Breach of Duty of Care

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7^th Circuit Court of Appeals

Case Name: Robin Austin v. Walgreen Company

Case No.: 17-2629

Officials: BAUER, MANION, AND ROVNER, Circuit Judges.

Focus: Breach of Duty of Care

Robin Austin sued Walgreen Co. after she slipped and fell at a Walgreens store in northwestern Indiana, breaking her knee. A magistrate judge, presiding by consent, granted summary judgment to Walgreen. For the reasons set forth below, we affirm.

Austin argues that Walgreen had knowledge of a hazard because the store’s assistant manager admitted that when there was snow outside, as there was on the day in question, customers could track snow into the store and create potentially hazardous situations. But just because the assistant manager knew that hazards were possible does not mean that he knew they had actually materialized at the place where Austin fell. There are many potential hazards that can exist in a store like Walgreens: soda bottles can fall off a display stand and leak, glass cosmetics jars can shatter on the floor, or toys could clutter an aisle. That any of those hazards and many others could occur at any given moment probably ought to be on the mind of a person charged with managing a store, but that does not automatically impute instantaneous knowledge of when those hazards come about. The law does “not hold [a storeowner] strictly liable for a fall occurring before [it] even had a chance to remove the foreign substance from the floor.” Barsz, 600 N.E.2d at 153–54. Without evidence that Walgreen had a chance to respond to any hazard, Austin cannot establish knowledge. Austin relies on nothing but speculation to suggest that the alleged hazard existed for any significant length of time before her fall. Speculation does not defeat summary judgment.

Even if we were to accept that Austin has shown a dangerous condition, she presented no evidence that Walgreen was or should have been aware of that condition in time to address it. Consequently, she has failed to establish that Walgreen breached its duty of care. The failure to support that element of her claim dooms it.

Affirmed

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.