Reigle et al v. Meijer Inc
Filing
42
ORDER granting 28 Motion for Summary Judgment filed by defendant, Meijer Stores Limited Partnership. Signed by Magistrate Judge Andrew P Rodovich on 6/23/11. (csi)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
LAFAYETTE DIVISION
TRACY RIEGLE, DAVID RIEGLE,
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Plaintiffs
v.
MEIJER STORES LIMITED
PARTNERSHIP,
Defendant
Case No. 4:08 cv 74
OPINION AND ORDER
This matter is before the court on the Motion for Summary
Judgment [DE 28] filed by the defendant, Meijer Stores Limited
Partnership, on March 31, 2011.
For the following reasons, the
motion is GRANTED.
Background
The plaintiff, Tracy Riegle, was shopping in the produce
department at the Meijer store located at 4901 State Road 26 E,
Lafayette, Indiana, on August 9, 2006.
Riegle was pushing a
shopping cart and walking around a box of watermelons located on
a wooden pallet when she felt pain and noticed a cut on her leg.
Riegle’s eight-year-old daughter saw blood and removed a piece of
wood from Riegle’s skin.
The cut was on the front of Riegle’s
shin, about 15 centimeters above her ankle, and ran vertical.
At her deposition, Riegle admitted that she did not know if
the wooden pallet itself or a piece of wood sticking out from the
pallet pierced her skin.
Riegle could not offer an explanation
for why the cut ran vertical, rather than horizontal, how her
foot came in contact with the wooden pallet, or why the cut was
located approximately 15 centimeters above her ankle.
Riegle
denied stepping or standing on the pallet and acknowledged that
the pallet had green and red tape to bring attention to its
corners and warn shoppers.
However, the pallet extended beyond
the red and green markings.
Riegle offered no insight on what
Meijer did or did not do that caused her injury, but she believes
Meijer should have had a more noticeable warning.
At the time of the injury, Riegle had pre-existing neuropathy and no feeling in both of her lower extremities.
Riegle had
three toes on her left foot amputated and four on her right.
The
amputations affected her stability.
Riegle filed a complaint against Meijer alleging that Meijer
unreasonably permitted a dangerously defective condition to exist
on its premises, and as a result of Meijer’s negligence, Riegle
suffered injury.
Meijer now moves for summary judgment, arguing
that Riegle has insufficient evidence to support her allegation
of negligence.
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
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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
3
U.S. at 248, 106 S.Ct. at 2510).
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. Durfling-
er, 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
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nonmoving party).
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) damages
proximately caused by the breach.
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 generally are questions of fact.
See Peters 804
N.E.2d at 743; King v. Northeast Security, Inc., 790 N.E.2d 474,
484 (Ind. 2003).
Only where the facts are undisputed and lead to
but a single inference or conclusion, may a court as a matter of
law determine whether a breach of duty has occurred.
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
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
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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.
In Yates, the court discussed the various duties of a
landowner with respect to an invitee:
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
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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 generally is 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:
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
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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 of
her claim.
Hi-Speed Auto Wash, Inc. v. Simeri, 346 N.E.2d 607,
608 (Ind. App. 1976); Robinson, 2009 WL 127029 at *4.
In order to establish that the business owner knew or should
have known of the dangerous condition, the plaintiff must articulate how she was injured.
Robinson, 2009 WL 127029 at *4.
Otherwise, the trier of fact is forced to speculate how the
injury occurred and whether the defendant should have known of
the assumed cause of the injury.
ted.
Such speculation is not permit-
Robinson, 2009 WL 127029 at *4.
The trier of fact may not
infer negligence when it relies purely on speculation or conjecture.
Hayden v. Paragon Steakhouse, 731 N.E.2d 456, 458 (Ind.
App. 2000).
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In Robinson, the plaintiff suffered an injury to her eye
when she tried on a pair of sunglasses at Wal-Mart.
2009 WL 127029 at *1.
Robinson,
The plaintiff was unable to clarify what
struck her in the eye, and she could not verify whether the
sunglasses, price tag, or something else caused her injury.
Robinson, 2009 WL 127029 at *4.
The court concluded that "with-
out evidence of how her eye was injured, Plaintiff cannot meet
her burden of demonstrating that Defendant should have known that
the sunglasses presented an unreasonable risk of harm to her."
Robinson, 2009 WL 127029 at *4.
Riegle faces a similar dilemma.
The parties agree that
Riegle was an invitee and was owed the highest degree of care.
However, Meijer argues that Riegle has insufficient evidence to
establish that Meijer knew or should have known of the dangerous
condition created by the wood pallet.
Riegle is unable to arti-
culate how her injury occurred, and she could not explain whether
she was cut by a pre-existing splinter, the pallet itself, or
whether the cut resulted from some other cause.
In her response
brief, Riegle has not suggested that evidence exists to explain
the cause of her injury, nor does Riegle advance a plausible
theory on the true cause of her injury.
Riegle’s claim.
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This is fatal to
Absent some evidence suggesting how Riegle was injured, the
court cannot submit to the jury the question of whether Meijer
had knowledge of an unreasonably dangerous condition.
If the
court were to do so, it would allow the jury to speculate to the
true cause of Riegle’s injury and to draw a conclusion of negligence from its speculation.
See Hayden, 731 N.E.2d at 458.
This
is not to say that Riegle is required to submit direct proof of
her injury, but at this stage in the litigation she must refer
the court to some evidence that would support her theory on the
cause of her injury.
The distinction between whether her injury was caused by the
pallet itself or a pre-existing splinter becomes important when
determining whether Meijer had knowledge of the condition.
If
Riegle was injured by a pre-existing splinter sticking out from
the pallet, she would also have to show that the splinter existed
for a sufficient duration so that Meijer knew or should have
known that it was protruding from the pallet and posed a danger
to its invitees.
Meijer again challenges Riegle’s ability to
meet this burden, and Riegle has not presented any evidence to
show that Meijer knew or should have known that a splinter was
protruding from the pallet.
If, on the other hand, Riegle were to advance the theory
that the pallet itself, rather than a pre-existing splinter,
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caused her injury, Riegle would have the burden of establishing
that the pallet was inherently dangerous and that Meijer should
have been aware of the threat it posed to its customers.
In this
case, Meijer presumably was aware that the wooden pallet was
located on the floor of the store, eliminating the need for
Riegle to prove Meijer’s awareness of the pallet.
However,
Meijer questions the availability of evidence tending to prove
that the wooden pallet in and of itself was an unreasonable
danger that Meijer should have anticipated its customers would
not protect themselves from.
Riegle must present factual evidence to support each element
of her claim.
See Hayden, 731 N.E.2d at 458 (explaining that
there must be factual evidence of each element).
This means that
Riegle must show that the pallet was both unreasonably dangerous
and that Meijer should have anticipated that, despite the obviousness of the danger, customers would not protect themselves
from it.
Riegle’s sole argument in opposition is that Meijer is
liable for the inherent risks of its operation and that the
defendant should have known the pallet, extending beyond the box
of watermelons, posed a risk.
Riegle has offered no evidence to
show that a stationary wooden pallet located in a store is
inherently unreasonably dangerous.
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Riegle has not pointed to
other incidents or shown that the type of wood the pallet was
made of is prone to splintering and posed a threat to customers.
Although rare, summary judgment must be awarded in negligence cases where the plaintiff has failed to submit any evidence
to support the basic elements of her claim.
Riegle has not arti-
culated any basis for her claim and has provided little reasoning
beyond concluding that negligence actions are seldom decided on
summary judgment.
Riegle believes that Meijer is liable for the
inherent risks of its operation.
However, business owners are
not insurers of their customers’ safety.
Riegle was burdened
with the task of showing that Meijer knew or should have known of
an unreasonable danger, and she has failed to submit any evidence
suggesting the same.
Absent some indication that there is evi-
dence explaining the cause of the accident, the court cannot
allow the matter to proceed forward so that the trier of fact may
draw conclusions of negligence upon a speculative cause of
injury.
Riegle has failed to satisfy her burden and summary
judgment must be entered in favor of Meijer.
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For the foregoing reasons, the Motion for Summary Judgment
[DE 28] filed by the defendant, Meijer Stores Limited Partnership, on March 31, 2011, is GRANTED.
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ENTERED this 23rd day of June, 2011
s/ ANDREW P. RODOVICH
United States Magistrate Judge
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