ILNews

Justices: no summary judgment for grocer in negligence suit

Back to TopE-mailPrintBookmark and Share

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.”
 

ADVERTISEMENT

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  2. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  3. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  4. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

  5. No, Ron Drake is not running against incumbent Larry Bucshon. That’s totally wrong; and destructively misleading to say anything like that. All political candidates, including me in the 8th district, are facing voters, not incumbents. You should not firewall away any of voters’ options. We need them all now more than ever. Right? Y’all have for decades given the Ds and Rs free 24/7/365 coverage of taxpayer-supported promotion at the expense of all alternatives. That’s plenty of head-start, money-in-the-pocket advantage for parties and people that don’t need any more free immunities, powers, privileges and money denied all others. Now it’s time to play fair and let voters know that there are, in fact, options. Much, much better, and not-corrupt options. Liberty or Bust! Andy Horning Libertarian for IN08 USA House of Representatives Freedom, Indiana

ADVERTISEMENT