Robin Austin v. Walgreen Company , 885 F.3d 1085 ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-2629
ROBIN AUSTIN,
Plaintiff-Appellant,
v.
WALGREEN COMPANY,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:15-cv-00104 — John E. Martin, Magistrate Judge.
____________________
ARGUED JANUARY 19, 2018 — DECIDED MARCH 23, 2018
____________________
Before BAUER, MANION, AND ROVNER, Circuit Judges.
MANION, Circuit Judge. Robin Austin sued Walgreen Co.
after she slipped and fell at a Walgreens store in northwest-
ern Indiana, breaking her knee. A magistrate judge, presid-
ing by consent, granted summary judgment to Walgreen.
For the reasons set forth below, we affirm.
2 No. 17-2629
I. Background
On a cold January day, Robin Austin went to a
Walgreens store in Hebron, Indiana. When she arrived, a
snowplow was leaving the parking lot. After spending some
time in the store, she was walking toward the registers when
she slipped and fell. Austin did not see anything on the floor
that would have caused the fall. At her deposition, she de-
scribed her experience this way: “I—walking towards the
cash register, my right foot hit something wet, and all of my
weight landed on my left knee. I went down, all my weight
on my left knee, and then immediately fell backwards on my
back.” She assumes she slipped on water.
Amber Parsons, another customer at the Walgreens that
day, was the first to come to Austin’s assistance after the fall.
She does not recall seeing anything on the floor. Others who
arrived at the scene shortly after the fall also did not see any-
thing on the floor. Gabriel Luna, the assistant store manager,
also testified that he was not aware that there was any water
on the floor prior to Austin’s fall.
Stella Vanderhere, Austin’s friend, arrived at the store
approximately seven minutes after Austin fell. Vanderhere
observed “water everywhere,” and she took several pictures
showing puddles of water in the general area where Austin
had fallen and where people had gathered after the fall.
Sometime after Vanderhere’s arrival, paramedics arrived
to take Austin to St. Anthony Medical Center. The paramed-
ics recorded that Austin told them she “was walking and
slipped on wet floor.” At St. Anthony Medical Center, the
doctor noted that Austin told him “she was walking in
No. 17-2629 3
Walgreens … when she slipped on water, and fell onto her
left kneecap.” Austin was diagnosed with a broken kneecap.
Austin subsequently brought suit against Walgreen in
Indiana state court. Citing diversity jurisdiction, Walgreen
removed the case to the United States District Court for the
Northern District of Indiana. The parties consented to the
assignment of their case to a magistrate judge. Walgreen
moved for summary judgment. In response to the motion,
Austin submitted her statements to the paramedics and the
doctor at St. Anthony Medical Center. Walgreen moved to
strike those statements as inadmissible hearsay. In a single
order, the magistrate judge granted the motion to strike and
the motion for summary judgment. The judge concluded
that the statements did not fit within an exception to the rule
against hearsay and that Austin had failed to show that
Walgreen’s negligence caused her injury. Austin now ap-
peals.
II. Discussion
We review the grant of summary judgment de novo, con-
struing all facts and drawing all inferences “in the light most
favorable to the non-moving party.” Zuppardi v. Wal-Mart
Stores, Inc., 770 F.3d 644, 649 (7th Cir. 2014). Federal Rule of
Civil Procedure 56 directs courts to enter summary judg-
ment “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judg-
ment as a matter of law.” Fed. R. Civ. P. 56(a). When we re-
view a motion for summary judgment, we do not “weigh the
evidence” or “determine the truth of the matter.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). We merely “de-
termine whether there is a genuine issue for trial.” Id.
4 No. 17-2629
The Supreme Court instructs that Rule 56 “mandates the
entry of summary judgment … against a party who fails to
make a showing sufficient to establish the existence of an el-
ement essential to that party’s case, and on which that party
will bear the burden of proof at trial.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). So, to resolve this appeal, we must
determine what it is that Austin would be required to prove
at trial.
As this is a diversity case, we “apply state substantive
law.” Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427
(1996). In Indiana, “[t]he tort of negligence has three ele-
ments: (1) a duty owed by the defendant to the plaintiff; (2) a
breach of that duty; and (3) injury to the plaintiff resulting
from the defendant’s breach.” Christmas v. Kindred Nursing
Ctrs. Ltd. P’ship, 952 N.E.2d 872, 878 (Ind. Ct. App. 2011).
The status of a person who comes onto land is key in de-
termining the duty a landowner owes to that person. Id. at
880. In this case, Austin was Walgreen’s customer when she
fell, so she was “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.” Burrell v.
Meads, 569 N.E.2d 637, 642 (Ind. 1991) (quoting Restatement
(Second) of Torts § 332 (1965)). This made her a “business
invitee” of Walgreen. See Schulz v. Kroger Co., 963 N.E.2d
1141, 1144 (Ind. Ct. App. 2012). Accordingly, Walgreen owed
Austin “the highest duty of care,” which was “to exercise
reasonable care for [Austin’s] protection while [she was] on
the premises.” See Christmas, 952 N.E.2d at 880. However,
Austin’s status did not impose a duty on Walgreen “to in-
sure [her] safety while on the premises.” See Schulz, 963
N.E.2d at 1144.
No. 17-2629 5
Allowing the existence of a hazardous substance on the
floor of a business can be a breach of the duty to exercise
reasonable care. See Barsz v. Max Shapiro, Inc., 600 N.E.2d
151, 153 (Ind. Ct. App. 1992). Here, the parties debate
whether Austin’s statement that she stepped on “something
wet” is sufficient to show that there was indeed a hazardous
substance on the floor. However, we need not resolve that
question, because “before liability may be imposed on the
invitor, it must have actual or constructive knowledge of the
danger.” Schulz, 963 N.E.2d at 1144. And even assuming
Austin has sufficient evidence that there was a hazard on the
floor, she did not present any evidence that Walgreen had
knowledge of it.
Knowledge can be either actual or constructive. Id. Here,
there is no evidence that Walgreen had actual knowledge of
a hazard. No one told a Walgreen employee that there was
any kind of hazard on the floor in the area of the store where
Austin fell before her fall, and no Walgreen employee saw
anything on the floor in that area before her fall. Nor did
Walgreen have constructive knowledge of any alleged haz-
ard before the fall. To establish constructive knowledge, a
plaintiff must show “a ‘condition [which] has existed for
such a length of time and under such circumstances that it
would have been discovered in time to have prevented inju-
ry if the storekeeper, his agents or employees had used ordi-
nary care.’” Schulz, 963 N.E.2d at 1144 (alteration in original)
(quoting Wal-Mart Stores, Inc. v. Blaylock, 591 N.E.2d 624, 628
(Ind. Ct. App. 1992)). Austin presented no evidence of how
long any alleged hazard was present on the floor. Austin
points to her own statement that she stepped on something
and Vanderhere’s photos showing the presence of water
several minutes after the fall to show that a hazard existed,
6 No. 17-2629
but those do not establish how long the hazard was on the
floor before Austin encountered it.
Austin argues that Walgreen had knowledge of a hazard
because the store’s assistant manager admitted that when
there was snow outside, as there was on the day in question,
customers could track snow into the store and create poten-
tially hazardous situations. But just because the assistant
manager knew that hazards were possible does not mean that
he knew they had actually materialized at the place where
Austin fell. There are many potential hazards that can exist
in a store like Walgreens: soda bottles can fall off a display
stand and leak, glass cosmetics jars can shatter on the floor,
or toys could clutter an aisle. That any of those hazards and
many others could occur at any given moment probably
ought to be on the mind of a person charged with managing
a store, but that does not automatically impute instantane-
ous knowledge of when those hazards come about. The law
does “not hold [a storeowner] strictly liable for a fall occur-
ring before [it] even had a chance to remove the foreign sub-
stance from the floor.” Barsz, 600 N.E.2d at 153–54. Without
evidence that Walgreen had a chance to respond to any haz-
ard, Austin cannot establish knowledge. Austin relies on
nothing but speculation to suggest that the alleged hazard
existed for any significant length of time before her fall.
Speculation does not defeat summary judgment.
Even if we were to accept that Austin has shown a dan-
gerous condition, she presented no evidence that Walgreen
was or should have been aware of that condition in time to
address it. Consequently, she has failed to establish that
No. 17-2629 7
Walgreen breached its duty of care. 1 The failure to support
that element of her claim dooms it. 2
III. Conclusion
The magistrate judge did not err in granting summary
judgment to Walgreen. Accordingly, we AFFIRM.
1 This result conflicts with the two Indiana cases upon which Austin
primarily relies: Barsz, 600 N.E.2d at 154, and Golba v. Kohl’s Department
Store, Inc., 585 N.E.2d 14, 17 (Ind. Ct. App. 1992). In those cases, plaintiffs
with facts similar to the facts of this case avoided summary judgment.
But they did so due to a distinctive feature of Indiana summary judg-
ment procedure, and so are inapposite here. See Gasperini, 518 U.S. at 427
(“[F]ederal courts sitting in diversity apply … federal procedural law.”).
In Indiana, a defendant moving for summary judgment must affirmative-
ly disprove an element of the plaintiff’s case. Siner v. Kindred Hosp. Ltd.
P’ship, 51 N.E.3d 1184, 1188 (Ind. 2016). “In this respect, Indiana’s sum-
mary judgment procedure abruptly diverges from federal summary
judgment practice.” Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644
N.E.2d 118, 123 (Ind. 1994). In federal court, a party moving for summary
judgment does not need to present any evidence concerning the non-
movant’s claim. Celotex Corp., 477 U.S. at 323. All a federal movant has to
do is point to the absence of evidence to support the claim. See id. at 322.
Therefore, it is not helpful to use Indiana cases as a gauge of evidentiary
sufficiency on a summary judgment motion filed in federal court. See
generally McEwen v. Delta Air Lines, Inc., 919 F.2d 58, 60 (7th Cir. 1990)
(noting that a federal court may grant summary judgment “even if the
state would require the judge to submit an identical case to the jury”).
2 Austin also appeals the magistrate judge’s ruling that her state-
ments to the paramedics and to the doctor at St. Anthony Medical Center
did not fall within an exception to the rule against hearsay. Those state-
ments went to the existence of a hazard on the store’s floor. As we have
concluded that summary judgment is appropriate regardless of the con-
dition of the floor, we need not address that evidentiary issue.