Preview:

ATTORNEY FOR APPELLANT
Matthew L. Hinkle Coots, Henke & Wheeler, P.C. Carmel, Indiana

ATTORNEY FOR APPELLEE
I. Marshall Pinkus Pinkus & Pinkus Indianapolis, Indiana

______________________________________________________________________________
Jun 30 2010, 2:31 pm

FILED
of the supreme court, court of appeals and tax court

In the

Indiana Supreme Court
_________________________________ No. 49S02-0907-CV-347 THE KROGER CO., D/B/A KROGER SUPERMARKET AT 8150 ROCKVILLE ROAD, INDIANAPOLIS, MARION COUNTY, INDIANA,

CLERK

Appellant (Defendant below), v. LU ANN B. PLONSKI, Appellee (Plaintiff below). _________________________________ Appeal from the Marion Circuit Court, No. 49C01-0509-CT-0038467 The Honorable Theodore M. Sosin, Judge _________________________________ On Petition To Transfer from the Indiana Court of Appeals, No. 49A02-0807-CV-610 _________________________________

June 30, 2010

Rucker, Justice.

A business invitee of a grocery store was assaulted in the store's parking lot. The store contends in part that because the assault was not reasonably foreseeable it owes no duty to the invitee. We granted transfer to explore this issue.

Facts and Procedural History

In this summary judgment action, the undisputed facts most favorable to the non-moving party are these. In the late afternoon hours of October 2, 2003, Lu Ann Plonski parked her car on the parking lot immediately adjacent to a Kroger food store on the westside of Indianapolis and entered the store. When she finished shopping, Plonski, with purse in hand, placed her groceries in a shopping cart, exited the store, and proceeded onto the lot. Once Plonski approached her car, she placed her purse in the shopping cart, opened the trunk of the car, and began loading groceries. After placing most of the groceries in the trunk, Plonski noticed a young man approximately fifteen feet away walking in her direction. Plonski reported that she was

immediately concerned for her safety because the young man did not appear to be a Kroger employee, was wearing dark clothing, and was overdressed for the weather. The man looked at Plonski and asked "[w]hat's going on?" Appellant's App. at 19. His eyes shifted towards Plonski's purse and he then ran toward her. Plonski grabbed her purse and tried to run toward the sidewalk but could get no further than the end of her car. The man grabbed Plonski and her purse, and they started fighting. As they did so, the man was screaming at Plonski to give him the keys to her car. The man then picked Plonski up, threw her in the trunk of the car and began slamming the trunk lid on her legs. When the man looked away Plonski jumped out of the car and ran into Kroger seeking assistance. Although Plonski managed to hold on to her car keys, the man left the scene with Plonski's purse.

Claiming injuries as a result of the assault, Plonski filed a complaint for damages against Kroger on September 30, 2005. After the parties conducted discovery, on March 26, 2007, Kroger filed a motion for summary judgment arguing (i) it owed no duty to Plonski, (ii) if it owed a duty the duty was not breached, and (iii) in any event Plonski's injuries were not proximately caused by Kroger's conduct. As a part of its motion Kroger designated, among other things, the affidavits of three Kroger employees: the Risk Manager, the Safety Manager,

2

and the Head Cashier. The affidavits of the Risk Manager and Safety Manager asserted in essence that the Kroger store is located in a part of the city that has a reputation for low levels of criminal activity. Appellant's App. at 9, 38. And that in the two-year period before October 2, 2003, there was only one report of criminal activity occurring on the store's premises. Id. The affidavit of the Head Cashier essentially alleged that the assailant who attacked Plonski was not a guest or patron of the Kroger store. Appellant's App. at 39. After being granted an extension of time, Plonski responded to the motion on May 25, 2007. She designated her deposition and attached exhibits, the deposition of her husband, photographs of her injuries, photographs of the Kroger store and parking lot, her response to interrogatories, and her complaint for damages. Appellant's App. at 66-67.

Although the record is unclear of the exact date, sometime in September 2007 as a part of discovery, Kroger provided Plonski with sixty pages of police reports evidencing over thirty responses to criminal activity occurring on the Kroger premises within a two-year period of the date on which the Plonski assault occurred. At the May 8, 2008 hearing on Kroger's motion for summary judgment Plonski moved to introduce the police reports as a "supplement" to her previously filed response to Kroger's summary judgment motion. On grounds of timeliness Kroger objected and the trial court denied the motion. However, the trial court suggested that Plonski could "make an oral motion to strike his affidavits and then argue the material." Appellant's App. at 204. According to the trial court, "[y]ou certainly can move to strike the affidavits based upon the fact that they're inaccurate. And you can offer what you have in your hand in support of your motion to strike." Appellant's App. at 205. Following through on the trial court's suggestion Plonski moved to strike and over Kroger's objection introduced the police reports into evidence. Armed with the police reports Plonski then proceeded to argue the merits of Kroger's summary judgment motion including facts contained in the police reports. She made no specific argument concerning the merits of her motion to strike. At the conclusion of the hearing, the trial court denied Kroger's motion for summary judgment. Kroger appealed arguing in part that the trial court erred in striking the affidavits, and that Kroger "did not have a duty to protect Plonski from a criminal act committed suddenly and without warning by a third party who was not a guest or patron of the store." Br. of Appellant at

3

8. On review the Court of Appeals affirmed the trial court's judgment holding in part that Kroger's duty was established by evidence that Plonski was assaulted in the grocery store parking lot. Kroger Co. v. Plonski, 905 N.E.2d 448 (Ind. Ct. App. 2009). The court declined to address the affidavit issue concluding that even had the trial court considered them, Kroger still would not be entitled to summary judgment. Id. at 455 n.2. Having previously granted transfer thereby vacating the opinion of the Court of Appeals, see Ind. Appellate Rule 58(A), we also affirm the judgment of the trial court, but for reasons slightly different from those of our colleagues.

Standard of Review

When reviewing a grant or denial of a motion for summary judgment our well-settled standard of review is the same as it is for the trial court: whether there is a genuine issue of material fact, and whether the moving party is entitled to judgment as a matter of law. Wagner v. Yates, 912 N.E.2d 805, 808 (Ind. 2009). Summary judgment should be granted only if the evidence sanctioned by Indiana Trial Rule 56(C) shows that there is no genuine issue of material fact and the moving party deserves judgment as a matter of law. Freidline v. Shelby Ins. Co., 774 N.E.2d 37, 39 (Ind. 2002). All factual inferences must be construed in favor of the nonmoving party, and all doubts as to the existence of a material issue must be resolved against the moving party. Kovach v. Midwest, 913 N.E.2d 193, 197 (Ind. 2009).

Discussion I.

Before addressing the primary issues in this appeal, we first turn our attention to the trial court's grant of Plonski's motion to strike the Kroger affidavits, and allowing Plonski

Download The Kroger Co. v. Lu Ann Plonski.pdf

Indiana Law