David, J.
In this summary judgment case we are asked to determine: 1) if there is an issue of material fact regarding whether a store had actual or constructive knowledge that a box in its store that opened at the bottom and injured a customer was defective; and 2) whether the doctrine of res ipsa loquitur can apply to these facts and circumstances. For the reasons discussed herein we answer both questions in the negative.
….
II. Plaintiffs did not meet their burden on their premises liability claim.
….
Here, Walter was a business invitee of Menard. To prevail on their premises liability claim, Plaintiffs needed to prove that Menard had actual or constructive knowledge of the dangerous condition—here the defective box. Burrell, 569 N.E.2d at 639. And pursuant to our summary judgment standard, the initial burden was on Menard to prove an absence of a genuine issue as to a material fact. Hughley, 15 N.E.3d at 1003.
With regard to the designated evidence, the record here is sparse. To affirmatively negate Plaintiffs’ claim of constructive knowledge, Menard presented the Griffins’ deposition testimony and the affidavit of general manager Brett Bahr. Bahr’s affidavit stated that Menard had no prior notice of any problem or defect with the box and, had an employee noticed any issues, they would not have placed the box on the shelf in the first place. Menard’s designated evidence also reveals that since 2000, the store manager was not aware of any defective sink boxes by the company that manufactured the sink at issue. Further, Menard does not make any changes to the boxes received by the manufacturer. Walter testified that he did not notice that the staples were coming loose on the bottom of the box.
….
While our summary judgment standard allows for even marginal cases to proceed to trial, the non-moving party must designate some evidence to defeat the moving parties’ motion. Plaintiffs’ designated evidence falls short of what is needed to create an issue of material fact as to Menard’s knowledge of the box’s defect. While they are critical of Menard’s policies and procedures, they have designated no evidence to refute the fact that Menard had no actual or constructive knowledge that the box at issue was defective. Notably, the designated evidence does not include copies of the policies and practices at issue or an employee handbook. We would be in a different situation if there was, for example, deposition testimony indicating that this type of box had opened before, that a store employee saw the staples had come loose and Menard placed the box on the shelf anyway, that the defect was something that could be identified when front facing the products, or that the staples were known to fail after a certain period of time. But those are not the facts before us. Instead, Plaintiffs offer speculation that an inspection or some other action on the part of Menard maybe could have revealed something about the box defect. However, there’s no evidence supporting that speculation and speculation is not enough to overcome summary judgment. As Plaintiffs did not meet their burden, we must affirm the trial court’s grant of summary judgment for Menard. (Plaintiffs may still proceed against the box manufacturer.)
III. Plaintiffs’ res ipsa loquitur claim fails.
….
Here, at issue is first whether this doctrine even applies to a premises liability action, and then if it does, whether it could apply under the facts of this case. As the trial court noted in its Order on Summary Judgment, in Rector v. Oliver, 809 N.E.2d 887 (Ind. Ct. App. 2004), the Indiana Court of Appeals called into question the application of the doctrine of res ipsa loquitur in a premises liability action. Specifically, after discussing the doctrine of res ipsa loquitur, the Court of Appeals stated:
Furthermore, the position adopted from the Restatement (Second) of Torts in Burrell, supra, states that 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, the conditions listed therein are met. To say that a premises owner may be liable under the doctrine of res ipsa loquitur when they could not be liable under the premises liability standard would seem to fly in the face of the standard adopted in Burrell.
Id. at 895. The panel below in this case assumed otherwise–that res ipsa could apply here without any analysis of that issue. While we do not believe that Rector completely forecloses the application of res ipsa to a premises liability action, it also makes clear that if there’s no liability under a premises liability standard, res ispa cannot apply. As such, determining the res ispa issue is necessarily dependent on whether a defendant can be liable under premises liability in the first place. Thus, Plaintiff’s res ipsa claim alone does not preclude summary judgment for Menard.
….
Nevertheless, while we disagree with our Court of Appeals panel below that assumes res ipsa applies here, we decline to hold that res ispa can never apply to a premises liability case. If an injury results from a fixture or other component that customers did not or could not disturb— such as a chandelier suspended from the ceiling, or a set of shelves bolted to the wall—and the incident would not normally occur absent negligence, res ipsa could be appropriate. See Rust v. Watson, 141 Ind. Ct. App. 59, 64-65, 215 N.E.2d 42, 44–45 (1966). We need not address that question today.
Conclusion
We affirm the trial court’s grant of summary judgment for Menard.
Rush, C.J., and Massa and Slaughter, JJ., concur.
Goff, J., dissents with separate opinion.
Goff, J., concurring in part and dissenting in part.
I take no issue with the Court’s conclusion that res ipsa loquitur does not apply here. However, I part ways with the Court in its decision that the Griffins failed to meet their burden on their premises-liability claim. While acknowledging that “our summary judgment standard allows for even marginal cases to proceed to trial,” the Court insists that “the non-moving party must designate some evidence to defeat the moving parties’ motion.” Ante, at 5–6. And the evidence designated by the Griffins, characterized by the Court as mere “speculation,” ostensibly “falls short of what is needed to create an issue of material fact as to Menard’s knowledge of the box’s defect.” Id. at 6. Contrary to this conclusion, the record here, in my view, sufficiently presents a genuine issue of material fact of whether Menard had constructive knowledge of the faulty box for liability to attach. And even if the Griffins appear unlikely to prevail at trial, that’s a question for the jury—not for this Court—to decide. Because the trial court, in my view, improperly granted summary judgment and deprived the Griffins of their constitutional right to a jury trial, I would reverse and remand for reconsideration of their premises liability claim.
Discussion
Part I of this opinion explains why, in my view, the Court departs from a faithful application of Indiana’s summary-judgment standard. Part II, in turn, explains why, under our summary-judgment standard, a jury— rather than this Court—should decide whether Menard had constructive knowledge of the defective box.
I. The Court’s opinion departs, in my view, from Indiana’s summary-judgment standard.
…..
II. A jury should decide whether Menard had constructive knowledge of the defective box.
….
A. The lack of evidence showing that Menard followed its policies and practices presents a material-fact issue of its constructive knowledge.
….
B. Walter’s failure to notice a defect in the box didn’t relieve Menard of its duty to exercise reasonable care.
….