United States District Court, S.D. Indiana, Indianapolis Division
ENTRY ON PENDING MOTIONS
WALTON PRATT, JUDGE
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).
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.
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).
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.
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.)
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
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.)
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).
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).
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.
Menard's Motion to Strike (Filing No.
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
disputed portion of her March 27, 2019 affidavit, Thomas
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