By Houston Hum, Esq.

Can an Indiana premises liability plaintiff properly sue a store’s general manager for negligence, thereby preventing removal of the action to federal court?  In its April 7, 2021 opinion in David Branscomb and Tammy Branscomb v. Wal-Mart Stores East, L.P. and James Clark, the Indiana Supreme Court said no, if the store manager lacked control over the premises where the plaintiff was injured.  The supreme court’s holding not only invalidated the Branscombs’ claims against Clark, but it also likely enables Walmart to remove the lawsuit removable to federal court where there is a more defendant-friendly summary judgment standard.  Practically, the supreme court’s opinion obstructs (although does not entirely block) one potential avenue for a premises liability plaintiff to destroy federal court jurisdiction over matters where it would otherwise exist.

Plaintiffs often prefer to file premises liability lawsuits in one of Indiana’s state courts, as opposed to federal court, due to the more plaintiff-friendly state court summary judgment standard.  But absent a case involving a question of federal law, federal courts only have jurisdiction over matters where the plaintiff and all defendants are citizens of different states and where an amount in controversy threshold is met.

In 2019, Plaintiff David Branscomb tripped and fell at a Wal-Mart retail store.  He and his wife sued Walmart and its store manager, Clark, in Indiana state court seeking damages for personal injuries.  While Walmart was not an Indiana citizen, Clark was.  The Branscombs alleged

The injuries and damages sustained were the responsible result of the carelessness and negligence of Defendant, Jim Clark, for failing to properly hire, train, and supervise Walmart’s employees, failing to have and/or implement property safety policies and procedures and for failing to properly inspect and maintain the property in a safe condition.

Defendants sought to remove the case to federal court and asserted the Branscombs “fraudulently” sued Clark solely to destroy federal court jurisdiction.   Defendants submitted Clark’s Affidavit wherein he stated that he “was neither working nor physically present” on the day of the incident, and “does not have the individual discretion to unilaterally determine safety policies or procedures for the store, but rather is given and follows the directives and instructions by managers from higher up the Walmart corporate ladder.”  Noting that there was never before an Indiana case where a plaintiff sued a non-diverse store manager who played no personal or direct role in the plaintiff’s injury, the federal court issued an order seeking the Indiana Supreme Court’s guidance in resolving the issue of whether Clark could be liable as a defendant where he did not have any involvement in Plaintiff’s injuries. 

The supreme court determined none of the Branscombs’ negligence theories against Clark were viable.  First, it held that the torts of negligent hiring, training, and supervision applies only to an employer, not to an employee.  Second, it found the allegation that Clark failed to have and/or implement proper safety policies and procedures failed because there was no evidence Clark had anything to do with the creation of Walmart’s safety procedures.  Third, the court said that only a possessor of premises can be liable for failing to inspect and maintain it, and therefore Clark could not be personally liable under such a theory.

As Indiana courts have done for many years, the supreme court focused on the issue of control over the premises when determining who could be liable to the Branscombs.  The court was careful not to preclude the possibility that a situation might arise where a store manager could be directly liable to a plaintiff for failure to maintain the premises, but such would require evidence of the store manager’s control over the premises.

Ultimately, the supreme court’s opinion makes it more difficult for premises liability plaintiffs who have no viable claim against a premises owner’s Indiana-based contractor to sue the store’s general manager (who is often easily identifiable via a basic internet search) in an effort to preclude federal court jurisdiction.

If you would like a full copy of the opinion or if you have any other questions relating to premises liability or federal court jurisdiction, please feel free to contact one of Reminger’s Retail, Hospitality & Entertainment Practice Group members.

This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.

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