LOWE v. CAESARS RIVERBOAT CASINO, LLC et al
Filing
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ENTRY GRANTING MOTION FOR SUMMARY JUDGMENT - 40 Motion for Summary Judgment is GRANTED. The Court will enter final judgment by separate order. See Entry for details. Signed by Judge Tanya Walton Pratt on 7/18/2016 (copy mailed to plaintiff). (LBT)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION
HARLEN LOWE,
Plaintiff,
v.
CAESARS RIVERBOAT CASINO, LLC, d/b/a
HORSESHOE SOUTHERN INDIANA, and
SCHINDLER ELEVATOR CORPORATION,
Defendants.
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Case No. 4:15-cv-00149-TWP-TAB
ENTRY GRANTING MOTION FOR SUMMARY JUDGMENT
The Plaintiff, Harlen Lowe (“Mr. Lowe”), proceeding pro se, filed this negligence action
seeking damages for personal injuries sustained when he fell, while riding down an escalator at
the Horseshoe Southern Indiana Casino (“the Casino”). Before the Court is Defendants Caesars
Riverboat Casino, LLC’s (“Caesars”), and Schindler Elevator Corporation’s (collectively, “the
Defendants”) Motion for Summary Judgment filed on May 4, 2016. (Filing No. 40.) For the
following reasons, the Court grants the Defendants’ Motion.
I. BACKGROUND
As with any summary judgment motion, the following facts are reviewed in the light most
favorable to Mr. Lowe, the non-moving party, and the Court draws all reasonable inferences in
Mr. Lowe’s favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Zerante v.
DeLuca, 555 F.3d 582, 584 (7th Cir. 2009). Notably, Mr. Lowe did not respond to the Defendants’
Motion for Summary Judgment or present any disputed facts. This is despite Defendants filing
notice that his failure to do so would result in the Defendants’ facts being “accepted by the court
as being true unless [he] submit[ted] [his] own affidavits or other admissible evidence disputing
those facts”. (Filing No. 44 at 1.)
Caesars operates the Casino, which is located in Harrison County, Indiana. Caesars
contracts with Schindler Elevator Corporation to maintain and service the escalators at the Casino.
(Filing No. 42-2.) On March 19, 2015, Mr. Lowe was a guest at the Casino. He attempted to ride
the down escalator from the third floor to the second floor. (Surveillance Video, Manually Filed
at Filing No. 43.) In so doing, Mr. Lowe walked onto the escalator, lost his balance, and fell down
the escalator steps. 1 (Id.)
In his Complaint, Mr. Lowe contends that as a result of the fall, he suffered injuries,
including but not limited to, fractures of various bones, dizzy spells, memory problems and hip
and leg problems. (Filing No. 1 at 2-3.) Mr. Lowe also claims that the Defendants negligently
maintained the escalator, thereby causing him to get “caught in the escalator mechanism” and fall.
(Id.) However, Mr. Lowe has not submitted any evidence that the escalator malfunctioned or that
it otherwise contributed to his fall. Similarly, Mr. Lowe has not submitted evidence that the
Defendants were negligent in causing him to fall or evidence to substantiate his personal injuries.
Mr. Lowe has not submitted any evidence in support of his claim.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate if the
movant shows that there is no genuine dispute as to any material fact and the movant is entitled to
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Additionally, the Defendants argue that Mr. Lowe has “admitted” several facts that disprove his case because he
failed to respond to the Defendants’ Requests for Admissions. See Fed. R. Civ. P. 36(a)(3) (“A matter is admitted
unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a
written answer or objection addressed to the matter and signed by the party or its attorney.”). For instance, the
Defendants note that Mr. Lowe did not respond to the Requests for Admissions regarding whether Mr. Lowe had been
drinking; that the incident was solely Mr. Lowe’s fault; and that there is no evidence of negligence or fault by the
Defendants. (See Filing No. 41 at 2-3.) However, noting Mr. Lowe’s pro se status, and the lack of evidence to support
his claim, the Court need not address whether Mr. Lowe’s silence in response to the Defendants’ Request should be
interpreted or enforced as admissions.
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judgment as a matter of law. Fed. R. Civ. P. 56(a). In ruling on a motion for summary judgment,
the court reviews the record in the light most favorable to the nonmoving party and draws all
reasonable inferences in that party’s favor. Zerante, 555 F.3d at 584; Anderson, 477 U.S. at 255.
The party seeking summary judgment bears the initial responsibility of informing the court
of the basis for its motion, and identifying “the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any,” which demonstrate the absence of a
genuine issue of material fact. Celotex Corp., 477 U.S. at 323 (noting that, when the non-movant
has the burden of proof on a substantive issue, specific forms of evidence are not required to negate
an non-movant’s claims in the movant’s summary judgment motion, and that a court may, instead,
grant such a motion, “so long as whatever is before the district court demonstrates that the standard
. . . is satisfied.”). See also Fed. R. Civ. P. 56(c)(1)(A) (noting additional forms of evidence used
in support or defense of a summary judgment motion, including: “depositions, documents,
electronically stored information, affidavits or declarations, stipulations . . . , admissions,
interrogatory answers, or other materials”).
Thereafter, a non-moving party, who bears the burden of proof on a substantive 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; Celotex
Corp., 477 U.S. at 323-24; Fed. R. Civ. P. 56(c)(1). 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); Anderson, 477 U.S. at 247-48; Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “It is not the duty of the court to scour
the record in search of evidence to defeat a motion for summary judgment; rather, the nonmoving
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party bears the responsibility of identifying the evidence upon which [it] relies.” Harney, 526 F.3d
at 1104.
Similarly, a court is not permitted to conduct a paper trial on the merits of a claim and may
not use summary judgment as a vehicle for resolving factual disputes. Ritchie v. Glidden Co., ICI
Paints World-Grp., 242 F.3d 713, 723 (7th Cir. 2001); Waldridge, 24 F.3d at 920. A court may
not make credibility determinations, weigh the evidence, or decide which inferences to draw from
the facts. Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003) (“these are jobs for a factfinder”);
Hemsworth, 476 F.3d at 490. Instead, when ruling on a summary judgment motion, a court’s
responsibility is to decide, based on the evidence of record, whether there is any material dispute
of fact that requires a trial. Id.
III. DISCUSSION
In order to prevail on a claim of negligence, a plaintiff must show: (1) a duty owed to the
plaintiff by the defendant; (2) a breach of duty; and (3) a compensable injury proximately caused
by defendant’s breach of duty. King v. Northeast Security, Inc., 790 N.E.2d 474, 484 (Ind. 2003).
When any one of these elements is clearly absent, summary judgment is appropriate. Colen v.
Pride Vending Serv., 654 N.E.2d 1159, 1162 (Ind. Ct. App. 1995) (“a defendant is entitled to
judgment as [a] matter of law when undisputed material facts negate at least one element of
plaintiff’s claim”).
The Defendants have designated evidence in the form of a surveillance video which depicts
Mr. Lowe walk onto the escalator, grab onto the right handrail and then begin to lean forward.
(Filing No. 43.) Mr. Lowe continues to lean forward until he loses his balance and falls down the
escalator steps. Id. The video does not depict any malfunction of the escalator or negligent act
which causes Mr. Lowe to “get caught in the escalator mechanism” and fall.
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By failing to respond to the Defendants’ Motion for Summary Judgment, Mr. Lowe has
not met his burden of establishing a genuine issue of material fact. Because Mr. Lowe has not
submitted any evidence in support of his negligence claim, no jury could reasonably conclude that
the Defendants breached a duty to him with regard to maintaining the escalator. See Hemsworth,
476 F.3d at 490 (noting that a non-moving party 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); Celotex Corp., 477 U.S. at 323-24 (same); Fed. R. Civ. P. 56(c)(1) (same).
Accordingly, the Defendants are entitled to summary judgment on Mr. Lowe’s sole claim of
negligence.
IV. CONCLUSION
For the aforementioned reasons, the Court GRANTS the Defendants’ Motion for Summary
Judgment. (Filing No. 40.) The Court will enter final judgment by separate order.
SO ORDERED.
Date: 7/18/2016
DISTRIBUTION:
Harlen Lowe
5706 Maryman Road
Louisville, Kentucky 40258
Blake N. Shelby
FROST BROWN TODD LLC
bshelby@fbtlaw.com
Kevin C. Schiferl
FROST BROWN TODD LLC
kschiferl@fbtlaw.com
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