Raska v. Bob Evans Farms Inc
Filing
32
OPINION AND ORDER denying 27 Motion for Summary Judgment. Signed by Magistrate Judge Andrew P Rodovich on 10/4/11. (mc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
RANDY RASKA,
Plaintiff
v.
BOB EVANS FARMS, INC.,
Defendant
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CIVIL NO. 2-09-cv-147
OPINION AND ORDER
This matter is before the court on the Motion for Summary
Judgment [DE 27] filed by the defendant, Bob Evans Farms, Inc.,
on May 31, 2011.
For the reasons set forth below, the motion is
DENIED.
Background
On April 14, 2008, Randy Raska slipped and fell in the men’s
restroom at Bob Evans Restaurant in Michigan City, Indiana,
allegedly injuring his right shoulder rotator cuff.
Supp. of MSJ pp. 8, 11)
(Mem. in
After refusing an ambulance at the
restaurant, Raska’s mother-in-law, Kay Wilson, drove Raska to the
emergency room at St. Anthony’s Hospital in Michigan City.
of Randy Raska, p. 89)
(Dep.
A video arthroscopy performed on May 19,
2008, revealed a right rotator cuff tear, impingement syndrome of
the right shoulder, and intraarticular synovitis of the glenohumoral joint. (Auth. Med. Rec. p. 155)
A subacromial decompres-
sion anterior acromioplasty and open rotator cuff repair were
performed.
(Auth. Med. Rec. p. 155)
On May 22, 2009, Raska filed a complaint against Bob Evans.
Raska alleges that Bob Evans owed a duty to patrons to provide
restroom facilities that were not dangerous due to wet floors.
(Comp. p. 2) Specifically, Raska claims that Bob Evans was
negligent in failing to maintain the restroom by not removing
excess water from mopping, failing to warn of the dangerous
conditions of the floor when Bob Evans knew or should have known
that others could be injured, and failing to inspect the restroom
at regular intervals to discover the hazardous conditions.
(Comp. p. 2)
On January 26, 2011, Raska’s attorneys withdrew from the
case.
Raska has not obtained new counsel and has proceeded pro
se.
On May 31, 2011, Bob Evans filed a Motion for Summary Judgment alleging that it owed no duty to Raska because the condition
of the floor was open and obvious, and thus Raska should have
protected himself.
(Mem. in Supp. of MSJ, pp. 15-16)
The Motion
for Summary Judgment was filed with the required Timms Notice,
warning Raska of the consequences of failing to respond.
Raska
responded with a short, four paragraph affidavit swearing that he
2
did not see water on the floor when he entered the restroom and
that he never stated anything to the contrary.
The circumstances surrounding Raska’s fall on April 14,
2008, as portrayed by the Complaint are mostly in line with the
evidence provided by the defendants in support of summary judgment.
After finishing his meal, Raska went to the restroom,
leaving his wife and mother-in-law at the table.
80; Mem. in Supp. of MSJ, p. 11)
(Raska Dep. p.
Raska entered the restroom,
took three steps, and slipped and fell on "soapy water."
(Raska
Dep. pp. 83, 89) Raska testified that he fell down on his hip
with his arm out to break his fall and that he heard a "popping
sound" in his shoulder when he hit the floor.
After yelling for
help to no avail, Raska pulled himself up with his left hand,
using the sink and the wall to guide him to the door.
(Raska
Dep. p. 83)
Wilson testified that Raska came up to her as she was paying
the bill to tell her that he had fallen.
pp. 21-22)
(Dep. of Kay Wilson,
Wilson explained that Raska’s clothes were wet and
that he looked injured.
(Wilson Dep. pp. 20-21)
Wilson testi-
fied that she then went to look in the men’s restroom to see the
condition of the floor.
Wilson stated that the room was well-lit
and that she could plainly see that the floor was covered in
"sudsy bubbles."
(Wilson Dep. p. 23)
3
Raska similarly testified
that the lighting in the restroom had nothing to do with his
injury and that the whole restroom floor appeared as though
"somebody just opened the door and throwed a bucket of water in
there."
(Raska Dep. p. 91)
Willie Hicks was the Bob Evans dishwasher responsible for
cleaning the restrooms at the time of the incident.
Hicks
testified that he only cleaned the restrooms at the end of the
night before the restaurant closed.
(Dep. of Willie Hicks, p. 7)
Hicks stated that before he began cleaning the men’s restroom on
April 14, 2008, he put a caution sign warning patrons of the wet
floor in between the men’s and women’s restroom so that it would
be seen by anyone entering the restroom.
(Hicks Dep. p. 15)
Hicks would place a cleaning solution on the floor, use a large
squeegee to move excess water into the drain, and then used a dry
mop to absorb the rest of the water.
(Hicks Dep. pp. 7-8)
He
also stated that it was the manager's duty to inspect the restrooms after they were cleaned.
Hicks was on his way out.
Raska entered the restroom as
(Hicks Dep. p. 16) Scott Moore, area
manager for Bob Evans at the time of the incident, testified that
he believed the procedure as described by Hicks was standard for
that restaurant.
(Dep. of Scott Moore, p. 15)
Moore also ex-
plained that there was no company procedure that explained how
the restrooms were to be mopped.
(Moore Dep. p. 11)
4
Kenneth Pepper, assistant manager at Bob Evans at the time
of the incident, testified that after he was informed of the
fall, he went to inspect the restroom.
pp. 29-30)
(Dep. of Kenneth Pepper,
He stated that he saw the yellow caution sign warning
patrons of wet floors propped against a table directly next to
the men’s restroom before he entered.
(Pepper Dep. p. 30)
He
also stated that he did not see any water puddles on the restroom
floor.
(Pepper Dep. p. 29)
In contrast to Raska’s testimony, Mary Bragg, who lives with
Raska’s brother and has known Raska for about 12 years, testified
that Raska told her that he had thrown the water on the floor
himself to get money from Bob Evans.
(Dep. of Mary Bragg, p. 7)
Bragg explained that Raska told her that he was used to "scamming
people."
Bragg also contended that this was not the first time
that Raska had done something like this.
(Bragg Dep. p. 7)
She
stated that there were fires in Ohio that he had started himself
as well as a car accident where he backed into another vehicle to
make it appear as though that vehicle had hit him.
(Bragg Dep.
p. 7)
Discussion
Pursuant to Federal Rule of Civil Procedure 56(c), summary
judgment is proper only if it is demonstrated that "there is no
genuine issue as to any material fact and the moving party is
5
entitled to a judgment as a matter of law."
Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986); Stephens v. Erickson, 569 F.3d 779, 786 (7th Cir. 2009).
The burden is upon the moving party to establish that no material
facts are in genuine dispute, and any doubt as to the existence
of a genuine issue must be resolved against the moving party.
Adickes v. S.H. Kress & Company, 398 U.S. 144, 160, 90 S.Ct.
1598, 1610, 26 L.Ed.2d 142, 155 (1970); Stephens, 569 F.3d at
786.
A fact is material if it is outcome determinative under
applicable law.
There must be evidence on which the jury could
reasonably find for the nonmoving party.
Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d
202, 212 (1986); Stephens, 569 F.3d at 786; Wheeler v. Lawson,
539 F.3d 629, 634 (7th Cir. 2008).
Summary judgment is inappropriate for determination of
claims in which issues of intent, good faith, and other subjective feelings play dominant roles.
781, 784 (7th Cir. 2006).
Ashman v. Barrows, 438 F.3d
Upon review, the court does not evalu-
ate the weight of the evidence, judge the credibility of witnesses, or determine the ultimate truth of the matter; rather,
the court will determine whether there exists a genuine issue of
triable fact.
Wheeler, 539 F.3d at 634 (citing Anderson, 477
U.S. at 248, 106 S.Ct. at 2510).
6
In deciding a motion for summary judgment, the trial court
must determine whether the evidence presented by the party
opposed to the summary judgment is such that a reasonable jury
might find in favor of that party after a trial.
The inquiry performed is the threshold inquiry of determining whether there is the
need for a trial--whether, in other words,
there are any genuine factual issues that
properly can be resolved only by a finder of
fact because they may reasonably be resolved
in favor of either party.
[T]his standard mirrors the standard for a
directed verdict under Federal Rule of Civil
Procedure 50(a), which is that the trial
judge must direct a verdict if, under the
governing law, there can be but one reasonable conclusion as to the verdict.
Anderson, 477 U.S. at 250, 106 S.Ct. at 2511
See also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
149-151, 120 S.Ct. 2097, 2109, 147 L.Ed.2d 105, 120-122 (2000)
(setting out the standard for a directed verdict); Celotex Corp.,
477 U.S. at 322-23, 106 S.Ct. at 2553; Stephens, 569 F.3d at 786;
Argyropoulos v. City of Alton, 539 F.3d 724, 732 (7th Cir. 2008)
(stating that a genuine issue is one on which a reasonable fact
finder could find for the nonmoving party); Springer v. Dur-
flinger, 518 F.3d 479, 483 (7th Cir. 2008)(stating that a genuine
issue exists and summary judgment is inappropriate if there is
sufficient evidence for a jury to return a verdict for the
nonmoving party).
7
"As a pro se litigant, [a] [p]laintiff is permitted a more
lenient standard with respect to her pleadings than that imposed
on a practicing attorney."
Cintron v. St. Gobain Abbrassives,
Inc., 2004 WL 3142556, *1 (S.D. Ind. Nov. 18, 2004).
Although
the court recognizes that pro se litigants face special challenges that litigants represented by counsel do not, pro se
litigants are not excused from following procedural rules simply
because the "rules of procedure are based on the assumption that
litigation is normally conducted by lawyers."
Lee v. Wal-Mart
Stores, 1994 WL 899240, *1 (N.D. Ind. Apr. 12, 1994).
The Lee
court explained that
[the court] ha[s] never suggested that procedural rules in ordinary civil litigation
should be interpreted so as to excuse mistakes by those who proceed without counsel.
As we have noted before, "in the long run,
experience teaches that strict adherence to
the procedural requirements specified by the
legislature is the best guarantee of evenhanded administration of the law."
Lee, 1994 WL 899240 at *1 (quoting Mohasco
Corp. v. Silver, 447 U.S. 807, 826, 100
S.Ct. 2486, 2497, 65 L.Ed.2d 532 (1980))
A defendant filing a motion for summary judgment must warn a
pro se plaintiff of the consequences of failing to respond to the
motion.
Timms v. Frank, 953 F.2d 281, 285 (7th Cir. 1992).
The
notice must include a short statement informing the plaintiff
that all factual assertions made by the defendant will be taken
8
as true should the plaintiff fail to respond. Timms, 953 F.2d at
285. See also, Local Rule Appendix C, Notice to Pro Se Litigant.
Bob Evans served a proper Timms notice to Raska on May 31, 2011.
Pursuant to Local Rule 56.1(a), Raska had 30 days to respond.
Raska filed a timely, but brief, response on June 24, 2011.
Because Raska filed a negligence claim against Bob Evans,
there are several elements he must prove.
The elements that a
plaintiff must prove to succeed on a negligence claim in Indiana
are (1) a duty owed to the plaintiff, (2) a breach of that duty
by the defendant, and (3) the breach proximately caused the
plaintiff’s damages.
Bond v. Walsh & Kelly, Inc., 869 N.E.2d
1264, 1266 (Ind. App. 2007) (citing Peters v. Foster, 804 N.E.2d
736, 742 (Ind. 2004)).
Breach of a duty and proximate cause
issues are generally questions of fact.
See Peters, 804 N.E.2d
at 743; King v. Northeast Security, Inc., 790 N.E.2d 474, 484
(Ind. 2003).
The court may conclude as a matter of law that a
breach of duty has occurred only where the facts are undisputed
and lead to but a single inference or conclusion.
King, 790
N.E.2d at 484; Cullop v. State, 821 N.E.2d 403, 407 (Ind. App.
2005); Oxley v. Lenn, 819 N.E.2d 851, 856 (Ind. App. 2004).
"Generally, whether a duty exists is a question of law for
the court to decide."
Rhodes v. Wright, 805 N.E.2d 382, 386
(Ind. 2004)(citing Hooks SuperX, Inc. v. McLaughlin, 642 N.E.2d
9
514, 517 (Ind. 1994)).
"The question of whether a duty is owed
in premises liability cases depends primarily upon whether the
defendant was in control of the premises when the accident occurred."
Yates v. Johnson County Bd. of Commissioners, 888 N.E.2d
842, 847 (Ind. App. 2008)(citing Beta Steel v. Rust, 830 N.E.2d
62, 70 (Ind. App. 2005)).
Determining the existence of a duty
may depend upon underlying facts that require resolution by a
trier of fact.
Rhodes, 805 N.E.2d at 386-87.
"The nature and extent of a landowner’s duty to persons
coming on the property is defined by the visitor’s status as an
invitee, a licensee, or a trespasser."
Harradon v. Schlama-
dinger, 913 N.E.2d 297, 300 (Ind. App. 2009)(citing Rhoades v.
Heritage Inv., LLC, 839 N.E.2d 788, 791 (Ind. App. 2005)).
An
invitee is owed the highest duty of care: "the duty to exercise
reasonable care for the invitee’s protection while he or she is
on the premises."
Harradon, 913 N.E.2d at 300-01.
The duty owed
to a licensee is to refrain from willfully or wantonly injuring
him or acting in a manner to increase his peril, which includes
the duty to warn a licensee of any latent or non-obvious danger
on the premises of which the landowner has knowledge.
N.E.2d at 848.
Yates, 888
A trespasser is owed merely the duty to refrain
from wantonly or willfully injuring him after discovering his
presence.
Yates, 888 N.E.2d at 848-49.
10
Yates instructs with respect to the determination of the
visitor’s status:
An invitee is a person who is invited to
enter or to remain on another’s land. There
are three categories of invitee: the public
invitee, the business visitor, and the social
guest. Licensees and trespassers are persons
who enter the land of another for their own
convenience, curiosity, or entertainment and
take the premises as they find them. Unlike
trespassers, however, licensees have a privilege to enter or remain on the land by virtue
of the landowner’s or occupier’s permission
or sufferance. In determining whether an
individual is an invitee or a licensee, the
distinction between the terms "invitation"
and "permission" is critical. (internal
cites and quotes omitted).
888 N.E.2d at 849
The Second Restatement of Torts defines a public invitee as "a
person who is invited to enter or remain on land as a member of
the public for a purpose for which the land is held open to the
public" and a business visitor as "a person who is invited to
enter or remain on land for a purpose directly or indirectly
connected with business dealings with the possessor of the land."
Restatement (Second) of Torts, §332(2)-(3)(1965).
A customer is generally an invitee on the business owner’s
property and is owed the highest degree of care.
Meads, 569 N.E.2d 637, 642 (Ind. 1991).
Burrell v.
Indiana has adopted the
Second Restatement of Torts, which explains the duty of care a
business owner owes to an invitee:
11
A possessor of land is subject to liability
for physical harm caused to his invitees by a
condition on the land if, but only if, he
(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.
Restatement (Second) of Torts §343
See also Robinson v. Wal-Mart Stores East, LP, 2009 WL 127029, *4
(S.D. Ind. 2009) (Although a business owner is not an insurer of
safety, he owes patrons a duty to exercise reasonable care and
survey his property for defects and dangerous conditions).
The
plaintiff carries the burden of proving each of these elements
against the business owner.
Hi-Speed Auto Wash, Inc. v. Simeri,
346 N.E.2d 607, 608 (Ind. App. 1976); Robinson, 2009 WL 127029 at
*4.
Raska was a customer at Bob Evans and therefore was owed the
highest duty of care.
It is unclear whether Bob Evans knew or
should have known of an unreasonably unsafe condition on its
restroom floor because the record is littered with contradictory
evidence concerning the condition of the floor.
12
The Bob Evans
manager stated that the floor was clean and dry at the time he
checked.
The Bob Evans dishwasher responsible for cleaning the
restroom floor testified that he pushed the excess water into the
drain and then exited the restroom.
Raska immediately entered
the restroom and testified that there was standing water on the
floor.
Wilson confirmed that there was water and "sudsy" bubbles
on the floor immediately following Raska’s fall.1 Therefore, the
true condition of the floor at the time Raska entered remains in
controversy.
Assuming the condition of the floor was unreasonably unsafe,
the dishwasher who created the condition and exited the restroom
immediately preceding Raska’s entrance had the opportunity to
observe and remedy the potentially hazardous condition.
The
business proprietor is charged with the actual knowledge of
dangerous conditions created by or known to his employees.
See
Wal-Mart Stores, Inc. v. Blaylock, 591 N.E.2d 624, 627-28 (Ind.
App. 1992)(explaining that a business proprietor is charged with
the actual knowledge of dangerous conditions created by his
employees); Kroger Co. v. Ward, 267 N.E.2d 189, 192 (Ind. App.
1971) (explaining that the store was charged with the knowledge
of a dangerous condition the store manager was aware of). If the
1
Raska submitted an affidavit attempting to retract this statement. For
the reasons set forth below, the court will not consider this statement in
Raska’s affidavit.
13
dishwasher created the wet and slippery floor, his conduct and
knowledge is attributed to Bob Evans.
In light of the contradic-
tory evidence, an issue of fact necessary to determine whether
the condition of the floor was unreasonably unsafe remains
pending.
Bob Evans focuses its argument on the second prong of the
analysis, whether it should have expected that an invitee would
not discover or realize the danger, or would fail to protect himself against it.
Although this is an objective standard, focus-
ing on whether a reasonable person would realize and protect himself from the danger, Bob Evans addresses this argument by citing
to Raska’s acknowledgment that the alleged hazard was in plain
view on the bathroom floor.
Smith v. Baxter, 796 N.E.2d 242, 244
(Ind. 2003)(explaining that the court must apply an objective
standard when assessing the landowner’s duty); Douglass v. Irvin,
549 N.E.2d 368, 370 (Ind. 1990) (same).
Raska’s personal knowl-
edge of the floor’s condition is not relevant to determining
whether a duty was owed.
"What ceases once the invitee has
knowledge that the premises are unsafe is not the duty of the
invitor, but the invitee’s right to assume that the invitor has
carried out his duty to use due care."
370.
Douglass, 549 N.E.2d at
Raska’s acknowledgment of the condition more accurately
bears on whether the duty was breached and whether the landowner
14
can raise the affirmative defenses of incurred risk and comparative fault. See Douglass, 549 N.E.2d at 370; Get-N-Go, Inc. v.
Markins, 550 N.E.2d 748, 751 (Ind. 1990) ("The knowledge of a
plaintiff in a negligence action will have a bearing on some
affirmative defenses relied upon by a defendant, most prominently
incurred risk, and often contributory negligence."). Affirmative
defenses do not excuse the landowner’s duty to exercise reasonable care.
Get-N-Go, Inc., 550 N.E.2d at 751.
To determine whether Bob Evans owed Raska a duty, under the
second prong the court must consider whether the perceived danger
was so obvious that a reasonable person would have recognized it
and protected himself against it. Common examples of open and
obvious conditions that people are expected to appreciate and
avoid, relieving the land owner of any duty, include fire,
height, and bodies of water.
Ward v. Mid-American Energy Co.,
729 N.E.2d 861, 863 (Ill. App. 2000).
In light of the contradicting evidence, it is impossible for
the court to determine the precise condition of the floor and
engage in this analysis. Without knowing the condition of the
floor, the court cannot determine that as a matter of law the
floor was so wet that a reasonable person would have noticed and
avoided the risk.
See Bridgewater v. Economy Engineering Co.,
486 N.E.2d 484, 488-89 (Ind. 1985)(explaining when a question of
15
fact remains concerning whether the defect was concealed or
hidden, the court should reserve the question of the obviousness
of the danger for the jury).
In any case, the degree of risk
created by the wet floor does not appear to rise to the level of
threats commonly accepted as open and obvious, relieving the
landowner of any duty.
See Ward, 729 N.E.2d at 863 (explaining
common examples of open and obvious dangers).
See also, Louis
Lehr, 3 Premises Liability 3d §49:15 (2010) ("Except when a
slippery floor area is open and obvious, as in the case of a
20-foot-square pool of water, an invitee is not negligent as a
matter of law in failing to observe water or spilled liquid on
the floor.").
Moving to the third prong of the analysis, when a landowner
becomes aware of a latent defect, he either may remedy the defect
or warn invitees of its risk so the invitee may avoid it.
Doug-
lass, 549 N.E.2d at 370; Howard v. H.J. Ricks Const. Co., Inc.,
509 N.E.2d 201, 205-06 (Ind. App. 1987); Louisville Cement Co. v.
Mumaw, 448 N.E.2d 1219, 1221 (Ind. App. 1983)(disapproved on
other grounds)(citing Downham v. Wagner, 408 N.E.2d 606, 610
(Ind. App. 1980); 62 Am.Jur.2d Premises Liability §66 (1972)).
Because the condition of the floor at the time of Raska’s
fall is unclear, the court is unable to determine whether Bob
Evans remedied the defect by drying the floor prior to Raska’s
16
fall.
However, Bob Evans has presented evidence that it warned
patrons of the risk, and asks to be relieved of liability on this
ground.
In his deposition, Hicks testified that he posted a wet
floor sign in between the men’s and women’s restroom.
Pepper
observed the sign leaning against a table between the two restrooms when he went to check on the state of the floor after
Raska’s fall. Raska’s deposition contradicts this evidence.
Raska stated that "All I seen was ladies’ room and men’s room,
and I went to the men’s room.
I didn’t see nothing else." (Raska
Dep. p. 83) Raska does not acknowledge seeing a warning sign
outside the restroom door, and Pepper’s testimony of the placement of the sign calls into question the visibility and obviousness of the warning.
It is not clear whether Bob Evans satisfied
its duty to warn patrons of the risk.
Bob Evans argues that Raska’s knowledge of the condition
served as a warning.
When determining whether the possessor
breached its duty of reasonable care, "[t]he comparative knowledge of a possessor of land and an invitee regarding known or
obvious dangers may properly be taken into consideration". Smith,
796 N.E.2d at 245.
When it is clear that the plaintiff had
knowledge of the risk, the court must determine whether the
defendant should have expected that the plaintiff would fail to
protect himself against the known risk or whether the defendant
17
should have anticipated the harm despite the plaintiff’s knowledge of the obvious risk.
Smith, 796 N.E.2d at 245.
Assuming that Raska observed water on the floor before he
proceeded to enter the bathroom, a statement Raska cannot now
contradict with a self-serving affidavit2, it remains questionable whether Bob Evans was reasonable in assuming that its
patrons would protect themselves against the perceived danger or
whether Bob Evans should have anticipated the injury. Sometimes
nature calls abruptly, and the record does not reflect that Raska
could have used an alternative restroom.
Therefore, it may have
been unreasonable for Bob Evans to believe its patrons would
protect themselves from the wet floor and not enter the restroom
despite their awareness of the obvious danger.
Bob Evans may
have been comparatively negligent for failing to dry the floor
adequately before making it available for its patrons' use.
The
question of comparative fault is best reserved for the jury.
Paragon Family Restaurant v. Bartolini, 799 N.E.2d 1048, 1056
2
A party resisting summary judgment may not "patch-up potentially
damaging deposition testimony with a contradictory affidavit." Commercial
Underwriters Insurance Company v. Aires Environmental Services, Ltd., 259 F.3d
792, 799 (7th Cir. 2001). See also Buckner v. Sam's Club, Inc., 75 F.3d 290,
292 (7th Cir. 1996) ("[T]he law of this circuit does not permit a party to
create an issue of fact by submitting an affidavit whose conclusions contradict deposition or sworn testimony."). Raska's affidavit gives the impression
that he was hoping to defeat the Motion for Summary Judgment by stating a
plain contradiction of Bob Evans' main argument to create a genuine issue of
material fact even though he could not substantiate the claim. As a result,
Raska's affidavit cannot be given consideration.
18
(Ind. 2003) ("Under the Indiana Comparative Fault Act, the jury
considers 'the fault of all persons who caused or contributed to
cause the alleged injury.'").
Bob Evans further contends that Raska’s contributory negligence precludes recovery.
Indiana has moved away from the
doctrine of contributory negligence and has adopted comparative
fault.
See Smith, 796 N.E.2d at 244-45 (explaining differences
in application of contributory and comparative fault).
The
plaintiff no longer is stripped of his right to pursue damages
because of his own negligence.
See Thompson v. Town of Ft.
Branch, 178 N.E. 440, 445 (Ind. 1931) (explaining that "the
plaintiff should prevail on the issue of contributory negligence,
unless it appears by a preponderance of the evidence that the
plaintiff was negligent and that his negligence contributed to
his own injury.").
Rather, the trier of fact must allocate fault
and determine whether the plaintiff’s negligence exceeds that of
the defendant.
Ind. Code §34-51-2-6; Paragon Family Restaurant,
799 N.E.2d at 1056.
The allocation of fault must be reserved for
the jury unless the plaintiff’s fault so clearly exceeds that of
the defendant that no reasonable jury could find in his favor.
See Ind. Code §34-51-2-6; Hampton v. Moistner, 654 N.E.2d 1191,
1195 (Ind. App. 1995) (explaining that the apportionment of fault
may become an issue of law for the court when there is no dispute
19
in the evidence and the factfinder is able to come to only one
logical conclusion).
Bob Evans has not shown that Raska’s negligence exceeds its
own and precludes recovery.
Although the court questions the
credibility of Raska’s account of the events, the court must
assess the record as a whole and avoid making credibility determinations on summary judgment. 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 a factfinder.").
The evidence presented shows that Raska chose to enter the restroom although he observed that the floor was wet.
decision to proceed was not necessarily negligent.
However, his
Raska needed
to use the restroom and a jury may find that, given the lack of
alternatives, he proceeded as any reasonable person would.
A
jury is better fit to assess the reasonableness of Raska’s
actions and to allocate fault accordingly.
The evidence pre-
sented calls into doubt the reasonableness of both Raska’s and
Bob Evans’ conduct.
_______________
Based on the foregoing reasons, the Motion for Summary
Judgment [DE 27] filed by the defendant, Bob Evans Farms, Inc.,
on May 31, 2011, is DENIED.
20
ENTERED this 4th day of October, 2011
s/ ANDREW P. RODOVICH
United States Magistrate Judge
21
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