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Justices: no summary judgment for grocer in negligence suit

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The Indiana Supreme Court upheld the denial of a supermarket’s motion for summary judgment in a negligence case, finding the company failed to carry its burden in showing that criminal activity on its premises at the time a customer was assaulted wasn’t foreseeable.

In The Kroger Co. v. Lu Ann B. Plonski, No. 49S02-0907-CV-347, Kroger Co. appealed the denial of its motion for summary judgment in Lu Ann B. Plonski’s suit for damages as a result of the store’s negligence. Plonski left the store after shopping and was attacked and mugged by a man in the parking lot.

Kroger designated affidavits from the store’s risk manager, safety manager, and head cashier. The managers’ affidavits asserted that the Kroger store is located in a part of the city that has a reputation of low levels of criminal activity and in the two years before Plonski’s attack, there had only been one report of criminal activity on the store’s premises. The head cashier testified that the assailant wasn’t a guest or patron of the store.

Plonski was allowed to strike Kroger’s affidavits and argue the merits of Kroger’s summary judgment motion by including facts contained in 60 pages of police reports the two years prior that showed more than 30 responses to criminal activity on the store’s premises.

The trial court erred in granting Plonski’s motion to strike the Kroger affidavits and allowing her to introduce the police reports into evidence. The affidavits did not fail in some way to comply with Indiana Trial Rule 56.

“Affidavits submitted in support of or in opposition to a motion for summary judgment may be stricken for a variety of reasons. But a difference of opinion about what the facts are alleged to be is not one of them,” wrote Justice Robert Rucker. “In essence, the answer to a competing claim about the facts is not to strike a party’s submissions. Instead, when the submissions show that material facts are in dispute then summary judgment should be denied.”

But the police reports are not admissible because they were not properly designated. After she received the reports, Plonski didn’t ask for additional time to conduct further discovery or respond to Kroger’s submissions, and she made no effort to explain why the police reports introduced at the summary judgment hearing supported her motion to strike.

The high court focused on whether the criminal assault on Plonski was not foreseeable, a burden Kroger must prove as the party moving for summary judgment. Kroger claimed it owed no duty to protect Plonski because her injuries were caused by someone who wasn’t a patron or guest of the store. The affidavits of the store managers tell the court nothing about the criminal activity or lack thereof occurring in the store or its parking lot.

Kroger also failed to show that the facts are not in dispute on the question of breach of duty. The fact that Plonski felt safe on the many times she visited the store in the past isn’t dispositive.

“Summary judgment is rarely appropriate in negligence actions,” wrote the justice. “In this case Kroger has persuaded us no differently.”
 

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  1. It really doesn't matter what the law IS, if law enforcement refuses to take reports (or take them seriously), if courts refuse to allow unrepresented parties to speak (especially in Small Claims, which is supposedly "informal"). It doesn't matter what the law IS, if constituents are unable to make effective contact or receive any meaningful response from their representatives. Two of our pets were unnecessarily killed; court records reflect that I "abandoned" them. Not so; when I was denied one of them (and my possessions, which by court order I was supposed to be able to remove), I went directly to the court. And earlier, when I tried to have the DV PO extended (it expired while the subject was on probation for violating it), the court denied any extension. The result? Same problems, less than eight hours after expiration. Ironic that the county sheriff was charged (and later pleaded to) with intimidation, but none of his officers seemed interested or capable of taking such a report from a private citizen. When I learned from one officer what I needed to do, I forwarded audio and transcript of one occurrence and my call to law enforcement (before the statute of limitations expired) to the prosecutor's office. I didn't even receive an acknowledgement. Earlier, I'd gone in to the prosecutor's office and been told that the officer's (written) report didn't match what I said occurred. Since I had the audio, I can only say that I have very little faith in Indiana government or law enforcement.

  2. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

  3. In response to bryanjbrown: thank you for your comment. I am familiar with Paul Ogden (and applaud his assistance to Shirley Justice) and have read of Gary Welsh's (strange) death (and have visited his blog on many occasions). I am not familiar with you (yet). I lived in Kosciusko county, where the sheriff was just removed after pleading in what seems a very "sweetheart" deal. Unfortunately, something NEEDS to change since the attorneys won't (en masse) stand up for ethics (rather making a show to please the "rules" and apparently the judges). I read that many attorneys are underemployed. Seems wisdom would be to cull the herd and get rid of the rotting apples in practice and on the bench, for everyone's sake as well as justice. I'd like to file an attorney complaint, but I have little faith in anything (other than the most flagrant and obvious) resulting in action. My own belief is that if this was medicine, there'd be maimed and injured all over and the carnage caused by "the profession" would be difficult to hide. One can dream ... meanwhile, back to figuring out to file a pro se "motion to dismiss" as well as another court required paper that Indiana is so fond of providing NO resources for (unlike many other states, who don't automatically assume that citizens involved in the court process are scumbags) so that maybe I can get the family law attorney - whose work left me with no settlement, no possessions and resulted in the death of two pets (etc ad nauseum) - to stop abusing the proceedings supplemental and small claims rules and using it as a vehicle for harassment and apparently, amusement.

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