Carol Ann MAURER, Plaintiff--Appellant, v. SPEEDWAY, LLC, Defendant--Appellee.
No. 14-1634.
United States Court of Appeals, Seventh Circuit.
Argued Sept. 16, 2014. Decided Dec. 23, 2014.
774 F.3d 1132
In most businesses, consumers victimized by the shabby tactics United has embraced can turn to their states’ consumer protection statutes. Airlines are different. The Airline Deregulation Act of 1978 preempts claims under state consumer protection laws. Morales v. Trans World Airlines, Inc., 504 U.S. 374, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992). Part of the balance struck by that Act, though, is that it allows customers to sue airlines for breach of contracts, to enforce commitments that airlines have undertaken voluntarily. American Airlines, Inc. v. Wolens, 513 U.S. 219, 230-33, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995). That‘s what we should do here. But if courts are not willing to hold airlines to the commitments they make, then loyal customers like Lagen must either make enough noise to get the attention of United‘s management (perhaps CEO Jeff Smisek or General Counsel Brett Hart) or turn to the United States Department of Transportation for relief.
United could have defended this lawsuit honorably. It could have tried to show that it has in fact fulfilled its promise to plaintiff and other Million Mile Flyers. For now, however, we should reject the defense that the promise was meaningless. We should reverse summary judgment in favor of United and allow plaintiff to pursue his claims in the district court.
Darren A. Craig, Attorney Frost Brown Todd LLC Indianapolis, IN for Defendant-Appellee.
Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.
BAUER, Circuit Judge.
This appeal is from a judgment entered on a jury verdict in favor of defendant-appellee, Speedway, LLC (“Speedway“). Plaintiff-appellant, Carol Ann Maurer (“Maurer“), instituted a premises liability action against Speedway in Indiana state court for personal injuries sustained when she fell outside a Speedway gas station convenience store while trying to maneuver around a retail display of windshield washer fluid. Speedway removed the case to the United States District Court for the Northern District of Indiana on the basis of diversity of citizenship. Prior to trial, the district court granted a motion in limine filed by Speedway, excluding as evidence a municipal ordinance which Maurer sought to introduce at trial in order to
I. BACKGROUND.
On the afternoon of October 17, 2011, Maurer left her home to visit a nearby Speedway gas station convenience store. She had been to that Speedway store many times before; it was where she regularly purchased gasoline for her car. After parking in front of the store, Maurer walked along the sidewalk to the store‘s front entrance. A permanent retail display, which housed windshield wiper fluid at the time, sat on the sidewalk to the left of the double door entrance and narrowed the adjacent walking area to a width of 24 inches. As Maurer approached the entrance, she saw the display, stepped around it, and walked down the narrowed length of sidewalk. As she neared the end of the narrowed path she rolled her ankle off the sidewalk curb and fell, seriously injuring her left shoulder.
On July 16, 2012, Maurer filed a complaint for damages against Speedway in Indiana state court. The complaint alleged that Maurer slipped and fell and sustained physical injuries as a result of the carelessness and negligence of Speedway. The district court conducted a pre-trial conference and set the deadline to complete discovery for July 15, 2013.
Five days prior to the close of discovery, Maurer informed Speedway via email that she was amending her witness list to include the City of South Bend Building Commissioner to authenticate “the City building code that incorporates the OSHA requirement for an unobstructed sidewalk of at least 36 inches.” Five days later, on the close of discovery, Maurer filed her final list of witnesses and exhibits, which included the South Bend Building Commissioner, who would testify regarding the city building code, and an exhibit described: “Portion of the City of South Bend Building Code concerning unobstructed sidewalks.” Maurer did not provide any further details regarding the building code provision until the pre-trial conference, 15 days before trial, when she gave Speedway a copy of South Bend Municipal Code Article 2 § 6-5(a)(1)(b) (the “Ordinance“). The Ordinance incorporates the Indiana Administrative Code (“IAC“), which incorporates the American National Standard Institute (“ANSI“) requirements for accessible and usable buildings, specifically ANSI A117.1-2003. Chapter 4 of the ANSI requirements, entitled “Accessible Routes,” provides at § 403.5 that the clear width of an accessible route shall comply with Table 403.5. Table 403.5 includes an illustration of a person in a wheelchair on a walkway and requires that an accessible route more than two feet in length must have a minimum width of 36 inches.
Speedway promptly filed a motion in limine to exclude the Ordinance from evidence at trial. The district court granted Speedway‘s motion and denied Maurer‘s motion to reconsider that ruling. The court excluded the evidence as irrelevant on the ground that nothing in the complaint alleged a violation of the Ordinance and Maurer did not identify any discovery that suggested that theory either. The district court further determined that, even if relevant, the Ordinance should be excluded under Rule 403 because “springing the issue” on Speedway only a few weeks before trial unfairly prejudiced Speedway. The court also refused to take judicial notice of the Ordinance due to its lack of relevance and its potential to con-
Trial began on February 18, 2014, and concluded the following day. At trial, Bronson Weaver, the Speedway store manager, testified that the retail display had been in the same location for approximately a year and a half to two years, and that the store had not received any complaints about the display or reports of injuries from customers falling off the curb near the display. Another store employee, Patrick Emig, testified that he was not aware of any complaints or injuries related to the retail display and that Speedway painted the sidewalk curb in front of the display yellow to “signify caution.”
Outside the presence of the jury, Maurer‘s counsel tendered to the district court a proposed instruction on the Ordinance;1 the court recognized the instruction and rejected it. Maurer then made an offer of proof that, if allowed to call the City of South Bend Building Commissioner, he would certify that the Ordinance provides that a walking surface that is part of an accessible route to a building in the City of South Bend that is more than two feet in length must have a clear width of at least 36 inches. The jury returned a verdict in favor of Speedway. The verdict was entered as a final judgment on February 21, 2014. This appeal followed.
II. DISCUSSION
The sole issue presented for review is whether the district court erroneously excluded the Ordinance from evidence. We review a district court‘s evidentiary ruling for abuse of discretion. Under this standard, ““we will not find error unless the court‘s decision was based on an erroneous conclusion of law or the record contains no evidence on which the court rationally could have based its decision....“” Mister v. Northeast Ill. Commuter R.R. Corp., 571 F.3d 696, 698 (7th Cir.2009) (quoting James Green Mgmt., Inc., 327 F.3d at 621). And, even in the face of error, we will not reverse a judgment entered on a jury verdict unless the erroneous ruling violated the objecting party‘s substantial rights. Smith v. Hunt, 707 F.3d 803, 808 (7th Cir.2013). “To meet that threshold, a significant chance must exist that the ruling affected the outcome of trial.” Id.
The district court excluded the Ordinance under
Because we are sitting in diversity, we apply Indiana substantive law. See Blood v. VH-1 Music First, 668 F.3d 543, 546 (7th Cir.2012) (noting that in diversity cases, state substantive law applies). Under Indiana law, the violation of a statute or ordinance constitutes evidence of a defendant‘s negligence only if “the statute or ordinance is intended to protect the class of persons in which the plaintiff is included and to protect against the risk of the type of harm which has occurred as a result of its violation.” Kho v. Pennington, 875 N.E.2d 208, 212-13 (Ind.2007). Speedway insists that the Ordinance was intended to protect people in wheelchairs because the relevant portion of the incorporated ANSI standard is titled “Accessible Routes” and includes an illustration of a person in a wheelchair on a diagram of an accessible route. Speedway argues that the Ordinance is irrelevant because Maurer does not belong to the class of persons it was intended to protect. Maurer contests Speedway‘s interpretation on the ground that nothing in the Ordinance limits its applicability to people in wheelchairs.
Even a cursory review of the relevant provisions reveals that Speedway is in the right.
Moreover, the parties do not dispute Maurer‘s status as an invitee and that Speedway thus owed Maurer a duty of reasonable care. As stated by the Indiana Supreme Court, a land owner is liable to harm caused to an invitee by a condition
To recover damages from Speedway, LLC, Carol Ann Maurer must have proven each of the following by the greater weight of the evidence:
(1) Carol Ann Maurer was injured as a result of a condition on the property; and
(2) Speedway, LLC:
(a) knew that the condition existed and realized that it created an unreasonable danger to customers, or should have discovered the condition and its danger;
(b) should have expected that the customers would not discover or realize the danger of the condition, or would fail to protect themselves against it; and
(c) failed to use reasonable care to protect the customers against the danger.
The undisputed facts on record do not suggest that Speedway should have expected that customers would not discover the danger, or would fail to protect themselves against it. This is an objective standard, focusing on whether a reasonable person would realize the danger and protect himself or herself from the danger. Smith v. Baxter, 796 N.E.2d 242, 244 (Ind.2003) (explaining the court must apply an objective standard when assessing the landowner‘s duty); Salima v. Scherwood South, Inc., 38 F.3d 929, 932 (7th Cir. 1994). A customer of reasonable prudence would readily observe the retail display and corresponding narrowed walkway (indeed, Maurer did here). A customer of reasonable prudence would also understand the risks associated with traversing a narrowed walkway and protect against such risk by either taking extra precaution or opting for a different route of ingress. Maurer alleges nothing out of the ordinary about the conditions of the retail display or sidewalk that led to her fall (and which, hypothetically, could lead to a non-obvious condition). In a nutshell, the retail display presented an open and obvious condition. The retail display had been stationed in the same location for approximately a year and a half to two years and Speedway had never received a complaint about the display or reports of injuries from customers falling off the curb near the display. Even more, Speedway painted the sidewalk curb in front of the display yellow to signify caution. Consequently, Speedway had no reason to anticipate that Maurer would not discover the condition and protect herself against it just as every other customer apparently did, nor did Speedway fail to exercise reasonable care.
III. CONCLUSION
For these reasons, the judgment entered below on behalf of Speedway is AFFIRMED.
BAUER
CIRCUIT JUDGE
Notes
Maurer‘s proposed instruction: “When the events in this case happened South Bend Municipal Code Article 2, Section 6.5(a)(1)(b) provided in part as follows:
The City of South Bend Building Ordinance incorporates the Indiana Building Code that incorporates the American National Standards Institute that provides that a walking surface that is part of an accessible route to a building that is more than two (2) feet in length must have a clear width of at least thirty-six (36) inches.
If you decide from a greater weight of the evidence that Defendant Speedway violated South Bend Municipal Code Section 6.5(a)(1)(b), and that the violation was not excused, then you must decide Defendant Speedway was at fault.”