Turner v. Menard Inc

Filing 46

OPINION AND ORDER GRANTING 33 MOTION for Summary Judgment by Defendant Menard Inc. Because no claims remain pending, this case is DISMISSED. Clerk DIRECTED to enter judgment in favor of Defendant Menard Inc and against Plaintiff Gail Turner. Signed by Judge Rudy Lozano on 3/31/16. (cer)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
GAIL TURNER,
Plaintiff,
v.
MENARD, INC., d/b/a MENARDS,
Defendant.

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CAUSE NO: 2:12-CV-490

OPINION AND ORDER
This matter is before the Court on the Motion for Summary
Judgment,

filed

by

Defendant,

(“Menards”) on June 9, 2015.

Menard,

(DE #33).

Inc.

d/b/a

Menards

For the reasons set forth

below, the Motion for Summary Judgment is GRANTED.

The Clerk is

ORDERED to enter judgment in favor of Defendant, Menard, Inc. d/b/a
Menards and close this case.

BACKGROUND
Plaintiff, Gail Turner (“Turner”), was a customer at a Menards
store located at 1000 U.S. Highway 41 in Schererville, Indiana.
Turner alleges that she slipped and fell inside the store and
suffered injuries as a result of her fall.

On October 5, 2012,

Turner filed a complaint against Menards in Indiana state court
alleging that Menards was negligent in violation of Indiana law.
Thereafter, the action was removed to federal court.

On June 9, 2015, Menards filed a motion for summary judgment
arguing

that

Turner’s

claim

must

fail

because

she

cannot

demonstrate that Menards had either actual or constructive notice
of a dangerous condition prior to her fall, or that the condition
involved an unreasonable risk of harm.

On July 21, 2015, Turner

filed her response to Menards motion for summary judgment.
August 14, 2015, Menards filed its reply brief.

On

This matter is

now fully briefed and 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
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

will

properly

preclude

the

entry

of

summary

judgment.” Id. To determine whether a genuine dispute of material
fact exists, the Court must construe all facts in the light most
favorable

to

the

non-moving

party
2

and

draw

all

reasonable

inferences in that party’s favor.
F.3d 355, 358 (7th Cir. 2010).

See Ogden v. Atterholt, 606

However, “a court may not make

credibility determinations, weigh the evidence, or decide which
inferences
factfinder.”

to

draw

from

the

facts;

these

are

jobs

for

a

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 with the evidence [he] contends
will prove [his] case.”

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, summary
judgment is proper.

See Massey v. Johnson, 457 F.3d 711, 716 (7th

Cir. 2006).

Facts1
On September 24, 2011, Turner entered the Menards store located
in Schererville, Indiana, around 2:00 pm.

(Turner Dep., D.E. #35-

1

The facts in this case are largely undisputed and the Court has therefore
relied heavily on the facts as presented in the section of Menards’ brief
titled “Material Facts not in Dispute,” supplementing with the facts found in
Turner’s “Statement of Additional Material Facts” and editing where
necessary.

3

2 at 3).

Turner went to the store to purchase a door handle lock.

(Turner Dep., D.E. #35-2 at 3-4).
Turner entered the store through the exit doors, near the
checkout area.

(Turner Dep., D.E. #35-2 at 5-6).

She began

walking down an aisle with bags of salt pellets stacked along the
side for display.

(Turner Dep., D.E. #35-2 at 6).

Turner was not looking at the ground.
7).

As she walked,

(Turner Dep., D.E. #35-2 at

Turner neared the end of the salt pellet display when she

slipped and fell.
at 2).

(Turner Answers to Interrogatories, D.E. #35-3

Turner states that she did not recall feeling anything

under her feet as she was walking or as she was falling. (Turner
Dep., D.E. #35-2 at 7-8).
salt

pellets

on

the

However, after the fall, Turner noticed

floor

in

the

area.

(Turner

Answers

to

Interrogatories, D.E. #35-3 at 2).
Turner does not know how the salt came to be present on the
floor.

(Turner Answers to Interrogatories, D.E. #35-3 at 3).

Prior to Turner’s fall, no agent or employee of Menards was made
aware that there were salt pellets or any other substance on the
floor where Turner fell.

(Menards Answers to Interrogatories,

D.E. #35-4 at 2-3).
Turner’s fall was captured by a Menards surveillance camera.
(Menards

Answers

to

Interrogatories,

D.E.

#35-4,

p.

2).

The

surveillance video shows the area of Turner’s fall, beginning at
14:02:56 (CST) on September 24, 2011, and concluding at 15:03:47
4

(CST) on the same date.
5).

(Menards Surveillance Video, D.E. #35-

Prior to Turner entering the store, from 14:02:56 (CST)

through 14:33:25, several customers walk through the area where
Turner fell.

(Id.).

The video does not depict any of these

customers falling or slipping or anyone manipulating the stacks of
salt pellets. (Id.).
At approximately 14:31:25 on the video surveillance camera, a
customer in a red shirt appears and begins to load bags of salt
into his cart.

(Id.).

The customer finishes loading bags of salt

into his cart at approximately 14:33:03 and moves towards the
checkout area.

(Id.).

Turner enters the store at approximately

14:33:37 and walks towards the rear of the aisle.

(Id.).

As

Turner approached the area where the customer in the red shirt had
been loading bags of salt, at approximately 14:33:44, the customer
in the red shirt begins to move toward Turner, gesturing. (Id.)
Turner falls at approximately 14:33:48.

(Id.).

Immediately after Turner’s fall, the customer in the red shirt
leaves the checkout line and places his cart in front of the area
where he was loading salt and where Turner fell.
leaves

the

view

of

the

surveillance

(Id.).

camera.

He then

(Id.).

At

approximately 14:34:28, the red-shirted customer reappears and
returns to his cart. (Id.).

At 14:36:43, a Menards employee

appears with a broom and dustpan. (Id.).

5

The surveillance footage depicts three cashiers within several
feet of the area where Turner fell.

(Id.).

During the time in

question, at least thirteen Menards employees are observed in the
footage nearby the location where Turner fell.

(Id.).

Analysis
Under

Indiana

law,1

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

proximately caused plaintiff to suffer an injury.

the

breach

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 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) (“All of
the elements of a negligence action must be supported by specific
facts designated to the trial court or reasonable inferences that
might be drawn from those facts.”).
highly

fact

sensitive,

it

is

rare

Because negligence cases are
that

summary

judgment

1

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

6

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 negate at least one element of the plaintiff’s
claim.”

Id. (citing Rhodes, 805 N.E.2d at 385).

While an invitee2 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.
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))).

The plaintiff carries the burden of

proving each of these elements.

Hi–Speed Auto Wash, Inc. v.

Simeri, 346 N.E.2d 607, 608 (Ind. App. 1976); see also Robinson v.
Walmart Stores East, LP, 2009 WL 127029, at *4 (S.D.Ind. Jan. 20,
2009).

2

The parties do not dispute that Turner was a business invitee of Menards.

7

Under

Indiana

law,

“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 v. Kroger Co., 963 N.E.2d 1141, 1144 (Ind. Ct.

App. 2012).

Menards asserts that Turner’s claim fails because she

cannot demonstrate that Menards had either actual or constructive
knowledge of the alleged salt on the floor.

Turner concedes that

she has no evidence that Menards had actual knowledge of salt
pellets, but contends that Menards did have constructive knowledge
of the salt pellets on the floor.

More specifically, Turner

asserts that “there is an abundance of evidence from which the
jury could infer that the Defendant should have known of the
presence of salt.”

(DE #40 at 4, emphasis in original).

There is constructive knowledge when a condition “has existed
for such a length of time and under such circumstances that it
would have been discovered in time to have prevented injury if the
storekeeper, his agents or employees had used ordinary care.”
Schulz,

963

Blaylock,

N.E.2d

591

In Schulz, the

at

1144 (citing

N.E.2d
designated

624,

Wal-Mart

628

(Ind.

Ct.

App.

evidence

showed

that

the

slipped on liquid at the back of the store.
1143.

Stores,

Inc.

v.

1992)).
Plaintiff

Schulz, 963 N.E.2d at

A Kroger employee affidavit showed that ten minutes before

Plaintiff’s fall, the floor was clean and dry.

Id. at 1145.

Therefore, the evidence indicated that the time period for the
8

hazardous condition to have developed was ten minutes.

Id.

The

Indiana Court of Appeals found that this was not enough time for
the employer to have constructive notice.

Id.

The Court held

that “short of imposing a strict liability standard or mandating
an employee's presence in every aisle at all times, we conclude
that there is no genuine issue of fact in the case before us that
Kroger

did

not

have

constructive

knowledge

of

the

hazardous

condition.” Id.
Extending premises owners a reasonable time to discover a
hazardous condition is a principle of constructive notice that has
existed in Indiana appellate case law for decades.

For example,

in Wade v. Three Sisters Inc., the Indiana Court of Appeals quoted
the following:
No Court has ever held that five minutes is
sufficient constructive notice of a dangerous
condition; to so hold would be to make the
defendant an insurer. If that were the law,
then every time it rained or snowed the owner
of a large department store would have to
employ a great many extra people for the sole
purpose of inspecting every minute or every
five minutes every entrance, aisle, corridor
and stairway in the store, in order to
instantly clean up and eliminate every wet or
possibly slippery, or possibly dangerous
condition and every puddle which might be
found to exist anywhere in the store. Such a
standard
is
not
only
unreasonable
and
unsupported by any authority, but is so absurd
that it would bankrupt every large store
owner…

9

Wade v. Three Sisters, Inc., 186 N.E.2d 22, 25-26 (Ind. Ct. App.
1962) (quoting Parker v. McCrory Stores Corp., 101 A.2d 377, 378
(1954)).
Turner’s argument that a reasonable inference can be drawn
that Menards had constructive notice of the salt is, in full, as
follows:
During the thirty minute time span in the
surveillance footage, it does not appear that
one employee of the Defendant examined the
area where the incident occurred, despite that
at least 13 employees are observed walking
near the area of the fall. During the entire
span of footage, while approximately 13
employees walk perpendicularly to the aisle
where the Plaintiff fell, only 9 employees
appear to walk down that aisle. Not one of
those employees is observed looking down at,
or inspecting, the area where the incident
occurred, and appear rather to be traversing
the area.
At approximately 14:15:30 (CST) one
cashier is observed standing within several
feet of the location where Plaintiff fell.
Shortly thereafter, at 14:16:22, the same
cashier is standing and talking with another
cashier, for approximately 1 minute. At 14:35
(CST), one cashier is standing nearby the area
of the fall, but with her back towards the
area.
None of those employees’ names have
ever been disclosed to date, and no testimony
or Affidavits have ever been submitted
attesting that when any of these employees
traversed the area, the substances (sic) was
not present.
One
reasonable
inference
from
the
surveillance footage is that the Defendant
simply failed to take reasonable steps to
ensure its’ (sic) premises were safe for its’
(sic) invitees, or to inspect its’ (sic)
premises
for
conditions
on
the
floor.

10

Therefore Defendant’s Motion
Judgment should be denied.

for

Summary

(DE #40 at 4-5).
Here, the designated evidence shows that in the nearly 30
minutes before the red-shirted customer appeared and began loading
bags of salt pellets, several Menards customers walked over the
same area where Turner fell without exhibiting signs of slipping,
falling, looking down at their feet, or otherwise exhibiting signs
that there were small pellets on the floor or the area was
hazardous.

In addition, no person during this period is seen

touching or manipulating the bags of salt pellets.

Then, at

14:31:25, the customer in a red shirt appears and begins loading
the bags of salt into his cart.

At 14:33:03, the red-shirted

customer leaves the area and moves into the checkout line.

At

14:33:37, Turner enters the store and begins walking toward the
area where the red-shirted customer had loaded the bags of salt.
At

14:33:44,

as

Turner

approached

the

area,

customer began moving toward Turner, gesturing.

the

red-shirted

Seconds later, at

14:33:48, Turner walks through the area where the customer in the
red shirt had been loading salt, and falls.

The red-shirted

customer then leaves the checkout line and blocks the area where
Turner fell with his cart.

Shortly thereafter, a Menards employee

appears holding a broom and dustpan.

11

Certainly, based on these facts, a reasonable jury could infer
that the salt came to be on the floor as a result of the actions
of the customer in the red shirt.

This Court is, however, mindful

that at this stage of the proceedings all reasonable inferences
must be drawn in favor of the non-movant.

The issue before this

Court is not whether a reasonable jury could infer that the salt
was on the floor as a result of the actions of the customer in the
red shirt shortly before Turner’s fall, but whether a reasonable
jury could also infer, as Turner contends, that the salt was there
prior to the man in the red shirt loading salt into his cart.
Turner cites to no evidence from which such an inference could be
drawn.

Nothing about the presence of the Menards employees or

their behaviors on the surveillance video suggests that the salt
was present earlier.2

The mere presence of the employees in the

general area where the salt was later found following Turner’s
fall does not permit a conclusion that Menards failed to maintain
its premises in a reasonable condition.

The time period captured

2

It should be noted, however, that Turner has pointed to facts in her
argument that are not included in Menards’ material facts and also not
included in Turner’s statement of additional material facts. Turner’s
statement of additional material facts provides only that there were three
cashiers within several feet of the area of the fall and that thirteen
employees are observed near the location of the fall. (DE #40 at 1). The
facts in the body of the argument regarding the manner in which the 13
employees walked, how many employees walked down the aisle, and whether they
looked down or inspected the area were not included in the statement of
additional material facts. As a result, this Court has no obligation to
consider them. N.D. Ind. L.R. 56-1(b). In this case, however, even assuming
the accuracy of the facts presented in the body of Turner’s response brief,
the outcome is unaffected.

12

on video and presented to this Court is roughly 30 minutes prior
to

Turner’s

fall.

If

a

more

significant

time

period

of

surveillance had been submitted, perhaps such an inference could
be drawn, but no reasonable jury could presume that Menards failed
to maintain the premises in a reasonable condition based on such
a short period of time.
Furthermore, as has already been noted, under federal summary
judgment practice the burden to produce evidence to overcome
summary judgment rests with Turner.

The fact that none of the

employees’ names have been disclosed is irrelevant unless Turner
requested them through discovery and Menards failed to produce
them without justification.

Then, the proper remedy was not to

point out the lack of evidence at the summary judgment stage but
to move to compel.

Similarly, as the party moving for summary

judgment, Menards did not have an obligation to present affidavits
or testimony that the salt was not present when the employees
traversed this area.

Menards does not bear the burden of proving

a lack of constructive knowledge.
Based on the evidence before this Court, any inferences of
fact that could be drawn to indicate that salt pellets were on the
floor prior to the customer in the red shirt loading salt into his
cart would be based solely on conjecture or improper speculation.
Stephens,
speculation

569
or

F.3d

at

conjecture

786

(“[I]nferences

will
13

not

relying

suffice.”).

on

Turner

mere
has

produced no evidence from which a reasonable jury could make such
an inference.

Because Turner has failed to satisfy her burden,

her negligence claim against Menards must fail and summary judgment
must be entered in favor of Menards.3

CONCLUSION
For the reasons set forth above, the Motion for Summary
Judgment is GRANTED.

Because no claims remain pending, this case

is DISMISSED and the Clerk is ORDERED to enter judgment in favor
of Defendant, Menard, Inc., d/b/a Menards and close this case.

DATED: March 31, 2016

/s/ Rudy Lozano, Judge
United States District Court

3 As noted earlier, Menards also argued that it did not have knowledge
that salt pellets would pose an unreasonable risk of harm. Since the Court has
found that Menards did not have constructive notice of the salt pellets as a
matter of law, the Court need not address this issue.

14