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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Judge Roger B. Cosbey is unethical and bias toward African American who seeks justice in Title VII claims. He disrespected and used his authority to attempt to intimidate me into taking an unfair settlement and when I refused he proceeded to get my case dismissed and to deny me my Constitutional and Civil Rights. He disobeying several rules of law; specifically, by ruling on summary judgment motions against the Fed. R. Civ. P., without authority of Judge William C. Lee, without consent of the attorneys, and with conspiracy to commit “fraud on the court,” as he conspired with my former attorney. He proved to me that he is bias, unethical, unfair and unfit to be reappointed. In my opinion, he should be disbarred in 2013, for committing fraud on the court, which would make him ineligible for reinstatement in 2014. See docket 3:07 cv 629 where he rules on dispositive motions, knowing magistrates are not vested with that power (especially without consent), grants the defendant an unconscionable number of extensions, accepts my former attorney request for extension for dispositive motion knowing he was working with the opposition, and unbelievably grants the defendant another extension after he requested an extension after he missed the deadline. I know another attorney filed charges against him for bias in race discrimination case(s). I know what he did in my case before he voluntarily recused himself, I just do not know how many other innocent people have been stripped of their rights because of him. I say shame on him and no more of the same.
they are pushing these cases against lawyers too far. thought-crime.
vagueness cannot challenged, so let's write all laws vaguely and throw the constitution out the window.Even if the court is operating under a particular law, if they don't it they will change it to their liking. What a joke!!!
Two convictions becomes one conviction with exactly the same sentence, only it is not clear wheter or not that sentence will be 18 months, 120 months or 138 months. Actually if the guns were in a home, whether or not they were his, he is protected under the 2nd amendment. Jurors need to learn the law and the constitution before judging others. The cour5ts need to do this as well.
With all due respect, Rick, I think you probably would be making a mistake by going to law school. The job market for attorneys is so saturated, you may well find yourself unemployed and with a lot of debt. You mention law would be a good supplement to your skills. True. But employers unfortunately don't value that. You will find that a law degree may well pigeonhole you into an attorney slot and limit career options. If you have a good job now I would hold onto that. As an attorney, you may well end up making less with the aforementioned debt.