The Defendant-Friendly Confines of Federal Court in Indiana Premises Liability Cases

By Houston Hum

Being in federal court, rather than Indiana state court, can be advantageous for a defendant seeking summary judgment, especially in a premises liability case.  Many state court judges do not want to take a case away from a jury, and they can, and often do, deny summary judgment based on even the slightest question of fact.  Indiana’s summary judgment standard and related case law make summary judgment in negligence cases very difficult to obtain.  But in federal court, a far more defendant friendly standard renders summary judgment significantly more likely by shifting the burden to the plaintiff to prove his claim to survive the dispositive motion, rather than requiring the defendant to disprove the plaintiff’s claim.

This difference in standard was recently addressed by the United States Court of Appeals for the Seventh Circuit.  On March 23, 2018, that court issued its opinion in Austin v. Walgreen Company, affirming an Indiana district court’s entry of summary judgment in favor of Walgreens in a slip and fall action brought by its customer, Robin Austin.  The court found Austin had not offered sufficient evidence to establish Walgreens knew of the presence of the water on which she alleges she fell.  Therefore, Austin did not establish that Walgreens owed her any duty, a necessary element of her negligence claim. 

The Austin decision is noteworthy for its discussion of the distinction between the Indiana and federal summary judgment standard.  Had the case been in Indiana state court, Austin would almost certainly have survived Walgreens' motion, but she could not do so under the more stringent federal standard.  

Austin had arrived at a Walgreens store in Hebron, Indiana on a cold day in January, just as a snow plow was leaving Walgreens' parking lot.  After perusing the store, she slipped and fell while walking toward the cash registers.  She denied seeing anything on the floor that caused her fall, but she testified she felt her “right foot hit something wet”.  She assumed she slipped on water on the floor.  Several minutes later, Austin’s friend came to the store and photographed “puddles of water.”  The friend later testified she saw “water everywhere”.  Paramedics took Austin to the hospital, where she was diagnosed with a broken left knee cap.  Walgreens' assistant store manager denied knowing of any water on the floor prior to Austin falling.

Austin sued Walgreens for negligence in Indiana state court.  Walgreens removed the action to federal court based on diversity of citizenship.  Walgreens moved for summary judgment wherein it argued it owed Austin no duty, as it had no knowledge of the water on which she alleged she slipped and fell.  It was undisputed Austin was a business invitee of Walgreens.  Under Indiana law, in order to be liable for injury to its invitee, the premises owner must have had actual or constructive knowledge of the condition that caused the injury.  The court needed not determine whether Austin did in fact slip on water; it needed only to assess whether Walgreens knew or should have known of the presence of such water if it had, in fact, been present.

As there was no evidence of Walgreens' actual knowledge of any water on the floor, the court considered whether Walgreens had constructive knowledge of the water, i.e. whether it should have known of the water’s presence.  Under Indiana law, to establish constructive knowledge, a plaintiff must show a condition has existed for such a length of time and under such circumstances that it would have been discovered in sufficient time to prevent the plaintiff’s injury had the premises owner, its agents, and its employees used ordinary care. 

In response to Walgreens' motion, Austin pointed to her own testimony that she “stepped on something wet” and to her friend’s testimony and photographs as evidence of the presence of water on the floor prior to her fall.  However, the court found such evidence did not establish the time such water had been present.  Austin also offered Walgreens' assistant manager’s admission that sometimes customers tracked snow in from outside, leaving water on the store’s floor.  The court found that such evidence established only that Walgreens knew hazards were possible, not that it knew of the existence of the specific hazard that allegedly injured Austin.  The court found that “[w]ithout evidence that Walgreens had a chance to respond to a 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.” 

In affirming the district court’s entry of summary judgment in favor of Walgreens, the court noted that its decision conflicted with two Indiana Court of Appeals decisions cited by Austin, wherein those two plaintiffs survived the defendants’ motions for summary judgment.  But the court acknowledged that those plaintiffs survived summary “due to a distinctive feature of Indiana summary judgment procedure, and so are inapposite here.”  The Walgreens court explained “[i]n Indiana, a defendant must affirmatively disprove an element of the plaintiff’s case.  In this respect, Indiana’s summary judgment procedure abruptly diverges from federal summary judgment practice.  In federal court, a party moving for summary judgment does not need to present any evidence concerning the non-movant’s claim.  All a federal movant has to do is point to the absence of evidence to support the claim.”

While certain factors must exist before removal of a case to federal court is possible, property owners sued in Indiana for premises liability should strongly consider removing the case given the far more defendant-friendly summary judgment standard.  In recent months, we are seeing a significant number of federal court entries of summary judgment in favor of property owners in premises liability cases.  We expect the Austin decision will embolden federal district courts in Indiana to continue to grant summary judgment in favor of defendant premises owners.

If you have any questions with respect to rule standards for summary judgment, or pre-conditions for federal court jurisdiction or premises liability in general, please feel free to call any of Reminger’s Retail, Hospitality and Entertainment Facilities Practice Group members.