Bickel v. Wal-Mart Stores Inc. et al
Filing
23
OPINION AND ORDER: Court GRANTS 18 Defendant Wal-Mart Stores, East, LP's Motion for Summary Judgment. This case is DISMISSED WITH PREJUDICE and CLOSED. Signed by Judge Rudy Lozano on 9/26/2016. (tc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
PAMELA BICKEL,
Plaintiff,
vs.
WAL-MART STORES EAST,
LP,
Defendant.
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CAUSE NO. 3:15-CV-00211
OPINION AND ORDER
This matter is before the Court on Defendant Wal-Mart Stores,
East, LP’s Motion for Summary Judgment, filed on March 18, 2016 (DE
#18).
For the reasons set forth below, the motion (DE #18) is
GRANTED.
The Clerk is ORDERED to DISMISS this case WITH PREJUDICE
and to CLOSE this case.
BACKGROUND
This case arises out of a slip and fall accident.
Plaintiff,
Pamela Bickel (“Bickel”), fell while shopping in a Wal-Mart owned
by Defendant, Wal-Mart Stores East, LP (“Wal-Mart”) in Elkhart,
Indiana.
Bickel fell on a red substance that was on the floor,
fractured her right knee cap, and sued in state court under a
theory of negligence.
to this Court.
On May 20, 2015, Wal-Mart removed the case
Wal-Mart now moves for summary judgment, arguing
Wal-Mart had no knowledge or constructive notice of the substance
prior to the fall, and thus cannot be held liable.
DISCUSSION
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 and draw all reasonable inferences in that party’s
favor.
See Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir. 2010).
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 with the evidence [he] contends will
2
prove [his] case.”
651,
654
(7th
Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d
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).
Undisputed Facts
On May 1, 2013, Bickel, her daughter (Melione), and another
woman visited the Wal-Mart store on the west side of Elkhart,
Indiana.
Bickel and Melione were going up and down the aisles in
the grocery section for “maybe half an hour” when Bickel slipped
and fell.
10.)
(Pamela Bickel Dep. at 32-35; Melione Bickel Dep. at 9-
They were in the aisle that contained detergents and air
fresheners.
9.)
(Pamela Bickel Dep. at 32-33; Melione Bickel Dep. at
Bickel describes her fall as follows: “I was just walking
along kind of beside of [Melione], talking.
And all of a sudden,
I took a step and it was like I stepped on glass.
I thought it was
water or something because my foot just went ‘shoom’ right out from
under me.”
(Pamela Bickel Dep. at 34.)
Initially, Bickel did not see anything around her on the
floor, but when she moved her leg, she saw a “red mark.”
Bickel Dep. at 40.)
(Pamela
Bickel felt it with her hands and it was “real
3
slick” it was “just one streak.”
was a gel air freshener.
(Id. at 41.)
(Id. at 35.)
containers or spilled containers.
Bickel thought it
She did not see any broken
(Id. at 43.)
Bickel conceded
during her deposition that she didn’t know exactly where the
substance came from, how long it was on the floor, or how long it
was there before she fell.
(Id.)
In response to the question:
“[y]ou didn’t see any Walmart employees working in the aisle at the
time you fell?” Bickel responded, “no.”
(Id. at 73.)
After her mother was placed in a wheelchair, Melanie also
“noticed red stuff on the floor.”
(Melanie Bickel Dep. at 12.)
Melanie believes she touched it, and it was wet, red stuff on the
floor.
(Id. at 15-16.)
Melanie also admits she did not know
exactly what the substance was, how it got to be on the floor, or
how long it was there before her mother fell.
(Id. at 16.)
When
asked “[d]id you see any Walmart employees working in that area,
the
general
area,
of
where
the
accident
occurred?” Melanie answered “[n]o, I didn’t.”
happened
before
it
(Id. at 20.)
Wal-Mart has policies and procedures in place that are aimed
at
discovering
spills.
(Def.’s
Ex.
C,
Wal-Mart
Answer
to
Interrogatory 8.) For example, Wal-Mart corporate policies require
employees to perform periodic checks for safety and cleanliness in
high traffic areas in the store, known as “safety sweeps.” (Def.’s
Ex. D.)
The store where the incident occurred requires its
employees to make visual inspections every 20 minutes in each
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department and maintenance personnel are required to conduct safety
sweeps of the entire store every two hours.
Mart
Answer
to
Interrogatory
No.
8.)
(Def.’s Ex. C; Wal-
Wal-Mart
said
it
was
“unknown” when any employee inspected the site prior to the
accident.
(Id., Interrogatory 6.)
Bickel fractured her right knee cap, had surgery, and alleges
that she continues to suffer ongoing pain and instability in her
knee.
Motion for Summary Judgment
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
Ford Motor Co.
v. Rushford, 868 N.E.2d 806, 810 (Ind. 2007). “[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.”).
1
The parties do not dispute that Indiana substantive law applies to
this diversity suit.
5
Because negligence cases are highly fact sensitive, it is rare that
summary
judgment
is
appropriate.
Wabash
Cnty.
Young
Men’s
Christian Ass’n, Inc. v. Thompson, 975 N.E.2d 362, 365 (Ind. Ct.
App. 2012)(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).
Bickel’s negligence suit is based upon premises liability, and
Bickel alleges she was an invitee.
premises,
a
landowner
owes
that
While an invitee is on the
person
a
“duty
reasonable care for the invitee’s protection.”
to
exercise
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.
Hale v. SS Liquors, Inc., 956 N.E.2d 1189, 1192 (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. Ct.
6
App. 1976); see also Robinson v. Walmart Stores, East, LP, No.
3:08-cv-31-WGH-RLY, 2009 WL 127029, at *4 (S.D. Ind. Jan. 20,
2009).
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).
As the Indiana Court of Appeals has explained,
refusing to require evidence of such knowledge or notice would
essentially give rise to strict liability for slip-and-falls in
places of business.
Id. (“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.”).
Wal-Mart asserts that Bickel’s claim
fails because she cannot demonstrate that Wal-Mart had knowledge or
constructive knowledge of a dangerous condition.
Bickel has pointed to no evidence that Wal-Mart had actual
knowledge of the red substance on the floor.
Therefore, in order
to survive summary judgment, she must point to evidence sufficient
to raise a genuine question regarding constructive notice.
“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 invitor had used
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ordinary care.” Gasser Chair Co., Inc., v. Nordengreen, 991 N.E.2d
122, 126-67 (Ind. Ct. App. 2013); see also Torrez v. TGI Friday’s
Inc., 509 F.3d 808, 811 (7th Cir. 2007) (“[o]f critical importance
is whether the substance that caused the accident was there a
length of time so that in the exercise of ordinary care its
presence should have been discovered.”).
“Absent any evidence
demonstrating the length of time that the substance was on the
floor, a plaintiff cannot establish constructive notice.”
Kohl’s
Dep’t
Stores,
Inc.,
545
F.3d
at
479,
482
Reid v.
(7th
Cir.
2008)(citations omitted).
Bickel argues that the deposition testimony shows that no WalMart employees were working in the “general area” where Bickel was
shopping for approximately half an hour prior to the accident, and
this testimony sufficiently raises the issue of whether Wal-Mart
should
have
discovered
the
dangerous
condition.
The
exact
deposition testimony is as follows: when Melanie was asked “[d]id
you see any Walmart employees working in that area, the general
area, of where the accident happened before it occurred?” Melanie
answered “[n]o, I didn’t.”
(Melanie Bickel Dep. at 20.)
When
Bickel was asked: “[y]ou didn’t see any Walmart employees working
in the aisle at the time you fell?” Bickel responded, “no.”
(Pamela Bickel Dep. at 73.) Bickel and her daughter had been going
up and down the aisles before she fell, and it is undisputed that
she had not been down the aisle in which she fell prior to her
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actual fall. (Pamela Bickel Dep. at 32, 33, 43; Melione Bickel Dep.
at 9.)
As such, this testimony does not indicate that a Wal-Mart
employee had not performed a safety sweep of the aisle in question
for more than 30 minutes prior to the fall.
It merely states that
neither Bickel nor her daughter saw Wal-Mart employees in the
aisle, or the general vicinity of the aisle, when she fell.
This
showing is insufficient to avoid summary judgment, as Indiana law
does
not
give
landowners
the
impossible
responsibility
of
constantly monitoring the entire premises and immediately removing
any slip hazard.
See Henderson, 17 N.E.3d at 316-19; Schulz, 963
N.E.2d at 1145 (granting summary judgment for landowner and noting
Indiana law does not require “an employee’s presence in every aisle
at all times”); see also Howard v. Wal-Mart Stores, Inc., 160 F.3d
358, 359 (7th Cir. 1998) (“Wal-Mart is not required to patrol the
aisles
continuously,
but
only
at
reasonable
intervals.”).
Moreover, even if Wal-Mart did not comply with its own operating
procedures, “[t]he law has long recognized that failure to follow
a party’s precautionary steps or procedures is not necessarily
failure to exercise ordinary care.”
Wal-Mart Stores, Inc. v.
Wright, 774 N.E.2d 891, 894 (Ind. 2002).
Plaintiff has submitted no evidence as to how long the red
substance may have been on the floor.
Indeed, both Bickel and
Melione admit they do not know how long it was there (Pamela Bickel
Dep. at 43; Melione Bickel Dep. at 16) and they have not produced
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any video surveillance or any other evidence or testimony on this
subject.
As Wal-Mart has pointed out, this case is similar to
Dowling v. Cleveland Clinic Foundation, 593 F.3d 472, 474-75 (6th
Cir. 2010), where the plaintiff slipped on a puddle in a hallway
near
the
Cleveland
Clinic’s
cafeteria.
The
plaintiff
had
no
knowledge or evidence showing how long the puddle had been on the
floor prior to her fall.
monitored the area.
Id.
Id. at 477.
at 475.
The Clinic’s employees
Based upon the evidence of the
Clinic’s policies and lack of evidence of knowledge or notice of
the
puddle,
the
Sixth
Circuit
granting of summary judgment.
affirmed
the
district
court’s
Id. at 477-78; see also Zuppardi v.
Wal-Mart Stores, Inc., 770 F.3d 644, 651 (7th Cir. 2014) (granting
summary judgment where, among other things, plaintiff “fail[ed] to
meet her burden of demonstrating Wal-Mart’s constructive notice of
the puddle because she present[ed] next to no evidence of how much
time elapsed between the spill and the fall.”).
While all reasonable inferences must be drawn in favor of
Bickel, she has produced no evidence whatsoever about how long the
red substance may have been present.
As already noted, under
federal summary judgment procedures, the burden to produce evidence
to overcome summary judgment rests with Bickel.
Bickel condemns
Wal-Mart for failing to produce evidence showing when the area
Bickel fell was last cleaned, and argues:
Though there is no testimony as to how long the red
foreign substance was on the floor, this is not
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fatal to the Plaintiff’s case.
Wal-Mart is
unquestionably
in
the
superior
position
to
establish how and when the substance came to be on
the floor. It would be near impossible for Pamela
Bickel to do the same.
In this instance, the
reasonable inference to be drawn is that Wal-Mart
by failing to designate evidence - whether video or
affidavit - cannot establish that the red foreign
substance was on the floor for such a short time as
to excuse it from wrongdoing.
(DE #20 at 8.) However, under federal standards, Wal-Mart does not
have an obligation to present affidavits or any other testimony on
this topic because Wal-Mart does not bear the burden of proving a
lack of constructive knowledge.
As the Court recognized in Adkins
v. Meijer Stores Limited Partnership, No. 1:05-cv-1422-JDT-WTL,
2006 WL 2916834, at *3 (S.D. Ind. Oct. 10, 2006):
This case, to borrow a line used by the Indiana
Court of Appeals last year, exposes the differences
between the federal and state standards for motions
of summary judgment.
See Dennis v. Greyhound
Lines, Inc., 831 N.E.2d 171, 173 (Ind. Ct. App.
2005). The Indiana Supreme Court has discussed how
these differing standards affect summary judgment
procedures. Jarboe v. Landmark Cmty. Newspapers of
Ind., 644 N.E.2d 118, 123 (Ind. 1994).
Under
Indiana law, a defendant seeking summary judgment
must negate the plaintiff’s claim by establishing
that no genuine issue of material fact exists. Id.
Only then does the burden shift to the plaintiff to
show the existence of a genuine issue.
Id.
In
contrast, a defendant in federal court need only
state a basis for alleging the absence of any
genuine issue and identify the facts supporting
this assertion. Id. (citing Celotex, 477 U.S. at
323). The burden then shifts to the plaintiff to
demonstrate the existence of a genuine issue for
trial. Id. As the Indiana Supreme Court stated,
“Indiana does not adhere to Celotex and the federal
methodology.” Id. But federal courts do.
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Applying the proper summary judgment standard, Bickel has
produced no evidence from which a reasonable jury could infer that
Wal-Mart had constructive knowledge of the red substance.
Because
she has failed to satisfy her burden, the negligence claim against
Wal-Mart fails and summary judgment is appropriate.
CONCLUSION
For the reasons set forth above, Defendant Wal-Mart Stores,
East, LP’s Motion for Summary Judgment (DE #18) is GRANTED.
The
Clerk is ORDERED to DISMISS this case WITH PREJUDICE and to CLOSE
this case.
DATED: September 26, 2016
/s/ RUDY LOZANO, Judge
United States District Court
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