Weaver v. Speedway, LLC

• Decision Date: 15 March 2022
• Docket Number: No. 21-1957,21-1957
• Parties: Cheryl WEAVER, Plaintiff-Appellant, v. SPEEDWAY, LLC, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

28 F.4th 816

Cheryl WEAVER, Plaintiff-Appellant,

v.SPEEDWAY, LLC, Defendant-Appellee.

No. 21-1957

United States Court of Appeals, Seventh Circuit.

Argued January 25, 2022

Decided March 15, 2022

Colin H. Dunn, Attorney, Dunn Harrington, Chicago, IL, Robert A. Montgomery, Attorney, Law Office of Robert A. Montgomery, Chicago, IL, for Plaintiff-Appellant.

Thomas L. Davis, Darren A. Craig, Haley A. Johnston, Attorneys, Frost Brown Todd, LLC, Indianapolis, IN, for Defendant-Appellee.

Before Ripple, Wood, and Jackson-Akiwumi, Circuit Judges.

Ripple, Circuit Judge.

Cheryl Weaver initially brought this premises-liability action in state court seeking damages for injuries she sustained when she tripped over the curb in front of a Speedway gas-station convenience store. Alleging negligence on the part of Speedway, LLC ("Speedway"), she initially sued Speedway in Indiana state court. Speedway removed the case to the United States District Court for the Northern District of Indiana based on diversity of citizenship.¹

In due course, Speedway moved for summary judgment on the issue of liability. Ms. Weaver replied that the curb presented an unreasonable tripping hazard because it was not painted yellow, as required by a Speedway internal policy. The court entered summary judgment for Speedway; it concluded that, as a matter of law, Speedway's failure to paint the curb was not negligent because the alleged hazard was open and obvious. For the reasons set forth in this opinion, we affirm the judgment of the district court.

IBACKGROUND

When Ms. Weaver walked up to the convenience store at a Speedway gas station in December 2017, she did not notice the curb in front of the doorway. She tripped on the curb, fell to the ground, and sustained injuries. Ms. Weaver sued Speedway in Indiana state court for negligence, alleging that the company failed to maintain its premises in a reasonably safe condition.

Speedway removed the case to federal court. The removal notice explained the complete diversity of citizenship between the parties and stated that the amount in controversy exceeded $75,000.²

The district court bifurcated the case, ordering the parties to focus on liability in the first phase and postpone discovery relating to Ms. Weaver's injuries and damages until the second phase.

After discovery on liability closed, the parties filed cross-motions for summary judgment on that issue. Ms. Weaver presented evidence that she had not noticed the curb when she tripped.³ Her evidence also included two pictures of the curb, as it appeared three days after her fall.⁴ According to Ms. Weaver, these pictures show that the color of the sidewalk and of the street below the curb is the same. The paint on the curb itself is faded to the point that it is barely visible. The pictures depict the curb to be a standard height, and Speedway confirmed this fact at oral argument. The pictures do not reveal any structural defects to the curb or to the surrounding area. The store behind the curb has glass doors, and there are several signs on the outer walls of the store on both sides of the doorway.⁵

Ms. Weaver also submitted evidence that Speedway's corporate manual required the curb to be painted: "The curb in front of any doorway should be painted yellow to indicate a change in elevation."⁶ The stated purpose of the policy is to "keep customers and Store associates safe on [the] premises."⁷ In response to questions about Speedway's policy, a former Speedway general manager also testified that an unpainted curb presented a threat to customer safety that would warrant an emergency work order.⁸

A magistrate judge, sitting as the district court with the parties' consent under 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73, granted summary judgment for Speedway. The court concluded that any danger posed by the curb was obvious and that Speedway had no reason to anticipate that Ms. Weaver would not protect herself from such a situation. The court relied in part on evidence that, in the last five years, only one other person had reported falling over that curb, and Ms. Weaver herself had visited the same store multiple times without tripping. Although the policy to paint the curbs outside store entrances was relevant, the court continued, a violation of that policy would not by itself establish a breach of Speedway's duty as premises owner.

IIDISCUSSION

Ms. Weaver now submits the district court erred in granting summary judgment for Speedway. While admitting that Speedway's policy requiring curbs to be painted yellow does not define the standard of care, she maintains that the existence of the policy raises a factual question about whether Speedway breached its duty by not clearly demarcating the curb.

"We review the district court's grant of summary judgment de novo." Flexible Steel Lacing Co. v. Conveyor Accessories, Inc. , 955 F.3d 632, 643 (7th Cir. 2020). Summary judgment is proper if the moving party "shows that there is no genuine dispute as to any material fact and [it] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A genuine issue of material fact exists ‘when the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ " Carmody v. Bd. of Trs. of Univ. of Ill. , 893 F.3d 397, 401 (7th Cir. 2018) (quoting Est. of Simpson v. Gorbett , 863 F.3d 740, 745 (7th Cir. 2017) ). When considering a motion for summary judgment, we, like the district court, view the record in the light most favorable to the nonmoving party. Poer v. Astrue , 606 F.3d 433, 438–39 (7th Cir. 2010). However, "inferences ‘that are supported by only speculation or conjecture will not defeat a summary judgment motion.’ " Carmody , 893 F.3d at 401 (quoting Design Basics, LLC v. Lexington Homes, Inc. , 858 F.3d 1093, 1099 (7th Cir. 2017) ).

Moreover, Federal Rule of Civil Procedure 56(c) imposes a very specific duty on a party resisting a motion for summary judgment:

[S]ummary judgment requires a non-moving party to respond to the moving party's properly-supported motion by identifying specific, admissible evidence showing that there is a genuine dispute of material fact for trial. Such a dispute exists when there is sufficient evidence favoring the non-moving party to permit a trier of fact to make a finding in the non-moving party's favor as to any issue for which it bears the burden of proof.

Grant v. Trs. of Ind. Univ. , 870 F.3d 562, 568 (7th Cir. 2017) (citation omitted).

Because federal subject matter jurisdiction is based upon diversity of citizenship, we apply the substantive law of Indiana. See Maurer v. Speedway, LLC , 774 F.3d 1132, 1136 (7th Cir. 2014). We therefore first identify the basic principles of premises liability in Indiana and then apply them to the case at hand.

A.

In order to establish her negligence claim under Indiana law, Ms. Weaver must establish that (1) Speedway owed her a duty of care; (2) it breached that duty; and (3) the breach proximately caused injury to Ms. Weaver. See Goodwin v. Yeakle's Sports Bar & Grill, Inc. , 62 N.E.3d 384, 386 (Ind. 2016). The parties agree that Speedway, a landowner, had a duty to Ms. Weaver, a business invitee, to protect her in a reasonable manner against danger on its premises. Because discovery was bifurcated between liability and damages, and the summary judgment motions were limited to the issue of breach, whether Ms. Weaver can show causation and injury has not yet been litigated.⁹ Therefore, only breach of duty is at issue here.

Under Indiana premises-liability law, a landowner breaches its duty to an invitee when the landowner

(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 in protecting them against the danger.

Douglass v. Irvin , 549 N.E.2d 368, 370 (Ind. 1990) (emphasis removed) (quoting Restatement (Second) of Torts § 343 (1965) ). Notably, Indiana courts, in applying this test, articulate the corollary principle that a landowner is generally not liable for " ‘known or obvious’ dangers on the land" so long as it would not "anticipate the harm despite such knowledge or obviousness." Roumbos v. Samuel G. Vazanellis & Thiros & Stracci, PC , 95 N.E.3d 63, 66 (Ind. 2018) (quoting Restatement (Second) of Torts § 343A(1) (1965) ).

The analytical approach articulated by the Indiana courts confirms their adherence to Restatement § 343. See Walters v. JS Aviation, Inc. , 81 N.E.3d 1160, 1163 (Ind. Ct. App. 2017). That section provides:

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. (quoting Restatement § 343 ). Indiana courts also have recognized that " Section 343 should be read together with Section 343A," Converse v. Elkhart Gen. Hosp., Inc. , 120 N.E.3d 621, 627 (Ind. Ct. App. 2019) (citing Restatement (Second) of Torts § 343 cmt. a (1965)), which provides in relevant part: "A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness." Restatement Second (Torts) § 343A(1) (1965) ; see also Miller v. Rosehill Hotels, LLC , 45 N.E.3d 15, 20 (Ind. Ct. App. 2015) (quoting same).

Comment f to § 343A(1) explains the situations that subsection (1) is meant to address:

There

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