Brown v. Costco Wholesale Corp.
| Decision Date | 20 January 2023 |
| Docket Number | 1:21-cv-02668-SEB-MJD |
| Parties | AMANDA BROWN, Plaintiff, v. COSTCO WHOLESALE CORPORATION, Defendant. |
| Court | U.S. District Court — Southern District of Indiana |
On September 6, 2020, a plastic partition fell on Plaintiff Amanda Brown while she was checking out her purchases at a Costco Warehouse in Indianapolis, Indiana. She filed suit against Defendant Costco Wholesale Corporation in state court seeking damages to compensate her for the injuries she sustained. Costco removed the action to our court under 28 U.S.C. §§ 1441 and 1446, asserting diversity jurisdiction under 28 U.S.C. § 1332. Costco now moves for summary judgment, arguing that Ms. Brown cannot establish two of the requisite legal elements of a negligence action-breach of duty, and proximate cause between Costco's alleged negligence and her injury. Because, as explained further below, genuine issues of fact remain as to both of these elements, summary judgment is unavailable to Costco.
Parties to a civil dispute may seek a summary judgment as to their claims, which is a way of resolving the case short of trial and "[t]he court shall 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). "Material facts" are those that "might affect the outcome of the suit," and a dispute about a material fact is "genuine" when "a reasonable jury could return a verdict for the nonmoving party." Id. at 248; see also Johnson v. Manitowoc Cnty., 635 F.3d 331, 334 (7th Cir. 2011) ().
When deciding whether a genuine dispute of material facts exists, the court construes all facts in a light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. Id. at 255; Khungar v. Access Cmty. Health Network, 985 F.3d 565, 572 (7th Cir. 2021). However, the 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." Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 490 (2007). We consider only the materials cited by the parties, Fed.R.Civ.P. 56(c)(3), and are not required to "scour every inch of the record" for evidence that is potentially relevant, Grant v. Tr. of Ind. Univ., 870 F.3d 562, 573-74 (7th Cir. 2017) (quoting Harney v. Speedway SuperAmerica, LLC, 526 F.3d 1099, 1104 (7th Cir. 2008). We do not "judge the credibility of the witnesses, evaluate the weight of the evidence, or determine the truth of the matter." Gonzalez v. City of Elgin, 578 F.3d 526, 529 (7th Cir. 2009). Our inquiry is limited to "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52.
Under our Local Rules, a nonmovant's brief "must include a section labeled 'Statement of Material Facts in Dispute' that identifies the potentially determinative facts and factual disputes that the party contends demonstrate a dispute of fact precluding summary judgment." S.D. Ind. L.R. 56-1(b). "Such statements . . . must 'state facts, not the party's argument . . . '" Hinterberger v. City of Indianapolis, 2019 WL 1439159, at *2 (S.D. Ind. Mar. 30, 2019) (Barker, J.) (quoting S.D. Ind. L.R. 56-1(a) cmt.; S.D. Ind. L.R. 56-1(b) cmt.). "'[E]ach fact' asserted in a brief must be supported by a 'specif[ic]' citation to the record." Id. (quoting S.D. Ind. L.R. 56-1(e)). The court "has no duty to search or consider any part of the record not specifically cited" in this manner. Id. (citing S.D. Ind. L.R. 56-1(e)). The movant's undisputed facts are "admitted unless the non-movant 'specifically controverts' them in its factual statement, shows them to be unsupported, or demonstrates that reasonable inferences can be drawn in its favor." Hinterberger v. City of Indianapolis, 966 F.3d 523, 527 (7th Cir. 2020) (citing S.D. Ind. L. R. 56-1). We note in the ensuing discussion those instances in which these requirements were not fully satisfied.[1]
The following factual background is set forth pursuant to the legal principles detailed above. "The facts stated are not necessarily objectively true, but as the summary judgment standard requires, the undisputed facts and the disputed evidence are presented in the light most favorable to 'the party against whom the motion under consideration is made.'" Gannon v. Menard, Inc., 377 F.Supp.3d 936, 938 (S.D. Ind. 2019) (quoting Premcor USA, Inc. v. American Home Assurance Co., 400 F.3d 523, 526-27 (7th Cir. 2005)).
In March of 2020, the COVID-19 pandemic was spreading through the United States, prompting both the Governor of Indiana and the President of the United States to declare states of emergency. These states of emergency, along with other related governmental responses, impacted all kinds of businesses in a variety of ways. Relevant here, the Department of Labor's Operational Safety and Health Administration ("OSHA") published guidance for workplaces generally, and for the retail industry specifically, recommending that workplaces "[i]nstall physical barriers, such as clear plastic sneeze guards, where possible." Docket No. 39-5, p. 21. OSHA also recommended "steps to reduce the risk of exposure to the coronavirus for workers in the retail industry (e.g., supermarkets, and big box stores)," including the installation of plexiglass partitions at cash registers. Docket No. 39-6, at 1. Meanwhile, the Indiana Governor's executive orders required businesses to "develop a plan to implement measures and institute safeguards to ensure a safe environment for their employees, customers, clients, and members." Docket No. 39-3, at 4. These plans were to address businesses' plans to comply with the Center for Disease Control's requirements of "maintaining six-foot social distancing for both employees and members of the general public . . . and/or employing other separation measures such as . . . using barriers." Id.
In implementing these kinds of safety measures, Costco required each of its Warehouse locations to purchase and install plexiglass partitions for placement at all cash registers. The Costco Warehouse located on Michigan Road in Indianapolis, however, after encountering a shortage of plexiglass, purchased and installed plastic partitions that were functionally similar to plexiglass but made of thin plastic and measured approximately two to four feet in height, and four feet in width. They were affixed to the cash registers as well as to metal posts adjacent to each cash register by use of multiple Velcro Command strips. When the partitions were removed and cleaned, Costco employees would apply new Velcro Command strips to re-affix them to the cash registers and adjacent posts.
On September 6, 2020, Ms. Brown, accompanied by her ex-husband, was shopping at the Michigan Road Costco Warehouse in search of items relating to their son's upcoming departure to college. Ms. Brown testified that she "always go[es] to Costco," having regularly shopped there since early in the pandemic. Docket No. 39-8, at 8. However, this particular visit was the first time Ms. Brown had observed the plastic partitions installed by Costco at its cash register locations. Although she had observed similar partitions at other big-box stores such as Wal-Mart and Meijer, Ms. Brown said she was still "shocked" that Costco had installed them. Id. While waiting in line to check out, Ms. Brown noted that the plastic partitions did not keep the patrons from standing in close proximity to one another as they waited and conversed with one another, which she regarded as "kind of weird." Id. at 9. She recalled wondering about how effective the partitions could possibly be at preventing the spread of COVID-19.
Costco cited in its motion for summary judgment as an undisputed fact that Ms. Brown had "noticed that the partition was hanging using Velcro." Docket No. 38, at 6. Ms. Brown disputes this alleged fact, citing to her own deposition testimony in which, in answer to a question about whether she remembered how the partitions were attached, she said, "I want to say Velcro," continuing with, Docket No. 51, at 10. Ms. Brown maintains that this testimony "does not indicate she knew the partition was hung by Velcro (i.e., Command Strips) prior to the incident at issue." Id. Construing these facts as well as all reasonable inferences in favor of Ms. Brown, as we must do at this juncture, Ms. Brown's observations re: the Velcro before the partition fell on her remains a disputed fact.
As Ms Brown was preparing to finalize her purchases that day, she sorted her selections that she had placed on the checkout conveyor belt and separated them from her ex-husband's purchases. "There were so many people" in the vicinity of the...
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