NONPRECEDENTIAL DISPOSITION

To be cited only in a ccordance with Fed. R. App. P. 32.1



# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued September 12 , 201 6

Decided December 22, 2016



### Before

D IANE P. W OOD

, Chief Judge

F RANK H. E ASTERBROOK

, Circuit Judge

D IANE S. S YKES

, Circuit Judge

No. 16

- 1202

M ONIQUE C OUVILLION

, Plaintiff

- Appellant

,

v

.

S PEEDWAY LLC

, Defendant

- Appellee

. Appeal from the United

States District Court for the

Southern District of Indiana

, Indianapolis Division.

No. 1:14

- cv

- 184 2

- DKL

- SEB

Denise K. LaRue

, Magistrate

J udge

.

Order

Monique Couvillion injured herself while adding air to her car’s tires at a Speedway

service station in Cumberland, Indiana. Either her foot or the air hose snagged on a pa llet of salt bags near the air pump, and she fell awkwardly. The parties agre ed to have a

magistrate judge decide this suit, see 28 U.S.C. §636(c), which rests on the diversity j urisdiction.

The magistrate judge granted summary judgment to Speedway, 2016 U.S. Dist. L EXIS

6383 (S.D. Ind. Jan. 20, 2016), ruling that it could not be liable because the pallet was

easy to see (Couvillion admits seeing it) and Speedway had n o reason to anticipate thatNo. 16

- 1202 Page 2

accidents would ensue. The fall occurred in daylight and no other elements, such as

snow, ob scured the view. The magistrate judge applied the standards in Restatement

(Second) of Torts §§ 343, 343A (1965), which Indiana has adopted for use in premises

liability cases. See, e.g., Douglass v. Irvin , 549 N.E.2d 368 (Ind. 1990).

We affirm for substantially the reasons given in the magistrate judge’s opinion,

though we briefly discuss Couvillion’s principal appellate arguments.

She maintains that

, even though the pallets were visible , she did not appreciate the

tripping hazard and therefore should be able to recover. This is a subjective, plaintiff

specific line of argument. But Indiana law poses an objective inquiry : It asks how ow ners of business premises should expect reasonable customers to understand and react to

risks, not how careless ones might procee d. See, e.g., Miller v. Rosehill Hotels, LLC , 45

N.E .3d 15, 20 (Ind. App. 2015) (a risk is “‘[o]bvious’ [and not a source of liability if] both

the condition and the risk are apparent to and would be recognized by a reason able person , in the position of th e visitor, exercising ordinary perception, intelligence, and

judgment.” ) (emphasis added).

Couvillion also contends that Indiana’s courts favor jury trials in tort suits. See, e.g.,

Countrymark Cooperative, Inc. v. Hammes , 892 N.E.2d 683, 688 (Ind. App. 2 008) (“ negl igence cases are especially fact sensitive and are governed by a standard of the objective

reasonable person

— one best applied by a jury after hearing all of the evidence .” ) (cit ations and internal quotation marks omitted) ; Yates v. Johnson Count y B oard of Commi ssioners , 888 N.E.2d 842, 847 (Ind . App. 2008); Winchell v. Guy , 857 N.E.2d 1024, 1026

– 27

(Ind. App. 2006). Maybe Indiana’s judiciary would have submitted Couvillion’s claim to

a jury. But federal rules govern the allocation of tasks betwee n judge and jury in federal

court . See, e.g., Mayer v. Gary Partners & Co ., 29 F.3d 330 (7th Cir. 1994). In federal pra ctice, reflected in Fed. R. Civ. P. 56, the absence of a material factual dispute means that a

judge will resolve the case by summary judgment. We know from Walker v. Armco Steel

Corp ., 446 U.S. 740 (1980) , and other decisions, that federal procedure govern s all federal

cases, even if this implies an outcome different from the one likely in state court

.

A FFIRMEDNo. 16

‐ 1202 Page 3

S YKES

, Circuit Judge

, dissenting. Monique Couvillion sustained a serious injury when

she tripped and fell while using the air pump at a Speedway service station in

Cumberland, Indiana. Two wooden pallets stacked with bags of salt surrounded the

pump on either side. To access the air hose, Couvillion had to position her car between

the pallets and navigate around them while filling her tires. She fell when her foot or

the air hose caught on one of the pallets.

Couvillion sued Speedway in state court alleging that it negligently maintained the

premises, creating a dangerous condition that caused her injury. Speedway removed

the case to federal court. A magistrate judge entered summary judgment for Speedway

and Couvillion appealed.

The parties agree that Indiana’s law of premises liability applies. Indiana has

adopted §§ 343 and 343A of the Restatement ( Second ) of Torts :

§ 343

. A possessor of land is subject to liability for physical harm caused to his

invitees by a condition on the land if, but only if, he

(a) knows or by the exercise of reasonable care would discover the condition,

and should realize 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 themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger.

§ 343A(1)

. A possessor of land is not liable to his invitees for physical harm

caused to them by any activity or condition on the land whose danger is known

or obvious to them, unless the possessor should anticipate the harm despite such

knowledge or obviousness.

R ESTATEMENT (S ECOND ) OF T ORTS §§ 343, 343A(1) (A M

. L AW I NST

. 2016).

The magistrate judge held that no reasonable jury could find that Speedway had

breached its duty of care under §§ 343 and 343A. My colleagues affirm that decision,

but they give short shrift to a key part of the liability analysis summarized in §§ 343 and

343A.No. 16

‐ 1202 Page 4

When a known or obvious premises condition causes injury, the landowner is

subject to liability if a reasonable landowner would anticipate that (1) invitees will fail

to protect themselves against the condition, or (2) harm may occur despite the

obviousness of the condition or an invitee’s actual awareness of it. The commentary to

§ 343A elaborates on these liability principles:

f

. There are, however, cases in which the possessor of land can and should

anticipate that the dangerous condition will cause physical harm to the invitee

notwithstanding its known or obvious danger. In such cases the possessor is not

relieved of the duty of reasonable care which he owes to the invitee for his

protection. This duty may require him to warn the invitee, or to take other reasonable

steps to protect him, against the known or obvious condition or activity, if the possessor

has reason to expect that the invitee will nevertheless suffer physical harm.

Such reason to expect harm to the visitor from known or obvious dangers may

arise, for example, where the possessor has reason to expect that the invitee’s attention

may be distracted, so that he will not discover what is obvious, or will forget what he has

discovered, or fail to protect himself against it.

Id. § 343A(1) cmt. f (emphases added).

Accordingly, Indiana courts have recognized that “in the proper case, a landowner

may anticipate that a known or obvious danger will cause harm to the invitee when, for

example, there is reason to expect that the invitee’s attention may be distracted.” Merrill

v. Knauf Fiber Glass GmbH

, 771 N.E.2d 1258, 1267 (Ind. Ct. App. 2002).

Applying these standards here, a reasonable jury could find that Speedway should

have anticipated that customers using ordinary care for their own safety would

nonetheless misapprehend the risk presented by the pallets or fail to protect themselves

against it. Speedway positioned the pallets on either side of the air pump, blocking

access to the pump from the sides. To access the air hose, a customer had to park

directly in front of the pump, at an angle between the pallets, leaving little room to

navigate on foot to reach the vehicle’s tires while using the pump. Speedway’s

placement of the pallets thus created both a tripping hazard and an obstacle for the air

hose to catch on. A reasonable jury could conclude that even though the presence of the

pallets was obvious (and Couvillion was in fact aware of them), Speedway should have

anticipated that its customers could become distracted while filling their tires or

otherwise would fail to adequately protect themselves against the danger presented by

the two pallets placed so near to the air pump.No. 16

‐ 1202 Page 5

Finally, I have a brief comment about the summary judgment standard. My

colleagues write that “[i]n federal practice, reflected in Fed. R. Civ. P. 56, the absence of

a material factual dispute means that a judge will resolve the case by summary

judgment.” Order at 2. Not so. Under Rule 56 (and in state practice), a judge may

resolve the case by summary judgment only if there is no material factual dispute “ and

the movant is entitled to judgment as a matter of law .” F ED

. R. C IV

. P. 56(a) (emphasis

added); see also I ND

. R. T RIAL P. 56(C). The historical facts are undisputed here, but it

doesn’t follow that a judge decides liability. Couvillion is entitled to have a jury

determine Speedway’s liability unless on this record no reasonable jury could find a

breach of duty under §§ 343 and 343A. I’ve already explained why a reasonable jury

could find that Speedway breached its duty to invitees.

I would reverse the judgment of the district court and remand the case for a jury

trial.