Wajvoda v. Menards Inc

Filing 67

OPINION AND ORDER DENYING 54 MOTION for Summary Judgment by Defendant Menards Inc. Signed by Judge Rudy Lozano on 3/16/16. (cer)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION

BARBARA WAJVODA,

)
)
)
)
)
)
)
)
)

Plaintiff,
vs.
MENARD, INC.,
Defendant.

NO. 2:11-CV-393

OPINION AND ORDER
This matter is before the Court on the Motion for Summary
Judgment, filed by the defendant, Menard, Inc., on January 5,
2015 (DE #54).

For the reasons set forth below, the motion is

DENIED.

BACKGROUND
On or about October 12, 2011, the plaintiff, Barbara Wajvoda
(“Plaintiff”), filed her complaint in the Porter Superior Court,
sitting in Valparaiso, Indiana, under cause number 64D01-1110-CT9854.
the

(DE #1.)

defendant,

The complaint alleges negligence on the part of
Menard,

Inc.

(“Defendant”),

arising

from

an

alleged slip and fall incident at a Menard store in Valparaiso,
Indiana.

(Id.)

On October 27, 2011, Defendant filed a petition

for removal on the basis of diversity jurisdiction.

(DE #2.)

On

April 3, 2012, Defendant filed a third party complaint against

Mistic, Inc., alleging that a snow removal agreement existed
between Defendant and Mistic, Inc. that directly involved the
Valparaiso, Indiana Menard store location on the date of the
incident in question.

(DE #13.)

On October 16, 2013, Mistic,

Inc. filed a motion for summary judgment in which it sought
dismissal from the suit pursuant to an arbitration agreement
between itself and Defendant.

(DE #36.)

In response, Defendant

filed a motion to stay the crossclaim pending arbitration.
#45.)

(DE

On February 3, 2014, Magistrate Judge Andrew P. Rodovich

denied Defendant’s motion to stay and recommend that its third
party complaint be dismissed without prejudice.
June

5,

Rodovich’s

2014,

this

Court

recommendation,

approved
denied

and

Mistic

(DE #49.)

adopted
Inc.’s

On

Magistrate
motion

for

summary judgment, and dismissed Defendant’s third-party complaint
against Mistic, Inc. without prejudice.
Subsequently,

on

January

5,

(DE #50.)

2015,

Defendant

filed

the

instant motion for summary judgment against Plaintiff, arguing
that there are no genuine disputes remaining as to any material
facts in this case.

(DE #53.)

Specifically, Defendant argues

that summary judgment is warranted because it is undisputed that
the subject area of the fall was “clear and free of snow and ice,
after the plaintiff’s alleged fall” and because Plaintiff “cannot
identify on what she claims to have flipped.”

(DE #54, p. 10.)

In support of this proposition, Defendant cites to Plaintiff’s
-2-

deposition testimony as well as to a recorded statement of a
phone

call

incident.

with

Plaintiff

made

the

day

after

the

alleged

(See DE #54, exhibits B & D.)

In response, Plaintiff argues that genuine disputes exist in
the

record

that

preclude

summary

judgment.

(DE

#56.)

Specifically, she argues that Plaintiff’s deposition testimony
creates a dispute as to whether Plaintiff can identify what
caused her to fall, and she also argues that disputes exist as to
Defendant’s knowledge of the conditions of the sidewalk.

(Id.)

In

among

other

husband,

John

support

documents,
Wajvoda.

of

her

claims,

affidavits

of

Plaintiff

herself

and

attaches,
of

her

(See DE #56-1, exhibits 2 & 5.)

Defendant filed its reply on February 23, 2015.
Additional

evidence

was

Plaintiff’s arguments.1

designated

by

Defendant

(DE #62; see also DE #63.)

(DE #60.)
to

refute

The motion

is ripe for adjudication.

DISCUSSION
Standard
Summary judgment must be granted when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”

Fed. R. Civ. P. 56(a).

A genuine

dispute of material fact exists when “the evidence is such that a
1

In addition, the parties each filed a motion to strike. (DE #57 & DE #59.)
The Court denied both motions on September 30, 2015. (DE #66.)

-3-

reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.
2505, 91 L. Ed. 2d 202 (1986).

Not every dispute between the

parties makes summary judgment inappropriate; “[o]nly disputes
over facts that might affect the outcome of the suit under the
governing

law

judgment.”

will

Id.

properly

To

preclude

determine

the

entry

a

genuine

whether

of

summary

dispute

of

material fact exists, the Court must construe all facts in the
light

most

reasonable

favorable

to

the

non-moving

inferences

in

that

party’s

party

Atterholt, 606 F.3d 355, 358 (7th Cir. 2010).

draw

See

favor.

and

all

Ogden

v.

However, “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.”

Payne v. Pauley, 337 F.3d 767, 770 (7th Cir.

2003) (citations omitted).
A

party

opposing

a

properly

supported

summary

judgment

motion may not rely on allegations in his own pleading but rather
must

“marshal

and

present

the

court

contends will prove [his] case.”

with

the

evidence

[he]

Goodman v. Nat'l Sec. Agency,

Inc., 621 F.3d 651, 654 (7th Cir. 2010).

“[I]nferences relying

on mere speculation or conjecture will not suffice.”

Stephens v.

Erickson, 569 F.3d 779, 786 (7th Cir. 2009) (citation omitted).
If the non-moving party fails to establish the existence of an
essential element on which he bears the burden of proof at trial,
-4-

summary judgment is proper.

See Massey v. Johnson, 457 F.3d 711,

716 (7th Cir. 2006).

Facts
On the morning of December 6, 2010, Plaintiff traveled to
the Menard store located in Valparaiso, Indiana.
DE #56-1, p. 14.)

(DE #54, p. 28;

The weather was cold and windy, and it was

snowing when she arrived.

(DE #54, p. 30.)

Plaintiff testified

that “the snow was actually very light, but it was that very
light frosty snow that was coming, and it was so windy that the
snow was actually blowing like almost sideways.”

(Id. at 31.)

According to Plaintiff, the parking lot was covered with between
two and four inches of snow, but the sidewalk near the canopied
entryway to the store had been cleared of snow and only had a
dusting on it.

(Id. at 31-32; see also DE #56-1, p. 7.)

was

to

attempting

enter

the

store,

Plaintiff

sidewalk, breaking her arm and injuring her hip.

fell

As she

onto

the

(DE #56-1, pp.

7-9.)
The day after Plaintiff fell, she gave a voluntary recorded
statement to Denise Staples, an employee of Defendant’s insurance
carrier, that provided, in part:
BW:2 I was . . . I got out of my car and I
was walking up to the front door and I
got almost to the front door to the
2

Barbara Wajvoda.

-5-

DS:3
BW:
DS:
BW:

DS:
BW:

side, you know, the little sidewalk area
that they have right there in the front
and I and I slipped and fell down and
landed on my elbow.
Oh, is it your right or left elbow?
Left.
Do you know what caused you to slip?
I do not.
The, the side . . . it was
snowing and blowing at the time.
The
sidewalks, ah, were not in bad shape.
They looked like they had been cleaned,
although there was some snow on them but
it was —
Right.
. . . it was still snowing, you know, so
ah, so maybe there was ice underneath or
something. I don’t know. I just, you
know, you’re up and then you’re down.

(DE #54, pp. 47-49.)

When asked about the cause of the fall

during her deposition, Plaintiff testified as follows:
Q:

A:

(Id. at 36.)

So you’re walking up and then you step
on something or – how do you fall down?
Tell me about that a little bit.
Did
your feet slip from under you or –
I slipped on the ice. I mean I just – I
walked onto the sidewalk, I’m going to
call it the sidewalk part, and I was
only on there – like I said, because
there was a pallet in from of me, so the
– where I was entering the sidewalk was
limited, the area was limited because of
the pallet, and that’s where I stepped
on the sidewalk, and I only took like
two steps and slipped on – hit the ice
and just went down flat (indicating).
When asked whether she saw ice on the sidewalk,

Plaintiff replied that she had not.

(DE #62-2, p. 12.)

she did state that she felt the ice after she fell.

3

Denise Staples.

-6-

However,
(Id.)

Later,

in

that

same

deposition,

the

following

exchange

took

place:
Q:
Where you fell you were actually on the
sidewalk, is that correct?
A:
Oh, yes, absolutely, yes.
Q:
And where you put your foot down and you
began to slip and fall, was there any snow
underneath your foot or was there just ice?
A:
I do not know.
Q:
Do you remember seeing snow where you
stepped at, where you fell?
A:
I do not remember that.
Q:
Okay. You don’t remember seeing snow or
was there –
A:
I don’t remember seeing snow right where
my foot happened to step.
Q:
Okay.
And I remember you said you
didn’t see any ice?
A:
I did not see ice.
Q:
Okay.
And afterwards you came to find
out it was sort of a clear ice?
A:
Yes, that’s correct.
(Id.

at

35.)

In

her

affidavit,

Plaintiff

states

that

she

“slipped and fell on the ice covering the sidewalk next to the
entranceway of the Menard’s store.”

(DE #56-1, p. 14.)

She also

states that it was cold and snowing on the morning of her fall,
and,

while

the

sidewalk

had

been

cleared

recently,” it had not been cleared of ice.

of

snow

“sometime

(Id.)

As a general practice, Defendant asserts that its employees
clean off and salt the entranceway to the store and sidewalks
leading up to it “from time to time.”
However,

Milos

Zubic

(“Zubic”),

an

(DE #54, pp. 38-39.)
employee

of

Defendant,

testified that there was no record kept of precisely when or by

-7-

whom the sidewalk was salted on December 6, 2010.
#56-1, p 50.)
into

(Id. at 40; DE

When asked specifically about the investigation

Plaintiff’s

December

6,

2010,

fall,

Zubic

testified

follows:
A:

I recall that our office manager – our
assistant office manager at the time was
Lori Hansen, and she informed me by – I
don’t know how she informed me.
She
told me basically that somebody had
claimed to have fallen out in front, and
I said did you take a report type of
stuff where you take a report, she said,
yes. I said let’s go look and see what
photos you have.
We went out and she
took like one or two photos, and we went
outside and looked at the place where
the lady claimed to have fallen, and
what I saw is a clear sidewalk with salt
on it.
I said you’d better take some
more photos, so she went back or either
I took more photos, I can’t remember who
took more photos, but we took a few more
photos at that time.
. . .

Q:

A:

Q:
A:

Now, sir, did you have somebody take the
pictures that have been marked as
Exhibit No. 1, Group Exhibit No. 1 after
you had somebody from Menard’s go out
and clean them off and salt the area?
I think there’s a double negative in
there, but we did not salt after the
accident.
It should have been done
prior to the accident.
It’s your testimony that it was done
prior to the accident?
Yes.
Yes.
I would not have had them
take pictures of an altered site.

(DE #54, pp. 41-42.)

-8-

as

During her deposition, when asked whether she had seen any
salt or sand on the sidewalk prior to her fall, Plaintiff replied
that she had not.

(DE #56-1, p. 7.)

She indicates the same in

her affidavit, noting that “[t]he sidewalk where I fell was
cleared of snow sometime recently before I fell.
was no salt or sand on the sidewalk where I fell.
not cleared of ice.”

(Id. at 14.)

However there
The walk was

Plaintiff’s affidavit further

provides that the pictures referenced above “do not accurately
represent the sidewalk as it was at the time [of the fall].”
(Id. at 15.)

Finally, Plaintiff testified that, at the time of

her fall, she did not see any of Defendant’s employees removing
snow or laying down salt in either the parking lot or on the
sidewalk.

(Id. at 11-12.)

Analysis
Under

Indiana

law,4

a

plaintiff

asserting

a

claim

of

negligence must prove that a duty was owed by the defendant to
the plaintiff, that the duty was breached, and that the breach
proximately caused plaintiff to suffer an injury.

Wabash Cnty.

Young Men’s Christian Ass’n, Inc. v. Thompson, 975 N.E.2d 362,
365 (Ind. Ct. App. 2012) (citing Peters v. Forster, 804 N.E.2d
736, 738 (Ind. 2004)).

“[N]egligence cannot be inferred from the

4

The parties do not dispute that Indiana substantive law applies to this
diversity suit.

-9-

mere fact of an accident” nor may it “be established through
inferential

speculation

alone.”

Hale

v.

Cmty.

Hosp.

Of

Indianapolis, Inc., 567 N.E.2d 842, 843 (Ind. Ct. App. 1991); see
also Miller v. Monsanto Co., 626 N.E.2d 538, 541 (Ind. Ct. App.
1993) (“specific factual evidence, or reasonable inferences that
might

be

drawn

therefrom”

must

be

presented

to

the

court).

Because negligence cases are highly fact sensitive, it is rare
that summary judgment is appropriate.

Thompson, 975 N.E.2d at

365 (citing Rhodes v. Wright, 805 N.E.2d 382, 387 (Ind. 2004)).
“Nevertheless, a defendant is entitled to judgment as a matter of
law

when

the

undisputed

material

facts

element of the plaintiff’s claim.”

negate

at

Id. (citing

least

one

Rhodes, 805

N.E.2d at 385).
While an invitee5 is on the premises, a landowner owes that
person a “duty to exercise reasonable care for the invitee’s
protection.”

Henderson v. Reid Hosp. and Healthcare Servs., 17

N.E.3d 311, 315 (Ind. Ct. App. 2014).

That duty is breached if

the landowner:
(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.
5

The parties do not dispute that Plaintiff was a business invitee of
Defendant and was thus owed a duty of reasonable care.

-10-

Id. at 315-16 (citing Bell v. Grandville Coop., Inc., 950 N.E.2d
747, 749 (Ind. Ct. App. 2011) (quoting Restatement (Second) of
Torts § 343 (1965))).

In the context of snow and ice removal,

the rule is flexible; immediate removal is not required so long
as

reasonable

premises.

care

is

exercised

in

the

maintenance

of

the

Id. at 316 (citing Hammond v. Allegretti, 311 N.E.2d

821, 826 (Ind. 1974)); see also Rising-Moore v. Red Roof Inns,
Inc., 435 F.3d 813, 817 (7th Cir. 2006) (in Indiana, there is no
“duty

of

storm”).

continuous

monitoring

and

clearing

during

a

winter

In Henderson, the court concluded that while a storm

need not be over before the duty attaches, the “landowner is
entitled to actual or constructive notice of the presence of snow
or ice and a reasonable opportunity to remove it.”

Henderson, 17

N.E.3d at 319.

Causation
In its motion for summary judgment, Defendant begins by
arguing that Plaintiff’s claim of negligence fails because she
has

not

slipped.

identified
Defendant

the

substance

asserts

that

upon
it

is

which

she

undisputed

allegedly
that

the

sidewalk in front of the store was free and clear of snow and
ice, and that Plaintiff has provided no affirmative evidence that
any defective condition existed.

Plaintiff disagrees and states

that she clearly identified ice as the cause of her fall in both
-11-

her deposition and affidavit.

She also argues that there is a

genuine dispute as to whether the sidewalk was cleared of ice and
salted prior to her fall.
Defendant,

in

large

part,

relies

on

Hayden

v.

Paragon

Steakhouse, 731 N.E.2d 456 (Ind. Ct. App. 2000) to support its
argument.

In Hayden, the court concluded that the plaintiff, a

patron who slipped and fell while exiting a restaurant, had
failed to present any evidence to explain the proximate cause of
his injuries, which doomed his negligence claim.
Specifically,
testimony

of

the
the

court

focused

plaintiff,

on

the

noting

Id. at 457-59.

following

that

the

deposition
plaintiff’s

uncertainty evidenced an improper reliance on “speculation and
conjecture” as to the determination of causation:
Q: Do you have any other facts that support
your belief that this was what you call black
ice?
A: None other than the fact that my feet went
out from underneath me and I went up in the
air and fell down.
Q: Do you have any idea what – strike that.
Do you have have [sic] any idea what your
feet slipped in that caused you to fall?
A: Are you calling for speculation on my
part?
Q: I’m just asking if you know. And I'm not
asking you to speculate.
A: I don’t know for sure.
Id. at 458-59.

Defendant asserts that Plaintiff’s testimony in

this case is analogous to that described in Hayden and takes
particular issue with Plaintiff’s admission that she did not see

-12-

ice on the sidewalk.

However, while it is true that Plaintiff

testified that she did not see the ice, she clearly testified
that she felt the ice after she fell.

And, when asked directly

about the fall itself, she stated, “I slipped on the ice” and
“slipped on – hit the ice and just went down flat.”
plaintiff

in

Hayden,

here

there

was

no

Unlike the

equivocation

in

Plaintiff’s deposition testimony regarding the cause of her fall.
While she admitted that she did not remember seeing snow “right
where my foot happened to step” or any ice, the fact that she
recalled feeling the ice beneath her after she fell, coupled with
her testimony that a light dusting of snow covered the sidewalk
beneath the canopied entryway, that she had not seen any salt or
sand on the sidewalk prior to her fall, and that she “slipped on
the ice,” distinguishes this case from Hayden.
not

necessarily

follow,

as

Defendant

would

Indeed, it does
have

this

Court

believe, that a person must see something in order to know what
it is.6

See e.g. Blackburn v. Menard, Inc., No. 2:10-CV-87, 2013

WL 6178245, *3-4 (N. D. Ind. November 25, 2013).

Plaintiff’s

deposition testimony, in and of itself, creates a genuine dispute
as to the issue of causation.
In addition, Plaintiff’s affidavit provides that: (1) it was
cold and snowing on the morning at issue; (2) she slipped and
6

For example, one’s eyes may be closed when handed a banana, yet it is
reasonable to infer that the identity of the object could be determined by
touch alone, without undue speculation or conjecture.

-13-

fell on the ice covering the sidewalk next the entranceway; (3)
the sidewalk had recently been cleared of snow but not ice; and
(4) there was no salt or sand on the sidewalk.

Defendant argues

that Plaintiff’s affidavit impermissibly contradicts her prior
sworn deposition testimony.
statements

are

inconsistent

described above.
expand

upon

The Court disagrees.
with

the

None of these

deposition

testimony

While the statements in the affidavit may

Plaintiff’s

directly contradictory.

prior

sworn

testimony,

they

are

not

Again, it is entirely conceivable that

Plaintiff could have identified the substance she slipped on as
ice without actually having seen it.

See Simmons v. Chicago Bd.

of Educ., 289 F.3d 488, 492 (7th Cir. 2002) (a party may attempt
to clarify or augment – but not contradict – prior deposition
testimony

through

affidavits);

Lovejoy

Electronics,

Inc.

v.

O’Berto, 873 F.2d 1001, 1005-06 (7th Cir. 1989) (while a later
submitted affidavit that contradicts plain admissions in prior
deposition or otherwise sworn testimony will not create a genuine
dispute,

it

can

be

used

to

clarify

previous

ambiguous

statements).
Finally to the extent that Defendant asks this Court to
conclude that Plaintiff’s recorded statement to its insurance
carrier made the day after the accident precludes any genuine
dispute as to the issue of causation, the Court declines to make
such a determination.

Plaintiff’s recorded statement was not
-14-

made under oath.
containing

Again, while it is clear that an affidavit

conclusory

allegations

that

contradict

prior

deposition or other sworn testimony cannot be used to defeat a
summary judgment motion in the Seventh Circuit, Defendant has not
pointed to, nor has the Court found, any case that expands that
rule to include prior unsworn testimony.

See Jean v. Dugan, 814

F. Supp. 1401, 1404 (N.D. Ind. 1993) aff’d, 20 F.3d 255 (7th Cir.
1994); see also Davenport v. Potter, No. 06 C 4614, 2008 WL
4126603, *2-3 (N.D. Ill. Aug. 15, 2008) (“When a subsequent sworn
statement contradicts a prior unsworn admission, a genuine issue
of fact exists.”) (citing Shockley v. City of Newport News, 997
F.2d 18, 23 (4th Cir. 1993)).

Should Defendant choose to use the

recorded statement against Plaintiff at trial (assuming arguendo
that the statement complies with all applicable Federal Rules of
Evidence), the question of any potential inconsistencies becomes
one of credibility for the jury to decide.7

7

Defendant also urges the Court to discard Plaintiffs deposition testimony
and affidavit statements as self-serving assertions without factual support in
the record. The Court declines to do so, as the evidence outlined in the
facts section of this order is within Plaintiff’s personal knowledge and not
otherwise improper. See Davenport, No. 06 C 4614, 2008 WL 4126603 at *2-3
(“The mere fact that evidence may be characterized as self-serving does not,
however, preclude its consideration. So-called self-serving statements may
support or defeat summary judgment provided they are within the declarant’s
personal knowledge.”) (citing Buie v. Quad/Graphics, Inc., 366 F.3d 496, 504
(7th Cir. 2004)). See also Payne v. Pauley, 337 F.3d 767, 771 (7th Cir. 2003)
(warning against “the trap of weighing conflicting evidence during a summary
judgment proceeding”).

-15-

In sum, based on the evidence presented by both parties,
there is a genuine dispute as to the issue of causation, and
summary judgment must be denied.

Knowledge
Defendant next argues that Plaintiff has failed to submit
any evidence that Defendant had actual or constructive knowledge
of

the

allegedly

therefore,

cannot

because of it.

defective
be

held

condition
liable

for

of

the

any

sidewalk,

injuries

and,

sustained

Plaintiff responds by pointing to her deposition

and affidavit testimony that, she says, creates a genuine dispute
as to Defendant’s actual knowledge of the ice.
Both parties cite to the Henderson case in their briefs.

In

Henderson, the defendant (the “hospital”) was notified by its
security staff that slick conditions had begun to develop in its
parking lots at approximately 5:55 a.m.
313.

Henderson, 17 N.E.3d at

Less than an hour later, the hospital’s maintenance crew

had begun to spread salt and calcium chloride on the parking lots
and sidewalks.

Id. at 314.

At approximately 7:20 a.m., the

plaintiff arrived for work, and she slipped on the ice as she was
exiting her car.
personnel

Id.

determined

insufficiently salted.
hospital

knew

of

the

Upon later review, the hospital’s security
that
Id.

the

parking

lots

had

been

Plaintiff sued alleging that the

hazardous
-16-

condition

and

was

negligent

because the parking lot was not properly cleared of ice.

Id.

The hospital moved for summary judgment arguing that it did not
breach any duty of care owed to plaintiff because it did not have
a reasonable amount of time to remove the ice prior to the
plaintiff’s fall.

Id.

The appellate court determined that the

lower court had erred when it relied on the Connecticut Rule as
the

appropriate

standard

to

determine

whether

the

hospital

breached its duty to the plaintiff,8 and it reversed the trial
court’s grant of summary judgment.

Id. at 317, 320.

The court

held that, because the hospital had actual knowledge of the
hazard, it was up to the trier of fact to determine whether the
snow

and

ice

removal

actions

taken

reasonable under the circumstances.

by

the

hospital

Id. at 319-20.

were

In so doing,

the court distinguished the case from both Rising-Moore v. Red
Roof

Inns,

Inc.,

435

F.3d

813

(7th

Cir.

2006)

and

Orth

v.

Smedley, 378 N.E.2d 20 (Ind. Ct. App. 1978), noting that “[b]oth
of those cases addressed [instances] where a landlord/landowner
did not have actual or constructive knowledge of the particular
hazard at issue because of either a sudden change in weather that
occurred overnight or ice suddenly formed in a short period of
time with very little warning.”

Henderson, 17 N.E.3d at 319.

8

The appellate court noted that the Connecticut Rule, “particularly the
language requiring the storm or weather condition to cease before there is a
duty to remove the accumulated snow or ice, has not been adopted in Indiana
jurisprudence.” Henderson, 17 N.E.3d at 317.

-17-

The Court agrees with Plaintiff that Henderson is factually
similar to the case at bar.
of

Defendant’s

knowledge

Here, it is true that the question

of

the

hazardous

condition

is

not

undisputed as it was in Henderson; however, viewing the evidence
presented

in

the

light

most

favorable

to

Plaintiff,

it

is

reasonable to infer that Defendant had actual knowledge of the
ice on the sidewalk prior to Plaintiff’s fall.

While Defendant

repeatedly insists (both in its motion and in its reply brief)
that Plaintiff testified that the sidewalk had been recently
cleared of both snow and ice, upon careful review, the Court
finds

that

testimony.
recently

this

is

a

mischaracterization

of

Plaintiff’s

Plaintiff testified that the canopied entryway had
been

cleared

of

snow,

representations as to any ice.9

but

she

made

no

such

In fact, Plaintiff testified

that there was a light dusting of snow covering the sidewalk and
that she slipped on the ice (which she felt beneath her after she
fell).

Importantly, Plaintiff also testified that she did not

see any salt or sand in the vicinity.

Plaintiff’s affidavit

reiterates those assertions, stating that the walk was recently
cleared of snow but not of ice and that there was no salt or sand
on

the

sidewalk

at

the

time

of

her

fall.

Additionally,

Plaintiff’s affidavit provides that the photographs relied upon
by

Defendant

to

show

that

the

9

sidewalk

was

salted

do

not

Counsel’s queries were directly related to the type and quantity of snow,
and Plaintiff answered in kind. (See DE #54, pp. 30-32, 34, 36. ) 

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accurately represent the scene at the time of her fall.

Based on

these facts, it is reasonable to infer that Defendant cleared the
sidewalk of snow, noticed the ice underneath it, but did not
apply sand or salt to the ice.

See Byrne v. U.S., No. 00 C 3007,

2002 WL 433064, *4-5 (N.D. Ill. Mar. 20, 2002) (facts of prior
ineffective clean-up attempt may give rise to the inference that
the defendant had actual knowledge of the hazard).
Zubic’s testimony that the sidewalk was salted prior to the
accident

does

not

mandate

the

granting

of

summary

judgment;

rather, when viewed alongside of Plaintiff’s contrary testimony
as outlined above, it is clear that there is a genuine dispute
regarding the issue.

This is especially true in light of the

fact that Zubic testified that, while the employees clear off the
entryway “from time to time,” there is no record of when or by
whom the sidewalk was salted on December 6, 2010.
Finally, while it is true that Defendant was under no duty
to continuously monitor and clear the sidewalk during the snow
storm (see e.g. Rising-Moore, 453 F.3d at 817), it did have a
duty to exercise reasonable care under the circumstances.

If

Plaintiff’s version of events based on the evidence noted above
is credited (i.e. that Defendant knew the ice existed but removed
only the snow and did not salt or sand the sidewalk), one could
conclude that Defendant breached that duty by being careless in
its removal actions.

Plaintiff testified that the sidewalk had
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been recently cleared, yet enough time had passed for the area to
be

covered

with

a

light

dusting

of

snow

when

she

arrived;

significantly, Plaintiff also testified that she did not see any
of Defendant’s employees tending to the situation at that time.
Again, the facts here are distinguishable from those in RisingMoore because Plaintiff is not suggesting that the ice suddenly
formed

with

knowledge.

very

little

warning

and

without

Defendant’s

Rather, she is arguing that the ice was already

present under the snow and that Defendant knew it but failed to
properly deal with it before she slipped and fell.

Whether it

was reasonable for Defendant to leave the allegedly icy sidewalk
unattended to for the length of time required for a light dusting
of snow to appear is a question best suited for the jury.

See

Henderson, 17 N.E.3d at 320 (highlighting the lack of evidence of
industry standards regarding snow or ice removal and stating that
“[w]hether there has been a breach of duty in a negligence action
generally is a question of fact inappropriate for resolution by
summary judgment, unless the facts are undisputed and only one
inference can be drawn from those facts.”).
Thus,

giving

Plaintiff

the

benefit

of

all

reasonable

inferences to which she is entitled, a jury could conclude that
Defendant discovered10 there was ice on the sidewalk at the time
10

“[E]mployees’ knowledge of a dangerous condition may be imputed to their
employer.” St. Mary’s Med. Ctr. of Evansville, Inc. v. Loomis, 783 N.E.2d
274, 279 (Ind. Ct. App. 2002) (citing Southport Little League v. Vaughan, 734
N.E.2d 261, 275 (Ind. Ct. App. 2000)).

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it cleared off the snow, yet did not exercise reasonable care
with regard to that hazard when it failed to sand or salt that
same area upon discovery.

As such, summary judgment must be

denied.

CONCLUSION
For the reasons set forth above, the Motion for Summary
Judgment, filed by Defendant on January 5, 2015 (DE #54), is
DENIED.

DATED: March 16, 2016

/s/ Rudy Lozano, Judge
United States District Court

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