Robin Austin v. Walgreen Company

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 described

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 anything

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 paramedics

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 appeals.

II. Discussion

We review the grant of summary judgment de novo, construing

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 judgment

“if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a). When we review

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 “determine

whether there is a genuine issue for trial.” Id.

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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 element

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 elements:

(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 determining

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 insure

[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 hazard

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 injury

if the storekeeper, his agents or employees had used ordinary

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 potentially

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 instantaneous

knowledge of when those hazards come about. The law

does “not hold [a storeowner] strictly liable for a fall occurring

before [it] even had a chance to remove the foreign substance

from the floor.” Barsz, 600 N.E.2d at 153–54. Without

evidence that Walgreen had a chance to respond to any hazard,

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 dangerous

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 judgment

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 affirmatively

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 summary

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 nonmovant’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 statements

to the paramedics and to the doctor at St. Anthony Medical Center

did not fall within an exception to the rule against hearsay. Those statements

went to the existence of a hazard on the store’s floor. As we have

concluded that summary judgment is appropriate regardless of the condition

of the floor, we need not address that evidentiary issue.

Affirmed