75 F.3d 290 (7th Cir. 1996), 95-2080, Buckner v. Sam's Club, Inc.

Docket Nº:95-2080.
Citation:75 F.3d 290
Party Name:Linda BUCKNER and Lawrence Buckner, Plaintiffs-Appellants, v. SAM'S CLUB, INCORPORATED, Defendant-Appellee.
Case Date:January 25, 1996
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 290

75 F.3d 290 (7th Cir. 1996)

Linda BUCKNER and Lawrence Buckner, Plaintiffs-Appellants,


SAM'S CLUB, INCORPORATED, Defendant-Appellee.

No. 95-2080.

United States Court of Appeals, Seventh Circuit

January 25, 1996

Argued Nov. 1, 1995.

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Gerald H. McGlone, McGlone Law Offices, Terre Haute, IN, Thomas Joseph Chowning, argued, Chowning Law Offices, Terre Haute, IN, for Plaintiffs-Appellants.

Gus Sacopulos, argued, Gregory S. Carter, Sacopulos, Johnson, Carter & Sacopulos, Terre Haute, IN, for Defendant-Appellee.

Before POSNER, Chief Judge, and FLAUM and MANION, Circuit Judges.

MANION, Circuit Judge.

Linda Buckner slipped and fell in a Sam's Club while perusing a temporary display of watches and jewelry. As a result of the fall she claimed injuries to her neck, back, and right shoulder. Linda (and her husband) sued in Indiana state court contending that Sam's Club had failed to properly maintain the premises and to take adequate precautions to protect Linda from potential dangers. Sam's Club removed the matter to federal court. The district court granted summary judgment in favor of Sam's Club, Inc. We affirm.

Linda Buckner claims to have stepped on a small object that was on the floor near a temporary jewelry and watch display at Sam's Club. She apparently incurred injuries to her back, neck, and shoulder. Lawrence Buckner claims the loss of the comfort, society, and consortium of his wife due to her injuries. From the outset, the principal snag in the Buckners' case has been that the

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object she stepped on was neither seen nor found. Thus the causal connection between Sam's Club and the fall is tenuous. At her deposition, Linda first described what she stepped on as "something uneven and faulty," and then as a "lump" under "the ball of [her] shoe." She said she did not know what the object was, however, and although an immediate search was made in the enclosed area adjacent to the fall, neither she nor store personnel ever found what (if anything) she had slipped on.

The Buckners attempted to bolster Linda's weak deposition testimony with a supplemental affidavit submitted in response to Sam's Club's motion for summary judgment. There she was decidedly more specific about what she had stepped on, describing it as a "small object" that "felt to be about the size of a ladies watch, which is one of the types of items that were on the display tables." The Buckners also submitted an affidavit from Douglas Timmons, a safety management expert, asserting that Linda had slipped and fallen "as a direct result of stepping on a watch that had been dropped or knocked off the display." The principal basis for this conclusion was his observation that Sam's Club's use of common, light-weight, folding tables without edges or rails made it more likely that merchandise would fall to the floor than if Sam's Club had displayed the items on tables with edges. Also, because the...

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