ESTATE OF ROSE MARY JONES v. WAL-MART STORES EAST, LP

Filing 38

ENTRY - Wal-Mart's Motion for Summary Judgment (Dkt. 23 ) is GRANTED. A separate judgment will be issued. Signed by Judge Tanya Walton Pratt on 4/12/2013. (JD) Modified document type on 4/12/2013 (JD).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

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ESTATE OF ROSE MARY JONES,
Plaintiff,
vs.
WAL-MART STORES EAST, LP,
Defendant.

Case No. 1:12-cv-00272-TWP-TAB

ENTRY ON DEFENDANTS MOTION FOR SUMMARY JUDGEMENT
This matter is before the Court on Defendant Wal-Mart Stores East, LP’s (“Wal-Mart”),
Motion for Summary Judgment (Dkt. 23). Plaintiff, the Estate of Rose Mary Jones (“the Estate”)
filed this suit against Wal-Mart alleging negligence. For the reasons set forth in this Entry, WalMart’s motion is GRANTED.
I. BACKGROUND
The following facts are undisputed. On February 8, 2011, Rose Mary Jones (“Ms.
Jones”) shopped at the Wal-Mart store located on Pendleton Pike in Indianapolis, Indiana. After
shopping, Ms. Jones experienced shortness of breath and collapsed near her vehicle in the store
parking lot. Niyaa Parrish, a bystander, observed Ms. Jones in the parking lot, spoke to her, and
called 911 for assistance. Another bystander, Mary Kincy (“Ms. Kincy”), approached and
observed Ms. Jones, who had fallen unconscious. Ms. Kincy attempted to find Ms. Jones’s pulse.
Ms. Kincy was going to attempt to check for a pulse a second time and administer CPR when an
unnamed female Wal-Mart security guard joined the women assisting Ms. Jones. The unnamed
Wal-Mart security guard told Ms. Kincy to get back, yelled at Ms. Jones, pulled her up by the

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arms, and smacked her hand asking “can you understand me?” Dkt. 26-1 at 17. Soon after,
paramedics arrived and transported Ms. Jones away by ambulance. Regrettably, Ms. Jones died
four days later on February 12, 2011. The Estate filed a wrongful death suit against Wal-Mart
claiming that because of Wal-Mart’s actions, Ms. Jones suffered damages and died.
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
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). Finally, “neither 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 Grp., Inc., 129 F.3d 391, 395 (7th Cir. 1997) (citations and internal quotations omitted).

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III. DISCUSSION
The Estate claims that Wal-Mart’s actions through its security guard, fell below the
standard of care as accepted in the State of Indiana for a business, toward its patrons, and their
actions caused Ms. Jones to die. Specifically, it alleges the security guard prevented a person or
persons from rendering necessary first aid to Ms. Jones. See Dkt. 1 at 1–2. Therefore, the Estate
contends Wal-Mart is liable for the wrongful death of Ms. Jones. A plaintiff in a negligence
action under Indiana law must prove three things: (1) the defendant owed a duty to the plaintiff;
(2) the defendant breached that duty; and (3) the defendant's breach was the proximate cause of
the plaintiff's injuries. Maynard by Maynard v. Indiana Harbor Belt Railroad Co., 997 F. Supp.
1128, (N.D. Ind. 1998). In other words, if the Estate cannot produce sufficient evidence to create
a triable issue of fact on any one of these elements, summary judgment is appropriate. There is
no liability without proof “that the defendant’s negligence proximately caused the plaintiff’s
harm.” Robertson v. B.O., 977 N.E.2d 341 (Ind. 2012) (quoting Spangler v. Bechtel, 958 N.E.2d
458, 468 (Ind. 2011)).
Wal-Mart contends there is no causation between the security guard’s actions and Ms.
Jones’s death four days later. “Whether an act is the proximate cause of an injury[ ] depends
upon whether the injury was a natural and probable consequence of the negligent act, which, in
light of the attending circumstances, could have been reasonably foreseen or anticipated.”
Arnold v. F.J. Hab, Inc., 754 N.E.2d 912, 917 (Ind. Ct. App. 2001). A plaintiff who sues on a
theory of negligence is required to prove causation and that is generally done through the use of
an expert or other medical opinion. Wal-Mart argues there is a void of evidence on causation,
specifically because the Estate has produced no expert opinion or doctor testimony connecting
the security guard’s act of telling the bystanders to get back from Ms. Jones, to her death four

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days later. In response, the Estate argues Wal-Mart has not produced a medical expert who
opines that an expert is needed to establish causation and has therefore failed to negate an
essential element of the plaintiff’s claim (See Dkt. 26 at 4).
The Court agrees with Wal-Mart that the Estate has not put forth any evidence
whatsoever that logically connects the security guard’s actions on February 8, 2011 with Ms.
Jones’s death on February 12, 2011.

There is no indication that Ms. Kincy’s failure to

administer CPR negatively affected Ms. Jones’s health. Further, the Estate is mistaken in their
assertion that Wal-Mart has a duty to establish that an expert opinion is needed. To the contrary,
as the moving party, the Estate must produce some evidence of causation in order to avoid
summary judgment. Causation is an essential prima facie element of any negligence case;
without evidence of causation, plaintiff’s claim fails. Buckner v. Sam’s Club, Inc., 75 F.3d 290,
293-94 (7th Cir. 1996) (citing Dickison v. Hargitt, 611 N.E.2d at 694)). Because the Estate has
not submitted or designated any evidence to meet its burden of proof on an essential
element, summary judgment must be granted in favor of Wal-Mart.
IV. CONCLUSION
For the reasons set forth above, Wal-Mart’s Motion for Summary Judgment (Dkt. 23) is
GRANTED. A separate judgment will be issued.

SO ORDERED.

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

04/12/2013
Date: _________________

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Distribution:
John D. Boren
BOREN OLIVER & COFFEY
[e-mail]
Glen Emmett Koch, II
BOREN OLIVER & COFFEY
[e-mail]
Matthew Reed King
FROST BROWN TODD LLC
[e-mail]
Thomas L. Davis
FROST BROWN TODD LLC
[e-mail]

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