B. F. F. v. Buckle, Inc.

• Decision Date: 26 February 2015
• Docket Number: 3:13-cv-00222-RLY-WGH
• Parties: B. F. a minor, KIM FIELDS and KENNY FIELDS as the natural parents and legal guardians of B.F., Plaintiffs, v. THE BUCKLE, INC., Defendant.
• Court: U.S. District Court — Southern District of Indiana

B. F. a minor, KIM FIELDS and KENNY FIELDS as thenatural parents and legal guardians of B.F., Plaintiffs, v. THE BUCKLE, INC., Defendant.

3:13-cv-00222-RLY-WGH

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA EVANSVILLE DIVISION

February 26, 2015

ENTRY ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND MOTION TO STRIKE PORTIONS OF PLAINTIFFS' AFFIDAVIT

This case originated in Vanderburgh Circuit Court, where Plaintiffs, B.F., a minor, and his parents, Kim and Kenny Fields, filed suit against Defendant, The Buckle, Inc., seeking damages for personal injuries that B.F. suffered during a visit to The Buckle's retail clothing store. Pursuant to 28 U.S.C. §§ 1332(a) and 1441(a), The Buckle removed the action to this court based upon diversity jurisdiction and now moves for summary judgment and to strike portions of Kenny Fields's affidavit. For the reasons set forth below, the court GRANTS both motions.

I. Background

Mr. and Mrs. Fields and their then four-year-old son, B.F., visited The Buckle, a retail clothing store located in the Eastland Mall in Evansville, Indiana. The Buckle's surveillance camera captured the incident giving rise to this action. The video initiallyshows B.F. sitting on his father's shoulders. Mr. Fields then placed B.F. on the ground beside a clothing rack. The clothing rack, an oblong rectangle in shape, has two hanger rails that constitute the long sides of the rack. The short ends of the rack consist of a horizontal bar that supports a shelf separating the hanger rails. (See Filing No. 44-1). As Plaintiffs describe it, the clothing rack has "open ends." (Filing No. 33 at 3).

Once on the ground, B.F. grabbed hold of and hung from the support bar at the end of the rack before disappearing between the rows of hanging clothes. Only seconds thereafter, Mr. Fields heard his son scream and appear from within the clothing rack with a hanger caught in his eye. (Filing No. 33-2, Affidavit of Kenny Fields ("Fields Aff.") at 1). The undisputed evidence establishes that a metal-tipped hanger within the clothing rack caused a full-thickness eyelid laceration and a canalicular laceration to B.F.'s left lower lid.¹ (Filing No. 33 at 2; Filing No. 33-4 at 2).

Plaintiffs bring this negligence action on a premises liability theory, claiming that The Buckle breached its duty to protect B.F. from dangerous conditions on its premises. The Buckle moved for summary judgment only one month after discovery commenced and before either party conducted any depositions. (Filing No. 33 at 4). Plaintiffs lamentthis fact in their Brief in Opposition to Defendant's Motion for Summary Judgment, but they neglected to move for relief pursuant to Rule 56(d). Thus, the court rules on The Buckle's motions despite the regrettable dearth of admissible evidence in the record.

II. Discussion

Under the Erie doctrine, federal courts exercising diversity jurisdiction apply state substantive law and federal procedural law. Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 428, 116 S. Ct. 2211, 135 L. Ed. 2d 659 (1996). Therefore, the court applies the federal standard for summary judgment and Indiana substantive law with respect to Plaintiffs' premises liability claim.

A. Motion to Strike

In opposition to summary judgment, Plaintiffs rely exclusively on the affidavit of Kenny Fields. (See Filing No. 33 at 4-8). The Buckle challenges certain portions of the affidavit on the grounds that the affiant lacks the requisite personal knowledge to testify about the factual issues in dispute. (See Filing No. 43). Specifically, The Buckle moves to strike the following statements:

7. I have been to other stores in the Eastland Mall and found that racks are closed or designed to keep children out in many locations and some plastic hangers are used in other locations. Exhibit A is attached with the photographs of other locations in Eastland Mall that I observed, which are constructed in such a manner to prevent an occurrence as my son experienced.

10. No one had been checking on the racks and status of same [sic] during this time in the store.

12. The Buckle, Inc.'s store located in the Eastland Mall in Evansville, Indiana serves a young group of shoppers known to bring little children to the store.

(Filing No. 33-2, Fields Aff. at 1-2).

Federal Rule of Civil Procedure 56(c)(4) provides that affidavits used to oppose a motion for summary judgment "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant . . . is competent to testify on the matters stated." Although personal knowledge may include inferences and opinions, such inferences must be substantiated by specific facts. Fulmore v. Home Depot, U.S.A., Inc., 423 F. Supp. 2d 861, 871 (S.D. Ind. 2006) (citing Drake v. Minn. Mining & Mfg. Co., 134 F.3d 878, 887 (7th Cir. 1998)). With respect to Paragraphs 7 and 12, the court agrees with The Buckle that such statements amount to conclusory opinions asserted as facts. Kenny Fields neither establishes his competence to opine on the design features of clothing racks nor presents specific facts to support his bald conclusion about The Buckle's clientele. See Drake, 134 F.3d at 887. On summary judgment, the court disregards such statements that fail to comply with Rule 56(c)(4). Fulmore, 423 F. Supp. 2d at 871. In Paragraph 10, however, Kenny Fields states what he personally observed during his short time in The Buckle's store on December 30, 2011. This constitutes a specific fact based on his personal knowledge and therefore suffices under Rule 56(c)(4).

For the foregoing reasons, the court GRANTS The Buckle's Motion to Strike Portions of Plaintiffs' Affidavit (Filing No. 43) with respect to Paragraphs 7 and 12 and DENIES the Motion with respect to Paragraph 10. Accordingly, the court will not consider the stricken portions of the affidavit on summary judgment.

B. Summary Judgment

1. Standard

The court must grant 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). In determining whether the movant has met the standard, the court reviews the record as a whole and draws all reasonable inferences in favor of the nonmoving party. Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 702 (7th Cir. 2009) (citations omitted). However, to survive summary judgment, the nonmoving party must go beyond the pleadings and designate specific facts showing the existence of a genuine issue for trial. Hemsworth v. Quotesmith.Com, Inc., 476 F.3d 487, 490 (7th Cir. 2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). A genuine factual dispute exists if it "can be resolved only by a finder of fact because [it] may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). However, factual disputes that have no bearing on the suit's outcome under the governing substantive law will not preclude summary judgment. Eckles v. Consol. Rail Corp., 94 F.3d 1041, 1045 (7th Cir. 1996).

2. Analysis

In opposition to summary judgment, Plaintiffs assert that genuine factual disputes remain as to whether the particular design of The Buckle's clothing rack or its failure to keep the rack free of loose hangers amount to dangerous conditions.²

To prevail on a claim of negligence, a plaintiff must show: (1) that the defendant owed the plaintiff a duty of care; (2) that the defendant's conduct fell below that applicable standard; and (3) that this breach of duty proximately caused compensable injury to plaintiff. Hale v. SS Liquors, Inc., 956 N.E.2d 1189, 1192 (Ind. Ct. App. 2011). The court determines as a matter of law whether a legal duty exists. Douglass v. Irvin, 549 N.E.2d 368, 369-70 (Ind. 1990). Upon a finding of duty, the fact finder must then evaluate whether the defendant's conduct fell short of the requisite care owed to the invitee. Id.

In Indiana, a landowner owes invitees a duty to exercise reasonable care to protect them from harm on its premises. Pfenning v. Lineman, 947 N.E.2d 392, 406 (Ind. 2011) (citation omitted). To further define this duty, Indiana has adopted the Restatement (Second) of Torts § 343 (1965):

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger.

Id. (citing Burrell v. Meads, 569 N.E.2d 637, 639-40 (Ind. 1991)). The absence of an element under § 343 entitles The Buckle to summary judgment. Id.; see also Harradon v. Schlamadinger, 913 N.E.2d 297, 301 (Ind. Ct. App. 2009) (noting that all three elements, expressed in the conjunctive, are preconditions to premises liability).

The sole issue before the court is whether The Buckle had a duty to protect B.F. from a loose hanger located within a clothing rack, for without a legal duty no liability can attach. As The Buckle points out, this determination turns on whether The Buckle should have realized that such a condition involved an unreasonable risk of harm, a question reserved for the court. See Pfenning, 947 N.E.2d at 407 (holding that, as a matter of law, the risk of a person being struck by a golf ball while on a golf course does not qualify as an "unreasonable risk of harm"); Harradon, 913 N.E.2d at 302 (finding that a sofa did not pose an unreasonable danger to an infant who died from suffocation when he and his mother slept on it). Plaintiffs insist that because the parties disagree as to whether the hanger and clothes rack constitute unreasonably dangerous conditions,...