UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

MICHELLE LEAL, )

)

Plaintiff, )

)

v. ) No. 2:13 CV 318

)

TSA STORES, INC. d/b/a THE )

SPORTS AUTHORITY, )

)

Defendant. )

OPINION and ORDER

This matter is before the court on defendant’s motion for partial summary

judgment. (DE # 93.) For the reasons stated below, defendant’s motion will be granted. 

I. BACKGROUND

A. Factual Background

Plaintiff Michelle Leal originally filed her state court complaint in the Porter

County Superior Court. (DE # 1.) The case was later removed to this court. (DE # 3.)

Defendant TSA Stores, Inc. d/b/a The Sports Authority (“TSA”) is the only defendant

remaining in this case. (See DE ## 91, 92, 105, 130.) 

The following facts are undisputed for purposes of TSA’s motion. On July 27,

2011, plaintiff’s husband Robert purchased a bicycle from a Sports Authority store in

Merrillville, Indiana. (DE # 94 at 2; DE # 122 at 3.) At the time of purchase, the bicycle

was assembled and displayed on the sales floor. (Id.) Before completing the purchase of

the bicycle, a TSA sales associate performed a “point system check” of the bicycle. (Id.)

On the inspection checklist the TSA employee check-marked the box that stated,
“Handlebars and seat checked and tight.” (DE # 95-2 at 62.) At the time of sale, Robert

signed an agreement in which TSA expressly disclaimed all warranties regarding the

bicycle. (DE # 95-3 at 1.)

Three weeks later, on August 17, 2011, plaintiff was injured while riding the

bicycle. (DE # 94 at 1; DE # 122 at 3.) According to plaintiff, while she was riding the

bicycle the handlebar unexpectedly shifted, causing her to fall and injure herself. (Id.)

One issue in this case is whether TSA assembled plaintiff’s bicycle. At the time of

the sale, TSA was engaged in a Delivery, Assembly, and Installation Services

Agreement (“Service Agreement”) with Urban Express Assembly, LLC. (DE # 95-4.)

TSA and Urban Express entered into the Service Agreement on February 1, 2011.

(Id. at 1.) The Service Agreement contained a “mutual exclusivity” provision

(“Exclusivity Clause”) stating that Urban Express “shall be the sole and exclusive

provider of Services with respect to the UX [Urban Express] Serviced Stores, including

to the exclusion of Client’s in-house employees . . . .” (DE # 95-4 at 2.) TSA maintains

that, pursuant to this agreement, all of the bicycles sold at its Merrillville store were

assembled exclusively by Urban Express. (DE # 94 at 8.) 

Plaintiff argues that there is an open question as to whether TSA assembled her

bicycle. (DE # 122 at 12.) Plaintiff cites to evidence from the President of Urban Express,

Arthur Lagrega, who stated that TSA retained a right under the Service Agreement to

have its own employees assemble bicycles. (DE # 123-4 at 2.) Lagrega stated that, on

occasion, an Urban Express contractor was unable to assemble a bicycle within the time

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frame TSA requested and TSA would make other arrangements for assembly, through

its own employees or another third-party. (Id.) Lagrega stated that when an Urban

Express contractor assembled a bicycle for TSA, the contractor would generate an

invoice documenting the assembly. (Id.) However, Legrega stated that Urban Express

does not have any invoice for the assembly of plaintiff’s bicycle, which leads him to

believe that Urban Express did not assemble the bicycle. (Id. at 3.) 

The parties both submitted affidavits from Donald Schmiege, the Merrillville

store manager beginning in 2009, and during the time of the sale. (DE # 95-5; DE # 123-

10.) In one affidavit Schmiege stated that no TSA employee assembled a bicycle for sale

at the Merrillville store during the time frame relevant to the lawsuit. (DE # 95-5 at 1-2.)

In his second affidavit, Schmiege stated, “The store in Merrillville did not have enough

employees to use the sales team to assemble bicycles. Moreover, the store did not have

the skill to assemble bikes except for very simple children’s bikes, but on at least two

separate occasions that I am aware of the store assembled a bike. It was not Mrs. Leal’s

bike to my knowledge.” (DE # 123-10 at 2.) Schmiege explained that when a bicycle was

assembled, an assembly sticker was placed on the bicycle by the Urban Express

contractor who assembled the bicycle. Schmiege was not sure why there was no such

sticker on plaintiff’s bicycle. (Id. at 3.) He stated that the absence of the sticker could

indicate that plaintiff’s bicycle was assembled at the Orland Park store and was shipped

to the Merrillville store when the Orland Park location closed. (Id. at 2.) However, he

did not know whether TSA employees assembled the bicycles at the Orland Park store.

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(Id.) Finally, Schmiege stated that while it was possible that a TSA employee could have

assembled a bicycle without his knowledge, he believed that the operations team

leader, Marie Caston, would have let him know if this had happened. (Id.)

Caston was the operations team leader at the Merrillville store at the time

plaintiff’s bicycle was purchased. (DE # 123-3 at 3.) Caston stated that before Schmiege

took over as store manager in 2009, TSA employees assembled the bicycles at the

Merrillville store. (Id. at 4, 13.) Caston testified that the person who assembled a bicycle,

whether a TSA employee or an Urban Express contractor, should have filled out an

invoice identifying which bicycles he or she assembled. (Id. at 6.) However, no such

invoice exists for plaintiff’s bicycle. (Id. at 6-7.) Finally, Caston indicated that a bicycle

could remain on the store floor for as long as two years if it was on clearance. (Id. at 11.)

Plaintiff’s bicycle was on clearance at the time of the sale. (Id. at 13.) Plaintiff argues that

this evidence suggests that plaintiff’s bicycle could have been assembled prior to May

2009, during the period when TSA employees assembled the bicycles. (DE # 122 at 7.)

B. Procedural Background

Plaintiff’s second amended complaint charged TSA of: (1) breaching its duty of

care to her by assembling, marketing, and selling the bicycle in an unsafe condition; and

(2) breaching its implied warranty of merchantability and fitness for a particular

purpose. (DE # 61 at 2-3.) 

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TSA has moved for summary judgment. (DE # 93.) TSA argues that it is entitled

to judgment in its favor as a matter of law because: (1) it expressly disclaimed all

warranties regarding the bicycle; and (2) it did not assemble the bicycle. (DE # 94 at 1.) 

In addition to the two issues raised in TSA’s motion for summary judgment,

certain matters were raised in the parties’ briefs, but are not properly before the court

for final resolution. In plaintiff’s response brief, she identified an additional negligence

claim that was not addressed in TSA’s motion for summary judgment. According to

plaintiff, TSA had a duty to ensure that the bicycle was in a reasonably safe condition

and was properly assembled at the time the bicycle was sold. (DE # 122 at 14-15.)

Plaintiff argues that there is a material question of fact as to whether TSA breached its

duty of reasonable care in either inspecting or selling the bicycle. Plaintiff also hints at a

strict liability claim based on the assembly of the bicycle, stating, “though the same is

not presented to the court at this stage, the safety inspection check could also be

considered part of the assembly and/or manufacturing of the finished bicycle for

purposes of the strict liability act.” (Id.) While TSA addressed plaintiff’s negligent

inspection argument in its reply brief, plaintiff moved to strike that portion of TSA’s

reply brief on the basis that a defendant may not raise new arguments in a reply brief.

(DE # 125.) 

Plaintiff’s pleadings sufficiently put TSA on notice of the negligent inspection

claim. Thus, TSA’s motion for summary judgment is actually a motion for partial

summary judgment. However, TSA will be given an opportunity to address plaintiff’s

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negligent inspection claim and strict liability claim, if it so chooses. The parties are

cautioned that arguments made without citation to legal support will be disregarded.

Plaintiff’s motion to strike will be denied as moot.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 56 requires the entry of summary judgment, after

adequate time for discovery, against a party “who fails to make a showing sufficient 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). In responding to a motion for summary judgment, the non-moving party must

identify specific facts establishing that there is a genuine issue of fact for trial. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Palmer v. Marion County, 327 F.3d 588, 595

(7th Cir. 2003). In doing so, the non-moving party cannot rest on the pleadings alone,

but must present fresh proof in support of its position. Anderson, 477 U.S. at 248;

Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th Cir. 1994). A dispute about a material

fact is genuine only “if the evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Anderson, 477 U.S. at 248. If no reasonable jury could find for

the non-moving party, then there is no “genuine” dispute. Scott v. Harris, 550 U.S. 372,

380 (2007). 

The court’s role in deciding a summary judgment motion is not to evaluate the

truth of the matter, but instead to determine whether there is a genuine issue of triable

fact. Anderson, 477 U.S. at 249-50; Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th

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Cir. 1994). In viewing the facts presented on a motion for summary judgment, a court

must construe all facts in a light most favorable to the non-moving party and draw all

legitimate inferences and resolve all doubts in favor of that party. NLFC, Inc. v. Devcom

Mid-Am., Inc., 45 F.3d 231, 234 (7th Cir. 1995).

III. ANALYSIS

A. Implied Warranty of Merchantability and Fitness for a Particular Purpose

TSA argues that it is entitled to judgment in its favor on plaintiff’s warranty

claims because TSA explicitly disclaimed all warranties when it sold plaintiff’s husband

Robert the bicycle. (DE # 94 at 3.) Plaintiff concedes that TSA properly disclaimed1

 all

warranties as to Robert, but maintains that TSA nevertheless owed “a duty to the

plaintiff for breach of a sales warranty, implied or otherwise.” (DE # 122 at 9.)

According to plaintiff, she was not in privity of contract for purposes of the warranty

disclaimers signed by her husband, and did not have notice of the disclaimers, and thus

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 Indiana law provides for automatic warranties of merchantability and fitness

for a particular purpose. See Ind. Code § 26-1-2-314 (“Unless excluded or modified (IC

26-1-2-316), a warranty that the goods shall be merchantable is implied in a contract for

their sale if the seller is a merchant with respect to goods of that kind.”); Ind. Code §

26-1-2-315 (“Where the seller at the time of contracting has reason to know any

particular purpose for which the goods are required and that the buyer is relying on the

seller’s skill or judgment to select or furnish suitable goods, there is, unless excluded or

modified under IC 26-1-2-316, an implied warranty that the goods shall be fit for such

purpose.”). However, these warranties may be disclaimed. A warranty for

merchantability may be excluded if the language of the exclusion is conspicuous and

specifically mentions “merchantability.” Ind. Code § 26-1-2-316. A warranty for fitness

for a particular purpose can be excluded if it is in writing and is conspicuous. Id.

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the disclaimers do not apply to her. Plaintiff does not cite any legal authority for this

proposition – a problem throughout her brief. 

Plaintiff’s argument is readily defeated by reference to Indiana law. “A seller’s

warranty whether express or implied extends to any natural person who is in the family

or household of his buyer . . . if it is reasonable to expect that such person may use,

consume or be affected by the goods and who is injured in person by breach of the

warranty.” Ind. Code § 26-1-2-318. The comments to this section clarify that “[t]o the

extent that the contract of sale contains provisions under which warranties are excluded

or modified, or remedies for breach are limited, such provisions are equally operative

against beneficiaries of warranties under this section.” Id. “The purpose of this section is

to give certain beneficiaries the benefit of the same warranty which the buyer received

in the contract of sale, thereby freeing any such beneficiaries from any technical rules as

to ‘privity.’” Id.

Therefore, because plaintiff concedes that TSA properly disclaimed all warranties

with respect to Robert, and under Indiana law these disclaimers applied with equal

force to plaintiff, TSA is entitled to judgment in its favor with respect to plaintiff’s

breach of warranty claims. 

B. Negligent Assembly

TSA argues that it is entitled to judgment in its favor with respect to plaintiff’s

negligent assembly claim because it did not assemble the bicycle. (DE # 94 at 7.) It

argues that its vendor Urban Express assembled all bicycles at the Merrillville store.

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(Id.) However, plaintiff maintains that there is a material question of fact as to whether

TSA assembled the bicycle. (DE # 122 at 10.) Plaintiff argues that a genuine issue of

material fact arises from the lack of documentation demonstrating when, and by whom,

the bicycle was assembled. (Id. at 13.) According to plaintiff, a jury could infer from “the

lack of documentation where it should exist, that TSA did assemble the bicycle.” (Id.) 

“To prevail on a claim of negligence, a plaintiff is required to prove: (1) a duty

owed by the defendant to the plaintiff; (2) a breach of that duty by the defendant; and

(3) an injury to the plaintiff proximately caused by the breach.” Ford Motor Co. v.

Rushford, 868 N.E.2d 806, 810 (Ind. 2007). “Absent a duty, there can be no breach and,

therefore, no recovery in negligence.” Merchants Nat. Bank v. Simrell’s Sports Bar & Grill,

Inc., 741 N.E.2d 383, 386 (Ind. Ct. App. 2000). Whether a defendant owed a duty is a

question of law for the court to determine. Rawls v. Marsh Supermarket, Inc., 802 N.E.2d

457, 459 (Ind. Ct. App. 2004). 

Here, TSA is entitled to judgment in its favor because there is insufficient

evidence that it assembled the bicycle, and thus there is insufficient evidence to

establish that it owed plaintiff a duty of care with regard to assembly of the bicycle. As

plaintiff admits, there is an open question regarding who assembled the bicycle. The

evidence suggests that if a TSA employee assembled the bicycle, there should have been

documentation establishing this fact. Conversely, if an Urban Express contractor

assembled the bicycle, there also should have been documentation. Yet, there is no

documentation to point in either direction. 

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There is also insufficient evidence to establish when the bicycle was assembled.

Bicycles were routinely assembled by TSA employees prior to May 2009. The evidence

suggests that it is possible that the bicycle was assembled during this period. However,

it is also possible that the bicycle was assembled after May 2009, when the bicycles were

almost exclusively assembled by Urban Express contractors. Again, there is no evidence

to make either possibility more likely than the other. 

The evidence from the witnesses do not clarify the issue. For example, although

the President of Urban Express stated that TSA employees retained a right to assemble

bicycles if no Urban Express contractor was available, there is no evidence to suggest

that this occurred with respect to plaintiff’s bicycle. Moreover, while Schmiege stated

that “on at least two separate occasions that I am aware of the store assembled a bike,”

he clarified that he did not believe either bicycle was plaintiff’s bicycle. He also

admitted that it is possible that TSA employees assembled bicycles without his

knowledge, but stated that he believes Caston would have notified him if this had

happened. Finally, although Schmiege suggested the possibility that plaintiff’s bicycle

was assembled at the Orland Park store, there is no evidence that TSA employees

assembled the bicycles at the Orland Park store.

Plaintiff attempts to defeat summary judgment by pointing to the various

possibilities and unanswered questions regarding who assembled the bicycle. However,

an unanswered question does not amount to a genuine issue of material fact where the

question remains unanswered due to insufficient evidence. While the non-moving party

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is entitled to have all reasonable inferences drawn in her favor in opposing a motion for

summary judgment, she is not entitled to “inferences relying on mere speculation or

conjecture.” Carson v. ALL Erection & Crane Rental Corp., 811 F.3d 993, 997 (7th Cir. 2016).

Rather, a jury must have a way to determine the fact underlying the requested

inference. See id. See also Harris v. Owens-Corning Fiberglas Corp., 102 F.3d 1429, 1433 (7th

Cir. 1996) (“When, at best, the possibilities are evenly balanced, the court should enter

judgment for the defendant. . . .”); Bafia v. N. Indiana Pub. Serv. Co., 993 F.2d 1306, 1309

(7th Cir. 1993) (“Reasonable inferences from the evidence are permissible, but inferences

must be reasonably supported by the evidence and cannot be mere speculation or

surmise.”) (internal citation omitted). Here, a jury would have no way of determining

whether Urban Express or TSA assembled the bicycle, and thus any determination a

jury made regarding this issue would amount to pure conjecture. 

Plaintiff has not established that TSA assembled the bicycle, and therefore has

not established that TSA owed her any duty of care with respect to the assembly of the

bicycle. Thus, TSA is entitled to judgment as a matter of law on plaintiff’s negligent

assembly claim. 

IV. CONCLUSION

For these reasons, the court:

A. GRANTS defendant TSA’s motion for partial summary judgment

(DE # 93);

B. GRANTS judgment in favor of defendant TSA, and against plaintiff, with

respect to: (1) plaintiff’s breach of warranty claims; and (2) plaintiff’s

negligent assembly claim;

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C. CLARIFIES that this case shall proceed on plaintiff’s remaining claims

for: (1) negligent inspection; and (2) strict liability;

D. GRANTS defendant TSA 30 days from the entry of this order to file any

additional dispositive motion – if defendant TSA does not file any further

motion by this deadline, the court will set this case for trial under a

separate order; and

E. DENIES plaintiff’s motion to strike as moot. (DE # 125.) 

SO ORDERED.

Date: April 10, 2018

s/James T. Moody 

JUDGE JAMES T. MOODY

UNITED STATES DISTRICT COURT

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