United States District Court, S.D. Indiana, Indianapolis Division
ENTRY GRANTING DEFENDANT'S MOTION FOR SUMMARY
WALTON PRATT, JUDGE
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
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).
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.
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. 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.
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
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.
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
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.
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.
date Whitlock fell, as part of Menard's standard
operating procedure after an incident, a Menard front end
manager, Yolanda Lozinski, filled out a General Liability Notice
of Occurrence/Claim form. (Filing No. 58-8 at 7.) In
the “DESCRIPTION OF ACCIDENT” field, the manager
GUEST WAS WALKING OUT THE ENTRANCE DOOR AND SLIPPED ON A
“T ” (sic) SHAPED PIECE OF WOOD. FELL AND CLAIMS
HE HURT HIS RIGHT SHOULDER AND HIP. THE VIDEO FOOTAGE SHOWS
THE GUEST WALK INTO THE STORE 8 MINUTES PRIOR AND LOOKS AT
THE PIECE OF WOOD ON THE FLOOR THEN SLIPS ON IT ON THE WAY
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.)
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
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. Quotesmith.com, 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.
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).
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.
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
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. ...