante, 555 F.3d at 584 (citation omitted). “However, inferences that are supported by only speculation or conjecture will not defeat a summary judgment motion.” Dorsey v. Morgan Stanley, 507 F.3d 624, 627 (7th Cir. 2007) (citation and quotation marks omitted). Additionally, “[a] party who bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial.” Hemsworth, 476 F.3d at 490 (citation omitted). “The opposing party cannot meet this burden with conclusory statements or speculation but only with appropriate citations to relevant admissible evidence.” Sink v. Knox County Hosp., 900 F.Supp. 1065, 1072 (S.D. Ind. 1995) (citations omitted).

         “In much the same way that a court is not required to scour the record in search of evidence to defeat a motion for summary judgment, nor is it permitted to conduct a paper trial on the merits of [the] claim.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001) (citations and quotation marks omitted). “[N]either the mere existence of some alleged factual dispute between the parties nor the existence of some metaphysical doubt as to the material facts is sufficient to defeat a motion for summary judgment.” Chiaramonte v. Fashion Bed Grp., Inc., 129 F.3d 391, 395 (7th Cir. 1997) (citations and quotation marks omitted).

         III. DISCUSSION

         There are three pending motions before the Court: (1) Menard's Motion to Strike (Filing No. 59); (2) Menard's Motion for Summary Judgment (Filing No. 40); and (3) Securitas' Motion for Summary Judgment (Filing No. 42). The Court will address each motion separately.

         A. Menard's Motion to Strike (Filing No. 59)

         Menard asks the Court to strike Thomas's affidavit attached to Plaintiff's Response to Defendant Menard, Inc.'s Motion for Summary Judgment (Filing No. 56-1). Menard argues that “Thomas attempts to use her Affidavit to support newly-asserted arguments in her Response that she was distracted by the tablet she needed to carry and that her attention was diverted by the customer so she was unable to appreciate that the extension cord was lying across the exit door.” (Filing No. 59 at 4.) Menard claims the affidavit contradicts Thomas' deposition testimony.

         In the disputed portion of her March 27, 2019 affidavit, Thomas affirms:

25. However, as I was exiting the shack, my attention was focused on meeting the customer who was pulling up to the shack in a vehicle.
26. As I was exiting the guard shack, my attention was not focused on the cord near my feet.
27. Because my attention was focused on the customer outside the shack and not on the cord on the floor, I failed to avoid ...

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