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Whitlock v. Menard, Inc.

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

January 6, 2020

MENARD, INC., Defendant.



         This matter is before the Court on Defendant Menard, Inc.'s (“Menard”) Motion for Summary Judgment (Filing No. 24). Plaintiff Jeffrey A. Whitlock (“Whitlock”) filed this negligence action seeking damages, after he slipped on a piece of debris and suffered injuries while shopping at a Menard's retail store. (Filing No. 1-1.) For the reasons explained below, the Court grants Menard's Motion for Summary Judgment.

         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 Whitlock 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).

         Menard owns and operates a big box retail store in Lafayette, Indiana, located at 2850 South Creasy Lane. (Filing No. 7.) Whitlock, a resident of Lafayette, visited the Creasy Lane store twice on April 25, 2016. At approximately 10:00 a.m., he visited the store and purchased gloves and a tree saw. (Filing No. 26-4 at 28-29.) During that visit he did not observe any foreign objects or hazards in the front of the store near the customer service counter. Id. at 30-31.

         Later that day, Whitlock returned to the store at approximately 4:00 p.m. to exchange the package of gloves that he had purchased earlier for another package. He entered the store through the main entrance and went to the customer service counter.[1] Id. at 31-32. Whitlock then returned to the section of the store where he had found the gloves earlier that morning. As he walked from the customer service counter to retrieve the replacement gloves, he walked within ten feet of the spot where he ultimately slipped and did not notice a piece of debris on the floor. Id. at 37, 43. After retrieving the package of gloves, he walked back to the customer service counter along the same general path and conducted his business at the customer service counter. Id. at 41, 44. As he went to exit through the store's main entrance, Whitlock slipped and fell on “a very slick piece of something” that appeared to be a piece of door moulding. Id. at 23-25. Whitlock estimates that he was in the store twenty to twenty-five minutes before his fall. Id. at 38-40.

         The moulding that Whitlock slipped on was white, matching the color of the store's linoleum floor. (Filing No. 26-6, Filing No. 26-4 at 48.) He estimates that the piece of moulding was about 4” long and 2 1/2” wide. (Filing No. 26-4 at 35.) Whitlock had no idea what caused the loose piece of molding to be on the floor or how long it had been there. (Filing No. 26-4 at 55.)

         Two security camera videos provide clips of Whitlock in the store at the time of his slip and fall. (Filing No. 26-3.) The first video is a close view from behind the cash register at the customer service counter. Id. Whitlock enters the frame with a plastic bag in hand and waits in line at the customer service counter. He is summoned by a cashier to a different register at the customer service counter, and he exits the frame to the right, then walks back through the frame with his bag. The video then shows Whitlock approaching the counter again with two packages of gloves. A Menard's employee processes his exchange, and Whitlock exits the frame once again. The slip and fall is not shown on this first video, but it does show a different Menard's employee jumping over a low part of the customer service counter to attend to Whitlock after he fell.

         The second video shows a wider view, capturing part of the customer service counter and the entire entrance to the store. This video shows Whitlock walk into the frame from the right side and then slip and fall on the floor in the entrance area of the store. Whitlock was the only customer at the customer service counter area at the time of the fall. Two Menard employees come to his aid, and he is eventually accompanied out of the store by what appears to be medics who have arrived on scene. The piece of debris that Whitlock slipped on is not visible in this video. The store does not appear to be busy with a high volume of guests in either video.

         After the fall, Whitlock was transported to Indiana University Arnett Hospital's emergency room by ambulance. (Filing No. 26-4 at 53.) As a result of the fall he sustained injuries to his right shoulder, right hip, and lower back. Id. at 13-14. At the hospital, Whitlock had X-rays taken and according to Whitlock, those X-Rays “basically were negative.” Id. The doctor he saw that day “did not diagnose him with anything.” Id. at 54. However, approximately three days after the fall, Whitlock saw his primary care physician, who referred him to an orthopedic specialist. Id. at 60. The specialist recommended physical therapy and prescribed oral medication to manage Whitlock's pain. Id. at 60-61.

         At the time of the fall, Whitlock worked part-time inserting advertisements and various other inserts into the Lafayette Journal & Courier. Id. at 8. He missed four days of work after the fall (Id. at 63), and his injury also “changed the process that [Whitlock uses] to perform [his] job.” Id. at 21. Whitlock has been unable to do certain hobbies and household activities became difficult to perform after he sustained injuries from the fall. Id. at 14-17.

         On the date Whitlock fell, as part of Menard's standard operating procedure after an incident, a Menard front end manager, Yolanda Lozinski[2], filled out a General Liability Notice of Occurrence/Claim form. (Filing No. 58-8 at 7.) In the “DESCRIPTION OF ACCIDENT” field, the manager wrote:



         Menard has not designated a written policy or procedure regarding detection or removal of debris and/or foreign objects from the floor of the store; however, employees are trained and/or required to monitor the aisles and floors for hazards and to immediately remedy any hazard they may see or encounter. (Filing No. 26-1 at 4, ¶11; Filing No. 26-2 at 4, ¶12.)

         On April 24, 2018, Whitlock filed a Complaint in the Marion Superior Court and on May 4, 2018, Menard removed the action to federal court. (Filing No. 1-1.) Menard filed a Motion for Summary Judgment on May 2, 2019. (Filing No. 24.) Whitlock responded on September 6, 2019, and designated certain evidence, among which was the Affidavit of H. Richard Hicks (“Hicks”), a registered professional engineer who has no firsthand knowledge of the accident but who has reviewed depositions, surveillance videos, and other evidence relevant to the case. (Filing No. 57; Filing No. 58-4.) On October 21, 2019, Menard filed a Reply in Support of Motion for Summary Judgment and Motion to Strike Expert Affidavit. (Filing No. 61.) The next day, Menard filed an amended Reply in Support of Motion for Summary Judgment which contains an objection to Hicks' affidavit. (Filing No. 64). Whitlock filed a Surreply on October 28, 2019. (Filing No. 65.)


         The purpose of summary judgment is to “pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 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., Inc., 476 F.3d 487, 489-90 (7th Cir. 2007). A disputed fact must be “material, ” which means that it might affect the outcome of the case under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Disputes over irrelevant or unnecessary facts do not preclude summary judgment. Id. A genuine dispute of material fact exists if “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Id. at 249.

         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).


         Menard asserts that the designated evidence shows it had no actual or constructive knowledge of any hazard prior to Whitlock's fall and, accordingly, it did not breach its duty to exercise reasonable care and thus, is entitled to summary judgment as a matter of law. In response, Whitlock asserts that summary judgment fails on three grounds. First, he contends there are disputes of material fact, including whether Menard had actual or constructive notice of the hazard, and these disputed material facts warrant a trial. Second, he argues that summary judgment is rare under Indiana negligence law. Third, Whitlock asserts that Menard spoilated material evidence requiring a negative inference against Menard which precludes summary judgment. The Court will first address the negligence standard under Indiana law.

         A. Indiana Negligence

         The Court's jurisdiction over this matter is based on diversity pursuant to 28 U.S.C. § 1332, therefore, substantive principles of state law apply to Whitlock's claim. Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 527 (1996). Under Indiana law, a negligence action contains three elements. City of S. Bend v. Dollahan, 918 N.E.2d 343, 352 (Ind.Ct.App. 2009). To succeed on his negligence claim, Whitlock must establish that: (1) Menard had a duty to conform its conduct to a standard of care arising from its relationship with him, (2) Menard failed to conform its conduct to that standard of care, and (3) Whitlock sustained an injury proximately caused by Menard's breach. Id. Regarding the first element, it is undisputed that Whitlock was a business invitee of Menard, therefore, Menard owed him a duty to exercise reasonable care for his protection. Schulz v. Kroger Co., 963 N.E.2d 1141, 1144 (Ind.Ct.App. 2012) (citing Burrell v. Meads, 569 N.E.2d 637, 642 (Ind. 1991)). Menard would breach this duty only if it:

a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees; and
b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it; and,
c) fails to exercise reasonable care to protect them against the danger.

Burrell, 569 N.E.2d at 640 (quoting (Restatement (Second) of Torts § 343 (1965)). “As an invitor is not the insurer of the invitee's safety, and before liability may be imposed on the invitor, it must have actual or constructive knowledge of the danger.” Schulz at 1144 (citing Carmichael v. ...

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