                               In the

     United States Court of Appeals
                 For the Seventh Circuit
No. 14-1634

CAROL ANN MAURER,
                                                Plaintiff-Appellant,

                                 v.


SPEEDWAY, LLC, #5487,
                                               Defendant-Appellee.

          Appeal from the United States District Court for the
           Northern District of Indiana, South Bend Division.
No. 3:12-cv-00704-CAN—Christopher A. Nuechterlein, Magistrate Judge.


 ARGUED SEPTEMBER 16, 2014 — DECIDED DECEMBER 23, 2014


   Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.
   BAUER, Circuit Judge. This appeal is from a judgment
entered on a jury verdict in favor of defendant-appellee,
Speedway, LLC (“Speedway”). Plaintiff-appellant, Carol Ann
Maurer (“Maurer”), instituted a premises liability action
against Speedway in Indiana state court for personal injuries
sustained when she fell outside a Speedway gas station
convenience store while trying to maneuver around a retail
display of windshield washer fluid. Speedway removed the
2                                                     No. 14-1634

case to the United States District Court for the Northern
District of Indiana on the basis of diversity of citizenship. Prior
to trial, the district court granted a motion in limine filed by
Speedway, excluding as evidence a municipal ordinance which
Maurer sought to introduce at trial in order to prove Speedway
had notice that its retail display created an unreasonably
dangerous condition by narrowing the adjacent walkway
down to a width of 24 inches. The sole issue Maurer raises on
appeal is whether the district court erroneously excluded
the municipal ordinance. For the reasons set forth below, we
affirm.
                      I. BACKGROUND
     On the afternoon of October 17, 2011, Maurer left her home
to visit a nearby Speedway gas station convenience store. She
had been to that Speedway store many times before; it was
where she regularly purchased gasoline for her car. After
parking in front of the store, Maurer walked along the side-
walk to the store’s front entrance. A permanent retail display,
which housed windshield wiper fluid at the time, sat on the
sidewalk to the left of the double door entrance and narrowed
the adjacent walking area to a width of 24 inches. As Maurer
approached the entrance, she saw the display, stepped around
it, and walked down the narrowed length of sidewalk. As she
neared the end of the narrowed path she rolled her ankle off
the sidewalk curb and fell, seriously injuring her left shoulder.
    On July 16, 2012, Maurer filed a complaint for damages
against Speedway in Indiana state court. The complaint alleged
that Maurer slipped and fell and sustained physical injuries as
a result of the carelessness and negligence of Speedway. The
No. 14-1634                                                     3

district court conducted a pre-trial conference and set the
deadline to complete discovery for July 15, 2013.
    Five days prior to the close of discovery, Maurer informed
Speedway via email that she was amending her witness list to
include the City of South Bend Building Commissioner to
authenticate “the City building code that incorporates the
OSHA requirement for an unobstructed sidewalk of at least
36 inches.” Five days later, on the close of discovery, Maurer
filed her final list of witnesses and exhibits, which included the
South Bend Building Commissioner, who would testify
regarding the city building code, and an exhibit described:
“Portion of the City of South Bend Building Code concerning
unobstructed sidewalks.” Maurer did not provide any further
details regarding the building code provision until the pre-trial
conference, 15 days before trial, when she gave Speedway a
copy of South Bend Municipal Code Article 2 § 6-5(a)(1)(b) (the
“Ordinance”). The Ordinance incorporates the Indiana
Administrative Code (“IAC”), which incorporates the Ameri-
can National Standard Institute (“ANSI”) requirements for
accessible and usable buildings, specifically ANSI A117.1-2003.
Chapter 4 of the ANSI requirements, entitled “Accessible
Routes,” provides at § 403.5 that the clear width of an accessi-
ble route shall comply with Table 403.5. Table 403.5 includes
an illustration of a person in a wheelchair on a walkway and
requires that an accessible route more than two feet in length
must have a minimum width of 36 inches.
   Speedway promptly filed a motion in limine to exclude the
Ordinance from evidence at trial. The district court granted
Speedway’s motion and denied Maurer’s motion to reconsider
that ruling. The court excluded the evidence as irrelevant on
4                                                           No. 14-1634

the ground that nothing in the complaint alleged a violation of
the Ordinance and Maurer did not identify any discovery that
suggested that theory either. The district court further deter-
mined that, even if relevant, the Ordinance should be excluded
under Rule 403 because “springing the issue” on Speedway
only a few weeks before trial unfairly prejudiced Speedway.
The court also refused to take judicial notice of the Ordinance
due to its lack of relevance and its potential to confuse the jury
absent a witness to explain its application.
    Trial began on February 18, 2014, and concluded the
following day. At trial, Bronson Weaver, the Speedway store
manager, testified that the retail display had been in the same
location for approximately a year and a half to two years, and
that the store had not received any complaints about the
display or reports of injuries from customers falling off the
curb near the display. Another store employee, Patrick Emig,
testified that he was not aware of any complaints or injuries
related to the retail display and that Speedway painted the
sidewalk curb in front of the display yellow to “signify
caution.”
    Outside the presence of the jury, Maurer’s counsel tendered
to the district court a proposed instruction on the Ordinance;1


1
  Maurer’s proposed instruction: “When the events in this case happened
South Bend Municipal Code Article 2, Section 6.5 (a)(1)(b) provided in part
as follows:

        The City of South Bend Building Ordinance incorporates
        the Indiana Building Code that incorporates the American
                                                           (continued...)
No. 14-1634                                                                 5

the court recognized the instruction and rejected it. Maurer
then made an offer of proof that, if allowed to call the City of
South Bend Building Commissioner, he would certify that the
Ordinance provides that a walking surface that is part of an
accessible route to a building in the City of South Bend that is
more than two feet in length must have a clear width of at least
36 inches. The jury returned a verdict in favor of Speedway.
The verdict was entered as a final judgment on February 21,
2014. This appeal followed.
                             II. DISCUSSION
    The sole issue presented for review is whether the district
court erroneously excluded the Ordinance from evidence. We
review a district court’s evidentiary ruling for abuse of
discretion. Under this standard, “‘we will not find error unless
the court’s decision was based on an erroneous conclusion of
law or the record contains no evidence on which the court
rationally could have based its decision … .’” Mister v. North-
east Ill. Commuter R.R. Corp., 571 F.3d 696, 698 (7th Cir. 2009)
(quoting Young v. James Green Mgmt., Inc., 327 F.3d 616, 621


1
    (...continued)
           National Standards Institute that provides that a walking
           surface that is part of an accessible route to a building that
           is more than two (2) feet in length must have a clear width
           of at least thirty-six (36) inches.

          If you decide from a greater weight of the evidence that
          Defendant Speedway violated South Bend Municipal Code
          Section 6.5 (a)(1)(b), and that the violation was not ex-
          cused, then you must decide Defendant Speedway was at
          fault.”
6                                                    No. 14-1634

(7th Cir. 2003)). And, even in the face of error, we will not
reverse a judgment entered on a jury verdict unless the
erroneous ruling violated the objecting party’s substantial
rights. Smith v. Hunt, 707 F.3d 803, 808 (7th Cir. 2013). “To meet
that threshold, a significant chance must exist that the ruling
affected the outcome of trial.” Id.
    The district court excluded the Ordinance under Federal
Rules of Evidence 401 and 403. The court determined that the
Ordinance was not relevant to any material issues raised in the
case since it was not pleaded in Maurer’s complaint or other-
wise identified during discovery. Maurer insists that this
ruling constitutes an error of law. According to Maurer, the
Ordinance was relevant because it tended to show that
Speedway was on notice that its retail display created an
unreasonable risk of harm by narrowing the width of the
adjacent walkway to 24 inches. Since we conclude that the
Ordinance was not relevant to Maurer’s cause of action, we
need not address the district court’s unfair prejudice determi-
nation. See Fed. R. Evid. 402.
    Because we are sitting in diversity, we apply Indiana
substantive law. See Blood v. VH-1 Music First, 668 F.3d 543, 546
(7th Cir. 2012) (noting that in diversity cases, state substantive
law applies). Under Indiana law, the violation of a statute or
ordinance constitutes evidence of a defendant’s negligence
only if “the statute or ordinance is intended to protect the class
of persons in which the plaintiff is included and to protect
against the risk of the type of harm which has occurred as a
result of its violation.”Kho v. Pennington, 875 N.E.2d 208,
212–13 (Ind. 2007). Speedway insists that the Ordinance was
intended to protect people in wheelchairs because the relevant
No. 14-1634                                                   7

portion of the incorporated ANSI standard is titled “Accessible
Routes” and includes an illustration of a person in a wheel-
chair on a diagram of an accessible route. Speedway argues
that the Ordinance is irrelevant because Maurer does not
belong to the class of persons it was intended to protect.
Maurer contests Speedway’s interpretation on the ground that
nothing in the Ordinance limits its applicability to people in
wheelchairs.
    Even a cursory review of the relevant provisions reveals
that Speedway is in the right. South Bend Municipal Code
Article 2 § 6-5(a)(1)(b) incorporates by reference Article 13 of
Title 675 of the Indiana Administrative Code, which incorpo-
rates ANSI A117.1-2003 by reference. ANSI A117.1-2003
provides at Chapter 4 § 403.5 that a walkway greater than two
feet in length must be at least 36 inches wide in order to
comply with the standards of an “accessible route.” The stated
intent of the ANSI standards is to “allow a person with a
physical disability to independently get to, enter, and use a
site, facility, building, or element.” American National Stan-
dard Institute, Accessible and Usable Buildings and Facilities
2003 1 (2004). Specifically, the technical criteria adopted in
Chapters 3 through 9 (i.e., including Chapter 4, the relevant
Chapter here) of ANSI A117.1-2003 was designed to make
buildings accessible to people with physical disabilities, such
as “the inability to walk, difficulty walking, reliance on
walking aids, blindness and visual impairment, deafness and
hearing impairment, incoordination, reaching and manipula-
tion disabilities, lack of stamina, difficulty interpreting and
reacting to sensory information, and extremes of physical size.”
Id. Though true, as Maurer points out, that nothing in the
8                                                      No. 14-1634

Ordinance or its sparse legislative history expressly limits the
applicability of the incorporated ANSI standard to physically
disabled persons, we think it would be remarkable if we held
that South Bend officials sought to transform what is plainly
meant to protect disabled persons into one protecting the
general public; absent some indication to the contrary, we
decline to discern such an intent. Because Maurer was neither
disabled nor confined to a wheelchair, she does not fall within
the class of persons that the Ordinance and incorporated ANSI
standard was intended to protect. See Rising Moore v. Red Roof
Inns, Inc., 368 F. Supp. 2d 867, 870–71 (S.D. Ind. 2005) (exclud-
ing expert report regarding ANSI A117.1 as irrelevant to
plaintiff’s negligence action, in part, because plaintiff was not
disabled). For this reason, the Ordinance was properly ex-
cluded as irrelevant and we need not determine whether it had
to be pleaded in the complaint or otherwise identified during
discovery.
    Moreover, the parties do not dispute Maurer’s status as an
invitee and that Speedway thus owed Maurer a duty of
reasonable care. As stated by the Indiana Supreme Court, a
land owner is liable to harm caused to an invitee by a condition
on the land only if the landowner: (1) knows of or through the
exercise of reasonable care would discover the condition and
realize that it involves an unreasonable risk of harm to such
invitee; (2) should expect that the invitee will fail to discover or
fail to protect against it; and (3) fails to exercise reasonable care
in protecting the invitee against the danger. Douglas v. Irvin,
549 N.E.2d 368, 370 (Ind. 1990) (quoting Restatement (Second)
of Torts § 343 (1965)). Accordingly, the district court instructed
the jury as follows:
No. 14-1634                                                    9

     To recover damages from Speedway, LLC, Carol
     Ann Maurer must have proven each of the following
     by the greater weight of the evidence:
       (1) Carol Ann Maurer was injured as a result of
       a condition on the property; and
       (2) Speedway, LLC:
          (a) knew that the condition existed and
          realized that it created an unreasonable
          danger to customers, or should have
          discovered the condition and its danger;
          (b) should have expected that the custom-
          ers would not discover or realize the
          danger of the condition, or would fail to
          protect themselves against it; and
          (c) failed to use reasonable care to protect
          the customers against the danger.
    The undisputed facts on record do not suggest that Speed-
way should have expected that customers would not discover
the danger, or would fail to protect themselves against it. This
is an objective standard, focusing on whether a reasonable
person would realize the danger and protect himself or herself
from the danger. Smith v. Baxter, 796 N.E.2d 242, 244 (Ind. 2003)
(explaining the court must apply an objective standard when
assessing the landowner’s duty); Salima v. Sherwood South, Inc.,
38 F.3d 929, 932 (7th Cir. 1994). A customer of reasonable
prudence would readily observe the retail display and corre-
sponding narrowed walkway (indeed, Maurer did here). A
customer of reasonable prudence would also understand the
10                                                  No. 14-1634

risks associated with traversing a narrowed walkway and
protect against such risk by either taking extra precaution or
opting for a different route of ingress. Maurer alleges nothing
out of the ordinary about the conditions of the retail display or
sidewalk that led to her fall (and which, hypothetically, could
lead to a non-obvious condition). In a nutshell, the retail
display presented an open and obvious condition. The retail
display had been stationed in the same location for approxi-
mately a year and a half to two years and Speedway had never
received a complaint about the display or reports of injuries
from customers falling off the curb near the display. Even
more, Speedway painted the sidewalk curb in front of the
display yellow to signify caution. Consequently, Speedway
had no reason to anticipate that Maurer would not discover the
condition and protect herself against it just as every other
customer apparently did, nor did Speedway fail to exercise
reasonable care.
                     III. CONCLUSION
   For these reasons, the judgment entered below on behalf of
Speedway is AFFIRMED.
