JORDAN v. MEIJER, INC. (SIC)

Filing 51

ORDER denying 24 Motion for Summary Judgment. Signed by Judge Tanya Walton Pratt on 10/12/2012. (CBU)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JUANITA K. JORDAN
Plaintiff,
v.
MEIJER STORES LIMITED
PARTNERSHIP,
Defendant.

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Case No. 1:10-cv-0368-TWP-TAB

ENTRY ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on Defendant Meijer Stores Limited Partnership’s
(“Meijer”), Motion for Summary Judgment. This case arises from a negligence claim brought by
the Plaintiff Juanita K. Jordan (“Mrs. Jordan”), who alleges Meijer is liable for the injuries she
suffered after she slipped on a green bean lying on the floor in a Meijer store. Mrs. Jordan
claims Meijer failed to exercise reasonable care in maintaining its premises in a reasonably safe
condition. Meijer asserts that Mrs. Jordan cannot meet her burden of proof to sustain her cause of
action. For the reasons set forth below, the Meijer’s Motion for Summary Judgment (Dkt. 24) is
DENIED.
I. BACKGROUND
The following facts are undisputed. On June 22, 2008, Mrs. Jordan and her husband, Rex
Jordan, visited a Meijer store in Anderson, Indiana to shop for groceries. As they were walking
through the produce section, Mrs. Jordan’s left foot slipped out from underneath her and she fell
onto the floor, injuring her left foot in the process. When Mrs. Jordan looked to see why she fell,
she noticed a green bean on the bottom of her shoe and a green skid mark on the floor. Mrs.
Jordan did not initially notice any green beans on the floor and does not know how long the

green bean had been on the floor prior to her slip and fall. After the fall, her left ankle
immediately began to swell. Mrs. Jordan’s husband took her to the emergency room at St.
John’s Hospital in Anderson, Indiana where she received treatment for her injury.
Meijer produce clerks are responsible for cleaning the floor and keeping debris off the
floor in the produce section. At the time of Mrs. Jordan’s fall, Cheryll Shannon (“Ms. Shannon”),
was the produce clerk working in the produce section of Meijer. According to Ms. Shannon,
green beans are normally displayed in the back of the produce department, however, on June 22,
2008 they were displayed individually in bulk in a foot-deep four-foot squared crate in the center
of the produce section, because they were on sale. Ms. Shannon testified that as she was
bringing a load of bananas into the produce section from the backroom, she observed Mrs.
Jordan fall. Shortly before seeing her fall, Ms. Shannon had swept up a pile of green beans,
approximately four inches in diameter, from the floor around the green bean crate.
Approximately ten minutes had passed between the time she swept up the green beans and the
time she witnessed Mrs. Jordan fall. Additionally, Ms. Shannon stated that her supervisor was
aware of the problem with the green beans being dropped onto the floor by customers. As such,
Ms. Shannon would clean up green beans on the floor every fifteen to twenty minutes.
Additional facts are added below as needed.
II.

LEGAL STANDARD

Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate if
“the pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Hemsworth v. Quotesmith.Com, Inc., 476
F.3d 487, 489-90 (7th Cir. 2007). In ruling on a motion for summary judgment, the court

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reviews “the record in the light most favorable to the nonmoving party and draw[s] all
reasonable inferences in that party’s favor.” Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir.
2009) (citation omitted). However, “[a] party who bears the burden of proof on a particular issue
may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations,
that there is a genuine issue of material fact that requires trial.” Hemsworth, 476 F.3d at 490
(citation omitted). “In much the same way that a court is not required to scour the record in
search of evidence to defeat a motion for summary judgment, nor is it permitted to conduct a
paper trial on the merits of a claim.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001)
(citation and internal quotations omitted). “[N]either the mere existence of some alleged factual
dispute between the parties nor the existence of some metaphysical doubt as to the material facts
is sufficient to defeat a motion for summary judgment.” Chiaramonte v. Fashion Bed Group,
Inc., 129 F.3d 391, 395 (7th Cir. 1997) (citations and internal quotations omitted).
III. DISCUSSION
Mrs. Jordan argues that a genuine issue of material fact exists regarding whether Meijer
failed to exercise reasonable care to protect her against a danger. By contrast, Meijer asserts that
summary judgment is appropriate in this matter because Mrs. Jordan cannot meet her burden of
proof to sustain her cause of action. The Court will address the parties’ arguments in turn.
1.

Plaintiff’s Cause of Action
In its summary judgment motion, Meijer argues that Mrs. Jordan cannot establish that it

breached its duty of reasonable care to her as a business invitee because she cannot establish
each element of her cause of action. To establish a claim of negligence, a plaintiff must show
that (1) the defendant owed the plaintiff a duty; (2) breach of the duty by allowing conduct to fall
below the standard of care; and (3) the plaintiff suffered a compensable injury proximately

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caused by the defendant’s breach of duty. Caesars Riverboat Casino, LLC v. Kephart, 934
N.E.2d 1120, 1123 (Ind. 2010). Whether a defendant owes a duty to a plaintiff is a question of
law. Stephenson v. Ledbetter, 596 N.E.2d 1369, 1371 (Ind. 1992). Absent a duty there can be no
breach and, therefore, no recovery in negligence. Id. at 373. In addition, “[w]hether a particular
act or omission is a breach of a duty is generally a question of fact. Id. The issue regarding a
breach of duty “can be a question of law, however, when the facts are undisputed and only a
single inference can be drawn from the facts.” Id. However, “[n]egligence will not be inferred;
rather; specific factual evidence, or reasonable inferences that might be drawn therefrom, on
each element must be designated to the trial court.” Hayden v. Paragon Steakhouse, 731 N.E.2d
456, 458 (Ind. Ct. App. 2000) (emphasis in original).
As an initial matter, both parties agree that Mrs. Jordan was a customer at the Meijer
store on June 22, 2008, and as such, she was a business invitee to whom Meijer owed a duty of
reasonable care for her protection while she remained on the premise. See Burrell v. Meads, 569
N.E.2d 637, 639 (Ind. 1991) (“[A] landowner owes the highest duty to an invitee: a duty to
exercise reasonable care for his protection while he is on the landowner’s premises.”); Golba v.
Kohl’s Dept. Store, Inc., 585 N.E.2d 14, 15 (Ind. Ct. App. 1992). Thus, the only issues are
whether Meijer breached a duty of care to Mrs. Jordan and if so, whether that breach led to Mrs.
Jordan’s injuries. In defining the duty of reasonable care, the Indiana Supreme Court has
adopted the definition from the Restatement (Second) of Torts § 343. Accordingly, a business or
inviter is subject to liability for physical harm caused to its invitees by a condition on the land if
it (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)

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fails to exercise reasonable care to protect them against the danger.

Id. at 639-40.

The

determination of whether a business or inviter has exercised reasonable care in making its
premises safe for an invitee is ordinarily a question of fact for the jury. Golba, 585 N.E.2d at 16.
First, Meijer argues that Mrs. Jordan has not provided sufficient evidence to establish her
cause of action for negligence because she cannot establish that it had actual or constructive
knowledge of the presence of the green bean on the floor. See Carmichael v. Kroger Co., 654
N.E.2d 1188, 1191 (Ind. Ct. App. 1995) (“Before liability may be imposed on the invitor, it must
have actual or constructive knowledge of the danger.”). In response, Mrs. Jordan argues that a
reasonable jury could conclude that Meijer had actual knowledge of green beans on its floor
based on the testimony of Ms. Shannon. The Court agrees.
In this case, Ms. Shannon, the produce clerk, testified that “[w]e all knew about the
problem” concerning the green beans on the floor and she had informed her supervisor of the
issue before June 22, 2008. Dkt. 38-2 at 32:9-13. Moreover, Ms. Shannon indicated in her
deposition that ten minutes before Mrs. Jordan fell, she had swept up “a pile [of green beans]
about four inches around.” Dkt. 38-2 at 29:13-15. Meijer does not deny that Ms. Shannon or her
supervisor knew about the problem associated with the green beans. Thus, her testimony on this
issue is undisputed. Accordingly, in examining the evidence in the light most favorable to Mrs.
Jordan, the Court cannot find as a matter of law that Meijer did not have actual or constructive
notice of the presence of green bean on its floor.
Second, Meijer argues that Mrs. Jordan cannot meet her burden of proof with respect to
her premise liability negligence claim when she failed to properly see the green bean on the floor
before she fell. Dkt. 40 at 7-8. Specifically, it claims that because Mrs. Jordan cannot establish
the actual length of time the green bean was on the floor, any evidence to the contrary would be a

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result of inferential speculation. See Dkt. 40 at 7. In support of this argument, Meijer cites
Howard v. H.J. Ricks Const. Co., 509 N.E.2d 201 (Ind. Ct. App. 1962). Meijer’s reliance on
Howard, however, is misplaced. While Mrs. Jordan indicated that she did not see the green bean
on the floor before she fell, a genuine issue of material fact still exists, as discussed previously,
regarding whether Meijer knew or should have known of the green bean’s presence. As stated in
Golba:
Today’s storeowner caters to a much larger clientele by requiring the customer to
perform tasks which were previously carried out by his employees. The
storeowner is not absolved of liability merely because tasks which create hazards
have been delegated to the consumer. Items which are dropped on the floor as a
result of the transportation of goods from display to register are no less dangerous
because it was the customer’s carelessness which caused the dangerous condition.
If the merchant has chosen such a method of operation, the law requires him to
take reasonable care to protect other customers from the reasonably foreseeable
risks inherent in his chosen marketing scheme.
Golba, 585 N.E.2d at 16.
Here, Ms. Shannon testified that the green bean display had been placed in a more
prominent location in the store because green beans were on sale. She attributed the presence of
green beans on the floor due to customers dropping them when placing them into bags. Dkt. 382 at 30:17-20. In addition, she testified that she had informed her supervisor that green beans
kept falling to the floor and she would clean up the area every fifteen to twenty minutes. Dkt.
38-2 at 3:17-10.

Importantly, Ms. Shannon had just cleaned up a pile of green beans

approximately ten minutes before Mrs. Jordan fell. Finally, Mrs. Jordan testified that she saw a
green skid mark on the floor and found a green bean on the bottom of her shoe. Dkt. 38-1 at
24:1-17. These statements establish that there was a reasonably foreseeable risk that Meijer
knew green beans would be on the floor as a result of the customers shopping in the produce
section. While Meijer’s duty to inspect and clean up does not require continuous patrolling of

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the aisles, Mrs. Jordan has presented sufficient evidence to establish a genuine issue of fact. See
Peterson v. Wal-Mart Stores, Inc., 241 F.3d 603, 604-05 (7th Cir. 2001). Specifically, it is a
question of fact whether Meijer, in the exercise of reasonable care, should have discovered and
removed the green bean during that ten minute period of time before it caused injury to Mrs.
Jordan. See Schon v. Nat’l Tea Co., 274 N.E.2d 578, 581-82 (Ohio Ct. App. 1971) (reversing the
lower court’s decision and remanding for a new trial as to whether store owner exercised
reasonable care in discovering and removing a foreign object that had remained on the floor for
ten to fifteen minutes).
Lastly, Meijer argues that Ms. Shannon’s monitoring and cleaning of the green bean area
every fifteen to twenty minutes meets its duty of reasonable care. However, the determination of
whether a business breached its duty to exercise reasonable care is a question of fact. See
Schloot v. Guinevere Real Estate Corp., 697 N.E.2d 1273, 1276 (Ind. Ct. App. 1998); Golba,
585 N.E.2d at 16. Meijer acknowledges in its briefing that the actions required to meet the
standard of care vary, dependent upon the circumstances. In this case, it is clearly a question of
fact whether Mrs. Shannon’s monitoring of the green bean spills meets the definition of
reasonable care. In addition, the Court finds the issue of whether Meijer’s breach of its duty was
a proximate cause of Mrs. Jordan’s injuries is a question of fact for the jury. See Hamilton v.
Ashton, 846 N.E.2d 309, 316 (Ind. Ct. App. 2006). Accordingly, the Court concludes that Meijer
is not entitled to summary judgment on Mrs. Jordan’s premise liability negligence claim.
IV. CONCLUSION
For the reasons set forth above, Meijer’s Motion for Summary Judgment (Dkt. 24) is
DENIED.

SO ORDERED.
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10/12/2012
Date: ________________

________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana

DISTRIBUTION:
Jeremy S. Baber
STEWART & STEWART
[e-mail]
Arthur Charles Johnson , II
JOHNSON RAPPA & IVANCEVICH LLC
[e-mail]
Steven A. Johnson
JOHNSON, RAPPA & IVANCEVICH, LLC
[e-mail]
David W. Stewart
STEWART & STEWART
[e-mail]

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