ILNews

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. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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