Linda Waldon v. Wal-Mart Stores, Inc. ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1529
LINDA WALDON and STEVE WALDON,
Plaintiffs-Appellants,
v.
WAL-MART STORES, INC., Store Number 1655,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:17-cv-03673-JRS-MPB — James R. Sweeney, II, Judge.
____________________
ARGUED SEPTEMBER 25, 2019 — DECIDED NOVEMBER 26, 2019
____________________
Before RIPPLE, ROVNER, and BRENNAN, Circuit Judges.
BRENNAN, Circuit Judge. While shopping at a Wal-Mart
store, Linda Waldon believes she slipped on a plastic hanger
and fell causing her injuries. Under Indiana premises-liability
law, a defendant must have actual or constructive knowledge
of a condition on the premises that involves an unreasonable
risk of harm to an invitee. After discovery, the district court
concluded there was no evidence Wal-Mart knew of such a
condition and granted it summary judgment. We review this
2 No. 19-1529
decision, and we consider whether photographs the Waldons
rely on to show store conditions have been intentionally al-
tered, requiring sanctions against the Waldons’ counsel.
I.
On New Year’s Day 2017, Linda Waldon was shopping at
the Crawfordsville, Indiana Wal-Mart store. She claims plastic
hangers had fallen on the floor beneath and around a rack of
clothes she was examining. She says she stepped on a hanger,
her foot slid, and she fell backward onto the floor. As a result,
she suffered back, neck, and head injuries requiring medical
care. Her husband Steve alleges his wife’s injuries caused him
to suffer the loss of consortium and companionship. The Wal-
dons brought this action against Wal-Mart in Indiana state
court, alleging Wal-Mart failed to provide a safe environment
for its shoppers and is liable for their injuries. Wal-Mart timely
removed this case to federal court.1
During discovery, Wal-Mart employees submitted affida-
vits declaring that no Wal-Mart employee was notified of any
potential hazards on the floor, including hangers, where
Linda Waldon fell. Wal-Mart instructs its employees to “zone”
their work areas—to walk through their departments, visu-
ally inspect the floor, and pick up and return items to their
proper places—before and after breaks and during their
1 Wal-Mart removed the case under 28 U.S.C. § 1441(b)(1). The district
court had diversity subject matter jurisdiction under 28 U.S.C. § 1332, as
the Waldons are Indiana citizens, Wal-Mart Stores, Inc. is a Delaware cor-
poration with its principal place of business in Arkansas, and the amount
in controversy exceeds $75,000 exclusive of interest and costs as to each
Waldon individually.
No. 19-1529 3
shifts. One employee averred she visually inspected the cloth-
ing racks where Linda Waldon was shopping approximately
five to ten minutes before her fall. That employee did not see
any hangers, debris, or other potential slip or trip hazards on
the floor.
In Linda Waldon’s deposition she conceded she had no ev-
idence or personal knowledge of:
 how long a hanger was on the floor before
she fell;
 the last time an employee inspected the de-
partment and clothing racks before she fell;
or
 that Wal-Mart knew a hanger was on the
floor before she fell.
Wal-Mart moved for summary judgment relying on its
employees’ affidavits and Linda Waldon’s deposition re-
sponses (among other evidence). The district court found that
Wal-Mart presented evidence it had no actual knowledge of
the purportedly dangerous conditions. Contending the Wal-
Mart employees lied, the Waldons submitted two photo-
graphs allegedly depicting “substantial debris” where Linda
Waldon fell. But the district court disregarded the photos be-
cause the Waldons failed to show that the conditions in the
photos were the same or similar to those on January 1, 2017.
Of the two photos the Waldons relied on at the summary
judgment stage, one was undated, and the second bore two
date stamps of January 12, 2017, eleven days after the fall.2
2 The photographs are located at district court Docket Entry 35-2 and
35-3.
4 No. 19-1529
The district court also found that the Waldons had offered
no evidence Wal-Mart had constructive knowledge of a haz-
ardous condition where Linda Waldon fell. The photographs
could not support that inference. And the employee’s state-
ment that shortly before the fall she “did not observe any
hangers, debris or other potential slip or trip hazards on the
floor” precluded a reasonable jury from finding that Wal-Mart
constructively knew a hanger had fallen on the floor.
For these reasons, the district court concluded that Linda
Waldon’s premises-liability claim failed as a matter of law,
and it entered summary judgment for Wal-Mart.3 The
Waldons chose to appeal, did so timely, and this court has ju-
risdiction in this case under 28 U.S.C. § 1291.
II.
We review the grant of summary judgment de novo, con-
struing all facts and drawing all inferences in the light most
favorable to the non-moving party. Austin v. Walgreen Co., 885
F.3d 1085, 1087 (7th Cir. 2018). A court is to enter summary
judgment “if the movant shows that there is no genuine dis-
pute as to any material fact and the movant is entitled to judg-
ment as a matter of law.” FED. R. CIV. P. 56(a). The Supreme
Court instructs that Rule 56 “mandates the entry of summary
judgment … against a party who fails to make a showing suf-
ficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of
proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
3 Because Steve Waldon’s loss of consortium claim derives from his
wife’s personal injury claim, the district court also granted Wal-Mart sum-
mary judgment on his claim.
No. 19-1529 5
Because this case is before us under diversity jurisdiction,
state substantive law applies, Austin, 885 F.3d at 1088, here In-
diana law.
A.
Linda Waldon’s claim is based on the negligence theory of
premises liability under Indiana law. The first step is to assess
her status as a visitor: trespasser, licensee, or invitee. Rhoades
v. Heritage Invs., LLC, 839 N.E.2d 788, 791 (Ind. Ct. App. 2005).
“[A] person who is invited to enter or remain on land for a
purpose directly or indirectly connected with business deal-
ings with the possessor of the land” is a business invitee.
Burrell v. Meads, 569 N.E.2d 637, 642 (Ind. 1991).4 The parties
agree that when Linda Waldon fell, she was a business invitee
at Wal-Mart.
Under Indiana premises-liability law, a landowner owes a
business invitee “a duty to exercise reasonable care for their
protection while they remained on the premises.” Schulz v.
Kroger Co., 963 N.E.2d 1141, 1144 (Ind. Ct. App. 2012). Duty of
care is an element in every negligence claim, as is the breach
of that duty and the fact that the breach caused the injury.
Powell v. Stuber, 89 N.E.3d 430, 433 (Ind. Ct. App. 2017). Re-
statement (Second) of Torts § 343 (1965) delineates this duty:
4 In Burrell the Indiana Supreme Court examined premises-liability
law generally, and how Indiana courts have pronounced a landowner’s
duties to guests. It adopted Restatement (Second) of Torts § 343 as the
“best definition” of the landowner-to-invitee duty, 569 N.E.2d at 639, and
adopted Restatement (Second) of Torts § 322 as the definitions of public
and business invitees. 569 N.E.2d at 642.
6 No. 19-1529
A possessor of land is subject to liability for
physical harm caused to his invitees by a condi-
tion on the land if, but only if, he
(a) knows or by the exercise of reasonable care
would discover the condition, and should real-
ize that it involves an unreasonable risk of harm
to such invitees, and
(b) should expect that they will not discover or
realize the danger, or will fail to protect them-
selves against it, and
(c) fails to exercise reasonable care to protect
them against the danger.
Id. Each of the three elements must be present. Rogers v. Mar-
tin, 63 N.E.3d 316, 322 (Ind. 2016). Here, the district court con-
sidered and resolved the summary judgment motion on the
first element, which requires the landowner to have “actual or
constructive knowledge of a condition on the premises that
involves an unreasonable risk of harm to invitees.” Pfenning
v. Lineman, 947 N.E.2d 392, 406 (Ind. 2011). So at issue is
whether Wal-Mart had actual or constructive knowledge of a
hanger on the floor that created an unreasonable risk of harm
to Linda Waldon.
Wal-Mart submitted evidence that it did not have actual
knowledge of the hanger on the floor. The employees work-
ing when Linda Waldon fell said under oath that no Wal-Mart
employee was aware of the existence of any potential hazards
on the floor, including the hanger. Even the Waldons admit
Wal-Mart’s employees never received notice from any non-
employee of the hanger. And Linda Waldon offered no evi-
dence as to how the hanger ended up on the floor before her
No. 19-1529 7
fall, how long it was there, or whether Wal-Mart knew the
hanger was on the floor.
The district court also concluded that Wal-Mart did not
have constructive knowledge of the hanger. Indiana courts
have found constructive knowledge when a condition “has
existed for such a length of time and under such circum-
stances that it would have been discovered in time to have
prevented injury if the storekeeper, his agents or employees
had used ordinary care.” Schulz, 963 N.E.2d at 1144 (quoting
Wal-Mart Stores, Inc. v. Blaylock, 591 N.E.2d 624, 628 (Ind. Ct.
App. 1992)). Approximately five to ten minutes before Wal-
don’s fall, an employee visually inspected the area where
Waldon fell and did not observe any hangers, debris, or other
potential hazards on the floor. Given this short time frame
between inspection and fall, the district court properly con-
cluded no reasonable jury could find Wal-Mart had construc-
tive knowledge of the hanger on the floor.
Indiana courts consistently grant summary judgment to
landowners when, just before a fall, as in this case, an em-
ployee inspected a location and found no potential hazard.
Schulz, 963 N.E.2d at 1145 (granting summary judgment in
store’s favor when an employee inspected area five to ten
minutes before alleged fall and did not observe any potential
hazards); Robinson v. Kroger, 2014 WL 3405874, at *4 (S.D. Ind.
July 10, 2014) (finding no issue of fact on constructive
knowledge where foreign substance that caused plaintiff's fall
was found to be present less than ten minutes); Williams v.
Meijer, Inc., 2013 WL 3146981, at *3 (S.D. Ind. June 18, 2013)
(finding no issue of fact on constructive knowledge where
slip-and-fall area had been inspected seven to twelve minutes
before the plaintiff’s fall).
8 No. 19-1529
The Waldons contend the district court incorrectly applied
Fed. R. Civ. P. 56(e) when it uncritically accepted the state-
ments of the Wal-Mart employees and failed to recognize
their credibility issues. The Waldons insist Wal-Mart’s em-
ployees should not be believed, including their statements on
“zoning” the area of the store where Linda Waldon fell. A
finder of fact should assess the witnesses’ believability, the
Waldons submit. And they question the credibility of the Wal-
Mart employees’ affidavits given “the substantial debris iden-
tifiable in photos of the scene at the time of Plaintiff’s injury.
… the photos are from January 1, 2017, the date of injury.”5
None of the Waldons’ arrows hit their mark, and their re-
liance on the photographs, which appear to have been altered
on appeal, exposes their counsel to possible sanctions, as dis-
cussed below.
Wal-Mart’s evidence entitled it to summary judgment, and
the Waldons’ challenges to the Wal-Mart employees’ credibil-
ity are insufficient to overturn the district court’s decision.
The Waldons offer no evidentiary support for their assertion
that the Wal-Mart employees’ affidavits were incredible, self-
serving statements that cannot support summary judgment.
See Sears, Roebuck & Co. v. Goldstone & Sudalter, 128 F.3d 10, 18
(1st Cir. 1997) (concluding non-moving party’s claim that
competent witness on summary judgment record was biased
did not satisfy the party’s burden to set forth specific facts
showing that a genuine issue existed). Criticizing the credibil-
ity of the movant’s affiants, alone, is not enough to avoid sum-
mary judgment. “[W]hen challenges to witness’ credibility
5Br. of Plaintiffs-Appellants, Linda Waldon and Steve Waldon 15,
ECF No. 20.
No. 19-1529 9
are all that a plaintiff relies on, and he has shown no inde-
pendent facts—no proof—to support his claims, summary
judgment in favor of the defendant is proper.” Springer v.
Durflinger, 518 F.3d 479, 484 (7th Cir. 2008) (emphasis in orig-
inal); see also Dugan v. Smerwick Sewerage Co., 142 F.3d 398, 406
(7th Cir. 1998) (“[T]he prospect of challenging a witness’ cred-
ibility is not alone enough to avoid summary judgment.”).
A strict liability standard does not apply here; an em-
ployee need not be present in each store aisle at all times. Wal-
Mart’s zoning policy and procedure addressed potential slip
hazards. Because the Waldons cannot show there is a genuine
issue of material fact that Wal-Mart knew “or by exercise of
reasonable care would discover the condition, and should re-
alize that it involves an unreasonable risk of harm to such in-
vitees,” Schulz, 963 N.E.2d at 1144 (quoting RESTATEMENT
(SECOND) OF TORTS § 343), their case cannot survive summary
judgment. So we affirm the district court's grant of summary
judgment to Wal-Mart.
B.
As just evaluated, the Waldons’ appeal is not strong. Wal-
Mart has moved for sanctions against the Waldons for prose-
cuting a frivolous appeal:
If a court of appeals determines that an appeal
is frivolous, it may, after a separately filed mo-
tion or notice from the court and reasonable op-
portunity to respond, award just damages and
single or double costs to the appellee.
FED. R. APP. P. 38. Wal-Mart included its motion within its
brief, not separately, so we do not consider it. See FED. R. APP.
P. 38 advisory committee’s notes to 1994 amendments (“A
10 No. 19-1529
statement inserted in a party’s brief that the party moves for
sanctions is not sufficient notice.”); Matter of Lisse, 921 F.3d
629, 645 (7th Cir. 2019) (denying request for attorneys’ fees
due to failure to present a separately filed motion).
At oral argument, we raised with the parties’ counsel a
troubling point: Waldons’ counsel appeared to have altered
photographs from the district court record which depict the
location of the fall. We ordered the parties’ counsel to file sur-
replies addressing whether the photographs had been altered,
and if they had, who made the changes and why.
Waldons’ counsel admits the date stamps were deleted
when the photos were reproduced in their separate appendix
for this court. Counsel places the responsibility for “the
differing markings” on a legal assistant who created the ap-
pendix and claims that when the photos were scanned in their
office the date stamp disappeared. But legal ethical rules im-
pose broad supervisory responsibilities on attorneys over
their staff, and prohibit lawyers from disavowing responsibil-
ity for an assistant’s conduct. See IND. RULES OF PROF’L
CONDUCT 5.3; D. Richmond, Watching Over, Watching Out:
Lawyers’ Responsibilities for Nonlawyer Assistants, 61 KANSAS L.
REV. 441, 442 (2012).
Wal-Mart does not buy Waldons’ counsel’s account and
provides persuasive evidence that the photographs were in-
tentionally altered. Wal-Mart points out several obvious dif-
ferences between the photos before the district court and
those reproduced in the appellate appendix.6 One photo was
6Sur-Rep. Br. of Defendant-Appellee Wal-Mart Stores, Inc., ECF No.
35-1, compare Ex. 1 with Ex. 2.
No. 19-1529 11
cropped to remove entirely the January 12, 2017 date stamps.7
In a 248-page separate appellate appendix, the pages with the
altered photographs are the only two with handwritten page
and exhibit numbers and without the district court’s filing in-
formation across the top of the page. The explanation offered
by Waldons’ counsel for the alterations of the photos lacks
credibility.
Even more distressing is Waldons’ counsel’s representa-
tions to this court about these photographs. The Waldons
contend the photos are their “best evidence” of actual and
constructive notice.8 In the Waldons’ appellate brief their
counsel repeatedly says the photos are from the date of her
injuries.9 And at least twice at oral argument Waldons’ coun-
sel misrepresented10 that the photographs were taken the day
of the incident.11 His untruthful statements to this court in
7 Id.8 Oral Argument at approximately 4:30.
9 Br. of Plaintiffs-Appellants Linda Waldon and Steve Waldon, ECF
No. 20 p. 13 (“[T]he floor was littered by fallen merchandise under and
around the adjoining racks as shown by the Walmart photograph.”) (empha-
sis added); p. 15 (“[T]he substantial debris identifiable in photos of the
scene at the time of Plaintiff’s injury. And while the photos are from January
1, 2017, the date of injury.”) (emphasis added); p. 18 (“Constructive notice
is clearly established when photographs are observed. This mess must
have collected for more than 15 minutes before her fall and the fact that
Wal-Mart can have and produce this photo and still deny accumulating
dropped bits of lingerie and plastic hangers is incredible.”)
10 Oral Argument at 5:08-8:05, especially 5:33-5:40 and 6:25-6:30.
11 Even after Wal-Mart’s counsel and this court questioned the timing
and authenticity of the photos, in sur-reply Waldons’ counsel states the
12 No. 19-1529
writing and at oral argument about when the photographs
were taken and that they depict the fall location on January 1,
2017 trouble us considerably, including because the Waldons
rely so heavily on the photos in this appeal.
After review of the entire record, including the parties’
sur-replies, we conclude Waldon’s counsel intentionally al-
tered the photographs previously submitted in the district
court record and replaced them with copies of the photos
without date stamps, as well as misrepresented to the court
that these photographs were taken on and depict the fall site
at the Wal-Mart on January 1, 2017.
This court may discipline an attorney:
for conduct unbecoming a member of the bar or
for failure to comply with any court rule. First,
however, the court must afford the attorney rea-
sonable notice, an opportunity to show cause to
the contrary, and, if requested, a hearing.
FED. R. APP. P. 46(c). “Conduct unbecoming a member of the
bar” under this rule has “been understood to involve signifi-
cant elements of aggravation, such as deliberately misleading
the court or displaying egregious misjudgment.” In re
Lightfoot, 217 F.3d 914, 916 (7th Cir. 2000). Waldons’ attorney’s
conduct warrants discipline. See, e.g., Wade v. Soo Line R.R.
Corp., 500 F.3d 559, 566 (7th Cir. 2007) (ordering plaintiff’s at-
torney to show cause why he should not be disciplined for
deliberately concealing documents); Cleveland Hair Clinic v.
Puig, 200 F.3d 1063, 1069–70 (7th Cir. 2000) (ordering attorney
date stamps “do not date the taking of the photo.” Appellants’ Sur-Rep. 2,
ECF No. 34-1. (emphasis in original).
No. 19-1529 13
to show cause why he should not be sanctioned for attempt-
ing to mislead the court by taking a footnote out of context);
In re Galvan, 92 F.3d 582, 584–85 (7th Cir. 1996) (warning that
fines will be enforced for making misrepresentations to the
court); Mays v. Chicago Sun-Times, 865 F.2d 134, 140 (7th Cir.
1989) (fining appellant’s attorney $1,000 for submitting state-
ments in his brief that were “not well-grounded in fact or
law”).
We order Waldons’ counsel, James E. Ayers, to show
cause within 14 days of the date of this decision why he
should not be sanctioned under Rule 46 of the Federal Rules
of Appellate Procedure for altering the photographs and
misrepresenting the record to this court. Additionally, after
considering Waldons’ counsel’s response, we will decide
whether to forward a copy of this opinion to the Indiana
Supreme Court Disciplinary Commission for it to consider
whether to institute disciplinary proceedings against him.
AFFIRMED WITH ORDER TO SHOW CAUSE