Dunn v. Wal-Mart Stores, Inc.
MEMORANDUM OPINION & ORDER: Plaintiff has proved neither breach or causation. As such, her claim against Wal-Mart fails as a matter of law. Accordingly, IT IS HEREBY ORDERED that Defendant Wal-Mart Stores East, L.P.'s Motion for Summary Judgment DE 20 be SUSTAINED. A Judgment in favor of the Defendant will be entered contemporaneously herewith. Signed by Judge Henry R. Wilhoit, Jr on 6/15/17.(KSS)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
Civil Action No. 16-33-HRW
MEMORANDUM OPINION AND ORDER
WAL-MART STORES, EAST, LP,
This matter is before the Court upon Defendant Wal-Maii Stores East, LP's Motion for
Summary Judgment [Docket No. 20]. The matter has been fully briefed [Docket Nos. 20-l. 24
and 27]. For the reasons set forth herein, the Court finds that Defendant is entitled to judgment
as a matter of law.
This case arises from a trip-and-fall which occurred at the Wal-Maii in Cannonsburg,
Kentucky on October 28, 2014 [Docket No. 1-2, Complaint, iJ7l. Plaintiff alleges that on that
day, she was shopping at the Wal-Mart and fell on the concrete sidewalk outside of the store's
Tire and Lube Express Department. Specifically, she maintains that she tripped over an uneven
sidewalk expansion joint [Docket No. 20-2, Deposition of Plaintiff, pg. 62).
In her deposition,
Plaintiff testified that she did not see her foot catch on anything before she fell. Id.. Instead, she
was looking straight ahead when she tripped and fell. Id. at 74. She did not see any uneven
portion of the sidewalk until after she fell. Id. at 71. Once she fell, she claims the uneven
sidewalk was easy to see and obvious. Id. at 71-72. Further, she stated that sees expansion joints
like this all the time, although she walks around them. Id. at 74. She previously has encountered
expansion joints, concrete slabs, or pieces of pavement coming together, like she saw after
falling, and she expects to see this type of thing when walking outside. Id. at 70-71.
Plaintiff claims to have suffered significant injmy resulting from the fall, to the extent
that she underwent knee surgeiy [Docket No. 1-2, il 8].
Plaintiff sued Wal-Mart for negligence in Boyd Circuit Court, seeking payment of medical
expenses, lost wages, and damages for her pain and suffering and her impaired capacity to earn
The case was removed to this Court upon the basis of diversity jurisdiction. See 28
U.S.C. § 1332.
Defendant now seeks summary judgement, arguing that Plaintiff has failed to bring forth
any evidence that Wal-Mart breached a duty to her or caused the accident.
Summary judgment is appropriate when "the pleadings, discovery and disclosnre
materials on file, and any affidavits show that there is no genuine issue as to any material fact and
that the movant is entitled to judgement as a matter of law." Fed.R.Civ.Proc. 56( c)(2); Celotex
Corp. v. Catrett, 477 U.S. 317, 323-325 (1986).
The moving party bears the initial burden of demonstrating the basis for its motion and
identifying those parts of the record that establish the absence of a genuine issue of material fact.
Chao v. Hall Holding Co., Inc., 285 F.3d 415, 424 (6th Cir.2002). The movant may satisfy its
burden by showing "that there is an absence of evidence to support the non-moving party's case."
Celotex Co1p., 477 U.S. at 325. Once the movant has satisfied this burden, the nonmoving party
must go beyond the pleadings and come fmward with specific facts to demonstrate there is a
genuine issue in dispute. Hall Holding, 285 F.3d at 424 (citing Celotex Corp., 477 U.S. at 324).
The Court must then determine "whether the evidence presents a sufficient disagreement
to require submission to a jmy or whether it is so one-sided that one party must prevail as a
matter of law." Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1310 (6th
Cir.1989). In making this determination, the Court must review the facts and draw all reasonable
inferences in favor of the non-moving party. Logan v. Denny's, Inc., 259 F.3d 558, 566 (6th
Cir.200 I). Summary judgment is inappropriate where there is a genuine conflict "in the evidence,
with affirmative support on both sides, and where the question is which witness to believe." Id.
To prevail on a negligence claim under Kentucky law, the plaintiff must prove that the
defendant I) owed the plaintiff a duty of care, 2) the defendant breached the standard of care by
which his or her duty is measured, and 3) that the breach was the legal causation of the
consequent injmy. Pathways, Inc. v. Hammons, 113 S.W.3d 85, 88-89 (Ky.2003). The failure to
establish the existence of any one of these elements is fatal to a negligence claim. M & T Chemicals,
Inc. v. Westrick, 525 S.W.2d 740, 741 (Ky. 1974).
With respect to the first element, that of duty, it is well established that Wal-Mart owes a
duty to its customers to maintain its premises in a reasonably safe condition as well as an
affirmative duty to reasonably inspect its premises in order to discover and remedy potentially
dangerous conditions or otherwise warn its customers of such conditions. Lanier v. Wal-Mart
Stores, Inc., 99 S.W.3d 431, 433 (Ky. 2003). The duty is one of ordinary care, and does not
require Wal-Mmt to keep its premises absolutely safe. Id. A store owner is not an insurer of its
customers' safety and he is not absolutely liable to his customers. Id.
Included in the record of this case is a video of Plaintiff's fall, which was taken by the
store's camera system.
Also in the record are photographs taken by Plaintiff, subsequent to the
incident.' Although it is apparent there is a slight elevation in the sidewalk due to the expansion
joint, there appear to be no defects in the sidewalk, which begs the question, is the existence of
the expansion joint evidence of negligence? Plaintiff's own testimony belies any argnment that
the expansion joint presented an unreasonably dangerous condition; she conceded that not only
has she encountered expansion joints in the past she "expects to see like things" and usually
"walks around them." [Docket No. 20-2, Deposition of Plaintiff, pg. 70, 74].
In the context of premises liability, Kentucky comts have consistently deemed step-ups or
step-downs not to be conclusive evidence of negligence in the absence of some other
exacerbating factor, such as dim or dark conditions, defects in the strncture or some attempt to
cover or conceal the change in elevation. For example, in J. C. Penney Co. v. Mayes, 255
S.W.2d 639 (Ky. 1952), Plaintiff Mayes fell when stepping off a sidewalk into J.C. Penney's
vestibule. The sidewalk was 3\1, to 4 inches higher than the vestibule. The court held that because
the step-down and vestibule were in good repair and in plain view, it was reasonably safe. The
Plaintiff returned to the store after she fell in order to take photographs of the area where she believes she
fell. Id. at 65-67; see Plaintiff's photographs, attached as Exhibit 9 to Defendant's motion. Plaintiff testified that she
believes she fell in the area marked between the two "Xs." Id. Wal-Mart docs not believe this is where Plaintiff fell.
Ho\vever, this area, like the area in the video, clearly sho\vs no defect in the sidc\valk.
It has been uniformly held that merely because a step-up or a stepdown, or a flight of steps up and down, is maintained at the
entrance to a store building, this in itself is no evidence of
negligence, if the step or steps are in good condition and in plain
view .... It is a matter of common observation that the entrance to
or exit from buildings employed for eve1y conceivable purpose
often adjoin surfaces that are frequently at different levels as
compared with these buildings, so that this variance has to be
overcome by one or more steps of greater or less height, and
property owners have a right to construct their buildings in this
manner in reliance on this common observation and assume that
those who may frequent their buildings will exercise ordinmy
circumspection to their footing.
Id. at 641-642.
In this case, the elevation was less than the almost 4-inch drop deemed safe in Mayes. As
in Mayes, the expansion joint encountered by Plaintiff was not an out-of-the-ordina1y obstacle,
but one that is often present in public spaces. Plaintiff herself conceded as much. There is
nothing in the record which suggests the expansion joint was not in good repair or otherwise
Also illustrative is Spears v. Robert A. Schneider, d/bla Sweet Tooth Candies; and
Cincinnati Ins. Co., No. 2012-CA-000065-MR, 2015 Ky. App. Unpub. LEXIS 308 (Ky. App. May
8, 2015). The alleged hazard at issue in Spears was "a level step from a business onto an unlevel
city sidewalk." Id. at *7. The Kentucky Court of Appeals found the hazard to be "hardly
Unless we are able to eliminate hills in our towns and cities, it will
be a hazard business patrons must forever negotiate. This step to
the city sidewalk is not unlike the examples given in Shelton of an
open-an-obvious [sic] hazard that does not create an unreasonable
risk - "a small pothole ... steep stairs leading to a place of
business; or perhaps even a simple curb." Id. at 914. The steps
were well maintained, well-lit, and a handrail was available. We
cannot imagine what more Sweet Tooth could have done to
eliminate this hazard.
The court concluded that no reasonable person would find the steps an unreasonable risk
to invitees. Id. at *9. The court found the risk was obvious to a reasonable person and would be
"safely descended by anyone who was minimally attentive and utilizing practical faculties of
observation and simple powers of ambulation." Id. "Absent an unreasonable risk, there is no
breach." Id. at* l 0.
The expansion joint in this case is similar to the steps and sidewalk in Spears in that an
expansion joint on a sidewalk is "hardly uncommon" and does not constitute an unreasonable
risk to an invitee.
A Wal-Mart shopper who is "minimally attentive" and using her "practical
faculties of observation" and "simple powers of ambulation" while walking across it does not
face an unreasonable risk.
Finally, the Court is mindful that the video and photographs show that the expansion joint
was clearly visible to the naked eye. Nor is there evidence that anyone or anything blocked
Plaintiffs view. The unobstrncted nahll'e of the sidewalk, coupled with Plaintiffs testimony
that she had encountered expansion joint before, absolve Wal-Mart from an obligation to warn its
customers of the existence of the expansion joint or somehow anticipate that harm may befall
them. As Judge Reeves noted in Sturgeon v. Wal-Mart, 2009 WL 2914416 (E.D. Ky. 2009),
"[a]cccpting such an argument under the facts of this case would essentially require Wal-Mart to
become absolutely liable to all customers for nearly all injuries occurring on its property. Such is
not required under applicable Kentucky law.
An ordinary sidewalk with an expansion joint is not an unreasonably dangerous condition
and does not create an unreasonable risk. The pavement is typical and ordinary; it is not an
unreasonable risk to be avoided or minimized. Thus, Wal-Mart did not breach its duty to
maintain its premises in a reasonably safe condition and is entitled to judgment as a matter of
Although Plaintiffs claim fails at the first element of a negligence case, the evidence in
this case also establishes that she could not successfully establish that Wal-Mart's acts or
omissions were "a substantial factor" in causing her injuries; The "mere possibility of such
causation is not enough." Texaco, J11c. v. Standard, 536 S.W.2d 136, 138 (Ky. 1975). Plaintiff
must establish causation beyond "pure speculation and conjecture." Id.
Kentucky courts have routinely held plaintiffs to be negligent, and store owners not
liable, when the plaintiffs injuries were caused by her failure to exercise ordinaiy care. See, e.g.
Rogers v. Professional Golfers Ass'n of Am., 28 S.W.3d 869 (Ky. App. 2000) (finding premises
owner not liable for fall where invitee knew it had previously rained and should have known the
hill-side was wet); Humbert v. Audobon Counlly Club, 313 S.W.2d 405, 407 (Ky. App. 1958)
(plaintiff found negligent due to a lack of care because he was not paying attention where he was
walking); J C. Penney Co. v. 1\1ayes, 255 S.W.2d 639 (Ky. 1952)(store not liable for injuries
customer "brought upon herself by her lack of ordinary care for her safety" when she failed to
realize where she was going and fell on a four inch step).
It is axiomatic than an invitee must generally observe the surface upon which she walks.
Humbert at 407.
Plaintiff has proved neither breach or causation. As such, her claim against Wal-Mart
fails as a matter of law.
Accordingly, Accordingly, IT IS HEREBY ORDERED that Defendant Wal-Mart
Stores, East, L.P.'s Motion for Summary Judgment [Docket No. 20] be SUSTAINED.
Judgment in favor of the Defendant will be entered contemporaneously herewith.
/:;;;#day of June, 2017.
Henrv R. WJ!holt. Jr.
United States Ol11trlot JudQGl
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